8.1 A publication may have a tendency to cause prejudice to proceedings, but may be found not to amount to a contempt, on the basis that it:

• relates to a matter of public interest, or promotes the public interest in some other way (though these factors alone are not sufficient to warrant exemption from liability); or
• is a fair and accurate report of proceedings held in open court, or, possibly, a fair and accurate report of parliamentary proceedings.¹

OVERVIEW OF THE PUBLIC INTEREST PRINCIPLE

8.3 A person or organisation may avoid liability for contempt for a publication that relates to a matter of public interest. In this situation, the publication is found to have a sufficient tendency to prejudice particular legal proceedings to attract sub judice liability, but the detriment arising from this possible prejudice is outweighed by the public interest served by freedom of discussion of, and dissemination of information about, a matter of public importance.² For example, a publication dealing with the subject of paedophilia, in the context of an ongoing public debate about the problem of paedophilia in the community, may be found to have a tendency to interfere with particular criminal proceedings against a person accused of committing sexual offences against children. However, the court may determine that the publication does not amount to a contempt, on the ground that it relates to a matter of public interest, and the element of public interest outweighs the detriment it may cause to the criminal proceedings in question.³

8.4 This ground of exoneration is commonly referred to as the “public interest principle”, or the Bread Manufacturers⁴ principle, referring to the first Australian case where it was authoritatively formulated. The public interest principle may apply both to publications relating to civil proceedings and those relating to criminal proceedings.⁵ It recognises that there is sometimes a greater interest which justifies a publication despite the fact that that publication would otherwise attract sub judice liability on account of its tendency to prejudice proceedings.⁶

8.5 The main issues for discussion in a review of the public interest principle are whether the principle should exist at all, whether it is necessary or desirable to clarify its operation, as well as its scope.

OPERATION OF THE PUBLIC INTEREST PRINCIPLE

Earlier cases

8.6 The public interest principle as it operates in Australia has undergone some significant developments. As originally articulated by the High Court in the Bread Manufacturers decision,⁷ the public interest principle appeared to be quite narrow and inflexible. It applied to publications forming part of a general, ongoing public discussion or debate, where the discussion or debate began before any particular legal proceedings had commenced. The publications were prompted by the general public discussion, rather than by particular legal proceedings, and did not refer specifically to particular proceedings. The courts applied the public interest principle in these cases on the basis that any potential prejudice which such a publication may cause to particular proceedings was an incidental and unintended by-product of the general public discussion of which the publications formed a part. The application of the principle was justified on the ground that the discussion of public affairs should not be required to be suspended merely because it may incidentally cause some likelihood of prejudice to the administration of justice.

8.7 The courts seemed unwilling to expand the application of the public interest principle beyond publications that fitted the description outlined above, that is, publications that arose from a general discussion, did not refer specifically to the particular legal proceedings and caused potential prejudice simply because the subject matter of the general discussion unintentionally related in some way to those legal proceedings.⁸

The Hinch case

8.8 In the only case in which the High Court has considered the public interest principle, Hinch v Attorney General (Vic),⁹ decided in 1987, the court expanded the scope of the principle significantly.¹⁰ This case involved the prosecution for contempt of Mr Derryn Hinch, a well-known radio personality, and the radio station which broadcast Mr Hinch’s program in Victoria. Mr Hinch gave three radio broadcasts in which he referred to a man accused of committing sexual offences against children. Mr Hinch expressed outrage that this man remained the director of a youth foundation while on bail. He also referred to the accused’s previous convictions and acquittals from charges involving sexual offences against children.

8.9 In response to the contempt prosecution, it was argued on behalf of Mr Hinch and the radio station that the broadcasts related to matters of general public interest and concern and that any prejudice created was outweighed by the element of public interest. The High Court rejected this argument and found both Mr Hinch and the station guilty of contempt. The station was fined and Mr Hinch was sentenced to a short term of imprisonment.

8.10 Although it upheld the convictions for contempt, the High Court confirmed that the public interest principle may apply to publications relating to criminal proceedings and recognised that, in theory at least, it could apply to a situation such as arose in the Hinch case. That is, it could apply to publications which were prompted by, and which dealt specifically with, the facts of particular proceedings. It was not confined to publications relating to a general discussion, and it was not essential to the application of the principle that the potential prejudice to proceedings was fortuitous or incidental. The court emphasised instead that each case requires a balancing exercise between the competing public interests in the administration of justice and the freedom of discussion of public affairs, in order to determine whether or not a contempt has been committed. It may be that, in cases where the publication does relate to a more general discussion, and the potential for prejudice to proceedings arises as an incidental consequence of this discussion, the tendency to cause prejudice is found to be relatively small and therefore more readily outweighed by the public interest in freedom of discussion.

8.11 The court emphasised that the earlier formulation in the Bread Manufacturers case was to serve as a guide to the scope of the public interest principle, rather than a definitive statement. The principle was potentially broad enough to apply to a publication relating to specific legal proceedings, if it were found that the publication dealt with a matter of sufficient public interest as to outweigh the competing interest in the proper administration of justice. However, it was noted by Justice Wilson that, when balancing the competing public interests, the court does not start with the scales evenly balanced, but tilts the scales in favour of protecting the due administration of justice.¹¹ The court also suggested that, at the least, it will be difficult to avoid liability on the basis of the public interest principle where the contempt is found to be intentional.¹²

Implications of the Hinch case for the public interest principle

8.12 The High Court in the Hinch case recognised, in theory, that the public interest principle may apply to publications relating to specific legal proceedings. However, in practice, it may prove difficult to rely on the public interest principle to argue that such publications do not amount to contempt, at least where the proceedings to which they relate are criminal proceedings.

8.13 On the facts in the Hinch case, the High Court appeared to accept that there was a legitimate public concern in alerting the public to a situation in which a person with the accused’s history continued to hold senior office in a children’s organisation. Ultimately, however, the court determined that this public interest in the particular material broadcast by Mr Hinch could not take precedence over the public interest in protecting the accused from interference with his right to a fair trial.

8.14 The court took particular objection to the public disclosure by Mr Hinch of the accused’s previous convictions and charges, and to the suggestion that the accused had committed other offences which had never been discovered or investigated.¹³ It found that an implication necessarily arose from the language used in the broadcast, together with the reference to the previous convictions and acquittals, that the accused must be guilty of the offences for which he was currently charged. It was noted that a publication which suggests, either explicitly or implicitly, that an accused person is guilty or innocent of the offence for which that person is charged, will usually constitute a contempt, even if it also relates to a matter of general public concern.¹⁴ This view conforms with previous statements of the courts to the effect that publications which disclose the previous convictions of an accused person, or imply guilt or innocence, will usually constitute a contempt, even if the publication forms part of a more general discussion of a matter of public interest.¹⁵

8.15 It is arguably difficult to discern from the High Court’s ruling in what circumstances a publication may refer to specific criminal proceedings and yet not amount to a contempt on the basis of the public interest principle. The High Court did not give any clear examples of situations in which a publication may be protected in this way. Chief Justice Mason did refer to public discussion of a major constitutional crisis or an imminent threat of nuclear disaster as matters for which the public interest in freedom of discussion would override public interest in the administration of justice.¹⁶ These would seem to be quite extreme examples, and ones which (hopefully) would not arise very often. They are not particularly helpful, therefore, in indicating when the public interest principle will protect a publication which refers to matters of a less extreme nature nor to proceedings.

8.16 Nor, it could be argued, do the facts in the Hinch case offer much assistance in ascertaining when a publication explicitly referring to the proceedings allegedly prejudiced is likely to be found to be in the public interest. The facts of the case were themselves quite extreme, in so far as Mr Hinch’s condemnation of the accused was expressed in quite unrestrained and vehement language, and included suggestions that the accused had committed previous offences which had never been investigated. These suggestions were arguably unnecessary to fulfil the public purpose of alerting the community to the danger of child abuse. It may be questioned, however, whether the court would have been any more inclined to accept the public interest argument if Mr Hinch had merely made reference to the accused’s previous convictions, without also referring to previous acquittals and suggesting that the accused was guilty both of the offences charged and of other offences.¹⁷

8.17 It could be argued that it was unnecessary for Mr Hinch to mention the accused’s previous convictions, as he could simply have alerted the public to the danger of child abuse by reference to the current charges faced by the accused and the fact that the accused continued to hold a senior position in a children’s organisation. Statements to that effect would probably not have amounted to a contempt since they were simply the bare facts of the case (provided, of course, they were not accompanied by expressions of opinion or suppositions by Mr Hinch). However, it could be argued that the reference to the accused’s previous convictions was integral to the publication, in so far as its purpose was to alert the community to the dangers of a system which allowed a person facing current charges and with previous convictions to be in a position of care over children.¹⁸ If the facts of the case had been different, for example, if the accused had been facing a current charge of fraud and it was discovered by a reporter that he had previous convictions for child sexual abuse, it may be questioned whether the court would have considered it excusable as a matter of public interest to publish information about the previous convictions for the purpose of alerting the community to the possible dangers faced by their children while the accused was on bail.

8.18 It is also difficult to determine from the Hinch case the degree to which intention is determinative of the availability of the public interest principle to exonerate a publisher from liability. On the facts in Hinch, it would appear possible to argue that the third broadcast of Mr Hinch was done with at least the knowledge that it may have a tendency to prejudice the accused’s trial, given that the Attorney General of Victoria had already instituted proceedings for contempt against Mr Hinch in respect of the first two broadcasts. However, the court did not discuss the intention of Mr Hinch in considering the public interest principle, despite general suggestions that an intention to prejudice proceedings may exclude the application of the public interest principle. It remains unclear, therefore, whether material which is published with an intention to prejudice, or with the knowledge that it may prejudice, particular proceedings, could ever be found not to constitute a contempt on the basis of the public interest principle and, if so, in what circumstances.

Subsequent cases

8.19 Cases subsequent to the Hinch case have reiterated the High Court’s formulation of the public interest principle as requiring a balancing exercise between the public interests in freedom of discussion and the administration of justice.¹⁹ These include the recent New South Wales Supreme Court decision in Attorney General (NSW) v John Fairfax Publications Pty Ltd.²⁰ This case confirmed that a publication may be shown to be in the public interest, so as not to amount to a contempt, even though it has a tendency to prejudice criminal proceedings.²¹

8.20 However, in respect of publications that relate specifically to the facts of a criminal trial, the courts have not provided much more guidance about when the public interest principle might successfully be applied as a ground of exoneration. The Commission is not aware of a case in which the public interest principle has been successfully argued in respect of a publication relating to the specific facts of current or pending criminal proceedings. Publications that have been found to be in the public interest have not referred specifically or in any great detail to the facts of the relevant criminal proceedings, and the courts have emphasised that the prejudicial impact of these publications was an incidental by-product of the discussion of a matter of public importance.²²

8.21 It would seem therefore that, while the courts have not ruled out the application of the public interest principle to publications referring specifically to a particular criminal trial, it will be very difficult for a publisher to argue successfully that the principle applies in that context. The courts still appear to place heavy reliance on the notion of unintended and incidental prejudice as a basis for applying the principle. In one case before the New South Wales Court of Appeal,²³ the publication in question related to the horse racing industry and allegations of race fixing, and included material obtained from a lawful telephone tap. The court took the view that these were matters of serious public interest. However, because Commonwealth legislation prohibited the disclosure of communications obtained through such telephone interceptions, the court concluded that the legislature had already given priority to the public interest in keeping such communications confidential, and it was not for the courts to permit a different public interest to prevail.

OPERATION OF THE PRINCIPLE IN OTHER JURISDICTIONS

The United Kingdom

8.22 The public interest principle forms part of the law of sub judice contempt in the United Kingdom. However, the principle theoretically operates in a more restrictive manner there than it does in Australia. It is limited to protecting only those publications that create a risk of prejudice to proceedings as an incidental result of a discussion of matters of general public interest. That approach follows the view of the public interest principle as it was commonly articulated in the earlier Australian cases, prior to the Hinch case.

8.23 The public interest principle is formulated in s 5 of the Contempt of Court Act 1981 (UK), which applies to publications made as or as part of a discussion in good faith of public affairs or other matters of general public interest. The word “discussion” has been interpreted to require an examination by argument or debate, rather than bare accusations which are not linked to a wider theme.²⁴ The section requires that the risk of prejudice to proceedings be “merely incidental to the discussion”. This phrase has been interpreted by the courts to mean that the risk of prejudice to proceedings was no more than an incidental consequence of expounding the main theme of the publication. These requirements would seem to exclude from the protection offered by s 5 a publication such as that in the Hinch case, which is prompted by, and refers specifically to, the facts of particular legal proceedings.

8.24 Section 5 implements the recommendation of the Phillimore Committee.²⁵ This Committee expressly endorsed the Australian approach to the public interest principle as originally articulated in the Bread Manufacturers case, with its focus on specifically protecting publications that incidentally cause a risk of prejudice in the course of ventilation of a question of public concern. The Phillimore Committee justified the application of the public interest principle in the United Kingdom on the ground that public discussion of matters of general interest should not be suspended because of its incidental effect on legal proceedings. Again, this would tend to suggest that the principle as it operates in the United Kingdom was not intended to protect publications that deal with the specific facts of a case.

Canada

8.25 It appears uncertain whether the public interest principle, as we commonly understand it in Australia, is available as a ground of exoneration in the Canadian common law on sub judice contempt.²⁶ It appears that the Canadian courts will give consideration to the public interest in the discussion of a particular matter to permit publication of material, even if it poses some risk of prejudice to proceedings.²⁷ However, the public interest principle as a separate ground of exoneration does not appear to be well established in Canadian law.

8.26 While it may not be certain to operate as a distinct ground of exoneration, it seems that the Canadian courts will undertake a similar balancing exercise between competing public interests when determining whether certain material should not be or should not have been published. The operation of the law on sub judice contempt in Canada must be viewed in the context of the Canadian Charter of Rights and Freedoms. Both the right of an accused person to a fair trial, and the right to freedom of expression, are enshrined in the Charter.²⁸ The majority of the Canadian Supreme Court has held in Dagenais v Canadian Broadcasting Corp²⁹ that when determining whether the publication of material should be banned by a suppression order, the Charter requires the court to weigh up the beneficial effects of prohibiting the publication against the deleterious effects to freedom of expression in doing this. This balancing exercise requires consideration of the importance of the particular material in question. Both the right to freedom of expression and the right to a fair trial are to be given equal status in the balancing exercise. The balancing doctrine in Dagenais has been followed by other Canadian courts in the context of applications for suppression orders or publication bans,³⁰ access to documentary exhibits in criminal cases,³¹ access to information held by third parties for use in trial,³² and access to information which supported the issue of a search warrant.³³

8.27 Dagenais involved an application for an injunction, as opposed to a determination about liability for contempt after publication had already occurred. In a case involving liability for contempt brought before the Supreme Court of British Columbia,³⁴ submissions were made concerning possible conflicts between the Charter rights of an accused to a fair trial and those Charter rights which guarantee freedom of expression including the right of the media to gather and publish reports from courts. The court considered Dagenais but ruled that there was no conflict of rights in that case. Nevertheless, it did not repudiate the principles set out in Dagenais. Consequently, it appears that while it may not have been considered as a distinct ground of exoneration, the Canadian courts carry out a similar balancing exercise as is involved in the public interest principle in order to ascertain whether a contempt has or will occur if material is published, at least in relation to publications relating to criminal proceedings.³⁵ It would seem, however, that the same balancing between competing rights or interests would not be required in Canada when determining whether to prohibit publication of material relating to civil proceedings, since the same protection of the right to a fair trial in civil proceedings is not enshrined in the Canadian Charter.

8.28 The Canadian Law Reform Commission, in its report on contempt of court,³⁶ did not specifically consider the public interest principle in its review of the law of contempt.

Ireland

8.29 The Irish Law Reform Commission recommended³⁷ against incorporating into the law of sub judice contempt any form of the public interest principle. It took the view that the interests of persons involved in criminal or civil litigation should always take precedence over the social benefits derived from public discussion of matters of public interest. Consequently, a publication that caused a risk of prejudice should not be excused from the application of the sub judice rule simply because it dealt with a matter of public interest.

8.30 The Irish Law Reform Commission recognised that, in rare circumstances, its approach would represent a significant restriction on freedom of discussion, but considered that this was a very small price to pay for securing justice. It should be noted, however, that the Irish Law Reform Commission recommended the inclusion of an element of intention in the law on liability for sub judice contempt, so that liability would only arise if the publisher ought reasonably to have appreciated that the publication created a risk of serious prejudice.³⁸ This would usually mean that a publisher would not be liable for the publication of material amounting to a general discussion of a matter of public interest, which fortuitously and unintentionally created a risk of prejudice to particular proceedings.

Australia

8.31 The Australian Law Reform Commission (“ALRC”) recommended a narrower form of the public interest principle than exists at common law.³⁹ According to its formulation, the public interest principle would operate as a defence to a charge of contempt. In the case of publications relating to criminal proceedings, the defence would only succeed if it could be shown that the publication was made in good faith, in the course of a continuing public discussion of a matter of public affairs or otherwise of general public interest and importance (not being the matter involved in the trial), and that the discussion would be significantly impaired if the prejudicial material were not published at the time it was in fact published. In the case of publications relating to civil jury trials, the same requirements would apply, with the exception that it would need to be shown only that the discussion would be impaired, rather than significantly impaired.⁴⁰

8.32 The approach of the ALRC would exclude from the scope of the defence the publication of material which relates to, or is prompted by, specific legal proceedings. With the condition that the publication occur “in the course of a continuing public discussion”, its formulation appears to follow the earlier notion of the public interest principle as articulated in the Bread Manufacturers case, requiring that, at the time of the publication, the public discussion should have already commenced.

8.33 The ALRC expressly rejected a form of the public interest principle which involved a balancing of the two public interests in freedom of discussion and the administration of justice. It considered that to adopt such an approach would be to exonerate prejudice which results from careless failure on the part of the media to make themselves aware of current trials.

8.34 In considering the recommendations of the ALRC, the Victorian Law Reform Commission expressed reservations about retaining a public interest defence in any form.⁴¹ It considered that “public interest” was a difficult concept to define or prove, and was also difficult to balance against the interests of a defendant in proceedings.

8.35 On the other hand, the Commonwealth government, in its 1991 discussion paper⁴² on the recommendations of the ALRC agreed with the inclusion of some form of a public interest defence. However, it preferred an even more restrictive form of the defence than that put forward by the ALRC, proposing that the defence be available only if it be shown that the publication could not reasonably be expected to prejudice the administration of justice.

8.36 The New South Wales Law Reform Commission also considered aspects of the law of contempt by publication as part of a review of criminal procedure in New South Wales in 1987.⁴³ In relation to the public interest principle, some members of the Commission expressed doubt that the principle should operate to exonerate publishers from liability. They considered that the notion of “public interest” was so vague and uncertain and capable of such vastly differing interpretations that it could make the general prohibition against the publication of prejudicial material ineffective. Instead, the members proposed that the supposed public interest served by a publication should be taken into account by the prosecuting authority in determining whether to commence a prosecution for contempt. It could also be a factor for the court to consider when determining the appropriate penalty to impose following a conviction for contempt.

New Zealand

8.37 In New Zealand, the common law appears to recognise the public interest principle as a ground of exoneration from liability. The principle there operates as an element to consider in determining whether the publication amounts to a contempt, as opposed to operating as a defence. While the courts have referred to the need to balance the public interests in freedom of discussion and the administration of justice in order to determine liability for contempt, it seems that they are much more inclined to view the public interest principle as it has traditionally been viewed in Australia, before the Hinch case. That is, it is regarded as a ground for exonerating publications which occur in the course of ventilation of a public concern without reference to the proceedings affected by the publication.⁴⁴

THE COMMISSION’S TENTATIVE VIEW

8.38 The Commission is of the tentative view that there is a need to formulate a new public interest defence. It shares the concerns of the ALRC that material may be dressed-up in the form of a public interest discussion to exculpate the substantial prejudice to a trial which may result from a failure on the part of the media to make themselves aware of current trials.⁴⁵ The Commission is inclined to propose a public interest defence which is narrower than the common law principle.

8.39 On one interpretation of the common law on the public interest principle, there is no contempt whenever the risk of prejudice created by the offending material is an incidental but unintended by-product of a discussion on a matter of public concern. The Commission acknowledges that when an article or radio/television program dealing with current affairs is being prepared, there may be risks of unintentional prejudice to trials of which those responsible for the publication are not aware. However, in Proposal 7, the Commission proposes a defence of innocent publication which would exonerate those responsible for the offending material, if they took reasonable steps to check whether the material may create a substantial risk of prejudice to a trial. In the circumstances, the public interest principle would only be relevant where the innocent publication defence is not available, that is, where prejudice is intended, or occurs to the knowledge of the persons responsible for the publication, or could have been discovered and guarded against if they had taken all reasonable steps to ascertain any fact that would cause the publication to breach the sub judice rule.

8.40 Another interpretation of the common law on the public interest principle requires the balancing of different interests: that is, even if the prejudice is incidental and unintended, a balancing act is required, whereby the public interest in the unprejudiced administration of justice is weighed against the public interest in the matter under discussion when the alleged contempt occurred. The difficulty with this approach is that it involves a value judgment about which among the competing interests is paramount. This can lead to uncertainty for stakeholders, such as the media, as to when and how a discussion concerning a particular matter of public interest will be adjudged of greater importance than the interest in the fair administration of justice. Take Hinch and the Bread Manufacturers cases as examples. In Hinch, the High Court ruled that the public interest in knowing that a convicted child sex offender was running a youth organisation while facing fresh charges for sex offences did not justify the publication of his previous convictions. On the other hand, the New South Wales Supreme Court ruled in the Bread Manufacturers case that the risk of prejudice to a litigant may be required to yield to other superior considerations, in that particular case, the public discussion of the bread trade and an alleged combination to fix the selling price of bread. Comparing the result in these two cases, one could query whether in relation to the public interest in maintaining a fair administration of justice, the discussion of alleged abuses in the bread trade was of greater public interest than Mr Hinch’s observations aimed at preventing the sexual abuse of children.

8.41 Finally, the Commission is of the view that the broader interpretation of the public interest principle in Hinch may be difficult to apply in practice. It may prove difficult to argue that publications relating to specific legal proceedings do not amount to contempt. As noted above, the situations where this could apply would be extreme and rare. Consequently, the Commission considers that any reformulation of the principle should expressly state that it will not apply to publications which were prompted by and which specifically dealt with the facts of particular proceedings.

8.42 As an alternative to the public interest principle found in common law, the Commission proposes a legislative provision in terms similar to those recommended by the ALRC,⁴⁶ that is, a publication should not attract liability if the following conditions are met: the publication was made in good faith in the course of a continuing public discussion of a matter of public affairs (other than the trial itself), or otherwise of general interest and importance; and the discussion would have been significantly impaired if the statement creating a substantial risk of prejudice to the relevant trial had not been published at the time it was published. Under this proposal, once the publication is adjudged to be in good faith and on a matter of public affairs or general public interest, the test is whether the discussion would have been significantly impaired if the statement creating a substantial risk of prejudice to the relevant trial had not been published at the time when it was published. A balancing act is not required. The persons responsible for the publication will have to show that the discussion is of an issue of genuine public interest and importance, that the material in question forms an integral part of the discussion and that the discussion would suffer significantly if the publication were delayed until the risk of prejudice has ceased. As explained by the ALRC, the last requirement might exonerate a publication shortly before or during the trial where the length of the trial was a matter of months, but not where a postponement of only a few days was necessary.⁴⁷

8.43 While the public interest principle operates, at common law, as a component of the test for liability whereby the prosecution must prove that the public interest in publishing the material in question did not outweigh the public interest in restricting publication in the interests of the proper administration of justice, the proposal would operate as a true defence. That means the burden of proof is on the defendant, to prove, on the balance of probabilities, all the elements of the defence.

PROPOSAL 19

Legislation should provide for a defence to a charge of sub judice contempt on the basis that:

• the publication the subject of the charge was made in good faith in the course of a continuing public discussion of a matter of public affairs (other than the trial itself), or otherwise of general public interest and importance; and
• the discussion would have been significantly impaired if the statement creating a substantial risk of prejudice to the relevant trial had not been published at the time when it was published.

The defendant should bear the burden of proof and the standard of proof should be on the balance of probabilities.

8.44 Law reform bodies on previous occasions have considered whether it is necessary to provide in legislation for a “public safety” defence as a ground of exoneration from liability for contempt.⁴⁸ This defence would apply to situations where the media publish information that has a tendency to prejudice particular proceedings but which is in the interest of protecting public safety. For example, if a person accused of a crime is at large, it may be in the public interest to publicise the fact that that person has a history of violence and may be dangerous, and/or to publish a photograph of the alleged offender. Publications of these kinds would typically give rise to liability for sub judice contempt.

8.45 It is possible that a media organisation that publishes prejudicial information in the interests of public safety would be able to rely on the public interest principle, as discussed above, if it were charged with contempt. It is perhaps more likely that the prosecuting authority would choose not to prosecute for contempt at all, in the exercise of its prosecutorial discretion. The Commission is not aware of any case involving this sort of situation that has actually come before the courts for determination.

8.46 The Phillimore Committee in the United Kingdom did not consider it desirable to introduce into legislation a specific defence of this kind. It took the view that the sorts of situation attracting a “public safety” defence would rarely arise, and that it would simply lead to greater uncertainty to attempt to formulate in legislation a defence to meet these situations on the rare occasion when they did arise. The Phillimore Committee appeared to consider it more appropriate to leave considerations of public safety or benefit as a factor mitigating penalty on conviction for contempt. Consequently, there is no provision in the Contempt of Court Act 1981 (UK) for a “public safety” defence.

8.47 The ALRC, on the other hand, recommended that legislation expressly provide for a “public safety” defence, rather than leaving the matter to the discretion of the authority responsible for prosecuting for contempt. It emphasised that the terms of the defence should be limited to protecting publications which are reasonable or desirable to facilitate the arrest of a person, to protect the safety of a person or of the public generally, or to facilitate investigations into an alleged criminal offence.⁴⁹

8.48 The Commonwealth Government, in its 1991 Discussion Paper on the recommendations of the ALRC, expressed some support for the inclusion in legislation of a public safety defence.⁵⁰ It expressed the view that any such defence should include a requirement that the publication was believed on reasonable grounds to be necessary to protect public safety, and was authorised by a senior officer.

8.49 The Law Reform Commission of Ireland favoured the approach of the ALRC and recommended the introduction into legislation of a defence in similar terms.

The Commission’s tentative view

8.50 At this stage, the Commission sees merit in providing expressly in legislation for a separate “public safety” defence to cover the situations outlined above. It is possible that the public interest principle would be interpreted broadly enough to encompass publications which arise in the interests of public safety. It is also likely that the prosecuting authority may exercise its discretion not to prosecute for this type of publication. However, the Commission takes the preliminary view that publications of this kind deserve their own separate emphasis and protection in legislation, rather than relying on prosecutorial discretion or a broad application of the public interest principle. One concern about such a defence relates to the meaning of “public safety,” a term which could be interpreted in many different ways. However, the ALRC’s formulation of this defence specifies that circumstances under which it applies. The narrow formulation of this defence ensures that it will not be used for purposes other than for those it was intended. The Commission therefore proposes a legislative provision in terms similar to those recommended by the ALRC.

PROPOSAL 20

Legislation should provide for a defence to a charge of sub judice contempt on the basis that the publication the subject of the charge was reasonably necessary or desirable to facilitate the arrest of a person, to protect the safety of a person or of the public, or to facilitate investigations into an alleged criminal offence. The burden of proving this should be on the defendant in contempt proceedings, to prove on the balance of probabilities.

1. See Attorney General (NSW) v John Fairfax & Sons Ltd (1985) 6 NSWLR 695 at 714 (McHugh JA); Hinch v Attorney General (Vic) (1987) 164 CLR 15 at 26 (Mason CJ), at 83 (Gaudron J).

2. See Hinch v Attorney General (Vic) (1987) 164 CLR 15 at 57 (Deane J).

3. This was the situation which arose in New South Wales in 1997, when the Police Minister, Mr Paul Whelan, gave a press conference on the subject of paedophilia. As a result of comments made by Mr Whelan in the press conference, two sexual offence trials were aborted. The Attorney General did not prosecute Mr Whelan for contempt, presumably taking the view that Mr Whelan’s comments were made as part of an ongoing public debate of public interest, and moreover that they were not directed at particular legal proceedings: see P Akerman, “Free To Speak Up For Justice” Daily Telegraph (1st ed) (18 September 1997) at 11; R Morris, “Judge ‘Hasty’ Over Mistrial” Daily Telegraph (1st ed) (18 September 1997) at 8; D Goodsir, “Whelan: No Foundation for a Charge” The Sun-Herald (14 September 1997) at 16.

4. Ex parte Bread Manufacturers Ltd; Re Truth and Sportsman Ltd (1937) 37 SR (NSW) 242.

5. Hinch v Attorney General (Vic) (1987) 164 CLR 15.

6. See Ex parte Bread Manufacturers Ltd; Re Truth and Sportsman Ltd (1937) 37 SR (NSW) 242; Hinch v Attorney General (Vic) (1987) 164 CLR 15. See also in G Borrie, Borrie and Lowe’s The Law of Contempt (3rd edition, Butterworths, London, 1996) at 169-170; C J Miller, Contempt of Court (Clarendon Press, Oxford, 1989) at 228-229; J Mo, “Freedom of Speech Versus Administration of Justice: Balancing of Public Interests in Contempt of Court Cases in New South Wales” (1992) 9 Australian Bar Review 215 at 217.

7. See Ex parte Bread Manufacturers Ltd; Re Truth and Sportsman Ltd (1937) 37 SR (NSW) 242 at 249 (Jordan CJ). See Attorney General (NSW) v Willesee [1980] 2 NSWLR 143; Registrar of the Court of Appeal v Willesee (1985) 3 NSWLR 650; Attorney General (NSW) v John Fairfax & Sons Ltd (1985) 6 NSWLR 695.

8. In one case, the publication in question did relate specifically to proceedings. The application of the public interest principle in that case appeared to depend on whether the subject-matter of the publication dealt with issues of more general public concern than the particular merits of those individual proceedings: see John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351.

9. (1987) 164 CLR 15.

10. It is worth noting that the New South Wales Court of Appeal had already begun to move towards an expanded conception of the public interest principle before the Hinch case. In Attorney General (NSW) v John Fairfax & Sons Ltd (1985) 6 NSWLR 695 at 714-715, Justice McHugh considered whether the public interest principle ultimately required a balancing between competing public interests, as opposed to following a strict formulation of whether the tendency to prejudice was an incidental and unintended by-product of a general discussion. See also the decision of Justice Hope in Registrar of the Court of Appeal v Willesee (1985) 3 NSWLR 650 at 678-680, in which he referred to the balancing exercise required by the public interest principle. Justice Priestley, however, in the same case, queried whether the public interest principle required a balancing of competing interests, or the application of the principle as a matter of law (at 682-683).

11. Hinch v Attorney General (Vic)) (1987) 164 CLR 15 at 41.

12. See Hinch v Attorney General (Vic) (1987) 164 CLR 15 at 52-53 (Deane J), at 69-70 (Toohey J). Justices Wilson (at 43) and Gaudron (at 86) appeared to suggest that it would be impossible to apply the public interest principle to a situation where the contempt was intentional.

13. See Hinch v Attorney General (Vic) (1987) 164 CLR 15 at 30-31 (Mason CJ); at 45-46 (Wilson J); at 58 (Deane J); at 75-76 (Toohey J). Justice Gaudron appeared to take the view that the public interest in disseminating information on child abuse, and the risk to children of abuse by a person convicted of and charged with sexual offences, could never take precedence over the public interest in protecting the administration of criminal justice (at 86-87).

14. Hinch v Attorney General (Vic) (1987) 164 CLR 15 at 75-77 (Toohey J), at 45-46 (Wilson J).

15. See Attorney General (NSW) v Willesee [1980] 2 NSWLR 143; Director of Public Prosecutions (Cth) v Australian Broadcasting Corp (1987) 7 NSWLR 588. But see Attorney General (NSW) v John Fairfax & Sons Ltd (1985) 6 NSWLR 695, in which a publication implied that a person accused of a crime had been involved in earlier criminal activity which had never been properly investigated. Although it was raised, the court found it unnecessary to consider the public interest principle, since it concluded that the publication lacked the requisite tendency to interfere with proceedings.

16. Hinch v Attorney General (Vic) (1987) 164 CLR 15 at 26.

17. Justice Deane, without deciding the issue, noted that reference to the accused’s previous convictions on its own would have been sufficient to place the broadcast beyond justification on public interest grounds: see Hinch v Attorney General (Vic) (1987) 164 CLR 15 at 58.

18. This point was recognised by Toohey J in his judgment: Hinch v Attorney General (Vic) (1987) 164 CLR 15 at 75-76.

19. See Director of Public Prosecutions (Cth) v United Telecasters Sydney Ltd (in liquidation) (1992) 7 BR 364 at 371 (Kirby J), at 378 (Sheller JA); R v Sun Newspapers Pty Ltd (1992) 58 A Crim R 281 at 288-289 (Byrne J); John Fairfax Publications Pty Ltd v Doe (1995) 37 NSWLR 81 at 84 (Gleeson CJ); R v WA Newspapers Ltd; Ex parte Director of Public Prosecutions (WA) (1996) 16 WAR 518 at 531-539; Nationwide News Pty Ltd; Ex parte Director of Public Prosecutions (Cth) (1997) 94 A Crim R 57 at 62-66 (Ipp J).

20. [1999] NSWSC 318 at para 126 (Barr J).

21. Attorney General (NSW) v John Fairfax Publications Pty Ltd [1999] NSWSC 318 at para 126.

22. In R v Sun Newspapers Pty Ltd (1992) 58 A Crim R 281, the publication in question was concerned with the facts of one criminal trial, which was found to be potentially prejudicial to another criminal trial. The publication did not amount to a contempt, however, on the basis of the public interest principle, since it did not refer to the second trial, and its prejudicial effect was therefore an incidental by-product of a discussion of a matter of public importance: see at 289. In Attorney General (NSW) v John Fairfax Publications Pty Ltd [1999] NSWSC 318, the publication in question was an expose on a man described as a new drug boss of Sydney. The man was facing drug charges at the time. However, the publication was found not to amount to a contempt on the basis of the public interest principle since it did not contain any discussion of the facts or circumstances of the charges pending against the accused: see at para 122-134.

23. See John Fairfax Publications Pty Ltd v Doe (1995) 37 NSWLR 81.

24. See Attorney General v English [1983] 1 AC 116.

25. United Kingdom, Committee on Contempt of Court, Report of the Committee on Contempt of Court (HMSO, London, Cmnd 5794, 1974) at para 142. See also United Kingdom, Parliamentary Debates (Hansard) House of Lords, 9 December 1980 at 661; House of Lords, 15 January 1981 at 191-194; House of Commons, 2 March 1981 at 39.

26. See J P Allen and T Allen, “Publication Restrictions and Criminal Proceedings” (1994) 36 Criminal Law Quarterly 168 at 174-177.

27. See Bellitti v Canadian Broadcasting Corporation (1973) 15 CCC (2d) 300. But see Manitoba (AG) v Radio OB Ltd (1981) 59 CCC (2d) 477.

28. For the right of an accused to a fair trial, see s 11(d) of the Charter. For the right to freedom of expression, see s 2(b) of the Charter. However, s 1 of the Charter provides that these rights are subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

29. (1994) 94 CCC (3d) 289 at 316-317, 327 (Lamer CJC), (Iacobucci and Major JJ concurring), Gonthier J, dissenting in part but agreed on this particular point at 350-352. Justices LaForest (at 329) and L’Heureux-Dube (at 245) dissented on grounds not relevant to this issue, but agreed that the application of contempt law requires consideration of competing public interests as enshrined in the Charter.

30. Edmonton (City) v Kara (1995) 26 Alta LR (3d) 28; Canadian Broadcasting Corp v Giroux (1995) 23 OR (3d) 621; Edmonton Journal v Canada (Immigration & Refugee Board) (1996) 106 FTR 230; R v Khan (1997) 117 Man R (2d) 264.

31. R v Shearing (No 3) (British Columbia, Supreme Court, Doc No CC960772, Henderson J, 12 February 1998, unreported); R v Glowatski (British Columbia, Supreme Court, Doc No 95773, Macaulay J, 4 May 1999, unreported).

32. R v Beharriell (1995) 103 CCC (2d) 130; R v Keukens (1995) 23 OR (3d) 582.

33. Flafiff v Macdonell (1998) 123 CCC (3d) 79.

34. In the Matter of the Prosecution for Contempt of Court of CHBC Television and Caribo Press (1969) Ltd (1997) 121 CCC (3d) 260.

35. And the New Zealand Court of Appeal, in considering Dagenais, has taken the view that the principles laid down in that case apply equally to contempt proceedings: See Gisborne Herald Co Ltd v Solicitor-General [1995] 3 NZLR 563.

36. Canada, Law Reform Commission, Contempt of Court (Report 17, 1982).

37. Ireland, Law Reform Commission, Contempt of Court (Report 47, 1994) at para 6.25; (Consultation Paper, 1991) at 330-335.

38. See para 5.39.

39. See Australian Law Reform Commission, Contempt (Report 35, 1987) at para 331-332, Appendix A (Administration of Justice (Protection) Bill 1987 (Cth) cl 27). It is worth noting that Report 35 was completed before the High Court’s ruling in the Hinch case was handed down.

40. Australian Law Reform Commission, Contempt (Report 35, 1987) at para 338, Appendix A (Administration of Justice (Protection) Bill 1987 (Cth) cl 20(4)).

41. See Victoria, Law Reform Commission, Comments on Australian Law Reform Commission Report on Contempt No 35 (unpublished, 3 September 1997) at para 4.1.

42. Australia, Attorney General’s Department, The Law of Contempt (Discussion Paper, 1991) at para 39-40.

43. See New South Wales Law Reform Commission, Criminal Procedure: Procedure from Charge to Trial: Specific Problems and Proposals (Discussion Paper 14, 1987) Volume 2 at para 13.77.

44. See Solicitor-General v Wellington Newspapers Ltd [1995] 1 NZLR 45 at 48-49 (Eichelbaum CJ), at 56-57 (McGechan J); Solicitor-General v Radio NZ Ltd [1994] 1 NZLR 48.

45. Australian Law Reform Commission, Contempt (Report 35, 1987) at para 332.

46. Australian Law Reform Commission, Contempt (Report 35, 1987) at para 303.

47. Australian Law Reform Commission, Contempt (Report 35, 1987) at para 332.

48. See United Kingdom, Committee on Contempt of Court, Report of the Committee on Contempt of Court (HMSO, London, Cmnd 5794, 1974) at para 143-145; Australian Law Reform Commission, Contempt (Report 35, 1987) at para 302, 330; Ireland, Law Reform Commission, Contempt of Court (Consultation Paper, 1991) at 330; (Report 47, 1994) at para 6.24.

49. See Australian Law Reform Commission, Contempt (Report 35, 1987) Appendix A (Administration of Justice (Protection) Bill 1987 (Cth) cl 31).