Presenter: Nick Gadd
Guest: The Hon. Tony North, chairperson, Victorian Law Reform Commission
Welcome to ‘Old Law, New Law’, a podcast by the Victorian Law Reform Commission.
I’m Nick Gadd, and today I’m talking to the Honourable Tony North, the chair of the VLRC, about the Commission’s Contempt of Court report.
Now the VLRC has just published its report on contempt of court which was tabled in Parliament in August and that report, Contempt of Court, is available on the VLRC’S website. The VLRC has made a number of significant recommendations and we’re going to be talking about that today.
Nick: Good afternoon Tony.
Tony: Good afternoon Nick.
Nick: What is the importance of this report?
Tony: This is the first time the law of contempt has been investigated by the Law Reform Commission in Victoria. The first time it’s been scrutinized to see whether it’s fit for purpose.
Nick:What does contempt of court mean?
Tony:The law of contempt of court is really fundamental to the operation of the legal system. It’s the law about how courts can control conduct that interferes with its ability to administer justice. For instance, a common example would be if people in the court room were disruptive, be they witnesses or be they people observing. The court has to have a power to ensure that the proceedings will be conducted efficiently and without interruption. Another example might be where a witness refuses to answer questions. That would be conduct which would completely undermine the ability of the court to administer justice. Another major example would be where publishers, mainly media, publish information which is not heard in the court, so that juries who are required to determine the guilt or innocence of an accused person by reference only of what they hear in court would be completely undermined.
Nick: These laws have been around for many hundreds of years but they’ve been part of the common law, they’ve been decisions made by courts, now the VLRC is recommending that instead there should be an Act of Parliament. So, what’s the problem with the current situation?
Tony: The law of contempt of court has grown up from decisions of judges, it’s not written down in any one place. It can be found in all the various cases that judges have considered about events which have happened in court, where they’ve decided, well, “Does this interfere with the ability of the court to administer justice or not?”, and so the result is that the law is hard to access. People who need to know about their conduct, particularly say the media, they want to know what are the circumstances in which we can report, and which are those in which we can’t? Then, you know, there are no categories. There are just instances of conduct which has attracted the attention of the judges and they’ve had to decide one way or another whether it falls within or outside the conduct which is prohibited. And that’s really very unsatisfactory because unless you know specifically what conduct you can engage in and what you can’t, then you’re exposing yourself to, in in some instances criminal liability.
Nick: Anybody looking at the history of contempt of court is struck by how old fashioned some of it seems.
Tony: The language used in this area of the law is really archaic, I mean there is one category of contempt which is called ‘Scandalising the Court’. Now I doubt that anyone today would know what that means. Another problem with the law of contempt today is that it grew up in a time when public communication was through newspapers, and the era of online publishing has created all manner of new problems. There is material that can be published overseas beyond the jurisdiction of the court but beamed into Australia and capable of prejudicing a trial here which would not be caught by the law as it currently is.
Nick: OK so some of the language may be a bit old fashioned, but after all these years surely the law has figured out a procedure that is consistent and clear?
Tony: The procedure for bringing cases under the law of contempt of court is quite ill-defined. If the proceeding creates an offence and is criminal in nature, do the laws that relate to sentencing apply? Do the laws that relate to bail apply? These questions have arisen in cases and they need to be answered clearly, coherently in one place.
Nick: So, what has the VLRC recommended in order to fix some of these issues that you have addressed? Can you give us a brief overview of the main recommendations?
Tony: The critical recommendation is to place the law of contempt in an Act of Parliament. So, that immediately means that people know where to go. If there’s a problem about contempt and if you want to know whether the behaviour that you’re thinking of being involved in, be it publishing a newspaper or a blog or something else online, if you want to know whether that’s going to be a contempt of court of not you can go to one place. In that Act of Parliament, we will specify what conduct amounts to contempt of court. So the conduct will be defined, and the proposed Act will also set out the process or procedure by which people can be prosecuted. The Act will also establish the maximum penalties and it will use new language, modern language which communicates more of what the subject contempt of court is about.
Nick: Now one of the things that the VLRC is saying this Act should include is defining the main categories of contempt of court. The first one that we will talk about is contempt by conduct that interferes with a court proceeding.
Tony: The first thing to notice about this category is that its name tells you what it’s about. The old name for this category was ‘contempt in the face of the court ‘and that was because it was limited to conduct which was seen by the judicial officer. The sort of conduct that we are talking about here is conduct which disrupts the proceedings or where a person abuses, disrupts or threatens another person, or disobeys an order made by the judicial officer, even making an unauthorised recording of the proceeding by taking photos or filming or other recordings, engaging in insulting behaviour. Any conduct which undermines or interferes with the conduct of proceedings would be covered in this category.
Nick: There was a case wasn’t there where someone was charged with contempt in the face of court for blowing a bubble-gum bubble. Is that the kind of conduct that would still be included do you think?
Tony: Well, in that case even under the old system, on appeal the case was found not to have been established. So, I doubt that it would be, because what needs to be required under the proposed category is that the conduct actually interferes with the proceedings, not that it just has a tendency, but there is an actual interference. A better example might be for instance a witness failing to answer a question when required to do so, that would undermine the process of the law.
Nick: Another category that the VLRC has recommended is contempt by non-compliance with a court order or undertaking. So, what would that consist of and what might an example of conduct be under that category?
Tony: Well, it is exactly what it says. Where there exists a court order and a person failsto do what the court order requires. In the old days that was called disobedience contempt, but it’s probably better described as non-compliance. You don’t have to show in this area, in this subject of contempt that it interfered with the administration of justice as it obviously does so. There was a lot of confusion in the past about whether this type of contempt was a criminal offence or whether it was just a civil wrong, so it was said that where this type of contempt was being used to punish a person for not complying it was criminal in nature, but where it was seeking to vindicate a person’s civil judgement, that is a judgement for money one person gains from another, the processing is essentially civil. Now the line between what was criminal and civil was very difficult to detect, and the High Court ultimately said, well, because at the end of the day a person who fails to comply is punished, it should be seen as a criminal matter. So, what we’ve recommended is that that destination be abolished.
Nick: What would the penalty be for people who do not comply?
Tony: For an individual there is a maximum jail time of five years, but for a corporation what we’re recommended is that a judge can order that any benefit that accrues as a result of the non-compliance can ordered repaid and if the benefit is not known then 10 per cent of the turnover of the corporation can be imposed as a penalty. Now that’s intended to address cases like a current one that’s presently before the courts in Victoria, where some developers knocked down an historical hotel, knocked it down in breach of the heritage provisions, and the court ordered that as a penalty they had to do some sort of reconstruction which they failed to do, and there are proceedings for failing to do that reconstruction work that now give rise to the contempt proceedings. It is of course critical for the court have a power to enforce its orders in an effective way. However, its recognised that the law of contempt is part of a much broader suite of provisions in the law which allow the court to enforce its orders. So, what we’ve recommended is that where other mechanisms are available, they should be used before the contempt power is invoked.
Nick: Now, another form of contempt which has been the subject of much discussion over the last year or more is a form of contempt that’s known as sub judice. Could you explain what that is and what is the Commission recommending.
Tony: Yes, sub judice – the first thing to say is it’s been renamed in a way in which we can understand what it does. So, it’s called now contempt by publishing material prejudicial to legal proceedings and it’s really part of the law concerned with criminal trials mainly, not exclusively, which are determined by juries. This part of the law is designed to protect the right of the accused to a fair trial by preventing prejudicial material which might improperly influence them, in the sense of not being part of the evidence brought before the court. This is of course an area of the law which intersects with the role of reporters, media, publishers and what we’ve sought to do is to recognise that there is a great emphasis on freedom of expression than there was in the past. So, we recommend that there be a defence allowed for this area of the law, which would allow people to publish where they take reasonable care not to prejudice a fair hearing in what they publish. So, there would be a defence of reasonable care. There would also be a sort of public interest defence, which exists at the moment but is ill defined. We would recommend that it be defined in a way which better balances the risk of a fair trial against other matters of public interest. So the example that we give is where a person is at large and a danger to public safety, it might be legitimate to publicize the details of that person and why he is dangerous. Even though once that information is let out and would be available to a jury and potentially prejudicial, but it might be important for society to know in order to protect itself.
Nick: It’s very hard these days to build a wall around a jury and stop them from seeing and hearing things that they shouldn’t, are there other things that the VLRC has recommended to protect juries?
Tony: We’ve suggested alternatives which might make this area less critical, so the prohibition might become less critical because we would suggest and recommend that jurors be given more information about their role so that they protect themselves through knowing why it is important not to be influenced by anything other than what’s in the evidence. That can be done by allowing them a greater ability than now to provide questions to the judge in writing through the foreperson, and another way of countering prejudice to the accused would be to allow judges to administer questionnaires about jurors’ outlooks and positions, and even to question them about their biases. So we recommend that the law of contempt not be the only way of protecting them.
Nick: This is an area of law, isn’t it, where there can be considerable disagreement about whether something is contempt or not, would you say that’s fair? It can be difficult for people to know just what counts as being contemptuous.
Tony: We address that by a couple of mechanisms. We think the law should require that there be a substantial risk of prejudicing a fair hearing. Now that is in contrast to the old law which only required a tendency to affect the administration of justice.
Nick: So, it would have to be pretty serious?
Tony: It’s got to be pretty serious and also what we recommend is the factors which a court should consider should be set out in the Act.
Nick: You’ve talked about the fact that the VLRC wants to modernise this law and remove some of its archaic language, well one of the most spectacular examples of archaic language is the term scandalising the court.
Tony: We recommend that it be renamed as contempt by publishing material undermining confidence in the courts or the judiciary. It occurs where a person publishes material which impairs public confidence in the courts or judges. For instance, saying a judge is corrupt, or as occurred in the UK, where the Court of Appeal determined that the proper trigger for exiting Brexit was Parliament and not the Prime Minister, and the three judges who decided that matter were photographed on the front of the tabloids with a huge banner heading saying “Enemies of the people”. Now that here, I would imagine, would fall within the recommended new contempt category because it would certainly undermine the public confidence in the judiciary as an institution. What we have to do here is disentangle the insult to a judge, an individual who might not like it, from the comments which undermine the authority of an institution. We recommend that the old category not only be renamed but be contracted considerably. What we say is that a statement of opinion cannot be this type of contempt, that truth is a defence, a matter which is not clear at common law. Under the old law there was a defence of fair comment, but it was not clear whether a statement of opinion could amount to that defence. We would recommend that a statement of opinion not be actionable.
Nick: People should have the right to express an opinion about the courts as long as they do not pose a serious risk to the integrity and authority of the court.
Tony: Exactly right. The risk must be a serious one.
Nick: The laws of contempt of court have been around for hundreds of years, but the online era poses particular challenges doesn’t it? What do you see the challenges as being?
Tony: That’s true Nick, or course in the online era you have the problem of enforcing the rules about contempt of court, because publishers can publish anywhere in the world and the question arises how a court in Victoria can prevent the harm coming from these publications. That’s a new problem. Allied to that problem is, what sort of liability should be attracted by intermediaries or public website owners, who publish material at one point when its not restricted. The material is archived and sits there, do they become liable for criminal sanction at a later point when that material is accessed, and would be prejudicial to the conduct of a criminal trial? There’s obviously some real unfairness about an intermediary, a Facebook or a Google, which is housing material produced by others, when the host does not know the existence of the court case or of the propensity of the material to be in contempt of court.
Nick: This problem isn’t limited to contempt is it? The online era has posed challenges in other areas of law too.
Tony: Yes, well that’s so, and it will be immediately obvious that the same problem applies in defamation law for instance and in copyright law, we just have a much larger world and we have local courts, courts with local jurisdictions that face limitations on where there reach runs. It’s a problem which has been looked at widely, obviously at the end of the day it will probably call for international co-operation to arrange regimes where there will be an easy way of, if you like, inter-operability between legal systems. It doesn’t exist at the moment.
Nick: Given that at the moment we don’t have a lot of international agreements dealing with this problem, what’s the VLRC recommending we do in the meantime?
Tony: I suppose the starting point is that it seems to be wrong to criminalize the intermediary, the Facebook or the Google or the owner of a public website, in circumstances where the material was lawful when it was put up, there was no court case going on for instance, or where the material comes from a third party and the host of the site is either not aware of the restriction or not aware of the material on its site, and so the fairest solution we thought was to institute a regime of takedown orders. That is a system where a court on application can make an order directed to a specific situation and a specific publisher, requiring that person to remove from the site the material which is restricted.
Nick: So, what would be the difference between this proposed system of take-down orders and a suppression order?
Tony: That system differs from the suppression order regime, in that the suppression regime order applies to and is directed to suppressing nominated proceedings, whereas takedown orders are directed to a person or corporation, requiring that person or corporation to remove the offending material. And so the court makes that order. If the object of the order refuses to comply, the person commits a criminal offence. That imposes criminal liability in effect after notice is given, and we thought that a fairer resolution than simply to criminalise the putting up of material in the first place.
Nick: Ok, so if a publisher refuses to take down that material then there could be criminal sanctions. What would you say to the suggestion that’s an attack on free speech?
Tony: Well that’s a really good point Nick, protecting free speech is a theme which runs through the report at every stage. Firstly, the grounds on which a take-down order can be made are strictly to be specified in the proposed legislation. Essentially a court will not be permitted to make a take-down order if the order is unnecessary or if it would be futile. If the material has already escaped into the public, then the damage is already done. The point I seek to make is that the power to make a take-down order is constrained, the constraints are contained in the grounds upon which it can be made and those are set up in order to protect free speech. There’s no reasonable basis for suggesting that the take-down order regime is an unreasonable restriction on free speech. Indeed the courts already have the power, it’s just that it is a common law power, therefore undefined, and we recommend a definition because we think that assists clarity and accessibility and it’s just a more certain way of the law being understood.
Nick: What about the fact that material could easily be published internationally or interstate, outside Victoria and Victorian courts would have no jurisdiction over that. What does the VLRC recommend should happen in those situations?
Tony: Well this problem gave rise to the debate that you’ll see in the report where we consider whether there should be in the proposed Contempt of Court Act or the Open Courts Act a provision which says the Act has an extra-territorial effect. That is, the publisher even outside Victoria, commits an offence in Victoria by publishing the restricted material. In one sense an extra-territorial application provision can be said to be meaningless or useless because someone who is overseas is not subject to the jurisdiction of the court, and what’s the point of having it. In the end we thought the point essentially is that with such a provision many responsible publishers will comply by reason of the existence of the law and by reason, of the, even if only a remote chance of the enforcement against them. It’s a clear signal what Victoria intends is that wherever there is a publication made that has a linkage with Victoria and has the potential to damage the chances of a fair trial, then it’s the intention of the legislature in Victoria that any infringement be punished. In any event there would be very few cases in which such extra-territorial provision would apply, because there are not many instances in which an overseas publication would be interested in a court case going on in Victoria.
Nick: That was the Honourable Tony North, Chair of the Victorian Law Reform Commission, talking about the VLRC’s report on Contempt of Court, and you can find that report at the Victorian Law Reform Commission website. Join us again next time for more ‘Old Law, New Law’.