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Where am I now? Lawlink > Law Reform Commission > Publications > Discussion Paper 43 (2000) - Contempt by publication
Discussion Paper 43 (2000) - Contempt by publication Contents Terms of reference
Public interest Public safety Fair and accurate reporting Circumstances where liability cannot be avoided Specific examples of media publicity
Prior criminal convictions Confessions of guilt Influence on judicial officers EMPIRICAL RESEARCH REGARDING JURIES ALTERNATIVE REMEDIAL MEASURES
The Australian Law Reform Commission review Canada Ireland COMMUNICATIONS TECHNOLOGIES CIVIL PROCEEDINGS THE COMMISSION’S VIEW 3. BASIC CONCEPTS: PUBLICATION AND RESPONSIBILITY INTRODUCTION “PUBLICATION” The meaning of “publication” Consideration of a legislative definition of “publication”
Time of publication RESPONSIBILITY FOR PUBLICATION Responsibility of media representatives, distributors, and vendors
Editors Media proprietors Programs broadcast under licence Distributors of printed material Vendors of printed material The Commission’s proposal 4. PREJUDICIAL PUBLICATIONS INTRODUCTION CURRENT TEST FOR LIABILITY: TENDENCY CRITICISMS OF THE TENDENCY TEST Imprecision REFORMULATING THE TEST: TENDENCY VERSUS RISK “Substantial risk” as an alternative formulation Differences in the meaning of “tendency” and “substantial risk” Recommendations of law reform bodies Formulating liability in terms of possible not actual prejudice The Commission’s tentative view PUBLICATIONS THAT MAY INFLUENCE WITNESSES Categories of possible influence Arguments for and against restrictions by reason of possible influence on a witness Recommendations of law reform bodies The Commission’s tentative view PUBLICATIONS INFLUENCING JUDICIAL OFFICERS PUBLICATIONS PREJUDICING CIVIL PROCEEDINGS PRESCRIBING THE TYPES OF PUBLICATIONS TO GIVE RISE TO LIABILITY Publications which typically give rise to liability Advantages and disadvantages of prescribing categories of prejudicial statements The Commission’s tentative view ADMISSIBILITY AND UTILITY OF EXPERT EVIDENCE TO PROVE TENDENCY OR SUBSTANTIAL RISK FACTORS RELEVANT TO DETERMINING LIABILITY Likelihood of the publication coming to the attention of participants in the proceedings Relevance of the trial being aborted Relevance of pre-existing publicity Relevance of remedial measures to liability for contempt 5. FAULT THE RELEVANCE OF FAULT TO LIABILITY CRITICISMS OF THE CURRENT APPROACH Offences of “absolute” and “strict” liability Fairness Freedom of discussion JUSTIFICATIONS FOR THE CURRENT APPROACH The Commission’s tentative view ALTERNATIVE APPROACHES Actual intention or recklessness Negligence Defence of innocent publication The Commission’s proposals
Proposed defence for persons with no editorial control of the content of the publication Corporate media proprietors: identifying the “corporate mind” WHERE ACTUAL INTENT IS PROVEN The Commission’s tentative view 6. PUBLICATIONS RELATING TO CIVIL PROCEEDINGS OVERVIEW EFFECT OF PUBLICITY ON JUDICIAL OFFICERS AND WITNESSES EFFECT OF PUBLICITY ON CIVIL JURIES The Commission’s tentative view EFFECT OF PUBLICITY ON PARTIES The Commission’s tentative view THE PREJUDGMENT PRINCIPLE Overview The operation of the principle in the United Kingdom: the Sunday Times case The operation of the principle in Australia Other jurisdictions Recommendations of law reform bodies The Commission’s tentative view 7. TIME LIMITS ON LIABILITY FOR SUB JUDICE CONTEMPT OVERVIEW PROBLEMS IN IDENTIFYING WHEN PROCEEDINGS ARE “PENDING” Publications relating to criminal proceedings
Laying of an information or making of a complaint Extradition and return to jurisdiction FIXING AN APPROPRIATE STARTING POINT FOR SUB JUDICE CONTEMPT Publications relating to criminal proceedings
Recommendations of law reform bodies The Commission’s tentative view
Publications relating to criminal proceedings
Operation of sub judice restrictions during appeals Operation of sub judice restrictions after sentence and before appeal The Commission’s tentative views
8. PUBLICATIONS IN THE PUBLIC INTEREST THE GROUNDS OF EXONERATION FROM LIABILITY FOR SUB JUDICE CONTEMPT OVERVIEW OF THE PUBLIC INTEREST PRINCIPLE OPERATION OF THE PUBLIC INTEREST PRINCIPLE Earlier cases The Hinch case
Subsequent cases The United Kingdom Canada Ireland Australia New Zealand THE COMMISSION’S TENTATIVE VIEW A “PUBLIC SAFETY” DEFENCE The Commission’s tentative view 9. THE FAIR AND ACCURATE REPORTING PRINCIPLE OVERVIEW POSSIBLE UNCERTAINTIES IN THE LAW RECOMMENDATIONS OF OTHER LAW REFORM BODIES THE COMMISSION’S TENTATIVE VIEW PART TWO: REPORTING LEGAL PROCEEDINGS 10. SUPPRESSION ORDERS OVERVIEW THE CONCEPT OF OPEN JUSTICE QUALIFICATIONS TO THE PRINCIPLE OF OPEN JUSTICE Hearings in camera Concealment of information from those present at court Power to forbid publication of proceedings heard in open court EXISTING POWERS TO SUPPRESS PUBLICATION OF PROCEEDINGS IN NEW SOUTH WALES Common law powers Statutory powers to issue suppression orders
Legislative provisions with a broad discretion to impose suppression orders Should the courts have a general power to make non-publication orders where it is considered necessary for the administration of justice?
Specific statutory provisions: publication restrictions on committal and other preliminary proceedings Fair trial as an element of the proper administration of justice: the existence of broad statutory powers to make suppression orders Law reform options The Commission’s tentative view 11. ACCESS TO AND REPORTING ON COURT DOCUMENTS THE COMMISSION’S TENTATIVE VIEW PART THREE: PROCEDURE, PENALTIES AND REMEDIES 12. PROCEDURAL MATTERS OVERVIEW INSTIGATION OF PROCEEDINGS The Director of Public Prosecutions
The Commission’s tentative view
JURISDICTION: TRIAL The Commission’s tentative view MODE OF TRIAL Historical background of the summary procedure for contempt Summary procedure established Arguments for a criminal mode of trial for sub judice contempt
Certain issues better dealt with by jury Recommendations of other law reform bodies The Commission’s tentative view APPEAL PROCEEDINGS 13. PENALTIES AND REMEDIES OVERVIEW FINES
Establishing upper limits for fines The Commission’s tentative view
The Commission’s tentative view
Injunctions
14. PAYMENT FOR COSTS OF ABORTED TRIALS EXISTING POWERS TO ORDER COMPENSATION OVERVIEW OF THE COSTS IN CRIMINAL CASES AMENDMENT BILL 1997 JUSTIFICATIONS FOR A POWER TO ORDER COMPENSATION ARGUMENTS AGAINST A POWER TO ORDER COMPENSATION Double punishment Unnecessary legislation Deterrence No element of fault Exercise of the discretion to abort a trial Restriction on freedom of discussion Inconsistency with other jurisdictions
CRITICISMS OF THE BILL Losses not referable to the offence Discrimination against the media Other issues raised in submissions FORMULATION OF A POWER TO ORDER COMPENSATION Criminal compensation scheme or civil action in tort? When should the Supreme Court have power to order compensation? Discretionary nature of the power Amount of compensation Nature of losses Liability to pay compensation APPENDICES APPENDIX A: Costs in Criminal Cases Amendment Bill 1997 APPENDIX B: Costs of a day in court APPENDIX C: Table of penalties APPENDIX D: List of submissions TABLE OF LEGISLATION TABLE OF CASES SELECT BIBLIOGRAPHY INDEX |
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