Lawlink NSW: 3. Basic concepts: Publication and responsibility

3.1 In Discussion Paper 43 (“DP 43”), the Commission discussed the meaning of “publication” and “responsibility” as prerequisites for liability for sub judice contempt.¹ In particular, we considered whether these terms should be legislatively defined, as opposed to the current approach, which leaves the meanings to common law interpretation on a case-by-case basis. We put forward a proposal for a legislative formulation of the notion of “responsibility” for publication, and invited submissions on this formulation.²

3.2 The Commission now considers the arguments for and against the reforms suggested in the Discussion Paper. We discuss first the meaning of “publication” and, secondly, the notion of “responsibility” for such publication.

3.3 Liability for sub judice contempt arises on the “publication” of material that has a tendency to interfere with legal proceedings.³ At present, “publication” is not defined in legislation, nor have the courts considered its meaning in any great detail. At the least, a “publication” in the context of sub judice contempt must usually involve a communication to more than a single individual, unlike the position in defamation law.

3.4 Publication of material attracting prosecution for contempt typically arises from the dissemination of matter by media organisations; through newspapers, radio stations, or television channels. Other forms of communication may also attract liability, if they are found to have a sufficiently public aspect, or to be made to a sufficiently wide class of people, as to have the requisite tendency to prejudice particular legal proceedings. For example, pamphlets about a particular trial could attract liability if the people receiving those pamphlets include potential jurors in the trial.⁴ Although “publication” seems generally to require communication to more than one individual, a communication to a single individual may attract liability for contempt if it were foreseeable that the contents of the communication would be published to a wider audience, such as, for example, a conversation forming part of a media interview.⁵

3.5 In DP 43, the Commission considered the merits of defining “publication” in legislation.⁶ We noted that, in the United Kingdom, legislation defines “publication” for the purpose of sub judice contempt as including a communication in any form that is addressed to the public at large or any section of the public.⁷ This definition seeks to distinguish communications in the public and the private arenas, and to prohibit only those communications that occur in the public arena. The English approach has attracted criticism on the basis that it is not always clear whether a communication is private, or one made to a section of the public, such as a communication that is circulated to a private club.⁸ The Commission expressed a tentative view that there was no advantage in introducing a legislative definition of “publication”, with the inherent risks of ambiguity and inflexibility that such an approach is likely to carry.

3.6 Two submissions considered the issue of whether to define “publication” in legislation.⁹ Both supported the Commission’s tentative view that it was unnecessary and risky to attempt a legislative definition. One submission examined in detail the case law dealing with the meaning of “publication” in the context of sub judice contempt.¹⁰ It agreed that the courts have interpreted the word generally to require a more public aspect than simply a private communication, and concluded that the courts are likely to continue to interpret the word in a sensible manner without the need to resort to more precise definition in legislation.

3.7 This submission also questioned whether, in fact, liability for sub judice contempt does require the “publication” of material at all. It asserted that conduct might constitute a contempt whether or not it amounts to widespread publication, for example, in the case of reporters who provide material to their editors in the expectation that it will be published.¹¹ It is true that, in this situation, the act of providing material may attract liability without any actual dissemination of the material to a wider audience. However, liability is only triggered by a finding that the material will probably be made available to a wider audience, and to this extent liability still relies on a notion of dissemination to a wider audience. The same applies to a communication to a single individual in a media interview, where there is an expectation that the interview will later be “republished” or made available to a wider audience. It is still necessary, therefore, to give consideration to the meaning of “publication” as a prerequisite for liability.

3.8 In our discussion of the term “publication” in DP 43, the Commission gave particular consideration to defining when and where the publication of material can be said to occur, and whether these are issues that need to be clarified in legislation.¹²

3.9 It is becoming increasingly common for material to be transmitted from another jurisdiction to New South Wales. For example, a newspaper that is originally published in another state may be made available to the public of New South Wales either through newsagencies here or over the Internet, or a television program may be prepared and transmitted from another state or from another country and received by residents of New South Wales. In this situation, provided that residents of New South Wales receive the material, the common law considers that publication has occurred in New South Wales.¹³ Consequently, the person or body responsible for the publication will be liable for any contemptuous material contained in the publication, although it may be difficult or impossible to prosecute and impose a sentence on them if they reside and carry on business solely outside New South Wales. The Commission gave tentative support to the common law approach to determining the place of publication, and did not consider it necessary to clarify this issue in legislation. No submissions addressed the question.

3.10 The time at which material is published becomes an important issue in considering whether publication took place within the time period in which liability for contempt arises. As we discuss in Chapter 7, publication of prejudicial material will attract liability for sub judice contempt if it has a tendency to prejudice legal proceedings that are current or pending at the time of publication. Criminal proceedings are pending from the time a person is arrested for, or charged with, an offence. A publication that occurs before this event will therefore not attract liability, even if it is later found to have a tendency to prejudice particular proceedings. At common law, a publication is taken to have occurred at the time when it was first published, and every distribution or broadcast of material is then treated as a separate act of publication. Material that is first published before criminal proceedings are pending may therefore be found to be contemptuous if it is broadcast or distributed a second time within the time limits for sub judice contempt. In DP 43, the Commission formed a preliminary view that these principles are appropriate and do not need to be changed or clarified. One submission addressed this issue, and did not express any opposition to this approach.¹⁴

3.11 The Commission concludes that it is unnecessary to make any changes to the common law’s interpretation of “publication”. The few submissions that considered this issue reached the same conclusion as we do. No significant problems have arisen in the case law, and it is preferable to retain the flexibility provided by the common law rather than attempt to enshrine in legislation a particular definition.

3.12 To attract liability for sub judice contempt, a person or organisation must be found to be “responsible” for the publication in question. At present, the common law is flexible in its approach to assigning responsibility: a person or organisation is generally responsible for a publication if they are in a position to exercise control over its contents, production, distribution, or broadcast.¹⁵ Most often, it is the proprietor of the media organisation, and/or the program producer or editor, who is prosecuted for contempt. However, the common law notion of “responsibility” is broad enough to encompass a wide class of people or bodies, including journalists,¹⁶ announcers,¹⁷ printers,¹⁸ and production companies.¹⁹ While a wide class of people can in theory be liable, those at the lower end of the publishing process are not often prosecuted. Consequently, there is a relative scarcity of common law authority on the limits of their liability.

3.13 In DP 43, the Commission put forward a proposal for a legislative formulation of “responsibility” to replace the existing common law principles.²⁰ We tentatively noted a preference at that stage for retaining the common law, but put forward the proposal as an alternative approach for consideration. The proposed formulation sought to assign legal responsibility for publication to those high up in any organisation from which the publication emerged, and to exclude from the notion of responsibility those at the lower end, such as reporters, journalists, and distributors. It assigned responsibility according to whether or not a person or organisation was in a position to:

3.14 The underlying policy of the proposal was that those lower down in the hierarchy of a media organisation, such as reporters, should not be liable for contempt. One of the primary aims of the sub judice rule is to encourage the media to implement proper systems to ensure that they do not compromise the proper administration of justice. It could therefore be argued that responsibility for a contemptuous publication should be assigned to those in positions to exercise control over the decision whether or not material is published, and the contents of that material, or to those who play a role in supervising systems to safeguard against the publication of contemptuous material. Little is gained from imposing liability on those who exercise no or little control over the decision to publish material, and the ultimate contents of that material.

3.15 It is important to consider the Commission’s proposal for a reformulation of “responsibility” in conjunction with the proposal for a defence of reasonable care, which we put forward in DP 43.²² That proposal is discussed in detail in this Report in Chapter 5. In summary, the proposed defence of reasonable care was intended to apply to those who come within the scope of the proposed reformulation of “responsibility” but who could prove, on the balance of probabilities, that they had no control of the content of the publication, and either did not know (having taken all reasonable care) that the publication contained contemptuous material and had no reason to suspect that it was likely to do so, or who became aware of such contemptuous material before publication and took reasonable steps to try to prevent the publication of the material. The aims and application of this proposed defence, as they operate in relation to the proposed reformulation of “responsibility”, are referred to in the discussion below.

3.16 In DP 43, the Commission examined the responsibility of various categories of participants in the publication process.²³ We expressed tentative views on which of those participants should generally be held responsible for a contemptuous publication, and which should not, and we considered the effect of the proposed reformulation on the legal responsibility of each.

3.17 Media proprietors. Media proprietors exercise overall control over the publication process. For this reason, the Commission supported the current common law approach of holding them responsible for a contemptuous publication. The proposed reformulation of “responsibility” was similarly intended to include media proprietors within its scope. The one situation in which we considered that it might not be appropriate to make media proprietors liable for a contemptuous publication was in the case of “live” interviews. If a radio or television station broadcasts a live interview with an individual, and that individual makes prejudicial statements during the interview, it is questionable whether the media proprietor should be liable for those statements if they are unexpected and unprovoked by the interviewer. The Commission considered that the common law was not entirely clear about the proprietor’s legal responsibility in this situation, though it seemed likely, following general principles of liability for sub judice contempt, that the proprietor would be at least theoretically liable. There was one Victorian case in which the court held that a proprietor was not liable for contemptuous statements made by an interviewee in a live television interview. This was because the statements were non-responsive to the interviewer’s questions and there was no reason to expect such a response.²⁴ The court was quick to point out, however, that it was not making a general ruling about the liability of media organisations for statements made in live interviews.

3.18 The Commission expressed the view in DP 43, that broadcasters should be exonerated from a charge of sub judice contempt if they can show that, when they became aware of the contemptuous statement, they took all reasonable steps within their means to prevent the publication of the statement.²⁵ While it is likely that media proprietors in the situation of live interviews would be found responsible under our proposed reformulation of “responsibility”, it was our intention that the proposed defence of reasonable care would then exonerate them if they did not expect the interviewee to make the contemptuous statements and took all reasonable steps to prevent their publication. There was some concern expressed in submissions and consultation about the Commission’s approach to this situation. These are discussed in Chapter 5.

3.19 Editors. The Commission took the tentative view that persons in a position to exercise editorial control over the contents of a publication should be held liable for contempt, as they generally are at common law. As with media proprietors, the proposed reformulation of “responsibility” was not intended to alter the legal responsibility of those who exercise editorial control over the contents of a publication. The only situation in which we considered that it would be appropriate to exonerate editors was, as with media proprietors, in the case of live interviews. Our proposed defence of reasonable care was intended to cover this situation.

3.20 Reporters. As noted, the common law notion of responsibility is broad enough to include reporters within the scope of liability for sub judice contempt. It has been held in the New South Wales Court of Appeal that a reporter who prepares a report for publication is responsible for it if it is later published, although the same principle may not apply to a person who does no more than supply information to an editor or writer not for the purpose of publication but for the purpose of furnishing information.²⁶ The Commission expressed a preference in DP 43 towards retaining the common law approach, and holding reporters responsible if they have actually been involved in the publication process to the extent of preparing a report for publication. However, the proposed reformulation of the notion of responsibility offered an alternative approach, which would normally exclude reporters from liability for sub judice contempt, unless they could be shown to have exercised a significant degree of control over the contents of the publication. Presumably, it would usually be those in an editorial position, rather than the reporter, who would be found to meet that requirement.

3.21 Channels broadcasting programs under licence. The Commission examined the liability of subordinate television stations that receive programs under licence from a principal station. At common law, the station broadcasting the program may be held responsible for a contemptuous publication contained in the program, whether or not it had knowledge of the contents of the program, and even if it has received the program on instantaneous transmission from the principal station without any opportunity to check its contents.²⁷ A fairer approach may be to hold a subordinate station responsible if it were in a position to monitor and alter the contents of the program that it transmitted. This would not excuse a broadcaster from liability where it transmits contemptuous material instantaneously, if the decision to do so was a commercial decision and not an obligation, for example, under any licensing agreement. However, if the subordinate station had no opportunity and no legal entitlement to monitor and control the contents of the material that it transmitted, the Commission suggested in DP 43 that it should not be held responsible for contemptuous material that it transmits. It seems likely that the proposed reformulation of “responsibility” is broad enough to include within its scope broadcasters transmitting programs under licence, in so far as such broadcasters have control over the dissemination of such programs, and in that way may be said to authorise their publication. The proposed defence of reasonable care was therefore intended to provide a defence for broadcasters in this situation, if they could show that they did not know, having taken all reasonable care, and had no reason to suspect, that the publication contained contemptuous material. This could cover the broadcaster who does no more than relay a program from a principal station with no control over the contents of the program. Some submissions criticised the wording of the Commission’s proposed defence, while supporting the spirit of the proposal. Those criticisms are discussed in greater detail in Chapter 5 of this Report.

3.22 Distributors of printed material. As with broadcasters of programs under licence, distributors of printed material may be held responsible at common law for distributing contemptuous material, even though they have no knowledge of the contents of that material.²⁸ In DP 43, the Commission took the view that a distributor should be held responsible for a contemptuous publication if in a position to monitor and alter, or cause to be altered, the contents of the printed material. We considered that the wording of our proposed reformulation of “responsibility” was broad enough to include distributors within its scope. We therefore also proposed a defence of reasonable care. As in the case of broadcasters, this defence would excuse distributors who had no knowledge, having taken all reasonable care, and had no reason to suspect that the material they were distributing was contemptuous.

3.23 Vendors of printed material. It is unlikely that vendors of printed material would be prosecuted for a contemptuous publication. While the Commission’s proposed reformulation of “responsibility” might be broad enough to include vendors within its scope, the Commission also proposed a defence of innocent distribution. This defence was intended to exonerate people low down in the publication hierarchy, such as vendors, with no editorial control over the content of a publication. This defence is discussed in Chapter 5.

3.24 Private individuals. At common law, private individuals, who do not represent the media, may be held responsible for a contemptuous statement that they make. For example, a politician or a police officer who participates in a media interview or press conference may be held liable for a statement that is later found to have a tendency to prejudice the administration of justice.²⁹ The individual cannot avoid liability by relying on the editorial discretion of the media to omit prejudicial information from the published material. If it is intended or is highly likely that the media will make the statements available to the public, then the individual will be responsible for their publication.³⁰ Even if the media subsequently decide not to publish the interview, the individual will still be liable for any contemptuous statements made in the interview, the offence of contempt having been committed and completed at the time of giving the interview. In DP 43, the Commission expressed no firm view in respect of the responsibility of private individuals. We saw advantages in retaining the flexibility of the common law approach, by which individuals are theoretically liable, even if they are rarely prosecuted. This allows for the exceptional case where an individual has acted with particular recklessness or carelessness in speaking to the media. On the other hand, we also saw merit in the argument that little is achieved in holding individuals responsible for the making of contemptuous statements where they have no or very little control over the publication of those statements. The proposed reformulation of “responsibility” therefore concentrated on those higher in the publication process, with the result that individuals would likely not be held liable. It is worth noting too that private individuals may be liable for contempt for the publication of material that places improper pressure on a party to litigation.³¹ This aspect of sub judice contempt is discussed in Chapter 6.

3.25 Eight groups expressed an opinion on the proposal for a legislative formulation of “responsibility”. Three expressly rejected the proposal as too restrictive and inflexible, asserting that it was preferable to retain the common law.³² They disagreed with the fundamental approach of the proposal, to exclude as a general rule those lower down in the publication hierarchy, such as reporters. It was noted that such people are rarely now prosecuted, but that the advantage of the common law was that it was sufficiently flexible to accommodate such people within the scope of “responsibility” if the circumstances of a particular case warranted their prosecution. For example, if a journalist had been specifically warned by a Crown prosecutor that publication of particular material may cause a trial to be aborted, he or she should be held liable if he or she then submits the material in question for publication.³³ Another submission, while giving general support to the approach taken in the proposal, also took the view that reporters should be held responsible for the publication of contemptuous material if they are senior and experienced.³⁴ One group expressed particular concern that the proposed formulation would exclude private individuals from the notion of responsibility. It was submitted that the wording of the proposed formulation was not broad enough to include individuals within the scope of “responsibility” and that individuals should be held responsible in certain circumstances.

3.26 Three groups expressed tacit support for the approach taken in the proposed reformulation, though all three considered that the proposal needed modification.³⁵ The ABC’s Legal Services Department argued that the third element³⁶ of the proposed formulation was too vague and should be omitted from the formulation. Representatives of the television and radio industries considered that the proposed formulation was an improvement on the common law.³⁷ However, they also took the view that the last element was problematic, in so far as the word “supervise” was vague. They pointed out that there are people in the publication process who could be said to “supervise”, but who do not have and are not really expected to have any knowledge of the day to day operation of the system, such as, for example, the CEO of the organisation. They suggested that the third element be modified to read “supervise and manage” to apply to people who are in fact in charge of the day to day management of the system.

3.27 There were two other groups who appeared to be supportive of the policy underlying the proposal, that is, to attach responsibility to those high up in the hierarchy of the publication process³⁸. However, they appeared to go even further and assert that responsibility should be limited to the organisation itself,³⁹ and that the current proposal was far too sweeping in including within the notion of responsibility people other than the principals in the publication process.⁴⁰ One submission also expressed concern that the proposed formulation may cover regional radio and television stations that broadcast networked or syndicated programs and that are limited in their capacity to exercise control over the content of its broadcasts, and that may not have the resources to vet all material provided by a program supplier. This submission considered that it was questionable whether the defence of reasonable care, as formulated in Proposal 8 of DP 43, would apply to this situation. There was also concern that broadcasters of live-to-air radio programs may be held responsible for contemptuous statements made in those programs, presumably by interviewees, when they have limited opportunity to supervise the content of such programs.

3.28 On balance, the Commission concludes that it is preferable to retain the common law rather than recommend a statutory definition of “responsibility”. We acknowledge that several groups in consultation, particularly representatives of the media, supported a move towards a legislative definition. However, we consider that the problems that potentially arise from fixing a definition in legislation outweigh the advantages of such an approach. While we put forward Proposal 2 as an alternative in DP 43, we did note that we were inclined at that stage towards retaining the common law.

3.29 Essentially, we have come to the view that it is not possible to formulate a statutory meaning of “responsibility” that is unambiguous and certain. For example, if the wording in Proposal 2 were adopted in legislation, dispute might arise as to the meaning of “authorise”. We cannot see that any problems in the current common law approach to “responsibility” are significant enough to justify replacing it with a legislative definition that is likely to create its own uncertainty and differences of opinion as to interpretation.

3.30 One of the policies driving Proposal 2 was to encourage vigilant systems of supervision in media organisations by placing the burden of liability on staff in supervisory roles rather than on, for example, junior reporters. However, we are not convinced that more senior reporters who are experienced in court reporting should similarly be able to escape liability for contempt. We are not certain that Proposal 2 would necessarily include senior reporters within the scope of liability. This uncertainty illustrates the general potential for ambiguity arising from an attempt to formulate a concept like “responsibility” in statutory terms. We would also now be unwilling to exclude altogether private individuals from the scope of “responsibility”, as Proposal 2 would appear to do, although this is a matter which could be more easily addressed by amending the wording in the proposal.

3.31 In short, we consider that the underlying policy of Proposal 2 has merit. However, we conclude that the benefits of a statutory formulation that excludes those lower down in the publishing hierarchy, such as junior reporters, are outweighed by the problems that potentially arise in its interpretation, and the inflexibility that necessarily results from an attempt to enshrine a concept like “responsibility” in legislation.

3.32 The Commission’s proposed reformulation of “responsibility” made it clear that liability for sub judice contempt was as a principal and not according to any notion of vicarious liability. In DP 43, the Commission noted that it may not always be clear under the existing common law principles whether or not media proprietors and editors are liable as principals or are vicariously liable for the acts of their employees, or subordinates. At present, the distinction is not important, in so far as liability for sub judice contempt does not require a finding of fault. However, if an element of fault is introduced, as we proposed, then it becomes important to determine whether the proprietor or editor must be found to be at fault as a principal, or whether they are vicariously liable for the wrongful conduct of an employee or subordinate. The Commission expressed the tentative view in DP 43 that liability should arise only as a principal, and that it was inappropriate and undesirable to impose vicarious liability on editors and proprietors. No submissions addressed this issue.

3.33 The Commission considers that it is not necessary to recommend legislative change to the common law. In the draft bill that is annexed, a person attracts liability for sub judice contempt if that person “publishes matter or causes matter to be published”.⁴¹ It is implicit in this wording that a person is liable as a principal if he or she participates materially in the publication. There are elements of vicarious liability in the recommended defence of no editorial control, in which knowledge of a servant or agent is treated as equivalent as knowledge of the accused.⁴² Similarly, there are elements of vicarious liability in Recommendation 5, in which a person accused of contempt can seek to be excused from liability on the basis of relying reasonably on another person or persons to take reasonable steps to prevent a contempt from occurring. Beyond this, we do not consider it necessary or desirable to recommend any legislative changes to the common law principles.

Table of Contents

1. NSW Law Reform Commission, Contempt by Publication (Discussion Paper 43, 2000) (“NSWLRC DP 43”) ch 3.

4. See Registrar, Court of Appeal v Collins [1982] 1 NSWLR 682; Prothonotary v Collins (1985) 2 NSWLR 549.

5. See Attorney General (NSW) v Dean (1990) 20 NSWLR 650; Director of Public Prosecutions (Cth) v Wran (1986) 7 NSWLR 616.

7. See Contempt of Court Act 1981 (UK) s 2(1), following a recommendation of the Phillimore Committee: United Kingdom, Committee on Contempt of Court, Report of the Committee on Contempt of Court (Cmnd 5794, HMSO, London, 1974) at para 75-77, 80.

8. G Borrie and N Lowe, The Law of Contempt (3rd edition, Butterworths, London, 1996) at 110-112. See also C J Miller, Contempt of Court (2nd edition, Clarendon Press, Oxford, 1989) at 144.

10. See D Norris, Submission at para 4-16. Mr Norris’ discussion of the meaning of “publication” went beyond the case law dealing specifically with sub judice contempt. He made particular reference to the courts’ approach to the word in two South Australian cases, neither of which related directly to sub judice contempt, but which instead involved consideration of the term in the context of specific legislative provisions: see Roget v Flavel (1987) 47 SASR 402; Australian Broadcasting Corporation v Royal Commissioner (1991) 56 SASR 274. However, the aims of those provisions were sufficiently similar to the aims of the law of sub judice contempt that the courts’ interpretation of the word would be useful in construing its meaning in the context of liability for sub judice contempt.

13. See Dow Jones & Company Inc v Gutnick (2002) 77 ALJR 255, upholding Gutnick v Dow Jones & Co Inc [2001] VSC 305, a defamation case involving publication of material over the Internet originating from the United States of America to Victoria. The court held that, for the purpose of defamation law, the publication occurred in Victoria, publication occurring where the contents of the publication are seen or heard and comprehended by subscribers of the service.

15. See Attorney General (NSW) v TCN Channel Nine Pty Ltd (1990) 20 NSWLR 368 at 379; Borrie and Lowe at 375; S Walker, The Law of Journalism in Australia (Law Book Company, Sydney, 1989) at para 1.3.02.

16. Registrar, Court of Appeal v John Fairfax Group Pty Ltd (NSWCA, No 40478/92, 21 April 1993, unreported); R v Truth Newspaper (VSC, No 4571/93, 16 December 1993, unreported); R v Thompson [1989] WAR 219.

17. Attorney General v Radio 2UE Sydney Pty Ltd (NSWCA, No 40225/91, 40226/91, unreported); Hinch v Attorney General (Vic) [1987] VR 721.

18. R v Nationwide News Pty Ltd (VSC, No 6129/97, 22 December 1997, unreported) (liability); (VSC, No 6129/97, 18 February 1998, unreported) (penalty); R v Truth Newspaper. However, only costs were ordered against the printer in these cases, not penalties.

24. See Attorney General (Victoria) v Austarama Television Pty Ltd (VSC, No 93/86, Nicholson J, 23 December 1986, unreported).

26. Registrar, Court of Appeal v John Fairfax Group Pty Ltd (NSWCA, No 40478/92, 21 April 1993, unreported).

27. See Attorney General (NSW) v Willesee [1980] 2 NSWLR 143; see also Registrar, Court of Appeal v Willesee (1985) 3 NSWLR 650; Attorney General (NSW) v TCN Channel Nine Pty Ltd (1990) 20 NSWLR 368.

28. While there is no Australian authority on this point, one English case held a distributor liable for the distribution of contemptuous material: see R v Griffiths; Ex parte Attorney General [1957] 2 QB 192. The court in this case did emphasise that there was no other person or organisation within the jurisdiction who could be held responsible for the publication: at 204 (Goddard LCJ).

29. Attorney General (NSW) v Dean (1990) 20 NSWLR 650; Director of Public Prosecutions (Cth) v Wran (1986) 7 NSWLR 616.

30. See R v Pearce (1992) 7 WAR 395 at 425 (Malcolm CJ); see also Director of Public Prosecutions (Cth) v Wran at 627.

31. See North Australian Aboriginal Legal Aid Service Inc v Bradley (2001) 188 ALR 312.

32. See N Cowdery QC, Submission at 1; D Norris, Submission at para 21-29; NSW Bar Association Representatives, Consultation.

33. D Norris, Submission, drew this example from Registrar, Court of Appeal v John Fairfax Group Pty Ltd (NSWCA, No 40478/92, 21 April 1993, unreported).

35. See ABC, Submission at 1; Law Society of NSW, Submission at para 8; TV and Radio Representatives, Consultation.

36. The third element holds a person or organisation responsible if they are in a position to supervise a system for ensuring that material is not published that would constitute a contempt of court.

38. Australian Broadcasters, Joint Submission; Australian Press Council, Submission

41. See Appendix A, Contempt of Court by Publication Bill 2003 (NSW) (draft bill), Pt 2, cl 7(1)(a), 8(1)(a), 9(1)(a), 10(1)(a).