Having spent most of my working life in courtrooms, now, after 17 years as a barrister at the Victorian Bar and 23 years as a judge of the Federal Court of Australia, I have come to appreciate the genius of the system as it has evolved over time. Although the matters that come before a court are often highly charged with emotion, the system ensures that they are dealt with calmly and respectfully in an atmosphere of decorum and rational exchange. The rules about contempt of court have been developed by judges to ensure that people involved in a criminal or civil case can put forward their arguments without disruption or outside influence, and to ensure that only material which relates to the case is considered by the jury or the judge.
The work of law reform performed by the Commission asks whether the laws that it reviews are clear, accessible, just, and up to date. The law of contempt of court has not been examined by the Commission before, and this inquiry has established that some changes need to be made. The Commission’s main recommendations include:
• The law of contempt should be placed in an Act of Parliament so that it can be found largely in one place instead of people having to find the law in a large number of separate decisions of judges in many cases.
• Conduct which will amount to contempt should be defined so that people know what is allowed or not allowed, instead of the present uncertainty about whether particular conduct amounts to contempt of court.
• The language of contempt of court should be modernised to be more readily understandable.
• The summary procedure by which a judge can witness a contempt, then prosecute, try, and sentence the accused should be replaced with a procedure by which another judge who has not had a direct involvement in the conduct will hear the case.
• The common law contempt of ‘scandalising the court’ is now too broad. Rather than prohibiting conduct which impairs public confidence in the courts, contempt should only be established if there is conduct which presents a serious risk to the integrity and authority of the courts.
• Rules developed in the era of the quill and the printing press are no longer adequate in the world of Facebook, Snapchat and Twitter. The Commission has investigated ways in which publication of material which would be in contempt of court can be regulated in the new communications environment.
The role of law reform is to keep an eye on the law, to ensure that it is fit for purpose and doing its job. Law reform commissions which provide independent reviews of the law are a vital element of a civilised society. Next year will be the 20th anniversary of the commencement of the Victorian Law Reform Commission Act 2000. The Commission has completed 40 inquiries covering a wide range of topics under that Act. This report demonstrates the qualities that make the Commission’s work worthwhile. It addresses a subject of fundamental importance in the legal system, and it identifies elements of the subject which require change in order to make the law of contempt more accessible, clear and up to date.
One special quality of the work of the Commission lies in its process of consultation with stakeholders as the basis of reform. For this inquiry, the Commission consulted with victim-survivors of sexual offences and victims’ advocacy groups as well as representatives of the courts, the media and the legal profession, and experts on jury behaviour, many of whom also made written submissions. Their contributions lie at the very centre of the credibility of this report.
The Commission acknowledges the prime importance of their involvement in the process.
The team of researchers and policy officers whose work is reflected in the report comprised the team leader, Anna Beesley; Helen Donovan, Joyce Chia, Leah Bloch and Octavian Simu. Special mention should be made of the heavy lifting done by Helen and Joyce.
In view of the importance and scope of this reference, the Division constituted under section 13 (1) of the Victorian Law Reform Commission Act comprised all the members of the Commission: Liana Buchanan, Bruce Gardner PSM, Dr Ian Hardingham QC, Professor Bernadette McSherry, Dan Nicholson, Alison O’Brien PSM, Gemma Varley PSM and, until October 2019, the Hon. Frank Vincent AO QC. The input of all members of the Commission has been valuable and the effort required to assimilate such a large report has been substantial. I thank them for their commitment to producing such a comprehensive and high quality report. The polish of the final report owes much to the efforts and experience of Nick Gadd and Gemma Walsh, and the smooth running of the Commission for the duration of the production of the report has been the result of the expertise and wisdom of the CEO, Merrin Mason.
Finally, I acknowledge the leadership of the Hon. Philip Cummins AM who was Chair of the Commission from the commencement of this reference until his death in February 2019. Bruce Gardner PSM took over as Acting Chair until 30 August 2019 when I was appointed Chair. The Commission has benefited from the leadership of Philip in setting the reference on the right track and of Bruce for guiding the reference through the process until the final stage.
The Hon. Anthony M. North QC
Chair, Victorian Law Reform Commission