Contempt of Court: Consultation Paper (html)


It seems to me that this jurisdiction of committing for contempt being practically arbitrary and unlimited, should be most jealously and carefully watched, and exercised, if I may say so, with the greatest reluctance and the greatest anxiety on the part of Judges to see whether there is no other mode which is not open to the objection of arbitrariness, and which can be brought to bear upon the subject. – Jessel, M.R., In re Clements, Clements v. Erlanger (1877), 46 L. J. Ch. 383.

As the observations of Lord Jessel more than 140 years ago confirm, the law has long been aware not only of the unique features of that sui generis branch of law broadly described as ‘contempt’, but also of the corresponding need to approach with caution attempts to define it, along with the desirability of employing less arbitrary and more certain means of addressing the wrongs which the law of contempt seeks to remedy.

As a subject for potential reform, contempt is a mine of possibilities, if for no other reason than that almost every aspect of the law of contempt, as it exists in Victoria at present, presents the researcher or practitioner with a web of uncertainties and exceptions to principles which collectively seem to remain in place more through inertia than design.

There are both civil and criminal contempts, but the distinction is unclear and has been described by the High Court as illusory. It has been said that contempt is a criminal offence but not a crime. When pursued as a criminal offence, a civil procedure is used to prosecute, and for some contempts, the court itself is the victim, witness, prosecutor, judge and jury.

A warning by the judge, or an apology from the potential contemnor, may avoid a finding of contempt, but if a common law contempt is proven, the penalty is ‘at large’, and the application of ‘criminal’ statutes, such as the Sentencing Act 1991 (Vic), is unclear, as are the avenues of appeal.

Contempt may be pursued despite the existence of more certain statutory contempt-related offences which may be a fairer response to the impugned behaviour. The criteria which might be invoked by the court or others in deciding whether to proceed at all, and if so for what offence, may only partially overlap with the better-defined discretions which apply to prosecutorial decision-making for more conventional offences.

The balancing of competing legal principles is a common task for the judge, the prosecutor and the law reformer. Contempt does not disappoint in the array of competing principles underlying it; the obvious tension between the principles of ‘open justice’ and ‘fair trial’ is only one of many which are discussed in this Reference.

Along with many other areas of law, contempt is based largely on a series of assumptions, the validity of which might have been in issue anyway, but which have in any event been brought into sharp focus by the rapid emergence of technologies which have revolutionised human communication and information-sharing in ways unimaginable during the era when the law of contempt was established.

Much of the law of sub judice contempt appears to assume that jurors cannot be fully trusted to obey their oath, or the jury directions they receive. Is that assumption valid? Similarly, much of the law relating to suppression orders assumes that potential jurors can be successfully quarantined from material readily available to any person with a computer or a smartphone. The advent of ‘take-down’ orders is based partially on an assumption that a court order for the removal of material from the internet, whether first published before or after the case in issue became sub judice, can be effectively complied with. Are those assumptions valid?

The current law with respect to the breaching of suppression orders—or automatically-applying provisions—assumes that potentially affected parties have the means to readily discover whether such orders or provisions even exist. Is that assumption valid?

Some of the related statutory law in the Judicial Proceedings Reports Act 1958 (Vic) assumes that it is in the best interests of victims of sexual assault that they should not have an unhindered right to publicly self-identify, if they wish to do so. Is that assumption valid?

This Reference will give close attention to those and other assumptions underlying the current law of contempt, and related provisions. It will also involve a careful identification of the competing legal principles and attempt to identify a point of balance which is consistent with immutable principles, while also being sustainable and defensible in the age of mass digital communication.

Throughout the Reference, careful attention will also be given to the developments and reforms in comparable jurisdictions, which offer valuable commentary about various models for possible reform in Victoria.

At the time of the commencement of this Reference, the Commission Chair was the Hon. Philip Cummins AM. Philip led the early stages of this Reference until his untimely passing in February. His leadership in this Reference, as with all of his other law reform work, was exemplary and an inspiration to all who worked with him. The Commission is striving to maintain the high standards which Philip set.

I thank the members of the Contempt reference team at the Commission for their tireless work, under sometimes difficult conditions, to produce this comprehensive consultation paper. I thank my fellow Commissioners, all of whom are members of the Contempt Reference Division. I also acknowledge the valuable contribution to date of the members of the Advisory Committee, who will continue to provide their expertise during the remainder of the review.

The Commission now looks forward to the very important formal consultation stage of this Reference, and I invite all interested parties to make submissions, every one of which will assist the Commission in formulating the recommendations which will be made in its report to the Attorney-General in December.

Bruce Gardner PSM

Acting Chair

Victorian Law Reform Commission

May 2019

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