Fearnley-Sander, Amy --- "Interfering With Justice?" [2004] ALRCRefJl 25; (2004) 85 Australian Law Reform Commission Reform Journal 31

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Reform Issue 85 Summer 2004/05

This article appeared on pages 31–32 of the original journal.

Interfering with justice?

By Amy Fearnley-Sander*

The laws of contempt are also under review by the Tasmania Law Reform Institute, as Amy Fearnley-Sander explains.

The Tasmanian project on contempt is looking at the three areas of contempt: contempt in the face of the court, contempt by disobedience of a court order, and contempt by publication.

Contempt by publication makes it a crime to publish material relating to a matter before a court that has, as a matter of practical reality, the tendency to interfere with the due course of justice in a particular case (the sub judice rule); or to publish material that has a tendency to undermine the authority of the courts and public confidence in the administration of justice as a whole (‘scandalising the court’).

Contempt by publication is probably one of the most likely areas of the criminal law to affect the daily operations of the media.

The law of contempt exists to protect the administration of justice and to protect the individual’s right to a fair trial. The right to the presumption of innocence and to a fair trial is imperative in our society. Democratic societies demand that individual liberty be sacrosanct. Any deprivation of liberty must be the result of an impartial application of the law by which we have chosen to be governed. Article 14 of the International Covenant on Civil and Political Rights also guarantees the right to the presumption of innocence and a fair trial. Rules and procedures of the courts, especially the rules of evidence, have been developed to promote a fair, impartial hearing. They do this by excluding evidence that is likely to have more prejudicial than probative effect. They also give the accused a chance to challenge any evidence brought against him/her. By publishing argument and evidence that may not be admissible in court, and in a manner to which the parties cannot effectively respond and challenge, the media have the potential to undermine the effectiveness of these rules and to jeopardise a fair trial. Consequently, some restriction on publication relating to legal proceedings is necessary.

However, there is concern that the law of contempt may have exceeded appropriate boundaries when regard is given to the competing public values of free speech, an informed public and open justice. The recent case of Attorney-General for the State of New South Wales v X¹ marks a shift towards recognition that the right to a fair trial and the interests in the proper administration of justice are of equal value to the right to free speech. This judgment was partly influenced by the High Court’s recognition of the implied freedom of political communication.² The X case suggests that it may be time to reassess the boundaries of the laws of contempt by publication.

Another concern with the law of contempt by publication, particular to Tasmania, is its peculiar status as the only remaining common law crime. In Tasmania, all crimes and offences except contempt are defined by statute, primarily by the Criminal Code (Tas). As a result of this exception, contempts by publication are not tried according to usual criminal procedure—there is no trial by jury, no maximum sentences and the full range of sentencing options provided by the Sentencing Act 1997 (Tas) are not available. The unique summary nature of proceedings for common law contempt raises serious concerns about due process.

Specific focuses of review will be:

• the test for contempt;

• the mental elements for offences based upon contempts;

• the content of defences to contempt prosecutions;

• the duration of the sub judice rule (the definition of ‘pending’ proceedings);

• the appropriate procedures for prosecuting contempts, including contempt of administrative tribunals and avenues of appeal upon conviction;

• the penalties and sentencing options that ought to be available upon a conviction for contempt;

• whether legislative intervention is the appropriate means of addressing the above inadequacies; and

• whether legislative intervention should take the form of a dedicated Contempt of Court Act, or amendments to existing legislation.

Contribute to the Inquiry

The Tasmania Law Reform Institute welcomes submissions on any matter relevant to the Inquiry.

It is anticipated that an Issues Paper will be available on the Institute’s webpage, in March/April 2005.

<www.law.utas.edu.au/reform>

* Amy Fearnley-Sander is a research officer of the Tasmania Law Reform Institute.

Endnotes

1. Attorney-General for the State of New South Wales v X [2000] NSWCA 199; (2000) 49 NSWLR 653.

2. See Lange v Australian Broadcasting Corporation [1997] HCA 25.