INTRODUCTION
1. Categories of Contempt

Criminal Contempt
1.    Sub judice contempt - publication where matter is before the court
2.    Interference with the course of justice as a continuing process - when a particular matter is before the court and how media can go about reporting the matter.
3.    Improper behaviour in court - can be held in contempt for failing to answer questions about sources.
Civil Contempt
4.    Disobeying a court order or breaching an undertaking

2. Some preliminary issues
- Civil and criminal contempt

Witham v Holloway (1995) 183 CLR 525

Facts:  This is an appeal  from a unanimous decision of the court of appeal of the Supreme Court of NSW. Witham failed to comply with orders brought against him and others by John William Holloway as Commissioner for Consumer Affairs. The order was to restrain the appellant from carrying on any house removal business and also sought damages on behalf of persons who had suffered loss as a result of his business activities. When it appeared that he had no assets to satisfy the judgment debt, the respondent brought proceedings for contempt, alleging breach of the disclosure order and, also, the Mareva injunction.

Issues:W appealed to the High Court.
1. Whether it was a civil or criminal contempt?
2. What was the standard of proof for civil and criminal contempt?

Held: Brennan, Deane, Toohey & Gaudron (Joint Judgment): Because non-compliance wth court order it is civil contempt and the civil standard of proof applies being the balance of probabilities. High Court said that there is also a public interest in ensuring that orders are complied with. Thus, not only private interests are protected.

Distinction:

Civil v Criminal Contempt
-    Civil contempt serves a remedial/coercive purpose for private interests. It is supposed to serve a remedial purpose or to compel a party who is failing to comply with an order to comply with the order. Involves disobedience to a court order or breach of an undertaking in civil proceddings.
-    Criminal contempt protects public interest – it is interested in maintaining integrity in the administration of justice. It is punitive. Committed either when there is a contempt in the face of the court or there is an interference with the court of justice.
-    For criminal contempt of court – can go to gaol and be fined. Can be issued with public retraction/apology. Verdict against party is shown on their public record. Can be ordered to pay costs in contempt proceedings.
-    Civil and criminal contempt both result in punishment
-    Breach of a court order by a solicitor or by a liquidator is also a criminal contempt.
-    Remedies for civil or criminal contempt: fine or imprisonment. Imprisonment used to be a default setting.
-    All orders whether they be Mareva injunctions, injunctions relating to the subject matter of the suit, or, simply, procedural orders, are made in the interests of justice.
-    Non-compliance necessarily constitutes an interference with the administration of justice even if the position can be remedied as between the parties.
-    Category 3 of categories of contempt (Disobeying a court order or breaching an undertaking) can become a criminal contempt.

- Standing: Who may institute proceedings for contempt?

Civil contempt: only a party to the proceedings has standing
Criminal contempt: prosecution may be brought by party with an interest in the proceedings, DPP, A-G, court of its own motion as well as a party to the proceedings.

Civil contempt also differs from criminal contempt:
•    Because only a party to the proceedings can bring proceedings for civil contempt, that party can waive the right to prosecute
•    This is not possible in criminal contempt proceedings. A party to the proceedings cannot waive the right, because the other interested parties, such as DPP, A-G or the court can still pursue the other party.

Witham v Holloway (1995): need to maintain the distinction between civil and criminal contempt because only parties to the proceedings can bring an action to a civil contempt but a large number of other persons may bring an action for criminal contempt

Standard of Proof:

•    Civil –        Balance of Probabilities
•    Criminal –  Beyond Reasonable Doubt

N.B Contempt of court is tried before a judge, and not a jury

- In respect of what kinds of proceedings can a publication amount to contempt?

Who may be responsible for contempt of court?
•    Proprietor, publisher, distributor, director of publication, owner, licensee of radio station, journalist himself/herself, editor of publication, a blogger (recent case)

Fundamental test (Mason J in Harkianakis v Skalkos (1997)): whether they can be said to bear the real responsibility of the contemptuous material complained of

Types of bodies to which proceedings can be made

•    Generally: a superior court of record has part of its inherent jurisdiction to punish for the whole gamut of contempt of court.
o    Local Courts Act 1992: s 27A and 27B states that if there is contempt of a local court, the court has to refer the matter to the Supreme Court of NSW for prosecution; the rules in relation to contempt of court apply to local courts but they cannot of their own motion punish for contempt of court. Must refer.
o    S 43 NSW Coroners Act: incorporates s 27A and B of LCA so that the whole gamut of contempt of court would apply to Coroners Courts but they cannot of their own volition prosecute for contempt of court. Refers jurisdiction to Supreme Court.
o    So - It is possible to bring in an inferiour court but must refer to the Supreme Crt.
•    Under enabling legislation: the power of the board, etc may specify the forms of conduct that can amount to contempt of court
o    NSW Administrative Decisions Tribunal Act (s 131): various categories of conduct are set out that amount to contempt of the tribunal
o    ASIC Act 2001:
•    s.66 - provisions set out what constitutes contempt whenconducting hearing
•    s.200 – contept issues in a takeover panel

Civil Aviation Authority v ABC (1995)

Facts: In June 1993 an aircraft crashed near Young, NSW. In the air crash a number of people were killed and injured, including school children. A coronial inquest was announced. In April 1994 radio national devoted an episode to air safety and regulation (before the inquiry had commenced).The report discussed the safety standards of the CAA and the national airlines. Journalists spoke to eye witnesses of the
crash who were to give evidence at the inquiry. The report suggested that the CAA bore significant responsibility/liability for failing to have proper safety. (Cross-Reference – Subjudice Contempt)

Issue: (Standing)
1. ABC said that CAA was responsible for air navigation and safety regulation in Australia. It failed to have significant standing in the proceedings
2. ABC said that CAA was not a party with special interest to the coronial proceedings.

Found per Kirby J: there are no parties to a proceeding before a coroner; coronial proceedings are inquisitorial and not adversarial in nature. Tension between the fact that a coroner’s court is more like a superior court of record and the suggestion that a coroner’s court is more like a Royal Commission.  Kirby J suggested that there may be a difference between coroners and Royal Commissions  because criminal proceedings can come before a corner’s inquiry Considers whether CCs are more closely allied to the ordinary court system or to RCs; from this extract, there is insight into what may or may not constitute contempt of RCs As a general rule, it is possible for there to be contempt of a coroner’s report.

So who has standing before a coroner? Persons of interest whose interest may be affected.

Pre-judgment and RC’s: there can be no pre-judgment because it is an inquisitorial proceeding. Because there is no direct outcome of finding by the Royal Commissioner, there is no contempt of court by pre-judgment.

Other differences: CC deals with the administration of justice. It has a set number of coroners, in a particular location, has a coroner who is there for an entire term (year). RC is ad hoc. It is established for a specific subject matter.

3. The implied constitutional guarantee of free political communication and its impact on contempt

Nationwide News v Wills (1992)
Facts: In 1989 the Australian Newspaper published a feature piece called “Advance Australia Fascists.” NN were visited by the AFP. The words published were calculated to bring Australian industrial commission into disrepute. Under s 299 of the IRC Act there was an offence whereby one could be punished for publishing words that were calculated to bring the Commission into disrepute. Under the provisions that created other offences, they contained within them grounds of defence (reasonable excuse, fair comment etc). Within the terms of s 299 there were no defences. The Australian Federal Police argued that defences should be imputed into the statute.

High Court: in its terms, s 299 created an offence with no relevant defences; NN challenged the constitutional validity of the offence under s 299. Issue was whether this offence was a valiud offence and whether it was protected by the council and the arbitration power and whether it was protected by the constitution. In this case, the court accepted that s 299 was invalid; judges recognized that s 299 proscribed reporting which was true/fair/accurate/reasonable. Therefore, if in fact the report had evidence that the commissioners were corrupt, then the blanket ban would have prevented the publication of the truth and publication of fair and reasonable comment

Proper approach: determine whether the means of giving effect to the purpose (protecting integrity of Commission) was reasonably proportionate to the purpose itself (approach of all judges except Dawson J)

Dawson J: proper approach was the sufficient connection approach, but reached the same conclusion; a blanket ban on criticism of the IRC is not reasonably proportionate or has a sufficient connection with the purpose of protecting the administration of justice because this fails to give any recognition to the countervailing purpose of protecting the freedom of speech

Brennan CJ, Toohey and Deane JJ: based reasoning on implied freedom of political communication; even though the case applied at a Federal level there was no reason why it could not apply at a State level. Also (per Toohey and Deane JJ) it was implied that the implied freedom of communication applied to the exercise of power of all three arms of government

Mason: failed to strike a balance because failed to notice that there was a freedom of speech.

Brennan J (Nationwide News): no freestanding right of freedom of expression in Australia; there is important value but there is little direct protection at the common law or by statute. To the extent that there is freedom of expression it is embodied in the implied freedom of political communication. This is a negative right; prevents the legislature or executive from acting in a way that encroaches upon freedom of expression as it relates to communication
•    Query: how far reaching are the implied freedoms of communications as relating to contempt of court

Conclusion: Judges concluded that the defence as drafted was broader than contempt of court. H.C. struck down s 299. All judges except Dawson approached the question of constitutional validity.

John Fairfax Publications v Doe (1995)
Facts: Doe was suspected by the AFP of drug smuggling.The AFP obtained the right to tap D’s telephone to gain information about his activity.It collected 8000 hours of conversation between D and friends. It emerged that D also ran a race fixing syndicate
A new line of inquiry opened – there were speeches made to Parliament that there needed to be an inquiry into race fixing. Transcripts from the tapes were about to land on pages of the SMH. D found out about the transcripts and obtained an injunction to prevent Fairfax from publishing. F appealed.

Argued: D argued that F would infringe s 63 of the Telecommunications Interception Act (Cth) (1979) where it was an offence to publish material obtained lawfully pursuant to a phone-tapping order. F argued that s 63 was constitutionally invalid because it infringed the implied freedom of communication and that the whole body of law relating to contempt needed to be reconsidered as a result of the implied freedom of political communication . (Given that s 63 did not relate to political matters, it was unlikely that it would be considered constitutionally invalid.)

Held: the recognition of an implied freedom of communication is not inconsistent with the contempt of court; in a given case, however, it may be that the implied freedom of communication may have an application. Stated that the common law principles ‘are themselves the result of a balance of competing interests; the public interest in freedom of expression and the public interest in the administration of justice’.

“It would be unthinkable if the beneficial development of the implied constitutional right to free communication upon certain matters integral to the political system established by the Constitution were seen…as a vehicle for destroying the essential power and duty of the courts in this country to protect the fair trial rights of persons accused of crimes….it would be a complete misreading of the recent development of constitutional law in Australia to suggest that the implied constitutional right of free communication deprives courts….of the power, and…the duty, to protect an individual’s right to a fair trial where it is, as a matter of practical reality, under threat. Whatever limitations may be imposed by the constitutional development protective of free communication upon certain matters upon the law of contempt (eg in terms of the scandalising of the courts) I could not accept that the constitutional implied right has abolished the longstanding protection of fair trial from unlawful or unwarranted media or other intrusion. Fair trial is itself a basic right in Australia” 

- Confirms existence of subjudice contempt law in face of implied constitutional freedom of political communication.

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