Contempt of Court: Consultation Paper (html)
Appendix C: Recommendations of the Open Courts Act Review
|
Rec No. |
Recommendation of Open Courts Act Review |
|---|---|
|
1 |
Sections 4 and 28 of the Open Courts Act 2013 (Vic) be amended to make clear that orders made under the Act constitute exceptions, based on necessity in the circumstances, to the operation of the principle of open justice rather than it being a matter of the operation of a presumption in favour of transparency. |
|
2 |
The Open Courts Act be amended to include a new preamble emphasising the fundamental importance of transparency in our legal system. |
|
3 |
The Open Courts Act be amended to restrict the power to make suppression orders to situations not otherwise encompassed by statutory provisions prohibiting or limiting publication. |
|
4 |
In order to ensure consistency of approach to principle and practice in relation to suppression orders and related areas, the Victorian Law Reform Commission be requested to report on the possible reform of the Judicial Proceedings Reports Act 1958 (Vic) and the codifying of the law relating to contempt of court, including the legal framework and processes for enforcement. |
|
5 |
1 The harmonisation of the law and practice relating to suppression orders be referred to the Council of Attorneys-General for further consideration. 2 Whether or not this recommendation is accepted, the Council of Attorneys-General be requested to consider the desirability of the development of a system for interstate and territory recognition and enforcement of suppression orders. |
|
6 |
In each matter in which a suppression order is made, the court or tribunal be required to prepare a written statement of its reasons for the order, including the justification for its terms and duration. Save for restrictions and redactions reasonably required to effect the purpose and efficacy of the order, these reasons should be publicly available. |
|
7 |
A central, publicly accessible register of suppression orders made by all Victorian courts and tribunals containing details of their terms and duration and, to the extent reasonably possible in the circumstances the reasons for them, be established. |
|
8 |
All suppression orders should be treated as interim for a period of five days to enable interested parties to present submissions as to their necessity or terms. In the absence of any such challenge, the orders would continue in effect for the period and terms stated. |
|
9 |
In the event of an appeal being lodged against the outcome of proceedings in which a suppression order was made, the order would continue in effect until the determination of the appeal or it is discharged or varied on application to the court or tribunal hearing the appeal. |
|
10 |
The Open Courts Act be simplified by removing the unnecessary distinction between broad and proceeding suppression orders. |
|
11 |
The Judicial College of Victoria be approached with a view to establishing programs and materials to improve the level of understanding within the judiciary concerning the operation of the Open Courts Act and other legislation restricting the public dissemination of information relating to legal proceedings. |
|
12 |
A formal relationship be developed through the Department of Justice and Regulation between the media, the courts and legal practitioners with the purpose of addressing the issues presented in effecting an appropriate balance between openness and the suppression of information in our court and tribunal processes. |
|
13 |
Consideration be given to statutory reform to enable the discretionary disclosure of the relevant convictions of juvenile offenders in cases of their continuing and entrenched propensity to engage in serious offending as adults. |
|
14 |
Section 184 should be amended to restrict the making of suppression orders concealing the identity or whereabouts of persons subject to supervision under the Serious Sex Offenders (Detention and Supervision) Act 2009 (Vic). In so restricting the making of suppression orders, the Act should continue to have regard to the ramifications of disclosure, including the personal safety of individuals. |
|
15 |
Adult victims of sexual assault or family violence or who as children have been so subjected should, on the conviction of the offender, be able to opt for disclosure of their identity. In situations where there is more than one victim, the court would be required to refuse an application where disclosure of the identity of a victim or perpetrator would result in that of a non-consenting victim or impose any conditions required in the circumstances to secure the anonymity of a non-consenting victim. |
|
16 |
Section 534 of the Children, Youth and Families Act 2005 (Vic) be amended to enable adult victims who are also witnesses to disclose their own identities, provided that to do so does not breach any other of the requirements of the section. |
|
17 |
It becomes mandatory at initial bail hearings consequent upon the laying of charges in relation to alleged sexual or family violence criminal offences for an interim suppression order to be issued. This order would remain in effect for five working days. Alternatively, the Judicial Proceedings Reports Act should be amended to the same effect. |
|
18 |
Provided the Public Interest Monitor receives the additional funding and resources necessary to perform the following functions: 1. The Monitor should be empowered, if requested by the judge to appear as contradictor, to make submissions and ask questions when the judge is determining whether orders should be made under the Open Courts Act, on what grounds and the framing of their scope. 2. Orders, once made, can be referred to the Monitor for consideration by interested parties to enable the independent consideration of the need, terms and duration of the order while maintaining the security of the underlying information. The Monitor’s decision whether or not to pursue the review of an order is final. 3. If it is considered necessary in the public interest to intervene, the Monitor should be able to seek the review of the order by the judge or prosecute an appeal. 4. The Monitor would report annually to the Attorney General on the operation of the Open Courts Act. |
Appendix D: Jurisdiction and powers of the courts to deal with contempt of court?
|
Supreme Court of Victoria |
County Court of Victoria |
Magistrates’ Court of Victoria |
Children’s Court of Victoria |
Coroners Court of Victoria |
|
|---|---|---|---|---|---|
|
Court of Record |
Superior Court of Record with unlimited jurisdiction – Constitution Act 1975 (Vic) s 85 |
Court of record—County Court Act 1958 (Vic) s 35(2) |
Magistrates’ Court Act 1989 (Vic) is silent on whether the Magistrates’ Court is a Court of Record. |
Children, Youth and Families Act 2005 (Vic) is silent on whether the Children’s Court is a Court of Record.[1] |
Coroners Act 2008 (Vic) is silent on whether the Coroners Court is a Court of Record.[2] |
|
Inherent jurisdiction to punish criminal contempt |
Unlimited inherent jurisdiction—can punish contempts of court wherever they occur.[3] Constitution Act 1975 (Vic) s 85 |
No inherent jurisdiction to punish for contempt.[4] As a Court of Record, may have implied jurisdiction to punish for contempt in the face of the court. |
No inherent jurisdiction to punish for contempt. May have implied jurisdiction to punish for contempt in the face of the court.[5] |
No inherent jurisdiction to punish for contempt, may have implied jurisdiction to punish for contempt in the face of the court. |
No inherent jurisdiction to punish for contempt, may have implied jurisdiction to punish for contempt in the face of the court |
|
Supervisory/ protective jurisdiction |
As a superior court, the Supreme Court is empowered to deal summarily with contempts of inferior courts—to protect the rights of litigants and to ensure that justice is done.[6] |
||||
|
Statutory jurisdiction |
Procedure for exercise of Supreme Court’s inherent jurisdiction is prescribed by the Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 75. |
County Court Act 1958 (Vic) s 54—Court has the same jurisdiction, and may exercise the same powers and authority, in respect of any contempt of the court as the Supreme Court and may exercise in respect of any contempt of the Supreme Court. Procedure for exercise of the County Court’s jurisdiction to punish for contempt is prescribed by the County Court Civil Procedure Rules 2018 (Vic) r 75. |
Magistrates’ Court Act 1989 (Vic) s 133—Magistrates’ Court has power to deal summarily with contempt in the face of the court. Magistrates’ Court Act 1989 (Vic) s 134 – Magistrates’ Court has power to deal summarily with certain contempts committed by witnesses. Magistrates Court Act 1989 (Vic) s 135(2)—Magistrates’ Court has limited power to fine or imprison a person while in default of an order. |
Children, Youth and Families Act 2005 (Vic) s 528(3)—Court has, and may exercise in relation to all matters over which it has jurisdiction, all the powers and authorities that the Magistrates’ Court has in relation to the matters over which it has jurisdiction. |
Coroners Act 2008 (Vic) s 103—Coroners Court has power to deal summarily with contempts of the Coroners Court. |
Appendix E: Common law contempt of court1
Appendix E Table appears on following page[7]
Offence
Source
Classification of offence
Penalty
Initiation of proceedings
Triable by whom
Notes
Contempt of court, including:
– disobedience contempt
– sub judice contempt
– scandalising contempt
– juror contempt
– interference contempt
Common law
Common law offence triable summarily by the Supreme or County Court under their Civil Procedure Rules.
Historically capable of being punished upon indictment or presentment. However, no instance in modern times of indictment being brought. Summary procedure has wholly superseded trial by jury—now regarded as obsolete.[8]
Not all disobedience contempts are criminal offences.[9]
At large—there is no maximum penalty for common law contempt in section 320 of the Crimes Act 1958 (Vic).
Summons or originating motion in the Supreme or County Court.[10] Depending on the type of contempt, an application may be made by:
– a party in a civil contempt case.[11]
– Attorney-General.[12]
– Director of Public Prosecutions.[13]
– Prothonotary in the Supreme Court, or Registrar in the County Court, directed by a Supreme or County court judge.[14]
Supreme or County Court judge
For example, contempt can be found where there has been a:
– breach of a common law suppression order made by the Supreme Court in its inherent jurisdiction.[15]
– breach of an injunction made by the County Court exercising the inherent jurisdiction of the Supreme Court.[16]
– breach of a common law pseudonym order.[17]
Contempt in the face of the court
Common law
Common law offence triable summarily by the Supreme or County Court or under their Civil Procedure Rules.
At large—there is no maximum penalty for common law contempt in section 320 of the Crimes Act 1958 (Vic).
A Supreme or County Court Judge may punish the contempt directly and summarily, without a separate, formal proceeding being commenced by summons or originating motion.[18]
As with other contempts, a separate proceeding to punish the contempt may be commenced by summons or originating motion in the Supreme or County Court.[19]
Supreme or County Court judge.
Contempt in the face of the Magistrates’ Court
Magistrates’ Court Act 1989 (Vic)
s 133
Summary offence[20]
Individual: up to six months’ imprisonment or up to 25 penalty units[21]
The Magistrate may punish the contempt directly and summarily
Magistrates’ Court of Victoria
The Children’s Court has the same powers to punish for contempt as the Magistrates’ Court but a person under the age of 18 cannot be committed to prison for contempt. They may be committed to a youth justice or a youth residential centre instead.[22]
Contempt by witness failing to appear, be sworn, or answer questions in the Magistrates’ Court etc
Magistrates’ Court Act 1989 (Vic)
s 134
Summary offence[23]
Individual: up to one months’ imprisonment or up to five penalty units.[24]
The Magistrate may punish the contempt directly and summarily
Magistrates’ Court of Victoria
The Children’s Court has the same powers to punish for contempt as the Magistrates’ Court but a person under the age of 18 cannot be committed to prison for contempt, but may be committed to a youth justice or a youth residential centre instead.[25]
Contempt of the Coroners Court
Coroners Act 2008 (Vic)
s 103
Summary Offence
Individual: Up to 12 months imprisonment or 120 penalty units.
Corporation up to 600 penalty units[26]
The Coroner may punish the contempt directly and summarily.
Coroners Court of Victoria
Publishing a prohibited report of a judicial proceedings
Judicial Proceedings Reports Act 1958 (Vic) s 3
Summary offence[27]
Individual: up to four months’ imprisonment or up to 20 penalty units, or both.
Corporation: up to 50 penalty units.
Director of Public Prosecutions must consent to a prosecution.
Police charge.
Magistrates’ Court of Victoria.
Publishing identifying details about an alleged victim of sexual offences
Judicial Proceedings Reports Act 1958 (Vic) s 4
Summary offence[28]
Individual: up to four months’ imprisonment or up to 20 penalty units, or both.
Corporation: up to 50 penalty units.
Director of Public Prosecutions must consent to a prosecution.
Police charge.
Magistrates’ Court of Victoria.
Breaching a:
– proceeding suppression order
– interim order
Open Courts Act 2013 (Vic) s 23
Indictable offence that is triable summarily.[29]
Individual: up to 5 years’ imprisonment or 600 penalty units, or both.
Corporation: 3000 penalty units.
If tried summarily: up to 2 years’ imprisonment or up to 500 penalty units.[30]
Police charge.
Tried summarily by a magistrate in the Magistrates’ Court of Victoria, or by judge and jury in the County or Supreme court.
Director of Public Prosecutions may provide prior advice, but this is not mandatory.
Breaching a broad suppression order made by the Magistrates’ Court
Open Courts Act 2013 (Vic) s 27
Indictable offence that is triable summarily.[31]
Individual: up to 5 years’ imprisonment or 600 penalty units, or both.
Corporation: 3000 penalty units.
If tried summarily: up to 2 years’ imprisonment or up to 500 penalty units.[32]
Police charge.
Tried summarily by a magistrate in the Magistrates’ Court of Victoria, or by judge and jury in the County or Supreme court.
Director of Public Prosecutions may provide prior advice, but this is not mandatory.
Publishing, soliciting or obtaining disclosure of jury deliberations
Juries Act 2000 (Vic)
s 78(1)
Indictable offence that is triable summarily.[33]
Individual, or anyone else: Imprisonment for 5 years or 600 penalty units.
Corporation: 3000 penalty units.
If tried summarily: up to 2 years’ imprisonment or up to 500 penalty units.[34]
Director of Public Prosecutions, or a person authorised by the DPP, must consent in writing to a prosecution.[35]
Police charge.
Tried summarily by a magistrate in the Magistrates’ Court of Victoria, or by judge and jury in the County or Supreme court.
There are other offences in sections 65-77, 80-3, including summary offences, indictable offences and offences that a court may deal with ‘in a summary way’.
Juror or former juror disclosing deliberations with reason to believe it is likely to be, or will be, published
Juries Act 2000 (Vic)
s 78(2)
Indictable offence that is triable summarily.[36]
Imprisonment for 5 years or 600 penalty units.
If tried summarily: up to 2 years’ imprisonment or up to 500 penalty units.[37]
Director of Public Prosecutions, or a person authorised by the DPP, must consent in writing to a prosecution.[38]
Police charge.
Tried summarily by a magistrate in the Magistrates’ Court of Victoria, or by judge and jury in the County or Supreme court.
There are other offences in sections 65-77, 80-3, including summary offences, indictable offences and offences that a court may deal with ‘in a summary way’.
Registered medical practitioner or registered psychologist disclosing deliberations by a former juror disclosed in the course of treatment for issues arising out of jury service
Juries Act 2000 (Vic)
s 78(5)–(6)
Indictable offence that is triable summarily.[39]
Imprisonment for 5 years or 600 penalty units.
If tried summarily: up to 2 years’ imprisonment or up to 500 penalty units.[40]
Director of Public Prosecutions, or a person authorised by the DPP, must consent in writing to a prosecution.[41]
Police charge.
Tried summarily by a magistrate in the Magistrates’ Court of Victoria, or by judge and jury in the County or Supreme court.
There are other offences in sections 65-77, 80-3, including summary offences, indictable offences and offences that a court may deal with ‘in a summary way’.
Jury panel member or juror making improper enquiries about a case
Juries Act 2000 (Vic)
s 78A
Summary offence.[42]
120 penalty units.
Police charge.
Magistrates’ Court of Victoria
There are other offences in sections 65-77, 80-3, including summary offences, indictable offences and offences that a court may deal with ‘in a summary way’.
Intimidating, or causing or procuring physical harm or detriment to a person because of their involvement in a criminal investigation or proceeding, including a witness, victim or juror[43]
Crimes Act 1958 (Vic)
s 257
Indictable offence that is triable summarily.[44]
Up to 10 years’ imprisonment.
If tried summarily: up to 2 years’ imprisonment or up to 500 penalty units.[45]
Police charge.
Tried summarily by a magistrate in the Magistrates’ Court of Victoria, or by judge and jury in the County or Supreme court.
This offence is included because it could apply in circumstances where common law contempt might also apply.
Threats to kill
Crimes Act 1958 (Vic) s 20
Indictable offence that is triable summarily.[46]
Up to 10 years’ imprisonment.
If tried summarily: up to 2 years’ imprisonment or up to 500 penalty units.[47]
Police charge.
Tried summarily by a magistrate in the Magistrates’ Court of Victoria, or by judge and jury in the County or Supreme court.
This offence is included because it could apply in circumstances where common law contempt might also apply.
Threats to inflict serious injury
Crimes Act 1958 (Vic) s 21
Indictable offence that is triable summarily.[48]
Up to 5 years’ imprisonment.
If tried summarily: up to 2 years’ imprisonment or up to 500 penalty units.[49]
Police charge.
Tried summarily by a magistrate in the Magistrates’ Court of Victoria, or by judge and jury in the County or Supreme court.
This offence is included because it could apply in circumstances where common law contempt might also apply.
Extortion with threat to kill
Crimes Act 1958 (Vic) s 27
Indictable offence that is triable summarily.[50]
Up to 15 years’ imprisonment.
If tried summarily: up to 2 years’ imprisonment or up to 500 penalty units.[51]
Police charge.
Tried summarily by a magistrate in the Magistrates’ Court of Victoria, or by judge and jury in the County or Supreme court.
This offence is included because it could apply in circumstances where common law contempt might also apply.
Perjury
Crimes Act 1958 (Vic)
s 314
Indictable offence that is triable summarily.[52]
Up to 15 years’ imprisonment.
If tried summarily: up to 2 years’ imprisonment or up to 500 penalty units.[53]
Police charge.
Tried summarily by a magistrate in the Magistrates’ Court of Victoria, or by judge and jury in the County or Supreme court.
This offence is included because it could apply in circumstances where common law contempt might also apply.
Perjury
Common law
Section 314(1) of the Crimes Act 1958 (Vic) encompasses common law perjury and sub-sections (2) and (3) extend it to capture circumstances that would not amount to perjury at common law.[54]
Indictable offence.
At large. There is no maximum penalty for common law perjury in section 320 of the Crimes Act 1958 (Vic).
Police charge.
A judge may direct that a person may be tried for perjury in certain circumstances, pursuant to sections 5(c) and 415 of the Criminal Procedure Act 2009 (Vic).
Judge and jury in the County or Supreme court.
At common law, a person commits perjury by giving false evidence on oath in a judicial proceeding. This is an offence both at common law and under s 314 of the Crimes Act 1958 (Vic).[55]
Wilful destruction or damage of property
Summary Offences Act 1966 (Vic)
s 9(1)(c)
Summary offence
25 penalty units or six months’ imprisonment.
Police charge.
Magistrates’ Court of Victoria
This offence is included because it could apply in circumstances where common law contempt might also apply.
Using profane, indecent or obscene language or threatening, abusive or insulting words.
Summary Offences Act 1966 (Vic)
s 17(1)(c)
Summary offence
10 penalty units or two months’ imprisonment.
For a second offence—15 penalty units or three months’ imprisonment.
For a third or subsequent offence—25 penalty units or six months’ imprisonment.
Police charge.
Magistrates’ Court of Victoria
This offence is included because it could apply in circumstances where common law contempt might also apply.
Behaving in a riotous, indecent, offensive or insulting manner, including by exposing oneself.
Summary Offences Act 1966 (Vic)
s 17(1)(d)
Summary offence
10 penalty units or two months’ imprisonment.
For a second offence—15 penalty units or three months’ imprisonment.
For a third or subsequent offence—25 penalty units or six months’ imprisonment.
Police charge.
Magistrates’ Court of Victoria
This offence is included because it could apply in circumstances where common law contempt might also apply.
Behaving in a disorderly manner.
Summary Offences Act 1966 (Vic)
s 17A
Summary offence
Up to 10 penalty units.
Police charge.
Magistrates’ Court of Victoria
This offence is included because it could apply in circumstances where common law contempt might also apply.
Common assault – unlawfully assaulting or beating another person.
Summary Offences Act 1966 (Vic) s 23
Summary offence
15 penalty units or three months’ imprisonment.
Police charge.
Magistrates’ Court of Victoria
This offence is included because it could apply in circumstances where common law contempt might also apply.
Harassing a person because that person has taken part, is about to take part or is taking part in a criminal proceeding in any court as a witness or in any other capacity.
Summary Offences Act 1966 (Vic)
s 52A
Summary offence
120 penalty units or 12 months’ imprisonment.
Police charge.
Magistrates’ Court of Victoria
This offence is included because it could apply in circumstances where common law contempt might also apply.
Refusing to comply with a reasonable direction from an ‘authorized officer’ to do or not do something.
Court Security Act 1980 (Vic) s 3(2B)
Summary offence[56]
10 penalty units.
Police charge.
Magistrates’ Court of Victoria
Directions that an authorized officer may give are specified in section 3(2A). ‘Authorised officer’ is defined in section 2(1).
This offence is included because it could apply in circumstances where common law contempt might also apply.
Making a recording of proceedings where not authorised by the Court Security Act 1980 (Vic).
Court Security Act 1980 (Vic) s 4A
Summary offence[57]
20 penalty units
Police charge.
Magistrates’ Court of Victoria
This offence is included because it could apply in circumstances where common law contempt might also apply.
Attempting to pervert the course of justice
Common law.
Recognised in section 320 of the Crimes Act 1958 (Vic).
Indictable offence.
Up to 25 years’ imprisonment.
Police charge.
Judge and jury in the County or Supreme court.
This offence is included because it could apply in circumstances where common law contempt might also apply.
Perverting the course of justice
Common law.
Recognised in section 320 of the Crimes Act 1958 (Vic).
Indictable offence.
Up to 25 years’ imprisonment.
Police charge.
Judge and jury in the County or Supreme court.
This offence is included because it could apply in circumstances where common law contempt might also apply.
Embracery
Common law.
Recognised in section 89 of the Juries Act 2000 (Vic) and section 320 of Crimes Act 1958 (Vic).
Indictable offence.
Up to 15 years’ imprisonment.
Police charge.
Judge and jury in the County or Supreme court.
This offence is included because it could apply in circumstances where common law contempt might also apply.
-
? Note whilst not a court, both the Victorian Civil and Administrative Tribunal and the Victims of Crime Assistance Tribunal have power conferred by statute to deal with conduct that would otherwise be contempt. See Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 137; Victims of Crime Assistance Act 1996 (Vic) s 64.
1 The Report of the Protecting Victoria’s Vulnerable Children Inquiry recommended that the Children, Youth and Families Act 2005 (Vic) should be amended to confirm the status of the Children’s Court as a court of record, suggesting that it may already have that status, but that it was unclear. See: Report of the Protecting Victoria’s Vulnerable Children Inquiry, (Department of Premier and Cabinet, 2012) Recommendation 65.
-
See Annetts v McCann (1990) 170 CLR 596, 617.
-
R v Metal Trades Employers’ Association: Ex parte Amalgamated Engineering Union (Australian Section) (1951) 82 CLR 208, 241 (Latham CJ), 254 (Dixon J); R v Taylor; Ex parte Roach (1951) 82 CLR 587, 598 (Dixon, Webb, Fullagar and Kitto JJ).
-
See Morgan v State of Victoria (2008) 22 VR 237, 269; Judicial College of Victoria, Victorian Criminal Proceedings Manual (26 February 2018), [8.5.1]] <www.judicialcollege.vic.edu.au/eManuals/VCPM/index.htm#27318.htm>.
-
Magistrates’ Court of Prahran v Murphy [1997] 2 VR 186, 204
-
John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 75.05(1)(c).
-
This table is not a comprehensive or exhaustive summary of all contempt related offences. It is intended for illustrative purposes and thus refers only to the more major related statutory and other common law offences.
-
Construction, Forestry, Mining and Energy Union v Grocon Constructors (Victoria) Pty Ltd (2014) 47 VR 527, 562–3.
-
Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2015) 256 CLR 375, 395.
-
Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 75.06; County Court Civil Procedure Rules 2018 (Vic) r 75.06.
-
Construction, Forestry, Mining and Energy Union v Grocon Constructors (Victoria) Pty Ltd (2014) 47 VR 527, 562.
-
The Broken Hill Proprietary Company Ltd v Dagi [1996] 2 VR 117, 125; Construction, Forestry, Mining and Energy Union v Grocon Constructors (Victoria) Pty Ltd (2014) 47 VR 527, 562. While the Victorian Court of Appeal in Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd accepted that the Attorney-General has the power to commence proceedings for criminal contempts, it stated that it was ‘at least seriously arguable’ that the Attorney-General also has such a power in in respect of civil contempts, however it found was not necessary to decide the matter: Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd [2013] VSCA 378 (13 December 2013) [11], [14].
-
Public Prosecutions Act 1994 (Vic) s 22(1)(ba)(iii).
-
Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 75.07(1); County Court Civil Procedure Rules 2018 (Vic) r 75.07(1).
-
Open Courts Act 2013 (Vic) s 5(1).
-
Open Courts Act 2013 (Vic) s 25.
-
Open Courts Act 2013 (Vic) s 7(d)(i).
-
Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 75.02–75.04; County Court Civil Procedure Rules 2018 (Vic) r 75.02–75.04.
-
Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 75.06; County Court Civil Procedure Rules 2018 (Vic) r 75.06.
-
Sentencing Act 1991 (Vic) s 112(2).
-
Magistrates’ Court Act 1989 (Vic) s 133(4).
-
Children, Youth and Families Act 2005 (Vic) s 528.
-
Sentencing Act 1991 (Vic) s 112(2).
-
Magistrates’ Court Act 1989 (Vic) s 134(3).
-
Children, Youth and Families Act 2005 (Vic) s 528
-
Coroners Act 2008 (Vic) s 103(7)
-
Sentencing Act 1991 (Vic) s 112(2).
-
Sentencing Act 1991 (Vic) s 112(2).
-
Sentencing Act 1991 (Vic) s 112(1); Criminal Procedure Act 2009 (Vic) ss 28–29.
-
Sentencing Act 1991 (Vic) ss 112A(1), 113(1).
-
Sentencing Act 1991 (Vic) s 112(1); Criminal Procedure Act 2009 (Vic) ss 28–29.
-
Sentencing Act 1991 (Vic) ss 112A(1), 113(1).
-
Juries Act 2000 (Vic) s 78(10); Criminal Procedure Act 2009 (Vic) s 28(1), sch 2 cl 18.
-
Sentencing Act 1991 (Vic) ss 112A(1), 113(1).
-
Juries Act 2000 (Vic) s 78(11).
-
Juries Act 2000 (Vic) s 78(10); Criminal Procedure Act 2009 (Vic) s 28(1)(a), sch 2 cl 18.
-
Sentencing Act 1991 (Vic) ss 112A(1), 113(1).
-
Juries Act 2000 (Vic) s 78(11).
-
Juries Act 2000 (Vic) s 78(10); Criminal Procedure Act 2009 (Vic) s 28(1)(a), sch 2 cl 18.
-
Sentencing Act 1991 (Vic) ss 112A(1), 113(1).
-
Juries Act 2000 (Vic) s 78(11).
-
See Sentencing Act 1991 (Vic) s 112(2).
-
See Crimes Act 1958 (Vic) s 256 for the meanings of ‘detriment’, involvement in a criminal investigation, and involvement in a criminal proceeding.
-
Crimes Act 1958 (Vic) s 257; Criminal Procedure Act 2009 (Vic) s 28(1).
-
Sentencing Act 1991 (Vic) ss 112A(1), 113(1).
-
Crimes Act 1958 (Vic) s 20; Criminal Procedure Act 2009 (Vic) s 28(1).
-
Sentencing Act 1991 (Vic) ss 112A(1), 113(1).
-
Crimes Act 1958 (Vic) s 21; Criminal Procedure Act 2009 (Vic) s 28(1).
-
Sentencing Act 1991 (Vic) ss 112A(1), 113(1).
-
Criminal Procedure Act 2009 (Vic) s 28(1), sch 2 cl 4.2.
-
Sentencing Act 1991 (Vic) ss 112A(1), 113(1).
-
Criminal Procedure Act 2009 (Vic) s 28(1), sch 2 cl 4.26.
-
Sentencing Act 1991 (Vic) ss 112A(1), 113(1).
-
Ian Freckelton and Kerryn Cockroft, Indictable Offences in Victoria (Thomson Reuters, 6th ed, 2016) 788.
-
Ian Freckelton and Kerryn Cockroft, Indictable Offences in Victoria (Thomson Reuters, 6th ed, 2016) 788.
-
Sentencing Act 1991 (Vic) s 112(2).
-
Sentencing Act 1991 (Vic) s 112(2).
Offence
Source
Classification of offence
Penalty
Initiation of proceedings
Triable by whom
Notes
Contempt of court, including:
– disobedience contempt
– sub judice contempt
– scandalising contempt
– juror contempt
– interference contempt
Common law
Common law offence triable summarily by the Supreme or County Court under their Civil Procedure Rules.
Historically capable of being punished upon indictment or presentment. However, no instance in modern times of indictment being brought. Summary procedure has wholly superseded trial by jury—now regarded as obsolete.[8]
Not all disobedience contempts are criminal offences.[9]
At large—there is no maximum penalty for common law contempt in section 320 of the Crimes Act 1958 (Vic).
Summons or originating motion in the Supreme or County Court.[10] Depending on the type of contempt, an application may be made by:
– a party in a civil contempt case.[11]
– Attorney-General.[12]
– Director of Public Prosecutions.[13]
– Prothonotary in the Supreme Court, or Registrar in the County Court, directed by a Supreme or County court judge.[14]
Supreme or County Court judge
For example, contempt can be found where there has been a:
– breach of a common law suppression order made by the Supreme Court in its inherent jurisdiction.[15]
– breach of an injunction made by the County Court exercising the inherent jurisdiction of the Supreme Court.[16]
– breach of a common law pseudonym order.[17]
Contempt in the face of the court
Common law
Common law offence triable summarily by the Supreme or County Court or under their Civil Procedure Rules.
At large—there is no maximum penalty for common law contempt in section 320 of the Crimes Act 1958 (Vic).
A Supreme or County Court Judge may punish the contempt directly and summarily, without a separate, formal proceeding being commenced by summons or originating motion.[18]
As with other contempts, a separate proceeding to punish the contempt may be commenced by summons or originating motion in the Supreme or County Court.[19]
Supreme or County Court judge.
Contempt in the face of the Magistrates’ Court
Magistrates’ Court Act 1989 (Vic)
s 133
Summary offence[20]
Individual: up to six months’ imprisonment or up to 25 penalty units[21]
The Magistrate may punish the contempt directly and summarily
Magistrates’ Court of Victoria
The Children’s Court has the same powers to punish for contempt as the Magistrates’ Court but a person under the age of 18 cannot be committed to prison for contempt. They may be committed to a youth justice or a youth residential centre instead.[22]
Contempt by witness failing to appear, be sworn, or answer questions in the Magistrates’ Court etc
Magistrates’ Court Act 1989 (Vic)
s 134
Summary offence[23]
Individual: up to one months’ imprisonment or up to five penalty units.[24]
The Magistrate may punish the contempt directly and summarily
Magistrates’ Court of Victoria
The Children’s Court has the same powers to punish for contempt as the Magistrates’ Court but a person under the age of 18 cannot be committed to prison for contempt, but may be committed to a youth justice or a youth residential centre instead.[25]
Contempt of the Coroners Court
Coroners Act 2008 (Vic)
s 103
Summary Offence
Individual: Up to 12 months imprisonment or 120 penalty units.
Corporation up to 600 penalty units[26]
The Coroner may punish the contempt directly and summarily.
Coroners Court of Victoria
Publishing a prohibited report of a judicial proceedings
Judicial Proceedings Reports Act 1958 (Vic) s 3
Summary offence[27]
Individual: up to four months’ imprisonment or up to 20 penalty units, or both.
Corporation: up to 50 penalty units.
Director of Public Prosecutions must consent to a prosecution.
Police charge.
Magistrates’ Court of Victoria.
Publishing identifying details about an alleged victim of sexual offences
Judicial Proceedings Reports Act 1958 (Vic) s 4
Summary offence[28]
Individual: up to four months’ imprisonment or up to 20 penalty units, or both.
Corporation: up to 50 penalty units.
Director of Public Prosecutions must consent to a prosecution.
Police charge.
Magistrates’ Court of Victoria.
Breaching a:
– proceeding suppression order
– interim order
Open Courts Act 2013 (Vic) s 23
Indictable offence that is triable summarily.[29]
Individual: up to 5 years’ imprisonment or 600 penalty units, or both.
Corporation: 3000 penalty units.
If tried summarily: up to 2 years’ imprisonment or up to 500 penalty units.[30]
Police charge.
Tried summarily by a magistrate in the Magistrates’ Court of Victoria, or by judge and jury in the County or Supreme court.
Director of Public Prosecutions may provide prior advice, but this is not mandatory.
Breaching a broad suppression order made by the Magistrates’ Court
Open Courts Act 2013 (Vic) s 27
Indictable offence that is triable summarily.[31]
Individual: up to 5 years’ imprisonment or 600 penalty units, or both.
Corporation: 3000 penalty units.
If tried summarily: up to 2 years’ imprisonment or up to 500 penalty units.[32]
Police charge.
Tried summarily by a magistrate in the Magistrates’ Court of Victoria, or by judge and jury in the County or Supreme court.
Director of Public Prosecutions may provide prior advice, but this is not mandatory.
Publishing, soliciting or obtaining disclosure of jury deliberations
Juries Act 2000 (Vic)
s 78(1)
Indictable offence that is triable summarily.[33]
Individual, or anyone else: Imprisonment for 5 years or 600 penalty units.
Corporation: 3000 penalty units.
If tried summarily: up to 2 years’ imprisonment or up to 500 penalty units.[34]
Director of Public Prosecutions, or a person authorised by the DPP, must consent in writing to a prosecution.[35]
Police charge.
Tried summarily by a magistrate in the Magistrates’ Court of Victoria, or by judge and jury in the County or Supreme court.
There are other offences in sections 65-77, 80-3, including summary offences, indictable offences and offences that a court may deal with ‘in a summary way’.
Juror or former juror disclosing deliberations with reason to believe it is likely to be, or will be, published
Juries Act 2000 (Vic)
s 78(2)
Indictable offence that is triable summarily.[36]
Imprisonment for 5 years or 600 penalty units.
If tried summarily: up to 2 years’ imprisonment or up to 500 penalty units.[37]
Director of Public Prosecutions, or a person authorised by the DPP, must consent in writing to a prosecution.[38]
Police charge.
Tried summarily by a magistrate in the Magistrates’ Court of Victoria, or by judge and jury in the County or Supreme court.
There are other offences in sections 65-77, 80-3, including summary offences, indictable offences and offences that a court may deal with ‘in a summary way’.
Registered medical practitioner or registered psychologist disclosing deliberations by a former juror disclosed in the course of treatment for issues arising out of jury service
Juries Act 2000 (Vic)
s 78(5)–(6)
Indictable offence that is triable summarily.[39]
Imprisonment for 5 years or 600 penalty units.
If tried summarily: up to 2 years’ imprisonment or up to 500 penalty units.[40]
Director of Public Prosecutions, or a person authorised by the DPP, must consent in writing to a prosecution.[41]
Police charge.
Tried summarily by a magistrate in the Magistrates’ Court of Victoria, or by judge and jury in the County or Supreme court.
There are other offences in sections 65-77, 80-3, including summary offences, indictable offences and offences that a court may deal with ‘in a summary way’.
Jury panel member or juror making improper enquiries about a case
Juries Act 2000 (Vic)
s 78A
Summary offence.[42]
120 penalty units.
Police charge.
Magistrates’ Court of Victoria
There are other offences in sections 65-77, 80-3, including summary offences, indictable offences and offences that a court may deal with ‘in a summary way’.
Intimidating, or causing or procuring physical harm or detriment to a person because of their involvement in a criminal investigation or proceeding, including a witness, victim or juror[43]
Crimes Act 1958 (Vic)
s 257
Indictable offence that is triable summarily.[44]
Up to 10 years’ imprisonment.
If tried summarily: up to 2 years’ imprisonment or up to 500 penalty units.[45]
Police charge.
Tried summarily by a magistrate in the Magistrates’ Court of Victoria, or by judge and jury in the County or Supreme court.
This offence is included because it could apply in circumstances where common law contempt might also apply.
Threats to kill
Crimes Act 1958 (Vic) s 20
Indictable offence that is triable summarily.[46]
Up to 10 years’ imprisonment.
If tried summarily: up to 2 years’ imprisonment or up to 500 penalty units.[47]
Police charge.
Tried summarily by a magistrate in the Magistrates’ Court of Victoria, or by judge and jury in the County or Supreme court.
This offence is included because it could apply in circumstances where common law contempt might also apply.
Threats to inflict serious injury
Crimes Act 1958 (Vic) s 21
Indictable offence that is triable summarily.[48]
Up to 5 years’ imprisonment.
If tried summarily: up to 2 years’ imprisonment or up to 500 penalty units.[49]
Police charge.
Tried summarily by a magistrate in the Magistrates’ Court of Victoria, or by judge and jury in the County or Supreme court.
This offence is included because it could apply in circumstances where common law contempt might also apply.
Extortion with threat to kill
Crimes Act 1958 (Vic) s 27
Indictable offence that is triable summarily.[50]
Up to 15 years’ imprisonment.
If tried summarily: up to 2 years’ imprisonment or up to 500 penalty units.[51]
Police charge.
Tried summarily by a magistrate in the Magistrates’ Court of Victoria, or by judge and jury in the County or Supreme court.
This offence is included because it could apply in circumstances where common law contempt might also apply.
Perjury
Crimes Act 1958 (Vic)
s 314
Indictable offence that is triable summarily.[52]
Up to 15 years’ imprisonment.
If tried summarily: up to 2 years’ imprisonment or up to 500 penalty units.[53]
Police charge.
Tried summarily by a magistrate in the Magistrates’ Court of Victoria, or by judge and jury in the County or Supreme court.
This offence is included because it could apply in circumstances where common law contempt might also apply.
Perjury
Common law
Section 314(1) of the Crimes Act 1958 (Vic) encompasses common law perjury and sub-sections (2) and (3) extend it to capture circumstances that would not amount to perjury at common law.[54]
Indictable offence.
At large. There is no maximum penalty for common law perjury in section 320 of the Crimes Act 1958 (Vic).
Police charge.
A judge may direct that a person may be tried for perjury in certain circumstances, pursuant to sections 5(c) and 415 of the Criminal Procedure Act 2009 (Vic).
Judge and jury in the County or Supreme court.
At common law, a person commits perjury by giving false evidence on oath in a judicial proceeding. This is an offence both at common law and under s 314 of the Crimes Act 1958 (Vic).[55]
Wilful destruction or damage of property
Summary Offences Act 1966 (Vic)
s 9(1)(c)
Summary offence
25 penalty units or six months’ imprisonment.
Police charge.
Magistrates’ Court of Victoria
This offence is included because it could apply in circumstances where common law contempt might also apply.
Using profane, indecent or obscene language or threatening, abusive or insulting words.
Summary Offences Act 1966 (Vic)
s 17(1)(c)
Summary offence
10 penalty units or two months’ imprisonment.
For a second offence—15 penalty units or three months’ imprisonment.
For a third or subsequent offence—25 penalty units or six months’ imprisonment.
Police charge.
Magistrates’ Court of Victoria
This offence is included because it could apply in circumstances where common law contempt might also apply.
Behaving in a riotous, indecent, offensive or insulting manner, including by exposing oneself.
Summary Offences Act 1966 (Vic)
s 17(1)(d)
Summary offence
10 penalty units or two months’ imprisonment.
For a second offence—15 penalty units or three months’ imprisonment.
For a third or subsequent offence—25 penalty units or six months’ imprisonment.
Police charge.
Magistrates’ Court of Victoria
This offence is included because it could apply in circumstances where common law contempt might also apply.
Behaving in a disorderly manner.
Summary Offences Act 1966 (Vic)
s 17A
Summary offence
Up to 10 penalty units.
Police charge.
Magistrates’ Court of Victoria
This offence is included because it could apply in circumstances where common law contempt might also apply.
Common assault – unlawfully assaulting or beating another person.
Summary Offences Act 1966 (Vic) s 23
Summary offence
15 penalty units or three months’ imprisonment.
Police charge.
Magistrates’ Court of Victoria
This offence is included because it could apply in circumstances where common law contempt might also apply.
Harassing a person because that person has taken part, is about to take part or is taking part in a criminal proceeding in any court as a witness or in any other capacity.
Summary Offences Act 1966 (Vic)
s 52A
Summary offence
120 penalty units or 12 months’ imprisonment.
Police charge.
Magistrates’ Court of Victoria
This offence is included because it could apply in circumstances where common law contempt might also apply.
Refusing to comply with a reasonable direction from an ‘authorized officer’ to do or not do something.
Court Security Act 1980 (Vic) s 3(2B)
Summary offence[56]
10 penalty units.
Police charge.
Magistrates’ Court of Victoria
Directions that an authorized officer may give are specified in section 3(2A). ‘Authorised officer’ is defined in section 2(1).
This offence is included because it could apply in circumstances where common law contempt might also apply.
Making a recording of proceedings where not authorised by the Court Security Act 1980 (Vic).
Court Security Act 1980 (Vic) s 4A
Summary offence[57]
20 penalty units
Police charge.
Magistrates’ Court of Victoria
This offence is included because it could apply in circumstances where common law contempt might also apply.
Attempting to pervert the course of justice
Common law.
Recognised in section 320 of the Crimes Act 1958 (Vic).
Indictable offence.
Up to 25 years’ imprisonment.
Police charge.
Judge and jury in the County or Supreme court.
This offence is included because it could apply in circumstances where common law contempt might also apply.
Perverting the course of justice
Common law.
Recognised in section 320 of the Crimes Act 1958 (Vic).
Indictable offence.
Up to 25 years’ imprisonment.
Police charge.
Judge and jury in the County or Supreme court.
This offence is included because it could apply in circumstances where common law contempt might also apply.
Embracery
Common law.
Recognised in section 89 of the Juries Act 2000 (Vic) and section 320 of Crimes Act 1958 (Vic).
Indictable offence.
Up to 15 years’ imprisonment.
Police charge.
Judge and jury in the County or Supreme court.
This offence is included because it could apply in circumstances where common law contempt might also apply.
? Note whilst not a court, both the Victorian Civil and Administrative Tribunal and the Victims of Crime Assistance Tribunal have power conferred by statute to deal with conduct that would otherwise be contempt. See Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 137; Victims of Crime Assistance Act 1996 (Vic) s 64.
1 The Report of the Protecting Victoria’s Vulnerable Children Inquiry recommended that the Children, Youth and Families Act 2005 (Vic) should be amended to confirm the status of the Children’s Court as a court of record, suggesting that it may already have that status, but that it was unclear. See: Report of the Protecting Victoria’s Vulnerable Children Inquiry, (Department of Premier and Cabinet, 2012) Recommendation 65.
See Annetts v McCann (1990) 170 CLR 596, 617.
R v Metal Trades Employers’ Association: Ex parte Amalgamated Engineering Union (Australian Section) (1951) 82 CLR 208, 241 (Latham CJ), 254 (Dixon J); R v Taylor; Ex parte Roach (1951) 82 CLR 587, 598 (Dixon, Webb, Fullagar and Kitto JJ).
See Morgan v State of Victoria (2008) 22 VR 237, 269; Judicial College of Victoria, Victorian Criminal Proceedings Manual (26 February 2018), [8.5.1]] <www.judicialcollege.vic.edu.au/eManuals/VCPM/index.htm#27318.htm>.
Magistrates’ Court of Prahran v Murphy [1997] 2 VR 186, 204
John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 75.05(1)(c).
This table is not a comprehensive or exhaustive summary of all contempt related offences. It is intended for illustrative purposes and thus refers only to the more major related statutory and other common law offences.
Construction, Forestry, Mining and Energy Union v Grocon Constructors (Victoria) Pty Ltd (2014) 47 VR 527, 562–3.
Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2015) 256 CLR 375, 395.
Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 75.06; County Court Civil Procedure Rules 2018 (Vic) r 75.06.
Construction, Forestry, Mining and Energy Union v Grocon Constructors (Victoria) Pty Ltd (2014) 47 VR 527, 562.
The Broken Hill Proprietary Company Ltd v Dagi [1996] 2 VR 117, 125; Construction, Forestry, Mining and Energy Union v Grocon Constructors (Victoria) Pty Ltd (2014) 47 VR 527, 562. While the Victorian Court of Appeal in Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd accepted that the Attorney-General has the power to commence proceedings for criminal contempts, it stated that it was ‘at least seriously arguable’ that the Attorney-General also has such a power in in respect of civil contempts, however it found was not necessary to decide the matter: Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd [2013] VSCA 378 (13 December 2013) [11], [14].
Public Prosecutions Act 1994 (Vic) s 22(1)(ba)(iii).
Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 75.07(1); County Court Civil Procedure Rules 2018 (Vic) r 75.07(1).
Open Courts Act 2013 (Vic) s 5(1).
Open Courts Act 2013 (Vic) s 25.
Open Courts Act 2013 (Vic) s 7(d)(i).
Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 75.02–75.04; County Court Civil Procedure Rules 2018 (Vic) r 75.02–75.04.
Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 75.06; County Court Civil Procedure Rules 2018 (Vic) r 75.06.
Sentencing Act 1991 (Vic) s 112(2).
Magistrates’ Court Act 1989 (Vic) s 133(4).
Children, Youth and Families Act 2005 (Vic) s 528.
Sentencing Act 1991 (Vic) s 112(2).
Magistrates’ Court Act 1989 (Vic) s 134(3).
Children, Youth and Families Act 2005 (Vic) s 528
Coroners Act 2008 (Vic) s 103(7)
Sentencing Act 1991 (Vic) s 112(2).
Sentencing Act 1991 (Vic) s 112(2).
Sentencing Act 1991 (Vic) s 112(1); Criminal Procedure Act 2009 (Vic) ss 28–29.
Sentencing Act 1991 (Vic) ss 112A(1), 113(1).
Sentencing Act 1991 (Vic) s 112(1); Criminal Procedure Act 2009 (Vic) ss 28–29.
Sentencing Act 1991 (Vic) ss 112A(1), 113(1).
Juries Act 2000 (Vic) s 78(10); Criminal Procedure Act 2009 (Vic) s 28(1), sch 2 cl 18.
Sentencing Act 1991 (Vic) ss 112A(1), 113(1).
Juries Act 2000 (Vic) s 78(11).
Juries Act 2000 (Vic) s 78(10); Criminal Procedure Act 2009 (Vic) s 28(1)(a), sch 2 cl 18.
Sentencing Act 1991 (Vic) ss 112A(1), 113(1).
Juries Act 2000 (Vic) s 78(11).
Juries Act 2000 (Vic) s 78(10); Criminal Procedure Act 2009 (Vic) s 28(1)(a), sch 2 cl 18.
Sentencing Act 1991 (Vic) ss 112A(1), 113(1).
Juries Act 2000 (Vic) s 78(11).
See Sentencing Act 1991 (Vic) s 112(2).
See Crimes Act 1958 (Vic) s 256 for the meanings of ‘detriment’, involvement in a criminal investigation, and involvement in a criminal proceeding.
Crimes Act 1958 (Vic) s 257; Criminal Procedure Act 2009 (Vic) s 28(1).
Sentencing Act 1991 (Vic) ss 112A(1), 113(1).
Crimes Act 1958 (Vic) s 20; Criminal Procedure Act 2009 (Vic) s 28(1).
Sentencing Act 1991 (Vic) ss 112A(1), 113(1).
Crimes Act 1958 (Vic) s 21; Criminal Procedure Act 2009 (Vic) s 28(1).
Sentencing Act 1991 (Vic) ss 112A(1), 113(1).
Criminal Procedure Act 2009 (Vic) s 28(1), sch 2 cl 4.2.
Sentencing Act 1991 (Vic) ss 112A(1), 113(1).
Criminal Procedure Act 2009 (Vic) s 28(1), sch 2 cl 4.26.
Sentencing Act 1991 (Vic) ss 112A(1), 113(1).
Ian Freckelton and Kerryn Cockroft, Indictable Offences in Victoria (Thomson Reuters, 6th ed, 2016) 788.
Ian Freckelton and Kerryn Cockroft, Indictable Offences in Victoria (Thomson Reuters, 6th ed, 2016) 788.
Sentencing Act 1991 (Vic) s 112(2).
Sentencing Act 1991 (Vic) s 112(2).