Terms of reference and conduct of the
On 15 August 2017 the Senate referred the following matter to the Senate
Legal and Constitutional Affairs References Committee (the committee) for
inquiry and report by 25 November 2017:
recommendations of the 1987 Australian Law Reform Commission report on contempt
and, in particular, the recommendation that the common law principles of
contempt be abolished and replaced by statutory provisions;
- the recommendations of the 2003
New South Wales Law Reform Commission on contempt by publication and the need
to achieve clarity and precision in the operation of the law on sub-judice
- the development and operation
of statutory provisions in Australia and overseas that codify common law
principles of contempt;
- the importance of balancing
principles, including freedom of speech and expression, the right of fair trial
by an impartial tribunal, public scrutiny of the operations of the court system
and the protection of the authority, reputation and due process of the courts;
- any other related matters.
In accordance with usual practice the committee advertised the inquiry
on its webpage, and also wrote to a number of organisations and individuals
inviting written submissions by 31 October 2017. The committee received six
submissions, listed at Appendix 1.
Australian Law Reform Commission report
On 7 April 1983, the Australian Law Reform Commission (ALRC) was referred
an inquiry which sought to consider the following forms of contempt:
improper behaviour in court;
attempting to influence
participants in proceedings;
failing to comply with a court
order or an undertaking given to a court; and
contempt by publication...
In June 1987 the ALRC tabled its final report, Contempt, which
made 124 recommendations. The key recommendations, as outlined by the ALRC, are
listed at Appendix 2 of this report. In essence, the ALRC recommended that the
common law principles of contempt be abolished and replaced by statutory
provisions which would govern all Federal Courts except the High Court of
Additionally, while the report was focused on contempt at the Commonwealth
level, it noted that most of its recommendations 'were suitable for use by
state and territory governments.'
New South Wales Law Reform Commission
On 14 July 1998, the Law Reform Commission of New South Wales (NSWLRC) was
asked to inquire into the law of contempt by publication. Specifically, the
terms of reference were:
To inquire into, and report on, whether the law and
procedures relating to contempt by publication are adequate and appropriate,
including whether and in what circumstances, a person against whom a charge of
contempt is found proven should be liable to pay, an addition to any criminal
penalty, the costs (of the government and of the parties) of a criminal trial
aborted as a result of the contempt.
The report, Contempt by publication, was published in June 2003
and subsequently tabled in the NSW Parliament on 16 September 2003. The committee
made 39 recommendations which are listed at Appendix 3. The report noted that
to codify contempt by publication, while leaving the common law to regulate
other forms of contempt, would not have the effect of achieving clarity over
the operation of contempt laws.
However, the report recommended significant legislative reform in the area of
contempt by publication, 'while allowing the common law to continue to
Codification of the law of contempt
The views of submitters relating to whether or not contempt laws should
be codified were mixed. The Legal Service's Commission of South Australia (LSC)
supported the codification of contempt laws arguing that this would achieve
greater clarity for defendants and consistency in the manner in which sanctions
were being imposed.
The LSC made the following suggests if contempt laws were to be codified:
that a catch all provision be included in the definition of
contempt so that unforeseen incidents of contempt are not excluded;
that contempt in the Family Courts take into account its unique
role and be tailored to its unique priorities, such as the welfare of children;
if contempt is to be dealt with entirely in the criminal courts,
then it should not be dealt with summarily and the defendant have the right to
request the matter be heard by a different judicial officer.
The Law Council of Australia (Law Council), expressed the view that
contempt laws currently operate 'satisfactorily', although it was not opposed
to the codification of contempt laws in line with the recommendations of the
ALRC and the NSWLRC reports.
However, in noting its broad support for the codification of the law of
contempt, the Law Council explained the importance of retaining certain
principals such as flexibility and freedom of expression:
Despite its support for efforts to codify rules of contempt,
the Law Council is conscious of the special role contempt plays in the judicial
system and considers it to be critical that any measures to codify the law of
contempt retain as much flexibility and discretion as possible to allow
judicial officers to appropriately deal with issues arising from contempt of
court on a case-by-case basis.
The nature of contempt demands a complex balancing of
interests, most notably between freedom of expression on one hand and the
integrity of the justice system on the other. In this regard, the Law Council
emphasises the need for reform proposals to remain cognisant of the fundamental
importance of the administration of justice and the contribution made by the
law of contempt to preserving this. The reform proposals must also avoid unduly
infringing principles of freedom of expression and open justice.
Should reforms to the law of contempt proceed, the Law Council made the
- Any reform to the
laws of contempt should be co-ordinated between the Commonwealth and the States
to achieve uniformity;
- The recommendations of the ALRC that common law principles
of contempt be recast as criminal offences should be implemented, to the extent
that they do not already overlap with the criminal law;
- The recommendations of the ALRC that contempt in the face
of the court be replaced with a series of criminal offences to be tried
summarily should be implemented;
- The recommendations of the ALRC that civil contempt be
replaced with a statutory regime of non-compliance proceedings should be
- A "substantial risk" test proposed by the NSWLRC
should be uniformly implemented in relation to contempt by publication;
- Summary trial procedures for sub-judice contempt should be
- The public interest defence recommended by the NSWLRC in
relation to contempt by publication should be implemented;
- The law of contempt by publication should be reviewed to
ensure that it applies to circumstances where an Internet Service Provider or
Internet Content Host has been made aware of the material but, thereafter,
fails or refuses to remove it.
The Law Council also recommended that they be consulted prior to any
reforms relating to the law of contempt being introduced.
The NSW Office of the Director of Public Prosecutions (ODPP) did not
comment on the recommendations of the ALRC's report, however, stated that it
'supports the development of uniform statutory provisions governing the law of
sub judice contempt.'
The ODPP noted that since the NSWLRC's report of 2003, social media platforms
such as Facebook and Twitter were launched, which have significantly changed
the media landscape, including in the manner and form in which media is being
As such, the ODPP suggested that '[t]he proposed legislation will need to take
account of the changing media environment to ensure that all manner of
publications are covered by the sub judice provisions, including the new and
emerging social media platforms.'
While the International Commission of Jurists Victoria (ICJ) described
the NSWLRC's report as 'an extremely useful and comprehensive tool in
discerning the relevant issues with respect to contempt by publication laws...',
it argued against the broad codification of contempt laws.
The ICJ disagreed with criticism that the laws of contempt were difficult to
determine and potentially lacking in procedural fairness.
It noted that the flexibility of the current law allows the courts to
appropriately tailor their responses and that courts have shown that they are
able to apply their powers in a 'fair and nuanced way'.
Finally, the ICJ argued that it was essential that courts are able to initiate
contempt proceedings on their own motion as this is vital to the exercise of
A couple of submitters did not offer a view as to whether or not the law
of contempt should be codified, however made the following observations:
the right to freedom of expression and the right to have a fair
hearing can sometimes compete with one another but freedom of expression should
not be misused to prejudice the prospects of a person obtaining justice before
that the point of view and lore of Australia's Aboriginal and
Torres Strait Islander people be considered.
The committee thanks all organisations and individuals who made submissions
to this inquiry, though it notes that the number of submissions received is far
lower than it had anticipated. Having received such limited input, the
committee does not feel that it is in a position to properly inquire into this
complex issue, or to form a considered view as to whether the laws of contempt
should be codified. However, having regard to the important and considered
views expressed in the submissions received, the committee recommends that the
submissions be referred to any future Senate inquiry into contempt.
The committee recommends that the submissions received to this inquiry
be referred to any future Senate inquiry into contempt.
Senator Louise Pratt
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