Courting scandal

Should the offence of ‘scandalising the court’ be abolished? Bill Swannie summarises the issues for journalists around contempt of court.

Photo by witwiccan.

Contempt of court is a criminal offence of particular importance to journalists and media organisations. Those found guilty of this offence can be jailed or fined, and journalists and others who comment publicly on court decisions are most likely to be prosecuted. In Victoria, 36 journalists and media organisations were charged in March 2019 by the director of public prosecutions with contempt for allegedly breaching suppression orders in the trial of Cardinal George Pell.

Contempt of court is currently defined by numerous court decisions made over many years. In 1987, the Australian Law Reform Commission recommended that the law of contempt be clarified and brought up to date by replacing it with statutory provisions. Over 30 years later, this recommendation has not been acted on. The Victorian Law Reform Commission is currently reviewing the law of contempt, and seeking input from stakeholders as to how it could be reformed.

This article examines the main types of contempt of court, and their distinguishing features. It argues that the type of contempt known as ‘scandalising the court’ should be abolished. This offence has been described as ‘dangerous’ by former High Court judge Lionel Murphy, as it is so vague and general that it can restrict legitimate discussion and criticism of courts and court decisions. In a democracy, courts should not be able to punish journalists and the media for commenting on court decisions. Indeed, it is the role of the media to hold to account public institutions (such as courts) that exercise considerable power.

Why is scandalising contempt problematic?

Four general types of contempt are punishable by law:

1. Sub judice contempt involves making public comments on a current or pending trial. This seeks to ensure that criminal defendants receive a fair trial.

2. Disobedience contempt involves failing or refusing to comply with a court order, such as the suppression orders in the Pell trial.

3. Contempt in the face of the court involves interfering with or interrupting a court hearing.

4. Lastly, contempt by scandalising the court targets conduct that may undermine public confidence in the courts or which threatens a court’s authority, such as making statements alleging bias or impropriety on the part of judges.

The scope of the offence of scandalising contempt, and what types of conduct may be punished, is extremely vague and uncertain. Currently, contempt is defined by numerous court decisions, not by legislation. In a 1935 decision, the High Court of Australia found that a newspaper article that humorously criticised the Court’s decisions in the 1930s scandalised the court. It is difficult for journalists and others who comment publicly on court decisions to know in advance what conduct will be punished.

Those convicted of contempt can be jailed or fined — potentially without limit. Judges are not limited in the penalties that they can impose for contempt. The mere recording of a conviction can have serious consequences. For example, it can limit employment opportunities, and can also prevent international travel.

Currently, it is unclear what if any defences apply to scandalising the court. In particular, it is unclear whether proving the truth of the statement (for example, that a judge has acted improperly) is a defence. In addition, successful prosecution does not depend on proving that the person intended to undermine the court’s authority. Therefore, it is possible to be punished for accidental or unintentional scandalising contempt.

Despite the uncertainty of the offence, and the potentially unlimited penalties, few procedurals safeguards apply to prosecutions for contempt. Often, it is the court or judge alleged to have been scandalised that lays the charge of contempt and determines guilt and the sentence. In this situation, judges seem to have a clear conflict of interest between their duty to uphold the law and their personal interest in the proceeding. It is doubtful that this procedure is fair or impartial for the accused person. Ironically, this procedure is likely to undermine public confidence in the courts.

Public power and accountability

In Australian society, judges exercise considerable public power. For example, judges may imprison people for breach of the criminal law. Judges also have power to determine the constitutional validity of legislation, and to interpret legislation. Indeed, judges may have more power than elected members of parliament. As public servants, whose salary is paid from public revenue, judges must be accountable for their decisions and for the power they exercise, which often have a lasting impact on individual’s rights.

Laws should foster and encourage discussion of courts and court decisions, rather than punish and discourage this. Australian judicial officers have on occasion abused their powers in relation to punishment for contempt of court, and acted in an oppressive manner. In a proceeding in 2000, a magistrate threatened to punish a legal representative for contempt simply because the magistrate disagreed with the representative’s submissions (The Magistrates’ Court of Victoria at Heidelberg v Robinson).

In February 2019, The Australian Financial Review published an article titled ‘Could Salvatore Vasta be Australia’s Worst Judge?’ (25 February 2019). The article highlighted criticisms made of a Federal Circuit Court judge, including comments by judges who had overturned his decisions on appeal. The title of this article alone would most likely expose the writer and publisher to potential prosecution for contempt.

However, in the interests of accountability, possible judicial misconduct like this should be disclosed, and rectified, at the earliest opportunity. Such conduct, particularly if it is allowed to go unchecked, brings courts and the legal system into disrepute. Laws should encourage the disclosure of such conduct, rather than potentially punishing those who disclose judicial wrongdoing. In a democratic society, individuals should not have to defend a charge of scandalising contempt by having to prove the truth of a disclosure they have made of judicial wrongdoing (assuming that truth is a defence).

In the 1990s the High Court emphasised the role of the media and of free speech in ensuring the accountability of public officials. Cases such as Lange v Australian Broadcasting Corporation stated that criticism of public officials is a legitimate and indeed a vital part of a democratic society. In modern society, the media plays a crucial role in scrutinising court decisions.

More effective ways for courts to respond to criticism

The offence of scandalising the court constitutes an oppressive limitation on free speech. Former High Court judge Lionel Murphy has stated, ‘At stake is not merely the freedom of one person; it is the freedom of everyone to comment rightly or wrongly on the decisions of courts.’ Unlike sub judice contempt or disobedience contempt, scandalising contempt does not involve any interference with a current or pending proceeding, or disobedience with a particular court order. Rather, scandalising contempt seeks to protect courts against risks that are highly speculative.

There are other, more effective, ways for courts to respond to criticism and ensure public confidence in their decisions and authority. For example, judges regularly speak publicly and explain court processes and legal principles. Public commentary is more effective than contempt proceedings for promoting respect for the courts. It is also less restrictive of individual rights. Therefore, punishing people for statements that may lead others to think less of courts is archaic, oppressive and unnecessary in contemporary democratic society.

Bill Swannie teaches media law in the College of Law and Justice, Victoria University, Melbourne.

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