Australian Press Council Submission to the NSW Attorney-General in response to NSW Law Reform Commission Report 100, Contempt by Publication.

7 May 2004

Executive Summary

The Australian Press Council accepts that the law of sub judice contempt is a necessary part of our system of justice. However, the Council also believes that there is a need to balance the right to a fair trial against the right of the public to be kept informed of court proceedings. Although the report of the NSW Law Reform Commission, Contempt by Publication, includes several positive proposals, the report makes a number of recommendations which have the potential to restrict the reporting of court proceedings by the media and which may threaten free speech.

In particular the Press Council

• supports the proposal that "substantial risk" of prejudice to proceedings be adopted as the appropriate test for sub judice contempt;
   
• expresses concern about the proposed extension of the scope of sub judice contempt law to "prospective" parties, a proposal which is impractical and unnecessary, due to the difficulty of identifying such prospective parties;
   
• believes that mere publication of contemptuous material is not sufficient of itself to warrant conviction for sub judice contempt, even where such publication causes prejudice to the fairness of court proceedings, arguing that, in addition to publication, there should be a requirement that the publication was made either with an awareness that the publication may cause prejudice to court proceedings or recklessly or, at the least, negligently;
   
• notes its concern that the proposed reforms do not grant the media sufficiently easy access to court documents which are necessary in order adequately to understand and accurately to report court proceedings and decisions; and
   
• argues that the proposed reforms give the courts the ability to make extensive use of suppression orders to prevent the media from reporting on court proceedings.

The Council's response

Open justice has been a principle fundamental to the common law throughout its history, in order to ensure fairness and consistency of determinations and processes. In contemporary society, the notion that justice should be administered in public implies that the media should have complete access to the courts and the right to report upon court proceedings. The Australian Press Council accepts the law of sub judice contempt as a necessary part of our system of justice. However, the Council believes that, in protecting the rights of parties to a fair trial, there is a need to balance those rights against the right of the public to be kept informed of court proceedings. In this regard, the Council notes that, according to statistical analysis conducted by the Bureau of Crime Statistics and Research, of those trials which are aborted, only one per cent are aborted due to prejudicial publicity.

Although the report of the NSW Law Reform Commission, Contempt by Publication, includes several positive proposals, the report makes a number of recommendations which have the potential to restrict the reporting of court proceedings by the media. The Council is concerned that in seeking to protect parties from prejudicial publicity the Commission is proposing reforms which may threaten free speech. The Council makes responses to specific recommendations in the report in Appendix A and offers some proposed amendments to draft legislation in Appendix B.

Of paramount concern to the Press Council are the areas in which the report proposes to expand the scope of sub judice contempt into new areas which have not previously been covered by this law. In particular, the proposed extension of sub judice contempt to proscribe the vilification of prospective parties is impractical and unnecessary. Due to the difficulty of identifying such prospective parties, this would place an unreasonable burden on journalists and publishers and would have the effect of restricting free speech and stifling public debate. The Press Council opposes the introduction of any law which would extend the sub judice rule to prospective parties.

With respect to the vilification of parties to litigation which is already in progress, the Press Council regards the proposed definition of "vilification" as far too wide and having a significant potential to dramatically impede free speech. The proposed legislation would act as an impediment to the publication of cartoons and other satirical commentary. The parties who this proposal is intended to protect already have the right to seek redress for the publication of malicious material by means of an action in defamation.

The Press Council also notes that those parties who fall within the scope of provisions dealing with vilification are not excluded from the proposed provision which grants individuals the right to commence private prosecutions for contempt. The failure to express such an exclusion creates a potential for individuals to bring contempt proceedings when subject to vilification by the media (which may consist of satirical commentary or cartoons), even though no litigation is on foot. Such private prosecutions could be exploited as a tactic to gag public debate on controversial issues.

The Press Council is pleased to note that the report reviews the defences which are available against sub judice contempt. However, the proposed defences do not offer sufficient protection for journalists and publishers. The Council believes that mere publication of contemptuous material is not sufficient of itself to warrant conviction for sub judice contempt. In addition, there must be evidence of substantial risk to fairness before a prosecution for contempt can succeed. Even where publication causes prejudice to the fairness of court proceedings, the Council is of the view that mens rea should be a requirement for any prosecution. In addition to publication, there should be a requirement that the material was published either with an awareness that the publication might cause prejudice to court proceedings or was published recklessly or, at the least, negligently. The defence of being unaware that publication would amount to contempt has the potential to protect journalists, but the utility of this defence is compromised by the failure adequately to identify what action is required to satisfy the test of "reasonable steps" which must be taken to ascertain whether publication would amount to contempt. In considering what journalists are required to do in order to satisfy this test, law reformers should have regard to the working practices of journalists and recognise the very tight deadlines which restrict the ability of journalists to conduct extensive research prior to publication. In addition to improving the defences available to publishers, the rights of defendants should be protected by ensuring that the judge who hears the contempt charge should be different from the judge who heard the proceedings which were the subject of the allegedly contemptuous material.

The Press Council has concerns regarding media access to court documents. Such access is essential for the accurate reporting of court proceedings. The report recognises the media's right to have such access and recommends that legislation set down those classes of documents to which media access should be granted. However, the classes of documents specified are limited in their scope. The Council believes that the media should have access to all categories of documents which are sighted by the court, including those which are unanticipated or fall outside the prescribed categories, unless there are persuasive reasons for their exclusion. Instead of prescribing the categories of documents to which the media should have access it would be preferable to state that the media should have access to all documents unless they fall within specified exemptions which have been formulated to protect the rights and interests of relevant parties.

The Press Council has similar concerns regarding the issuing of suppression orders. Granting the courts power to suppress the publication of reports of any part of proceedings without significant statutory restriction could compromise open justice and act as an impediment to free speech. Suppression orders should only be issued in certain specifically defined instances and when the threat to the administration of justice clearly outweighs any public interest in the dissemination of information relating to court proceedings. The Press Council is particularly concerned about the proposal to apply a test of strict liability in prosecutions for breaching suppression orders. In order for a prosecution to succeed there should be a requirement to demonstrate mens rea. The test for breaching suppression orders should be based on either knowledge of the existence of suppression orders or recklessness of the part of publishers.

With regard to the penalty provisions which are addressed in the report, the Press Council objects to the proposal to amend the Costs in Criminal Cases Act 1967 in order to give courts the power to make publishers liable for the costs of failed prosecutions. The courts already have the power to impose significant fines on publishers and the report proposes to make substantial increases to those fines. The additional penalty of liability for costs would have a punitive effect. Moreover, the knowledge that costs will be passed on to publishers may have the undesirable effect of encouraging the unnecessary abandonment of trials which would otherwise proceed.

The Australian Press Council does not oppose the retention of sub judice contempt, nor does it object to the aim of clarifying and improving sub judice law by introducing new legislation. However, any attempt to reform the law of sub judice contempt must ensure that open justice is protected. Any legislation which addresses the right of media organizations to report on court proceedings must have as its primary goal the balancing the rights of parties to fairness and the rights of the whole community to be kept informed of court proceedings. The recommendations put forward by the Law Reform Commission in its Report 100, if implemented without amendment, cannot achieve that balance.

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Appendix A - Responses to specific recommendations:

Recommendation 1:

While the Council accepts that sub judice contempt should be retained, we believe that the law of sub judice contempt should be limited in scope in order to protect freedom of speech and to balance the need to protect the administration of justice against the right of the public to be informed about court proceedings.

Recommendation 2:

The Council supports the proposal that "substantial risk" of unfairness to proceedings be adopted as the test for contempt.

Recommendation 3:

The Council concedes that a judge's reasons for dismissing a jury should be admissible in proceedings for sub judice contempt.

Recommendation 4:

The Council concedes that the fact that contemptuous material has been published on a prior occasion will not necessarily reduce the risk of prejudice caused by that material. However, the previous publication of contemptuous material should be taken into account by a court when considering a prosecution for contempt and when determining an appropriate penalty for contempt.

Recommendation 5:

The defence proposed in this recommendation effectively imposes an obligation on journalists to take "reasonable steps" to ascertain facts would cause published material to breach the sub judice rule. It is not clear what such reasonable steps might involve. Before the Council could give an indication of whether we support this recommendation we would need clarification of two aspects of this defence: firstly, what level of investigation would be required of journalists and publishers in order to satisfy this test. Secondly, what level of recording or documentation of such investigations would be required to constitute proof sufficient to satisfy a court that reasonable steps have been taken. In determining what would constitute "reasonable steps" law makers should have regard to the professional work practices of journalists and publishers.

Recommendation 6:

The Council supports the recommendation that it should be a defence to a contempt charge that material was published pursuant to an arrangement whereby the defendant did not have effective control over the content of published material and that the defendant took reasonable steps to prevent contemptuous material from being published.

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Recommendation 7:

Although the Council concedes that the imposition of costs penalties for the failure to disclose evidence of a defence may be necessary, we believe that the period within with a defence must be disclosed should be extended to 28 days.

Recommendation 8:

The Council accepts that intent to interfere with the administration of justice does not in itself constitute sub judice contempt in the absence of publication.

Recommendation 9:

While the Council accepts that sub judice contempt rule should apply to civil proceedings, we believe that the obligations imposed on journalists and publishers in relation to civil matters should be less onerous than those imposed in relation to criminal matters, since the liberty of the individual is not in jeopardy. It should also be noted that civil matters frequently deal with issues which are relevant to the public interest (for example, where civil proceedings deal with government administration and policy) and in such circumstances the public's right to be informed on matters of public interest should weigh heavily as against the aim of avoiding prejudice to proceedings.

Recommendation 10:

The Council objects to the proposal that the protection afforded by the rule of sub judice contempt should be extended to prospective parties. The Council also objects to the proposal that a party's decision to institute, not to institute, to discontinue, to participate in or take a step in legal proceedings should be the basis for a prosecution for contempt. These proposals are impractical and unworkable. Journalists and publishers would have great difficulty identifying "prospective parties" prior to the commencement of legal proceedings. Further, it would be difficult, if not impossible, for a publisher to rebut an assertion made by a "prospective party" that they had been sincere in their intention to commence proceedings or in their true reason for electing not to proceed with such action. The proposed definition of vilification as including the incitement of "severe ridicule" of a party would have the effect of curbing the publication of cartoons and other satirical commentary. Where an individual is subject to vilification by publication the appropriate legal remedy should be sought by way of an action in defamation.

Recommendation 11:

The Council supports the proposal that the prejudging of an issue ought not of itself establish liability for sub judice contempt.

Recommendation 12:

The Council agrees with the proposal that the applicability of the sub judice rule should be restricted to proceedings which are pending at the time of publication. However, the Council does not agree with the proposal that an exception to this rule should be made with respect to influence on prospective parties.

Recommendation 13:

The Council supports the proposal that (for the purposes of sub judice contempt) criminal proceedings become pending as from the specified initial steps of proceedings.

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Recommendation 14:

The Council accepts the proposal that criminal proceedings become pending from the time of the accused's arrest or the making of an extradition order, but notes that since many publications are linked to national publishers it may be questionable whether any purpose is served by making a distinction between an accused located within NSW and an accused in another Australian jurisdiction.

Recommendation 15:

The Council agrees with the suggestion that the sub judice applies rule from the issue of a writ or summons in a civil proceeding.

Recommendation 16:

The proposal that the sub judice rule may apply where no proceedings have as yet been commenced is impractical and unworkable. The sub judice rule should not be applicable until legal proceedings are at least highly probable and such probability a matter of public record which is either known to journalists or likely to be discovered in the course of normal inquiries.

Recommendation 17:

The Council accepts the proposal that a civil proceeding remains pending until the handing down of a jury's verdict. The Council also accepts that the sub judice rule should apply pending the determination of an appeal. However, the Council notes that in the period while an appeal is pending there should be sufficient license to enable the press to inform the public as to the decision of the trial judge and the reasons given for that decision.

Recommendation 18:

The Council agrees with the proposal that civil proceedings cease to be subject to the sub judice rule at the time of judgment, settlement or discontinuance. The Council also agrees that the rule should become operative again from the ordering of a further inquest, inquiry or a retrial.

Recommendation 19:

The Council agrees with the proposal that the same time limits should apply regardless of whether or not there was an intention to interfere with the administration justice.

Recommendation 20:

The Council supports the proposal that a person charged with sub judice contempt should be acquitted if the published material relates to a matter of public interest and the public benefit arising from the publication outweighs any harm to the administration of justice.

Recommendation 21:

The Council supports the proposal that a person charged with sub judice contempt should be acquitted if the published material was necessary in order to facilitate an arrest or investigation in relation to a criminal offence.

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Recommendation 22:

The Council expresses its grave concern regarding the proposal that "any court in any proceedings" should have the power to suppress the publication of reports of any part of the proceedings where this is considered necessary for the administration of justice.

The Council is concerned that the implementation of this proposal without any significant statutory restriction on its use could compromise open justice and act as an impediment to free speech. A court is, by definition, a public forum. We believe that suppression orders should only be issued in certain specifically defined instances and when the threat to the administration of justice clearly outweighs any public interest in the dissemination of information in relation to court proceedings.

The Council is also concerned that a "strict liability" approach to sub judice contempt may place an unfair burden on journalists and publishers. While we prefer a strict liability approach over that of "enforced liability", the Council believes that the test for contempt for breaching suppression orders should not be based on strict liability, but should instead be based on either knowledge of the existence of suppression orders or recklessness on the part of publishers, as indicated by the professional practices of publishers.

Recommendation 23:

The Council supports the proposal that legislation be introduced which sets down the rights of media representatives to have access to court documents. However, we believe that the media should have access to all categories of documents which are sighted by the court with only a few specifically defined exceptions. The proposed legislation as it is currently worded makes no provision for categories of documents which are unanticipated or outside those which are prescribed.

Recommendation 24:

While the Council recognizes that the courts should have power to restrict access to court documents, we believe that such restrictions should be limited to only a few specifically defined exceptional circumstances where it is absolutely necessary to protect the rights and interests of relevant parties.

Recommendation 25:

The Council supports the proposal that the public should have the right to publish a fair and accurate summary of court documents. However, the Council notes that the proposal states that this right is subject to "any order of the court prohibiting or postponing reporting", effectively leaving it to the court to decide whether such summaries may be published. The Council believes that the court's power to issue orders proscribing the publication of summaries should be limited to specific circumstances where asolutely necessary to protect the rights and interests of relevant parties.

Recommendation 26:

While the Council recognizes that the proposal to grant private individuals the right to commence proceedings is consistent with the position at common law, the Council is concerned that the proposal would encourage individuals to commence contempt proceedings for inappropriate purposes. The Council also notes that the proposal does not exclude proceedings brought by an individual in relation to allegations by prospective parties that they have made a decision in relation to proceedings as a result of vilification. The failure to express such an exclusion creates a potential for individuals to bring contempt proceedings when subject to vilification by the media (including satirical commentary in the form of cartoons), even though no litigation is on foot. Private prosecutions for contempt could also be exploited as a tactic to gag public debate on controversial issues. The condition that the Attorney-General be notified of private contempt proceedings may help to discourage such proceedings. Nonetheless, the Council is concerned that this proposal may have consequences which are contrary to free speech.

Recommendation 27:

The Council accepts the proposal that proceedings for contempt should be heard by the Court of Criminal Appeal.

Recommendation 28:

The Council accepts the proposal to substantially increase the maximum amount which may be imposed as a fine for sub judice contempt. However, the maximum fine should not be imposed unless there is something more than mere publication. A reckless disregard for the administration of justice, for example, or evidence of an intention to pervert the course of justice, would warrant a greater penalty than mere negligent publication of contemptuous material.

Recommendation 29:

The Council accepts the proposal that the maximum period of imprisonment which can be imposed for sub judice should be set at five years. However, the maximum sentence should not be imposed unless there is something more than mere publication. A reckless disregard for the administration of justice, for example, or evidence of an intention to pervert the course of justice, would warrant a higher fine than mere negligent publication of contemptuous publication.

Recommendation 30:

The Council supports the proposal that community service orders and other alternatives to imprisonment should be imposed as penalties in proceedings for criminal contempt.

Recommendation 31:

The Council agrees with the proposal to establish a registry of court outcomes in proceedings for criminal contempt.

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Recommendation 32:

The Council supports the proposal that the Attorney-General should be notified of any intention to apply for an injunction to restrain a criminal contempt.

Recommendation 33:

The Council accepts that the DPP should have a right to apply for an injunction to restrain the publication of contemptuous material relating to criminal proceedings. However, such an injunction should only be granted in circumstances where the prosecutor has a strong prima facie case against the defendant and where there is a significant threat to the administration of justice.

Recommendations 34 and 35:

The Council is opposed to the proposed amendment of the Costs in Criminal Cases Act in order to give the Supreme Court the power to order costs against a publisher where a criminal trial is discontinued due to a contemptuous publication. The Council is concerned that if a defendant were liable to pay the costs of an abandoned trial in addition to a penalty the total amount payable may be excessive and out of proportion with the act of publication. The Council is also concerned that if the costs involved in the abandonment of a trial could be passed on to defendants there would be a far greater incentive to abandon proceedings.

Recommendation 36:

The Council recognizes that the appointment of a media information officer may assist in establishing effective communication and cooperation between the courts and the media. However, the Council is concerned that the role of media information officer may in practice become that of a "gatekeeper" who effectively obstructs media access to court documents. In addition to ensuring that the media are informed about the existence of suppression orders, the media officer should also have the role of assisting media representatives in gaining access to information and documents in relation to court proceedings.

Recommendation 37:

The Council supports the proposal to establish a Courts Media Committee.

Recommendation 38:

The Council supports the proposal to set time limits within which suppression orders must be posted on the court's website. When determining the periods of time within which suppression orders are posted the courts should give consideration to the tight deadlines to which media organizations work.

Recommendation 39:

The Council supports the proposal that the terms of suppression orders should be made available to the public.

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Appendix B - Suggested Amendments to Draft Bills:

Contempt of Court by Publication Bill 2003 (Draft)

Overview - "tendency to prejudice" should be reworded according to Recommendation 2 in Appendix A (above).

Section 9 should be omitted.

Section 10 should be omitted.

Legal Proceedings (Access to Documents and Reporting Bill) 2003

Section 7 should be redrafted to grant general public right of access to all documents which are presented to the court, with the exception of documents in certain specific categories.

When considering objections, applications or appeals under ss 8, 9, 10, 11 or 12 the court should be required to make a decision promptly. There could be a significant delay in gaining access to court documents pending such decisions. Due to the nature of news reporting and tight publishing deadlines such delays could have the practical effect of making it impossible to inspect documents prior to reporting on court proceedings. Courts should agree to restrict access only in exceptional circumstances.

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See also
2001 Submission to the NSW Law Reform Commission on its Discussion Paper, Contempt by Publication

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