Contents
Terms of reference
Participants
Recommendations
1. INTRODUCTION
OVERVIEW OF THE REPORT
BACKGROUND TO THE REVIEW
WHAT IS “CONTEMPT BY PUBLICATION”?
The law of contempt by publication
THE FOCUS OF THE REVIEW ON “SUB JUDICE” CONTEMPT
THE COMMISSION’S APPROACH TO REFORM OF CONTEMPT LAW
THE STRUCTURE OF THIS REPORT
2. SHOULD SUB JUDICE LIABILITY BE RETAINED?
INTRODUCTION
FREEDOM OF SPEECH VS DUE PROCESS OF LAW
Legal protection of freedom of expression
How does the sub judice rule affect the free speech/fair trial balance?
Circumstances where to impose liability appears unfair
Commercial nature of media publishing
Specific examples of media publicity
ASSUMPTIONS UNDERLYING THE SUB JUDICE RULE
Influence of media
Empirical research regarding juries
ALTERNATIVE REMEDIAL MEASURES
Judicial warnings and instructions
The American experience
Conclusion
COMMUNICATION TECHNOLOGIES
SUBMISSIONS
THE COMMISSION’S VIEW
3. BASIC CONCEPTS: PUBLICATION AND RESPONSIBILITY
“PUBLICATION”
Discussion Paper 43: reforms considered
Consultation
Time and place of publication
The Commission’s conclusion
RESPONSIBILITY FOR PUBLICATION
Discussion Paper 43: proposal for reformulation
The responsibility of various participants in the publication process
Consultation
The Commission’s conclusion
Primary versus vicarious liability
4. PREJUDICE TO CRIMINAL PROCEEDINGS
INTRODUCTION
PROPOSAL 3: REFORMULATING THE “TENDENCY” TEST
Current test for liability
The proposed reformulation: “substantial risk” versus “tendency”
Consultation
The Commission’s recommendation
Proposal 3: assessing the risk of contact and the risk of recall
Proposal 3 and matter that may influence witnesses
Proposal 3 and matter that may influence judicial officers
Proposal 3 and matter prejudicing civil proceedings
PROPOSAL 4: PRESCRIBING CATEGORIES OF PREJUDICIAL PUBLICATIONS
Consultation
The Commission’s conclusion
PROPOSAL 5: RELEVANCE OF THE TRIAL BEING ABORTED
The current position at common law
Consultation
The Commission’s recommendation
PROPOSAL 6: RELEVANCE OF PRE-EXISTING PUBLICITY
Consultation
The Commission’s recommendation
OTHER ISSUES ARISING FROM DP 43
Relevance of remedial measures to liability for contempt
The admissibility and utility of expert evidence
MATTER THAT IMPOSES IMPROPER PRESSURE ON PARTIES
5. FAULT
THE RELEVANCE OF FAULT TO LIABILITY
AN ELEMENT OF FAULT SHOULD BE REQUIRED
POSSIBLE APPROACHES
THE COMMISSION’S PROPOSALS IN DP 43
Proposed defence for persons responsible for the content of the publication
Consultation and the Commission’s response
THE COMMISSION’S REVISED RECOMMENDATION
Proposed defence for persons with no editorial control of the content of the publication
Feedback from submissions and consultations
The Commission’s recommendation
Disclosure of defence
FAULT AND PRINCIPLES OF RESPONSIBILITY
Corporate media proprietors: identifying the “corporate mind”
WHERE ACTUAL INTENT IS PROVEN
ATTEMPT TO COMMIT SUB JUDICE CONTEMPT
6. PUBLICATIONS RELATING TO CIVIL PROCEEDINGS
OVERVIEW
EFFECT OF PUBLICITY ON WITNESSES, JUDICIAL OFFICERS AND CIVIL JURIES
Judicial officers
Civil juries
Submissions
Conclusion
EFFECT OF PUBLICITY ON PARTIES
DP 43
Submissions
Conclusion
THE PREJUDGMENT PRINCIPLE
DP 43
Submissions
Conclusion
7. TIME LIMITS ON SUB JUDICE LIABILITY
OVERVIEW
STARTING POINT FOR SUB JUDICE CONTEMPT: WHEN LEGAL PROCEEDINGS ARE PENDING
The sub judice rule should not start when the related legal proceedings are merely “imminent”
Starting point for publications relating to criminal proceedings
Starting point for publications relating to civil proceedings
IDENTIFYING WHEN PROCEEDINGS ARE NO LONGER “PENDING”: FIXING APPROPRIATE END POINTS FOR SUB JUDICE RESTRICTIONS
End point for publications relating to civil proceedings
TIME LIMITS AND “INTENTIONAL” CONTEMPT
8. PUBLICATIONS IN THE PUBLIC INTEREST
THE GROUNDS OF EXONERATION FROM LIABILITY FOR SUB JUDICE CONTEMPT
AN OVERVIEW OF THE PUBLIC INTEREST PRINCIPLE
Narrow construction of the principle in earlier cases
A broader approach to the principle in the Hinch case
Subsequent cases
Recent development
OPERATION OF THE PRINCIPLE IN OTHER JURISDICTIONS
RECOMMENDATIONS OF OTHER LAW REFORM AGENCIES
THE COMMISSION’S PROPOSAL IN DP 43
CONSULTATION
Opposition to the proposal
THE COMMISSION’S RESPONSE TO THE SUBMISSIONS AND ITS FINAL RECOMMENDATION
“PUBLIC SAFETY” AS A GROUND OF EXONERATION
The Commission’s proposal in DP 43
Consultation
THE COMMISSION’S RESPONSE TO THE SUBMISSIONS AND ITS FINAL RECOMMENDATION
9. THE FAIR AND ACCURATE REPORTING PRINCIPLE
AN OVERVIEW OF THE FAIR AND ACCURATE PRINCIPLE
SOME POSSIBLE UNCERTAINTIES IN THE LAW
RECOMMENDATIONS OF OTHER LAW REFORM BODIES
THE COMMISSION’S PROVISIONAL VIEW IN DP 43
SUGGESTIONS FOR REFORM FROM A SUBMISSION FROM THE PUBLIC
THE COMMISSION’S FINAL POSITION
10. SUPPRESSION ORDERS
INTRODUCTION
STATUTORY SUPPRESSION ORDERS
Who is subject to a suppression order?
Knowledge of the existence of a suppression order
Existing statutory regulation of publication
RECOMMENDATIONS
Standing
A strict liability offence
Material to which suppression orders apply
11. ACCESS TO AND REPORTING ON COURT DOCUMENTS
INTRODUCTION
CURRENT LAW
DISCUSSION PAPER 43
SUBMISSIONS TO DP 43
THE ISSUES
Balancing competing principles
Access to particular categories of documents
THE COMMISSION’S VIEW
CONCLUSION
12. PROCEDURE AND JURISDICTION IN SUB JUDICE CONTEMPT PROCEEDINGS
OVERVIEW
DO THE RECOMMENDATIONS IN THIS AND THE NEXT CHAPTER APPLY TO OTHER FORMS OF CONTEMPT?
WHO SHOULD BE ALLOWED TO INSTIGATE SUB JUDICE CONTEMPT PROCEEDINGS?
The Director of Public Prosecutions
Should private individuals have the right to prosecute for contempt?
Should the Supreme Court continue to have the power to commence proceedings for punishment of sub judice contempt?
The prosecution of contempt relating to a Commonwealth offence which is being tried in a State court
JURISDICTION: WHO SHOULD HEAR SUB JUDICE CASES
Background to the current law
The Commission’s view in DP 43
MODE OF TRIAL: SHOULD THE SUMMARY PROCEDURE FOR SUB JUDICE CONTEMPT PROCEEDINGS BE RETAINED?
Arguments for a criminal mode of trial for sub judice contempt
Arguments for retaining summary procedure for sub judice contempt
The Commission’s view in DP 43
SHOULD APPEAL PROCEEDINGS FOR CONTEMPT BE HEARD BY THE COURT OF APPEAL OR BY THE COURT OF CRIMINAL APPEAL?
13. PENALTIES AND REMEDIES
OVERVIEW
FINES
Establishing limits for fines
The Commission’s recommendation
IMPRISONMENT
Retaining imprisonment as a penalty
Setting an upper limit for the term of imprisonment
The Commission’s recommendation
OTHER SENTENCING OPTIONS
Proposal 28 of DP 43
Reasons for the proposal
The submissions support the Commission’s proposal
The Commission’s recommendation
CORPORATE OFFENDERS
CREATION AND MAINTENANCE OF OFFICIAL RECORDS OF CONTEMPT CONVICTIONS
Records of court outcomes for offences
No records for outcomes of contempt cases
The Commission’s proposal
Feedback from the submissions and consultations
The Commission’s recommendation
INJUNCTIONS IN CONTEMPT PROCEEDINGS
Who can apply for an injunction to stop the publication of prejudicial material
CIVIL ACTION FOR DAMAGES
14. PAYMENT FOR COSTS OF ABORTED TRIALS
SHOULD A POWER TO ORDER COSTS BE ENACTED?
Is a power to order costs desirable?
DP 43
SUBMISSIONS TO DP 43
CONCLUSION
OVERVIEW OF THE COSTS IN CRIMINAL CASES AMENDMENT BILL 1997
CRITICISMS OF THE BILL
DP 43
SUBMISSIONS TO DP 43
CONCLUSION
15.THE MEDIA AND THE COURTS
INTRODUCTION
MEDIA/LIAISON POSITIONS IN NEW SOUTH WALES
THE VICTORIAN MODEL
THE COMMISSION’S RECOMMENDATIONS
APPENDICES
APPENDIX A: Draft Contempt of Court by Publication Bill 2003
APPENDIX B: Draft Legal Proceedings (Access to Documents and Reporting) Bill 2003
APPENDIX C: List of written submissions
APPENDIX D: Consultations on contempt by publication
APPENDIX E: Sub judice contempt cases in Australia
APPENDIX F: Selected criminal (non sub judice) contempt cases where a custodial sentence was imposed
TABLE OF LEGISLATION
TABLE OF CASES
BIBLIOGRAPHY
INDEX
