Lawlink NSW: 8. Publications in the public interest

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

8.3 In Chapter 9, the Commission analyses the second ground of exoneration, the fair and accurate reporting principle, and looks at outstanding issues that may require reform.

8.4 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

8.5 This ground of exoneration is commonly referred to as the “public interest principle”, or the Bread Manufacturers principle, referring to the first Australian case where it was authoritatively formulated. This principle recognises that there is sometimes a greater interest that justifies a publication despite the fact that that publication would otherwise attract sub judice liability on account of its tendency to prejudice proceedings.⁴

8.6 The public interest principle as it operates in Australia has undergone some significant developments. As originally articulated by the Supreme Court of New South Wales in the Bread Manufacturers decision,⁵ the public interest principle appeared to be quite narrow. 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 must have been prompted by the general public discussion, rather than by particular legal proceedings, and must not have referred specifically to particular proceedings. The courts applied the public interest principle when any potential prejudice, which such a publication might 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 High Court has considered the public interest principle only once so far, in Hinch v Attorney General (Vic).⁶ This case is discussed in greater detail in Chapter 8 of DP 43.⁷ It clarified that the public interest principle may apply, contrary to a view expressed by some judges,⁸ to publications relating to criminal proceedings. However, the High Court in Hinch took a different approach to that taken in the Bread Manufacturers case and arguably expanded the scope of the principle.⁹

8.8 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. It recognised that, in theory at least, it could apply to publications that were prompted by, and 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. There were statements in the judgements that seemed to qualify the balancing approach to the public interest principle.

8.9 First, the Justices of the High Court made statements to the effect that where the contempt is intentional, the public interest principle cannot be used to avoid liability for contempt.¹⁰ If that were so, no balancing exercise is required in this situation. However, the court did not base its decision on this proposition.¹¹ It is, therefore, arguable that notwithstanding the strong dicta on this issue, it remains unsettled whether the public interest principle could be used to excuse contempt liability for material that is published with an intention to prejudice, or with the knowledge that it may prejudice, particular proceedings.

8.10 Second, where the material is directed at the guilt or innocence of an accused person, the High Court held that the public interest required to outweigh the public interest in a fair trial will have to be very substantial.¹² Justice Wilson wrote 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.¹³ Justice Deane seemed to go further when he stated that where the publication implies or suggests the guilt of the accused, or canvasses matters directly related to the issue of guilt, the public interest defence would not be available.¹⁴ He wrote that in the category of publication involving a public imputation of guilt of a criminal offence made against a person who is awaiting his or her trial of that very offence, there would be no countervailing public interest consideration that might effectively outweigh the detriment of a clear tendency to prejudice the due administration of justice.¹⁵

8.11 Another significance of the Hinch case is that it expanded the public interest principle by recognising that it may apply to publications relating to specific legal proceedings. It is, however, 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.

8.12 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 that 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 failure to investigate and suggesting that the accused was guilty both of the offences charged and of other offences.¹⁷

8.13 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 that allowed a person facing current charges and with previous convictions to be in a position of care over children.¹⁸

8.14 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 in the fair administration of justice.¹⁹ 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. 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.²⁰

8.15 It would therefore seem 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.

8.16 Since the publication of DP 43, the New South Wales Court of Appeal considered the public interest principle in Attorney General (NSW) v X.²¹ These are the facts of the case.

8.17 On 13 August 1993, Mr Duong Van Ia was arrested and charged with the supply of a prohibited drug, heroin. He was committed for trial on 29 April 1994. The trial was listed to commence in the District Court at Sydney on 23 March 1998. On 27 October 1997, the Sydney Morning Herald published material in relation to Mr Duong whose photograph appeared on the front page. The articles in the newspaper referred to Mr Duong as “the country’s largest heroin distributor”, “the drug dealer who bet more than $20m [in the casino], “[one of] our new drug bosses”, and “your classic criminal”. He and another man were said to “have carved out a giant portion of Australia’s $3 billion heroin trade.” There were other strong statements about Mr Duong’s alleged criminal activities, like: “Duong is believed to buy his heroin in bulk (10 to 20 kilos) from importers for about $200,000 a kilo and then sell it to the upper-level street dealers, who distribute to runners.” One of the articles referred to the existence of the pending criminal proceedings against Mr Duong. The Attorney General brought proceedings for contempt against the publisher John Fairfax Publications Pty Ltd.

8.18 At first instance, Justice Barr found that the articles had a tendency to interfere with the course of justice to Mr Duong’s trial. However, his Honour held that the articles were part of a series of articles dealing with a subject matter of substantial broad public interest and that the trial was likely to raise narrower issues that were only incidental to those canvassed in the articles. His Honour characterised the newspaper articles as referring to the change in the persons controlling crime, particularly drug crime and that although there was discussion about Mr Duong’s activities and personal life, there was no discussion of the facts and circumstances of the charges pending against him.²² He dismissed the summons for contempt.

8.19 On appeal, all three judges of the Court of Appeal agreed that the newspaper articles gave rise to an implication of guilt of Mr Duong and canvassed matters directly related to such guilt, and therefore had a tendency to interfere with the administration of justice.²³ However, Chief Justice Spigelman and Justice Priestley decided that the Bread Manufacturers defence was available, while Justice Mason held otherwise.

8.20 The majority and minority judgments both confirmed that the Bread Manufacturers defence is concerned with the process of reconciling two conflicting public interests: the public interest in the administration of justice and the interest of the public in being informed about vital matters.²⁴ Both judgments proceeded on the basis the balancing approach adopted in Hinch is required in this process.

8.21 Chief Justice Spigelman (with whom Justice Priestley agreed) held that the authorities do not support the promulgation of a rule that wholly precludes the conduct of a balancing exercise where the offending publication implies guilt, or suggests guilt, or canvasses matters directly related to the issue of guilt. According to his Honour, there is no pre-determined balance in favour of the administration of justice for cases involving publications that fall under one or more of those categories.²⁵ He used the High Court formulation of an implied freedom of political communication²⁶ as another ground to reject a pre-determined balance rule. Having concluded that a balancing test is to be exercised where the publication that deals with the guilt of the accused, the Chief Justice held that the finding of Justice Barr was reasonably open as a matter of law. He found that Justice Barr had before him a publication containing a clear and prominent implication of guilt of criminal conduct similar to the specific charges laid against an accused, but the latter’s involvement in that conduct was pertinent to a wide ranging, serious in-depth journalistic investigation of a major social problem with significant public policy implications.²⁷

8.22 Justice Mason’s dissent emphasised the importance of the right to a fair trial.²⁸ He was of the view the protection of the right to a fair trial is the touchtone of the free and democratic society that the Bread Manufacturers defence is designed to advance. He examined passages from the different judgments in Hinch and was convinced that the Justices were vitally concerned to demonstrate the limits of the Bread Manufacturers defence. He held that Hinch and subsequent cases that considered the public interest principle establish that the defence cannot be invoked to excuse a publication that has the tendency to interfere with the administration of justice, where the interference consists of implication or suggestion of guilt or the canvassing of matters directly related to the central issue of guilt.²⁹ To his Honour, the impugned publication was in a form and at a time that it directly trenched upon the question of Mr Duong’s guilt; the canvassing of that issue in the graphic language of the articles did not and could not find justification by reference to a public interest in the general topic, important though it was.³⁰

8.23 It is arguable that the majority judgment in Attorney General (NSW) v X represents a departure from some of the views expressed in Hinch. There were strong statements in Hinch that in the balancing of the conflicting interests, the courts should tilt the scales in favour of protecting the due administration of justice and where the material is directed at the guilt or innocence of an accused person, it would be difficult to outweigh the public interest in a fair trial. However, Chief Justice Spigelman in Attorney General (NSW) v X pointed out that since Hinch and subsequent cases that applied the Bread Manufacturers principle, the High Court has recognised an immunity in the Commonwealth Constitution with respect to the freedom of communication. Consequently, his Honour wrote that the law of contempt must adapt to this constitutional immunity.³¹ It would appear that with respect to the public interest principle, his Honour considers that courts must now attribute greater weight to the freedom of public discussion when conducting a balancing test.

8.24 Attorney General (NSW) v X has not, however, provided guidance on how the Bread Manufacturers defence might apply to publications that deal specifically with the facts of a pending trial. This issue did not come up in this case because “there was no discussion of the facts and circumstances of the charges pending against [the accused].”³²

8.25 The public interest principle forms part of the law of sub judice contempt in other jurisdictions. For example, in the United Kingdom, the 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 that are not linked to a wider theme.³³ 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.

8.26 The position in other jurisdictions is examined in paragraphs 8.22-8.37 of DP 43.

8.27 The Commission, in Chapter 8 of DP 43, canvassed the recommendations of other law reform agencies. This survey need not repeated here. However, it is worth mentioning the recommendation of the Australian Law Reform Commission (“ALRC”) because it was the basis of this Commission’s proposal.

8.28 The ALRC recommended a narrower form of the public interest principle than exists at common law.³⁴ 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.³⁵

8.29 The approach of the ALRC would exclude from the scope of the defence the publication of material that 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.

8.30 The ALRC expressly rejected a form of the public interest principle that 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 that results from careless failure on the part of the media to make themselves aware of current trials.

8.31 The Commission took the view that there is a need to formulate a new public interest defence. It shared 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 indeed result from a failure on the part of the media to make themselves aware of current trials.³⁶

8.32 As an alternative to the public interest principle found in common law, the Commission in Proposal 19 of DP 43 proposed a legislative provision in terms similar to those recommended by the ALRC.³⁷ It was to the effect that a publication should not attract liability if the following conditions are met:

8.34 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,³⁹ this proposal would operate as a true defence. That means the burden of proof would be on the defendant to prove, on the balance of probabilities, all the elements of the defence.

8.35 There was support for the proposal in the consultations, for example, from the Law Society of New South Wales⁴⁰ and the New South Wales Director of Public Prosecutions.⁴¹

8.36 Mr David Norris, Senior Solicitor at the Crown Solicitor’s Office, agreed in substance with the proposal but suggested that there should be exceptions to the defence, which should be in terms “other than the trial itself or the alleged criminal history of the accused.”⁴² In support of this suggestion, Mr Norris adopted the views expressed by Justice Mason in Attorney General (NSW) v X.⁴³

8.37 In addition, or as an alternative, Mr Norris suggested that the balancing exercise be retained by adding a third element to the defence to the effect “any risk of prejudice to pending proceedings was outweighed by the public interest in continuance of the discussion”.⁴⁴ He argues that public interest would otherwise appear to be an absolute defence, even where there may in fact be a very substantial risk of prejudice in the particular circumstances of the publication.

8.38 There was opposition, mainly from media groups,⁴⁵ but also from the New South Wales Bar Association⁴⁶ and the Victorian Bar Council.⁴⁷ Most of them expressed the view that there is no need to narrow down the public interest principle.⁴⁸ The Australian Press Council “believes that this proposal will unnecessarily lessen newspapers’ abilities to report, and comment on, matters of public interest or matters on public record.”⁴⁹ Another reason given by others who opposed an approach that limits the public interest defence was that courts have not so far applied it for the benefit of the media at the expense of fair criminal trials.⁵⁰

8.39 There was particular concern about the second condition of the proposed defence – that the person accused of contempt must show that 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.⁵¹ The Victorian Bar Council wrote that this requirement involves a judgment about the “value” of the publication considered. Consequently, the Council claimed this would leave a considerable margin for the courts to punish stories that they regard as distasteful.⁵² Furthermore, the Council wrote that “it is likely that in most cases, courts would, when focused specifically upon the content of a particular communication, consider that its absence would not have ‘significantly impaired’ the ‘discussion’.”⁵³ In the Council’s view, the proposal “places considerable emphasis upon the value of the particular communication, and not enough emphasis upon the value of public discussion.”⁵⁴

8.40 The Joint Broadcasters’ Submission also took exception to the second requirement of the proposal. It claimed that this condition is difficult to apply because it is not clear what degree or type of impairment would be required to be shown nor from whose perspective the impairment should be judged.⁵⁵ To demonstrate how the proposal would be difficult to apply, it gave this example: Newspaper A publishes an article that contains comments arguably in contempt of court but which clearly relate to a matter of public interest. Broadcast Station B publishes a summary of those comments. The submission claimed that it would be difficult for Station B to establish that the discussion of the matters of public interest would have been significantly impaired if the comments had not been published when that broadcast station is reporting the comments for a second time.⁵⁶

8.41 Most of those who opposed the proposal advocated the retention of the public interest principle as it stands at common law. They considered the common law to be adequate in setting down the parameters of this aspect of contempt law.⁵⁷ It was submitted that the application of the principle depends on the attendant facts and the balancing test in the Hinch case is the best way to deal with situations where the principle might apply.⁵⁸

8.42 However, if the Commission’s proposal were to go ahead, two submissions suggested revisions. The Joint Broadcasters’ Submission suggested that instead of requiring the publisher to prove that the public discussion would have been impaired if the material was not published, the publisher should instead be required to show that the statement creating the risk contributed to the public discussion.⁵⁹

8.43 The New South Wales Bar Association suggested⁶⁰ that if further attempts were made to draft legislation to give effect to Proposal 19, regard should be given to statutory provisions applicable to the publication of defamatory matter, such as s 377(8) Criminal Code (Qld), which reads:

8.44 After taking into account the submissions from our consultations, the Commission has come to the view that Proposal 19 should not be pursued. It may not have taken sufficient account of the developments after the ALRC report, in particular the approach taken by the High Court in the Hinch case on the weighing of public interests involved. It agrees with comments made in the submissions about the difficulties that could arise from the proposal. Furthermore, it now considers that a balancing approach may be the best way to deal with situations that involve competing public interests.

8.45 However, the Commission does not wish to leave the development of the principle entirely to the common law. It makes a recommendation for legislation to clarify the principle, as follows:

8.47 The recommendation requires, in the determination of whether the public benefit from the publication outweighs the harm, a consideration of the circumstances under which the material was published. One important factor to be considered is the timing of the publication. It must be asked, for instance, whether there was a significant time lapse between the publication and the trial, so that its prejudicial effect would have diminished by the time the trial commenced.

8.48 Furthermore, in cases where the media invoke the public interest in the free discussion of the subject matter of the published material, it should also be relevant for courts to consider whether such discussion would suffer significantly if the publication were delayed until after the trial, when the risk of prejudice has ceased. If the publication or broadcast of the material could have been postponed for a few days, for example, and if so delayed could still have made a contribution to the public discussion, it is arguable that the balance should be weighed in favour of the harm rather than the benefit.

8.49 There is a controversy at common law relating to published material that is directed at the guilt or innocence of an accused person, or canvasses matters directly related to the issue of guilt. On one view, there would be no countervailing public interest consideration that might effectively outweigh the detriment of a clear tendency to prejudice the due administration of justice, in cases involving such material.⁶² In other words, the public interest principle cannot be invoked to excuse a publication that consists of some implication or suggestion of guilt or innocence of the accused.⁶³ On another view, such publications would still invite the application of the balancing process required by the public interest principle.⁶⁴ Our recommendation does not propose to make any changes to the current state of the common law on this issue. It is an issue that may be left for courts to develop.

8.50 Under this recommendation, the public interest principle could apply to a publication referring specifically to a particular pending criminal trial. It could be left to the courts to determine the circumstances in which the principle might prevail.

8.51 The recommendation clarifies that courts must not only look at the public benefit to the debate on the topic concerned but on the broader public interest of freedom of speech. Both in common law contempt decisions, such as Hinch, and in decisions on the implied constitutional freedom of political communication,⁶⁵ the courts have acknowledged that a self-governing community such as Australia derives benefit from the maintenance of a broad-ranging freedom to convey, and to receive, information and opinions about matters of public interest.

8.52 The recommendation follows the common law with respect to the burden of proof. It is for the prosecution to prove that the matter does not fall within the public interest principle, if this issue is raised by the defence.

8.53 In DP 43, the Commission considered whether it is necessary or desirable to have a defence that 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 might give rise to liability for sub judice contempt if no ground of exoneration existed.

8.54 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, 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. However, relying on prosecutorial discretion is not conducive to clarity or certainty; publishers should be able to know in advance whether they might be prosecuted. Furthermore, the more reliance placed on the exercise of prosecutorial discretion, the greater the likelihood of complaints of selective prosecution.

8.55 In Attorney General (NSW) v Macquarie Publications Pty Ltd,⁶⁶ an accused was charged with sexual offences against a young person, apparently his daughter. When released on bail, he assaulted a woman and was re-arrested but escaped from custody. He also had several previous convictions. The local newspaper published a photograph of the accused and an article about him, which mentioned his criminal history. In his affidavit to the court, the editor, who read an early draft of the article, sought to justify the publication by stating that he wanted to inform the citizens of the town that the accused is dangerous and that he had hoped that someone would turn him in. However, the person who settled the article after the editor had left for the day received information from the police, shortly before the paper was finalised for printing, that the accused had been apprehended. The court did not have to deal with the editor’s “defence” because the perceived danger to the public safety had clearly passed by the time the article was published. The case, however, is a good illustration of a situation where the media and possibly even the police could be liable for contempt, if the proposed defence were not clearly available.

8.56 In DP 43, the Commission proposed that 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

8.57 The Commission argued that, rather than relying on prosecutorial discretion or waiting for courts to broaden the application of the public interest defence, it was preferable for publications of this kind to have their own separate protection in legislation. 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 formulation of the proposed 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.

8.58 There was support for the proposal both from the media⁶⁷ and others.⁶⁸ However, some media groups suggested that the onus of proof should not be on the defendant.⁶⁹

8.59 The Joint Broadcasters’ Submission suggested that if any information was provided for publication by the police or similar agencies, there should be a presumption that publication was reasonably necessary or desirable for purposes of the defence.⁷⁰

8.60 The Law Society of New South Wales, in its written submission, opposed the proposal because it considered the potential for abuse to be too great. However, it also expressed support for the need to protect the safety of the general public and stated that if the proposal goes ahead, those drafting the legislation should exercise great care in balancing the right to a fair trial and the imperative of public safety.⁷¹ In a subsequent consultation with the Law Society’s representative, Mr Trevor Nyman, it was clarified that the proposal would be acceptable to the Law Society if it were tightened up. For example, while the publication could be allowed to state that the person is dangerous, it need not mention his or her criminal history.⁷²

8.61 The Victorian Bar Council expressed the view that while there might be occasions when the proposed defence could be used, it is likely that they will be rare. Moreover, it warned that there is a danger that the defence could be used to conduct trial by media of a person being pursued by the authorities.⁷³ In any case, the Council wrote that it is desirable to limit the ambit of the proposed defence in its terms. For example, it could be restricted to situations where there is an “immediate” and “serious” danger to the general public.⁷⁴

8.62 The Commission disagrees with the suggestion in the Joint Broadcasters’ Submission that if any information was provided for publication by the police, there should be a presumption that the publication was reasonably necessary or desirable for purposes of the defence. The persons or organisations that make the decision to publish should not be able to evade their responsibility to ensure that their publications do not create a risk of prejudice to the administration of justice. If there was an overriding interest to publish material that may have this risk, such as the protection of the public safety, the decision to publish should be reached only after a careful and independent examination of the relevant circumstances and not based on reliance on who gave the information nor on the representations made by the latter.

8.63 This view finds support in the New South Wales Court of Appeal case of Attorney General (NSW) v Mayas⁷⁵ where the court appeared to reject an editor’s excuse that because the journalist’s source was a ranking police officer, he failed to recognise the warning signs that the article could be contemptuous. The court placed the responsibility to become aware of and to appreciate the content of the matter published squarely on the editor and publisher.

8.64 The Commission does not agree with the comments made by the Victorian Bar Council and the New South Wales Law Society on the need to tighten up further the proposal. The proposal already specifies that circumstances under which the defence would apply and requires that the publication should have been “reasonably necessary or desirable” to achieve specific results. As formulated, the proposed defence contains sufficient safeguards against possible abuse.

8.65 The Commission accepts the suggestion that the burden of proving the elements of the proposed defence should not be on the defendant. The recommendation is now framed as a matter to be negatived by the prosecution.

Table of Contents

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).

3. This was the situation that arose in NSW 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. See Ex parte Bread Manufacturers Ltd; Re Truth and Sportsman Ltd (1937) 37 SR (NSW) 242; Hinch v Attorney General (Vic). See also in G Borrie and N Lowe, 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 NSW” (1992) 9 Australian Bar Review 215 at 217.

5. 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, Court of Appeal v Willesee (1985) 3 NSWLR 650; Attorney General (NSW) v John Fairfax & Sons Ltd (1985) 6 NSWLR 695.

6. Hinch v Attorney General (Vic) (1987) 164 CLR 15. For an analysis of this case, see S Walker, “Freedom of speech and contempt of court: the English and Australian approaches compared” (1991) 40 International and Comparative Law Quarterly 583.

7. See in particular NSW Law Reform Commission, Contempt by Publication (Discusion Paper 43, 2000) at para 8.8-8.18.

8. The Bread Manufacturers case was a civil case and there was a view that the principle that arose from that case did not apply to criminal cases: Attorney General (NSW) v Willessee [1980] 2 NSWLR 143 at 149, 151 (Moffitt P).

9. It is worth noting that the NSW 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, 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).

10. 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.

12. Hinch v Attorney General (Vic) at 26-27 (Mason CJ), at 37, 41-43 (Wilson J), at 52 (Deane J), at 67 (Toohey J), at 85-87, 88-89 (Gaudron J).

14. “It is difficult, if not impossible to envisage any situation in which countervailing public interest considerations could outweigh the detriment to the due administration of justice involved in public prejudgement by the mass media of the guilt of a person awaiting trial.”: Hinch v Attorney General (Vic) at 58-59.

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) 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. 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.

21. Attorney General (NSW) v X [2000] NSWCA 199. See F Robinson, ‘“No, no! sentence first – verdict afterwards’: freedom of the press and contempt by publication in Attorney General for the State of NSW v X” (2001) 23 The Sydney Law Review 261.

22. Attorney General (NSW) v John Fairfax Publications Pty Ltd [1999] NSWSC 318 at para 128 (Barr J).

23. Attorney General (NSW) v X [2000] NSWCA 199 at para 70 (Spigelman CJ), at para 155, 221 (Mason P).

24. Attorney General (NSW) v X at para 9 (Spigelman CJ), at para 175 (Mason P).

26. Nationwide News Pty Ltd v Wills (1992) 175 CLR 1; Australian Capital Television Pty Ltd v Commonwealth (No 2) (1992) 175 CLR 106; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.

32. Attorney General (NSW) v John Fairfax Publications Pty Ltd [1999] NSWSC 318 at para 128 (Barr J).

34. See Australian Law Reform Commission, Contempt (Report 35, 1987) (“ALRC Report 35”) 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.

35. ALRC Report 35 at para 338, Appendix A (Administration of Justice (Protection) Bill 1987 (Cth) cl 20(4)).

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

45. ABC, Submission at 3; Australian Press Council, Submission at para 21; Australian Broadcasters, Joint Submission at 6-7.

48. ABC, Submission at 3; Australian Press Council, Submission at para 21; NSW Bar Association, Submission at para 18-22.

50. NSW Bar Association, Submission at para 18-22; Australian Broadcasters, Joint Submission at 6-7; NSW Bar Association Representatives, Consultation.

57. ABC, Submission at 3; Australian Press Council, Submission at para 21; Australian Broadcasters, Joint Submission at 7.

66. Attorney General (NSW) v Macquarie Publications Pty Ltd (1988) 40 A Crim R 405.

67. Australian Press Council, Submission at para 22; Australian Broadcasters, Joint Submission at 7; ABC, Submission at 3.

75. Attorney General (NSW) v Mayas (NSWCA, No 174/83, 28 March 1984, unreported).