OVERVIEW OF THE REPORT
1.1 This Report represents the culmination of the New South Wales Law Reform Commission’s review of the law of contempt by publication. The review has primarily been concerned with one aspect of contempt by publication commonly referred to as “sub judice” contempt. It has also covered two closely associated topics: namely, the powers of courts to restrict the reporting of legal proceedings; and the rules determining whether media representatives or other members of the public should be entitled to have access to court documents.
1.2 The Commission released a Discussion Paper in July 2000 (“DP 43”),1 inviting public comment on its provisional proposals for reform of contempt law. This report contains final recommendations for reform based on additional research, submissions received in response to DP 43 and information and responses to its proposals provided in a series of consultations held by the Commission with a range of groups, organisations and individuals.2
BACKGROUND TO THE REVIEW
1.3 The Commission’s inquiry arose out of the introduction into the New South Wales Parliament, on 14 May 1997,3 of the Costs in Criminal Cases Amendment Bill 1997 (NSW) (“the Bill”).4 The Bill provided for the payment of compensation by the media for the expenses incurred when a criminal jury trial has been discontinued because of concern that the jury may have been prejudiced by a contemptuous publication or broadcast.5
1.4 Although the issue of compensation by the media for the expense of an aborted trial had been previously debated in New South Wales,6 the introduction of the Bill was triggered by a specific case. That case concerned a well-known media personality, John Laws. Mr Laws had made a number of comments on radio about a criminal trial involving a man accused of murdering a young child. Mr Laws had referred to the accused as “absolute scum” and a murderer. The broadcast occurred on the second day of the accused’s trial before a Sydney jury. As a consequence of Mr Laws’s comments, the trial judge considered that it was necessary to stop the trial and discharge the jury.7 Subsequently, both Mr Laws and the radio station were found guilty of contempt and ordered to pay substantial fines.
1.5 The Bill was intended to recover for the State and the parties the costs of a trial discontinued in circumstances such as those that arose in Mr Laws’s case. The Bill provided that an order for costs could be made (and only made) against a media organisation convicted of contempt in respect of the prejudicial publication or broadcast. Potentially, these costs could be extremely high.8
1.6 The Bill met with protest from representatives of the media, who denounced it as unfair and discriminatory.9 The Bill also brought to light a degree of dissatisfaction with the law of contempt by publication generally. In particular, the media expressed dissatisfaction with the level of uncertainty in the operation of the law, and the consequences this may have for them in trying to avoid liability and, if the Bill were passed, avoid paying the costs of a criminal trial.
1.7 The media urged the Government to conduct further public consultation before proceeding with the Bill.10 Parliament took no further action in respect of the Bill and it eventually lapsed when Parliament was prorogued in March 1999. In the meantime, the Attorney General, the Hon Jeff Shaw QC, MLC, requested that the New South Wales Law Reform Commission conduct an inquiry into the law of contempt by publication, including the issue of recovering the costs of a criminal trial that has been discontinued because of a contemptuous publication.11
WHAT IS “CONTEMPT BY PUBLICATION”?
The law of contempt generally
1.8 The law of contempt aims to prevent interference with the administration of justice. It regulates a range of human activities that pose a risk of such interference, such as misbehaviour in the courtroom, disobeying court orders, and interference with parties and witnesses in court proceedings.
1.9 Traditionally, the law of contempt is divided into “civil” and “criminal” contempt.12 “Civil contempt” is concerned with the enforcement of court orders and undertakings given to a court in civil proceedings. “Criminal contempt” is concerned with maintaining the authority and integrity of the court as a matter of public interest. It covers such conduct as misbehaviour in the courtroom and publishing material that tends to interfere with the proper administration of justice. Conduct of this nature is treated as a criminal offence and attracts criminal sanctions, most typically the imposition of a fine or a term of imprisonment.13
The law of contempt by publication
1.10 This review is concerned only with the area of criminal contempt that applies to publication of material that tends to interfere with the proper administration of justice, or what is termed “contempt by publication”.14
1.11 A person may be guilty of contempt by publication if they publish material that:
- has a tendency to influence the conduct of particular pending legal proceedings, or prejudge the issues at stake in particular pending proceedings;
- denigrates judges or courts so as to undermine public confidence in the administration of justice;15
- reveals the deliberations of juries;
- includes reports of court proceedings in breach of a restriction on reporting; or
- discloses information that has been restricted by an injunction and the person making the disclosure, though not bound by the injunction, knows the terms of the injunction and that the publication will frustrate its purpose.
THE FOCUS OF THE REVIEW ON “SUB JUDICE” CONTEMPT
1.12 This review has primarily focused on restrictions imposed on publications that have a tendency to influence the conduct of particular legal proceedings or that prejudge the issues at stake in those proceedings. Such publications are said to breach the “sub judice” rule.16 The effect of the sub judice rule is to prohibit the publication of certain information about a case that is currently being heard or is pending hearing in a court. In this report, the Commission refers to a breach of the sub judice rule as “sub judice contempt”.
1.13 The review has essentially been confined to sub judice contempt for two reasons. First, because it arose out of the introduction of the Bill, which itself focused on publications in breach of the sub judice rule and, secondly, the Bill brought to light dissatisfaction with the law of sub judice contempt generally.
THE COMMISSION’S APPROACH TO REFORM OF CONTEMPT LAW
1.14 Dissatisfaction with the law of contempt by publication is not new. In the last three decades, there have been several reviews of contempt law in various common law jurisdictions, all of which recommended the retention of the sub judice rule, in some form, while at the same time recommending substantial reform.17 DP 43 summarised the major reviews,18 as well as referring throughout the paper to particular recommendations as they related to each issue being considered. Although these reviews are not specifically mentioned again in this report, they have informed the Commission’s thinking in the review as a whole.
1.15 The Commission’s aim has been to achieve clarity and precision in the operation of the law on sub judice contempt, with only such restrictions on freedom of discussion as are necessary. The Commission has concluded that codification of sub judice contempt would not achieve these aims. To codify only one aspect of contempt, leaving the common law to regulate the remaining areas, may lead to confusion and uncertainty for legal practitioners and the media. This has been the experience in the United Kingdom where the Contempt of Court Act 1981 (UK) purports, among other things, to codify sub judice contempt but allows the rest of the law of contempt to be embodied in common law principles. Accordingly, the Commission recommends some legislative reforms, while allowing the common law to continue to develop.
1.16 The Commission is mindful that legislative changes in New South Wales to sub judice contempt will result in different rules from those found in other Australian States and territories, as well as to those which apply at the federal level. Media that publish in several States and territories may be presented with some practical difficulties, and possibly some uncertainty and confusion, in contending with the application of different laws. However, the Commission believes that the value of its recommendations in making the law of sub judice contempt in New South Wales clearer and fairer outweighs these consequences. While uniform laws for sub judice contempt would be desirable, it is for the governments of the Commonwealth, States and territories to decide whether they want to take a co-ordinated approach to the reform of this area of law.19
THE STRUCTURE OF THIS REPORT
Part One
1.17 This Report is divided into three parts. Part One deals with the principles governing liability for sub judice contempt and contains Chapters 2-9.
1.18 Chapter 2 addresses the fundamental question of whether the sub judice principle should be abolished or retained. It evaluates the competing public interests in freedom of speech and a fair trial. It also evaluates the soundness of certain assumptions on which the sub judice rule is predicated.
1.19 Chapter 3 discusses the meaning of “publication” and “responsibility” as prerequisites for liability for sub judice contempt. In particular, it considers whether these terms should be legislatively defined. The chapter makes recommendations for a legislative formulation of the notion of “responsibility” for publication.
1.20 Chapter 4 examines the test for liability for sub judice contempt, with particular reference to the impact of publicity on criminal trials. The principal instances of prejudice discussed are influence on jurors and on witnesses (both actual and prospective). It also considers whether categories of prejudicial publications should be prescribed. It examines the relevance to liability for contempt of a trial being aborted, of pre-existing publicity and of the availability of remedial measures. An ancillary matter which the chapter looks at is the admissibility and utility of expert evidence to prove the risk of a publication prejudicing legal proceedings.
1.21 Chapter 5 discusses the relevance of fault to liability for sub judice contempt. The chapter recommends defences to a charge of contempt that take into account questions of fault and responsibility.
1.22 Chapter 6 examines the application of the sub judice rule to publications concerning civil proceedings. As well as discussing the effect of publicity on witnesses, judicial officers and juries in civil proceedings, the chapter discusses improper pressure on parties and the prejudgment principle.
1.23 Chapter 7 discusses the time limits for liability for sub judice contempt, including whether it should continue to operate during the appeal period and, in the case of criminal convictions, during the sentencing stage. The chapter also considers whether different time rules should apply to intentional contempts.
1.24 Chapters 8 and 9 explore two grounds of exoneration that may excuse a person from liability for sub judice contempt. Chapter 8 considers whether a prejudicial publication may not be in breach of the sub judice rule if 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). The chapter considers whether any reform to this ground of exoneration is necessary or desirable. In addition, it looks at whether it is desirable to introduce a separate defence of “public safety” to apply to publications in the public interest that are designed specifically to protect public safety.
1.25 Chapter 9 considers the second ground of exoneration, namely that a charge of contempt may be defended on the basis that the prejudicial publication is a fair and accurate report of proceedings held in open court, or, possibly, a fair and accurate report of parliamentary proceedings. It considers related outstanding issues that may require reform.
Part Two
1.26 Part Two, containing Chapters 10 and 11, is concerned with issues relating to reporting legal proceedings and the open justice principle.
1.27 Chapter 10 deals with suppression orders and, in particular, the need for a clear and comprehensive regime which addresses the uncertainties surrounding various aspects of the court’s powers in this area.
1.28 Chapter 11 explores the issues of public access to, and reporting on, court documents. It first considers whether there should be a public right of access to court documents and, if so, to what documents such a right should apply and what should be the parameters of the right. Secondly, it considers whether, and in what circumstances, a right of access to court documents should extend to publishing the contents of the documents.
Part Three
1.29 Part Three, containing Chapters 12, 13 and 14, deals with the procedure for prosecuting sub judice contempt, and the sanctions and remedies available, including a power to order compensation.
1.30 Chapter 12 considers procedural and jurisdictional issues in sub judice contempt prosecutions and hearings. In particular, the chapter appraises who should initiate proceedings, whether the present summary procedure should be retained, and what is the appropriate court in which a contempt should be prosecuted or a conviction for contempt appealed.
1.31 The first section of Chapter 13 is concerned with penalties for contempt, focusing on the principal sanctions of fines and imprisonment. It examines whether legislation should prescribe a maximum penalty in relation to fines and, if so, what that maximum should be and whether a distinction should be made between individual and corporate offenders. It considers whether imprisonment should continue to be an available sanction and, if so, whether there should be a statutory maximum term. The chapter also examines other sentencing options, specifically considering corporate offenders. It also considers the creation of a registry of court outcomes of criminal contempt proceedings for sentencing purposes. The second section of the chapter examines available remedies for contempt, in particular, injunctions and damages.
1.32 Chapter 14 explores the issue of compensation for loss suffered as a result of a contemptuous publication. Specifically, this chapter considers whether the media, or any one else, should be made liable for the costs of a trial that is aborted because of a contemptuous publication and, if so, how a power to order costs should be formulated. As part of this discussion, the provisions of the Costs in Criminal Cases Amendment Bill 1997 (NSW) are analysed.
Part Four
1.33 Part 4 contains Chapter 15, which examines the relationship between the media and the courts. Representatives of the media suggested to the Commission that there are ways in which communication and co-operation between the media and the courts in New South Wales could be improved.20 They cited several practical matters that, in their view, have a significant impact on their ability to report on the courts and avoid liability for sub judice contempt. In this chapter, the Commission makes recommendations for improving the media/courts relationship as a way of minimising the risk of prejudice to court proceedings.
FOOTNOTES
1. NSW Law Reform Commission, Contempt (Discussion Paper 43, 2000) (“NSWLRC DP 43”).
2. See Appendix C and D for the list of submissions and consultations.
3. See NSW, Parliamentary Debates (Hansard) Legislative Assembly, 14 May 1997 at 8571.
4. NSWLRC DP 43 at Appendix A.
5. See ch 14 for a full discussion of the Costs in Criminal Cases Amendment Bill 1997 (NSW).
6. See United Telecasters Sydney Ltd v Hardy (1991) 23 NSWLR 323 at 346-347 (Samuels J); Attorneys General of New South Wales, Queensland and Victoria, Reform of Defamation Law (Discussion Paper, 1990) at para 12. See para 14.3.
7. See R v Connolly (NSWSC, No 70036/95, Simpson J, 27 February 1996, unreported).
8. The costs would consist largely of the legal costs of both the accused and the State, and the salaries of the judge and court staff involved in the conduct of the trial. For an estimate of the costs of a day in court, see NSWLRC DP 43 at Appendix B.
9. See, for example, Editorial, “Review necessary on contempt” The Australian (18 September 1997) at 12; A Bowne, “New verdict on contempt law” The Australian Financial Review (3 April 1998) at 24; E Whitton, “Time for justices to gavel themselves: should judges be held in contempt?” The Australian (3 December 1998) at 13; A Hubble, “Air of expectation” The Daily Telegraph (4 December 1997) at 40; R Ackland, “Contempt bill puts noose on free speech” The Sydney Morning Herald (19 September 1997) at 21.
10. See, for example, FACTS, Submission 1 at para 2; J Walker, Submission (enclosing submission to the Attorney General) at 2; R Coleman, Submission (enclosing submission to the Attorney General) at 6; SBS, Submission (enclosing submission to the Attorney General) at 3.
11. See Terms of Reference at xi.
12. See generally, C J Miller, Contempt of Court (2nd edition, Clarendon Press, Oxford, 1989) at 2-11; G Borrie and N Lowe, The Law of Contempt (3rd edition, Butterworths, 1996) at 3-4; Laws of Australia (Law Book Company, Sydney, 1998) Volume 10, Title 10.11, “Administration of law and justice”, ch 2, “Contempt” (M Chesterman) at [4] 8-11; D Butler and S Rodrick, Australian Media Law (LBC Information Services, Sydney, 1999) at para 5.10-5.15. The High Court has criticised the distinction between criminal and civil contempt on the basis that it is arbitrary and illusory, but the distinction still operates: see Witham v Holloway (1995) 183 CLR 525 at 534 (Brennan, Deane, Toohey and Gaudron JJ).
13. See ch 13, Penalties and Remedies.
14. See Australian Law Reform Commission, Contempt (Report 35, 1987), especially ch 5. See also, Laws of Australia (Law Book Company, Sydney, 1998) Title 10.11, ch 2 at para 42.
15. This is known as “scandalising the court”.
16. The phrase “sub judice” means “under or before a judge or court”.
17. To date, only the United Kingdom has implemented legislative change: Contempt of Court Act 1981 (UK).
18. See NSWLRC DP 43 at para 1.30-1.43.
19. The Standing Committee of Attorneys General considered, during the early 1990s, a uniform law on contempt of court or partially uniform contempt laws dealing only with publication but it appears that there was little enthusiasm at that time for a common statutory approach by the States and territories: see NSWLRC DP 43 at para 10.75.
20. See Media Liaison Officers, Consultation; TV and Radio Representatives, Consultation.
