Contempt and Public Interest

Robin Bowiey, in this paper which received as an incidental but not intended by-product, cause some likelihood an honourable mention in the 2005 CAM LA of prejudice to a person who hap­ pens at the time to be a litigant ...It Assay Prize, advocates dearer rules regarding is well settled that a person cannot sub judice contempt. be prevented by process of contempt from continuing to discuss publicly a matter which may fairly be regarded Introduction "The conflict between freedom of as one of public interest, by reason speech and the proper administra­ of the fact that the matter in ques­ The law of sub judice contempt strivesto tion of justice is most likely to arise tion has become the subject of litiga­ balance the right to freedom of speech when a media organisation pub­ tion."8 ' . and discussion of matters of public inter­ lishes material which may interfere Walker explains that until the High Court's est with the right for persons facing legal with the course of particular legal decision in Hinch, there was considerable proceedings to have a fair trial, unpreju­ proceedings. Typically, those respon­ uncertainty regarding the practical appli­ diced by media comment. Striking a sible will not intend to prejudice the cation of the Breadmakers principle, with balance between these two interests is proceedings. They may have been some courts viewing the principle as an a difficult task, which in Australia, has motivated solely by a desire to bring inflexible rule.9 In Hinch it was held that been addressed by the common law over to the attention of the public mat­ courts must engage in a "balancing exer­ time. While a number of 'decisions have ters of public interest and concern. cise" between the two competing interests considered how the balance should be Nonetheless, [in doing so] they may to satisfy themselves beyond reasonable maintained, no authoritative guidance ' be guilty of a criminal offence under doubt that the public interest in freedom has yet been developed in Australia, with that branch of taw in Australia known of speech outweighs the public interest in considerable uncertainty still surrounding as sub judice contempt."5 the administration of justice.10 However, the questions of when a publication1 will Courts are left with little (if any) guidance offend the sub judice rule, and when the Examples of publications that might "public interest" defence will be available. offend the sub judice rule include asser­ on how this balancing exercise should be The present law. of sub judice contempt tions that a person facing legal proceed­ undertaken. The test formulated by the raises more questions than answers. ings was innocent of the charges: DPP v majority of the High Court in Hinch to Wran (1986) 7 NSWLR616, or that he/she determine if a publication is prejudicial is in order to provide better guidance to was guilty: Hinch vAttorney General (Vic­ that the publication must: the media and as a result, avoid costly toria) (1987) 164 CLR 15 (Hinch). How­ " ... have a "real and definite ten­ and time-consuming litigation, and at the ever as this paper will show, the question dency" as a "matter of practical real­ same time, allow the media to publish of what publications will offend the sub ity" to "preclude or prejudice the fair and broadcast with greater'confidence judice rule is far from certain. and without fear of being found to be in and effective administration of justice contempt of court, greater certainty must The "Public Interest" Defence in the relevant trial."11 be created. In essence, this article consid­ In light of the common laws recognition In the Hinch decision, Mason G differed ers that prevention is better than cure, and that freedom of speech is a highly val­ from the majority in his preference that: that such prevention can only be achieved ued principle, the public interest defence through making the rules, on sub judice "... there was a substantial risk that has developed.6 Walker explains that 'the contempt clear and readily understood the published material would come "public interest defence" allows Austra­ by the media, courts and the community to the attention of one or lian courts to make a finding that a media alike.' more members of the jury in the rel­ publication contains information that has evant proceedings, and through so a "real and substantial risk" of causing doing, would cause real or serious Sub Judice Contempt: prejudice to the proceedings, but does prejudice to the fair conduct of those not amount to a contempt because the An overview of its proceedings."'2 development information relates to a matter of great public importance and interest.'7 The "substantial risk" test is the preferable The Sub Judice Rule test to be applied to determine if there is The first authoritative statement on the sub judice contempt. This is one of the "public interest defence" in Australian sub Essentially, the law of sub judice contempt major uncertainties in the Australian law judice law was enunciated by Jordan G in aims to safeguard the public interest in the of sub judice contempt, and Felicity Rob­ proper administration of justice through Ex parte Bread Manufacturers Ltd (1937) inson explains that: ensuring a fair trial.2 The rule prohibits 37 SR(NSW) 242 (Breadmakers), who the publication of prejudicial information held that: "The question that arises from the about a case that is currently being heard [five separate] judgments in Hinch v " [djiscussion of public affairs and the or is pending hearing in Court.3 The prin­ Attorney General (Victoria) (1997) is detriment of public abuses actual cipal source of sub judice contempt law in what constitutes a substantial public or supposed, cannot be required to Australia remains the common law.4 Com­ interest. The problem with the bal­ be suspended merely, because the mentator Sally Walker explains the opera­ ancing approach is that what it gains discussion or the denunciation may, tion of the sub judice rule: in flexibility it loses in subjectivity. The

Communications Law Bulletin, Vol 24 N° 4 2006 Page 15 High Court has only provided limited and] introduce' "trial by media" just advance whether they will be pros­ examples of what issues may tilt the reform of the law of contempt."2' ecuted. Furthermore, the more gen­ scales in favour of the public inter­ eral reliance placed on the exercise of est defence, namely a 'major consti­ It is to this question of reforming the law prosecutorial discretion, the greater of sub judice contempt that the paper will tutional crisis' or 'imminent threat the likelihood of complaints of selec­ of nuclear disasterV3 Consequently, now turn. tive prosecution."25 media organisations are left in a situ­ Better guidance is therefore needed. DP 43 ation of uncertainty because they are The Case for Law Reform attempts to remedy this void by providing unable to gauge when a court may There is need for greater certainty and bal­ deem a particular topic to be of suf­ some guidance on the practical meaning ance in the Australian law of sub judice of the term "substantial public interest". ficient public interest to escape a contempt. Since 1980, there have been charge of contempt."14 more than 20 cases where allegedly preju­ PROPOSAL 20 dicial material has been published which Nature of the media industry Legislation should provide for a has necessitated the discharge of the jury defence to a charge of sub judice The "uncertainty" that Robinson refers to after it has been empanelled.22 above is undesirable? for the media, the contempt on the basis that the pub­ courts and the community in general. It DP 43 and other publications both in Aus­ lication the subject of the charge was must be remembered that the media is a tralia and overseas, while recommending reasonably necessary or desirable to time sensitive organisation, which survives that the sub judice rule be retained23, have facilitate the arrest of a person, to on publicizing "newsworthy" occurrences, proposed a number of solutions, which protect the safety of a person or of and as most media organisations are run are examined below. The following discus­ the public, or to facilitate investiga­ to make a profit, there will frequently be sion focuses on three main issues, namely tions into an alleged criminal offence. considerable pressure on media staff to The burden of proving this should be • what constitutes a matter of "sub­ on the defendant in contempt pro­ find and publicise such occurrences.15 stantial public interest" Many staff within media organisations are ceedings, to prove on the balance of not legally trained16, and without the aid • what factors will determine when a probabilities. of expert legal advice may not be equipped publication is in breach of the sub It appears that this proposal would pro­ to understand the presently complicated judice rule, focusing on the recom­ vide far more effective guidance than the and haphazard Australian law of sub mendation to change the test from present common law does, and ought to judice contempt. a "tendency to prejudice" to depend be adopted. on a "substantial risk of prejudice" Litigation resulting from avoidable con­ How a publication will offend tempt situations can be costly and time­ • the necessity for there to be fault the sub judice rule: replacing the consuming, and is therefore best avoided liability, and defences that should be "tendency to prejudice" requirement through making sub judice law clearer, available to publishers charged with with "substantial risk of prejudice" more consistent and better understood by sub judice contempt lawyers and lay people alike. As noted above, the present common law What constitutes a matter of test of whether a publication will offend The most recent NSW decision on sub "substantial public interest" the sub judice rule is expressed quite gen­ judice contempt -• Attorney-General for erally in terms of "tendency to prejudice" As noted above, Australian common law the State of New South Wales vX (2000)17 to date fails to offer useful guidance on the proceedings: Hinch (1987)26. DP 43 has not finally resolved the uncertainty of recommends that the present common what should constitute a matter of "sub­ what may constitute a matter of "signifi­ cant public interest"; the two examples law test clarify and narrow the test for stantial public interest", although the sub judice liability in order to depend on a majority judgment is indicative of a more referred to by Mason G in Hinch (1987) offer little effective guidance. Sally Walker "substantial risk of prejudice", rather than even balance between the right to free notes that: the majority test of "tendency to preju­ speech and the right to a fair trial.18 dice" as held in Hinch.27 As noted above, Mason G preferred this test, but he was However, Felicity Robinson concludes that "Hinch goes some way towards rem­ 'despite the renewed scope for freedom edying [the defects in sub judice law] in the minority. but it creates its own uncertainty as of speech [resulting from this decision], DP 43 argues that re-formulating the test it leaves it open to the courts in each the media must still be extremely cau­ for when a publication would offend the case to weigh the competing claims tious when publishing material, especially sub judice rule: since there are limited guidelines19 as to of freedom of speech and the admin­ what subject matter courts will deem to istration of justice. This must create " ... would raise the threshold of be of "sufficient public interest" to escape uncertainty in the minds of publish­ liability, thereby widening the scope a charge of contempt.'20 The uncertainty ers, who will react either by ignoring of material which can be published inherent in the Australian law of sub the law or engaging in over-cautious without being in contempt. It can be judice contempt has lead Professor David se/f-censorship."24 argued that, this tipping of the scales Flint to contend that: Furthermore, in this situation there is obvi­ in favour of freedom of speech allows for the counterbalance provided by " The assumption that a jury, properly ously considerable discretion on whether to institute contempt proceedings. Walker applying the rule to circumstances in instructed, remains more susceptible explains: which there is some danger of preju­ than judges or lawyers to media dice. On this basis, retention of the reporting is unjustified today I if ever “Relying on prosecutorial discretion is sub judice rule to apply to influence it was. However, it is not suggested not conducive to clarity or certainty; on witnesses can be justified."28 we [disregard sub judice contempt publishers should be able to know in

Page 16 Communications Law Bulletin, Vol 24 N° 4 2006 DP 43 also notes that

"the Australian Law Reform Commis­ sion, the Phillimore Committee in Great Britain, and the Irish Law Reform Com­ mission have all recommended a test for liability which was formulated in terms of substantial risk of prejudice, as opposed to mere tendency to preju­ dice,"29

This proposed change from tendency to substantial risk has also received support from within academia.30

This considerations have lead DP 43 to propose that:

PROPOSAL 3

"A publication should constitute a contempt if it creates a substantial risk, according to the circumstances at the time of publication, that:

(a) members, or potential mem- ■ bers, of a jury (other than a jury empanelled under s 7A of the Defamation Act 1974 (NSW)), or a witness or wit­ nesses, or potential witness or witnesses, in legal proceedings could:

(i) encounter the publication; and

(ii) recall the contents of the pub­ lication at the material time; and charged for committing an offence ment may amount to contempt even and/or previously acquitted, or been though it does not fall within one of the (Hi) by virtue of those facts, the fairness of the proceedings otherwise involved in other criminal categories listed above.' activity; would be prejudiced. "3l Fault liability for sub judice contempt, and I believe that this proposal would be a • A statement that suggests, or from defences to sub judice contempt which it could reasonably be inferred, valid one, as the very question of whether Another major shortcoming of the Austra­ juries actually recall and are influenced that the accused has confessed to committing the crime in question; lian law of sub judice contempt is that it by media information, has been seriously is cast in terms of absolute, rather than questioned in. many quarters32, but this • A statement that suggests, or from strict liability. Publishers may be found in questioning has been dismissed by Aus­ which it could reasonably be inferred, contempt even.if they had no intention to tralian courts33. This consideration, how­ that the accused is guilty34 or inno­ prejudice the proceedings at hand.36 DP ever, is beyond the scope of this paper. cent35 of the crime for which he or 43 notes that since sub judice contempt imposes criminal sanctions, the strict lia­ DP 43 goes further and offers a non- she is charged, or that the jury should bility approach, rather than' the current exhaustive list of statements that may convict or acquit the accused; absolute liability approach, should apply.37 have the capacity to offend the sub judice • A statement that could reasonably rule. When present situation of absolute liabil­ be regarded to incite sympathy or ity is considered alongside the current, PROPOSAL 4 antipathy for the accused and/or highly generalised "tendency to prejudice" to disparage the prosecution, or to test, and secondly, the lack of guidance on Legislation should set out the follow­ make favourable or unfavourable ref­ what constitutes a matter of "significant ing as an illustrative list of statements erences to the character or credibility public interest", the shortcomings of the that may constitute sub judice con­ of the accused or of a witness;. haphazard Australian law of sub judice tempt if they also comply with the contempt become all the more apparent. requirements set out in Proposal 3: • • A photograph, sketch or other like­ ness of the accused, or a physical Walker proposes that: • A statement that suggests, or from description of the accused. which it could reasonably be inferred, "A more satisfactory way of balancing The legislation should make it clear that that the accused has a previous crim­ the relevant public interests would be this list is not exhaustive and that a state­ inal conviction, has been previously to alter the law so that a publisher

Communications Law Bulletin, Vol 24 N° 4 2006 Page 17 who does not intend to interfere to endeavour to prevent the approach towards implementing laws with the administration of justice material from being pub­ based upon the recommendations dis­ would be liable for contempt only if lished. cussed in this paper. the publisher can be shown to have acted recklessly. This would balance Necessity of codification Conclusion the public interest in the administra­ Codification of these changes would be The law of sub judice contempt is intended tion of justice and the public inter­ a key step towards remedying the cur­ to serve an important purpose, balancing est in freedom of speech and make rent uncertainty in Australian sub judice the right to a fair trial with the right to free relevant the publisher's motive for law. I would recommend that such codi­ and open communication, but at present publishing the material."3* fication take place in across all Australian in Australia, it does not achieve this pur­ states and territories, through a process Another of the recommendations of DP pose in a systematic and consistent man­ of "alignment" of the laws in each state. 43 was to widen the scope for defences ner. There is still considerable uncertainty Although DP 43 did not support full codifi­ to sub judice contempt - the Commission on when a publication will be in contempt cation of the sub judice rule in New South proposes that where it can be shown that of court, and when it can be excused from Wales40 (which it believed would lead to no one was at fault, there should be no being so on the grounds of protecting a confusion and variance with other Austra­ liability for sub judice contempt.39 public interest. Furthermore, publishers lian jurisdictions), the focus of this paper is can be found to be in contempt of this PROPOSAL 7 the Australian law of sub judice contempt haphazard rule even if they were not in Australia as a whole. I believe that codi­ aware of its operation, or even if they took Legislation should provide that it is fication is necessary due to the significant reasonable steps to control publication. a defence to a charge of sub judice pervasiveness of media publications today, contempt, proven on the balance and their ability to cross state boundar­ The media is essentially a reactive, news- of probabilities, that the person ies.41 Given the significant interaction and driven, time sensitive organisation where or organisation charged with con­ interdependence of the Australian media, material published can often offend dif­ tempt: I believe it is a less than desirable outcome ferent interests, including the. interest in (a) did not know a fact that caused for state laws on sub judice contempt to preventing prejudice to legal proceedings. the publication to breach the be at variance with other jurisdictions.42 The only effective way to prevent this from occurring in the majority of cases is sub judice rule; and Such a process would accord with the to have carefully formulated laws that bal­ recommendations of the Australian Law (b) before the publication was ance both the interest in maintaining the Reform Commission's 1987 report, which made, took all reasonable right to a fair and unprejudiced trial with recommended that Australia's law of con­ steps to ascertain any fact that the interest to free and open communica­ tempt should be in statutory form.43 It is would cause the publication tion. to breach the sub judice rule. true that the 1987 ALRC report dealt with Australian contempt law as a whole, but I The reforms proposed by DP 43, and DP 43 goes further to list a number of pos­ believe that its recommendation for codi­ other publications discussed in this paper, sible defences to a charge of sub judice fication is valid. are a promising way of achieving certainty contempt. and consistency in the law of sub judice Sally Walker explains that: contempt in Australia. This would in turn PROPOSAL 8 "Owing to constitutional limitations result in an environment where the media Legislation should provide that it is on the Commonwealth Parliament's can publish with the knowledge and con­ a defence to a charge of sub judice legislative power... the common law fidence that they will not be likely to be contempt if the accused can show, regarding unintentional sub judice found in contempt of court, and as a on the balance of probabilities: contempt would continue to apply in result, avoid the prospect of costly and time-consuming litigation. The challenge (a) that it, as well as any person respect of proceedings conducted by is for law-makers to put these recommen­ for whose conduct in the mat­ the High Court and, unless the State dations into practice. ter it is responsible, had no and Territory legislatures enacted control of the content of the mirror legislation, the common law Robin Bowley is a student at the would continue to apply in respect of publication which contains the University of Sydney offending material; and proceedings conducted by state and territory courts. The lack of unifor­ 1 For the purposes of this paper,, the terms (b) either: mity which would result [if mirroring "publication" and "publish" will be construed legislation was not enacted] would broadly to include both written material in (i) at the time of the publication, newspapers etc, and spoken transmissions on only add to the uncertainty in this they did not know (having radio and television area,"44 taken all reasonable care) that 2 S. Walker Media Law: Commentary and it contained such matter and The uncertainty resulting from lack of Materials (2000), p. 528. Cited in F. Robinson had no reason to suspect that uniformity has been recognised by DP '"No, No! Sentence First I Verdict Afterwards": Freedom of the Press and Contempt by it was likely to do so; 4345, which also recognised that any such Publication in Attorney-General for the State of reform has to come about through the or New.South Wales vX (2001) 23 Sydney Law co-operative efforts of state and territory /?ewew261 at 262 (ii) they became aware of such legislatures.46 In my opinion, the present 3 James v Robinson (1963) 109 CLR 593, Civil material before publication challenge is for Australian law-makers to Aviation Authority v Australian Broadcasting and on becoming so aware, recognise that the present Australian law Corporation (1995) 39 NSWLR 540. Cited in took such steps as were rea­ of sub judice contempt has a number of F. Robinson '"No, No! Sentence First T Verdict sonably available to them significant flaws, and take a co-operative Afterwards": Freedom of the Press and Contempt

Page 18 Communications Law Bulletin, Vol 24 N° 4 2006 by Publication in Attorney-General for the State Afterwards" at 261 31 DP 43 Proposal 3 of New South Wales vX (2001) 23 Sydney Law 19 Mason O's reference to 'major constitutional 32 DP 43 Paras 2.55 12.67 Review26\ at 262 crisis’ or 'imminent threat of nuclear disaster' at 33 Attorney General (NSW) v John Fairfax 4 S. Walker ‘Freedom of Speech and Contempt of 26 is the only guidance that has been developed Publications [1999] NSWSC 318 at para 95 per Court' at 585 by the High Court to date. Barr J ■5 Ibid at 583 20 F. Robinson "'No, No! Sentence First I Verdict 34 See Hinch (1987) Afterwards at 276 6 F. Robinson "'No, No! Sentence First T Verdict 35 See DPP v Wran (1986) Afterwards at 263 21 D. Flint 'The Courts and the Media: What 36 DP 43 para 5.8 7 Ibid at 264 Reforms are Needed and Why?' (1999) 1 UTS Law Review 30 at 31 37 DP 43 para 5.14 8 Ex parte Bread Manufacturers Ltd; Re Truth and 38 S. Walker 'Freedom of Speech and Contempt Sportsman Ltd 91937) SR(NSW) 242 at 249. 22 M. Chesterman 'Media Prejudice During a of Court' at 606 Cited in Ibid at 263 Criminal Jury Trial: Stop the Trial, Fine the Media, Or Why Not Both?’ (1999) 1 UTS Law Review 71 39 DP 43 para 2.36 9 Ibid at 264 at 72 40 DP 43 para 1.45 10 Ibid 23DP 43 Proposal 1 41 D. Flint 'The Courts and the-Media: What 11 Hinch v Attorney General (Victoria) (1987) 164 24 S. Walker 'Freedom of Speech and Contempt Reforms are Needed and Why?' (1999) 1 UTS CLR 15. Per Wilson and Deane JJ at 34; Tohey J at of Court: The Australian and English Approaches Law Review 30 at 33 70. Cited in ibid at 262 Compared' (1991) 40 ILCQ 583 at 606 42 DP 43 para 2.94 12 (1987) 164 CLR 15 at 27-28. Cited in M. 25 S. Walker ‘Freedom of Speech and Contempt Chesterman 'Media Prejudice During a Criminal 43 S. Walker 'Freedom of Speech and Contempt of Court' at 588 Jury Trial: Stop the Trial, Fine the Media, Or Why of Court' at 585 26 Hinch v Attorney General (Victoria) (1987) 164 Not Both?' (1999) 1 UTS Law ReviewT\ at 81 44 Ibid CLR 15. Per Wilson and Deane JJ at 34; Tohey J at 13 (1987) 164 CLR 15 Per Mason CJ at 26 70. Cited in F. Robinson "’No, No! Sentence First! 45 DP 43 para 1.46 14F. Robinson '"No, No! Sentence First I Verdict Verdict Afterwards" at 262 46 DP 43 para 1.46. DP 43 also recognised that' Afterward s''at 265 27 DP 43 para 2.42 ... the Standing Committee of Attorneys General ,5 D. Williams 'The Courts and the Media: What considered, during the early 1990s, a uniform 28 DP 43 para 2.56 - Reforms Are Needed and Why?' (1999) 1 UTS law on contempt of court or partially uniform Law Review 13 at 15 29 DP 43 para 4.22 contempt laws dealing only with publication, but it appears that there was little enthusiasm at that 16 Ibid 30 M. Chesterman 'Media Prejudice During a Criminal Jury Trial: Stop the Trial, Fine the Media, time for a common statutory approach by the 17 (2000) 49 NSWLR 653 Or Why Not Both?' (1999) 1 UTS Law Review 71 States and Territories.' DP 43 para 1.46 ,8F. Robinson '"No, No! Sentence First I Verdict at 81 Unfair Terms in Consumer Contracts - The New Benchmark

Regulations 1999 (UK) (UK Regulations), Robert Neely and Olivia Kwok take a more which in turn are drawn from a 1993 detailed look at new Victorian requirements European Union directive. The provisions are aimed at addressing substantive, as opposed to procedural, unfairness in con­ introduction cedures. The reasons are threefold: com­ sumer contracts. pliance with the FTA will generally ensure The provisions have obvious application to The 'unfair terms' provisions in Victoria's compliance with other existing regulations telecommunications, pay TV and internet Fair Trading Act 1999 (Vic) (FTA) now set concerning the 'fairness' of consumer con­ services. When the legislation was intro­ the benchmark in terms of consumer- tracts; it is quite likely that other States and duced, Consumer Affairs Victoria (CAV) friendly contracts in Australia. Territories will follow Victoria and introduce identified telecommunications contracts similar legislation;1 and it is generally not The FTA provisions have particular rele­ as one of its initial targets. After significant practicable to have different contracts and vance to suppliers who use standard form compliance activity in 2004, in Decem­ procedures for different Australian jurisdic­ contracts across Australia, such as those ber 2004, CAV commenced proceedings tions. commonly offered online by banks, tele­ against AAPT in relation to AAPT's mobile communications companies and internet The good news for telecommunications and pre-paid mobile phone contracts. A service providers. Although the provisions and internet service providers is that compli­ decision by the Victorian Civil and Admin­ have been in force since 9 October 2003, ance with the Australian Communications istrative Tribunal (VCAT) in that matter and some industry sectors have led the Industry Forum (ACIF) Consumer Contracts has been reserved (the action is discussed way in ensuring their consumer contracts Code, which sets minimum standards for below). CAV recently announced that pri­ comply, the implications of the provisions consumer contracts in the telecommunica­ orities for 2005/06 will include pay TV and for suppliers generally is yet to be properly tions industry,2 is likely to mean compliance Internet service providers' contracts.3 appreciated. with the FTA provisions. It is notable that the 2005 ACIF Consumer It is suggested that it would be pragmatic Contracts Code4 (CC Code) drew heavily for companies supplying goods and ser­ Background from the UK Regulations and the amend­ vices to consumers in Australia to adopt the The unfair contracts provisions in the FTA ments to the FTA. Its central requirement FTA provisions as a standard when formu­ are based on equivalent UK regulations, mirrors section 32W of the FTA and pro­ lating end-user contracts and sign-up pro­ the Unfair Terms in Consumer Contracts hibits unfair terms in consumer contracts.

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