Submission from the Australian Press Council to the New South Wales Law Reform Commission, in response to its Discussion Paper 43, Contempt by Publication.

30 April 2001

Executive Summary

The proposals for reform contained in the NSW Law Reform Commission Discussion Paper 43, Contempt by Publication [the DP], must be re-thought. Although it is not the stated intention of the proposals, they would, if enacted, both considerably decrease press freedom and establish new punitive categories of crime for senior people in media organisations. The proposals cannot be supported in their present form.

Preferred Approach to Reform.

The Australian Press Council believes reform of the law of contempt is necessary.

The shortcoming of the DP, however, is its lack of a well-grounded basic position. It does not question the basis for the current law to assume (para 12 of the summary of the DP) that, if there are media reports, "jurors ... will be hindered from reaching an impartial and proper verdict". (In the DP [para 2.55], this assumption is stated as "The sub judice rule assumes that jurors will have come in contact with media publicity surrounding a case, that they will retain the information and that they will be influenced by what they read and hear in the media.")

It bases this assumption, at least in part, on what it classes the "empirical research regarding juries" (paras 2.55 - 2.68 of the DP). This research is derived from Australian Law Reform Commission studies in the 1980s and from studies in the USA, where the rules on publication of material prior to, and during, trials are very different to the NSW situation. Conversely, it ignores contemporary empirical research from New Zealand (infra) which was available to the Commission and which does not support the assumption.

Nevertheless, using an outdated assumption, the Commission has proceeded (para 2.109 of the DP) "... on the basis that due process of law should take precedence over freedom of speech, but that a proper balance needs to be found between the two competing interests". The report does not seem to find such a balance and appears to be based on the precedence of 'due process of law'. As a result, the media has to be circumscribed.

Law reform ought to be about more than unexamined repetition of past assumptions. All the more so, because the only available empirical evidence on NSW and similar jurisdictions (Michael Chesterman, Janet Chan and Shelley Hampton, Managing Prejudicial Publicity, Law and Justice Foundation UNSW 2001 [Chesterman et al] and Juries in Criminal Trials, Part Two, Law Commission of New Zealand, Preliminary Paper 37, 1999) [the New Zealand study]) underlines the independence of thought that juries bring to their juror duties. The empirical evidence shows jurors and potential jurors are fundamentally responsible, base their reasoning on the evidence and are resistant to, if not scornful of, media reporting. The evidence ought to prompt a fundamental re-think of the starting point for reform.

(Notwithstanding the numerical evidence of independent jury thinking, which is unequivocal, Chesterman et al go on to draw many contrary conclusions about media influence, based on anthropological methodology which is not replicable. These are unsafe conclusions. It is not possible to gainsay them because of lack of evidence either way, but it is fair to say that they may reveal more about the initial positions of the authors than the reliability of jurors.)

A more appropriate approach would be to turn the proposed assumption on its head. If a sub judice law is deemed necessary, it should not be based on the premise that anything published or broadcast when a case is pending, or being conducted, automatically prejudices that trial. It should start from the assumption that freedom of the press is freedom of the people to be informed on matters of public interest or matters on the public record, including reports of matters held in open courts. And that this freedom needs to be balanced against the 'due process of law', with an assessment of the competing interests on a case-by-case basis. There should be no blanket restriction on publication. Any law should only cover the exceptional circumstances in which restrictions should apply. For instance, we agree that publication should be restricted where the published material will have an effect on perceptions, eg, photographs that might affect jurors or witnesses where identification is contested.

Specific Comments on Discussion Paper Proposals

Even if our preferred approach does not win acceptance, it will be crucially important that several of the proposals in the Discussion Paper are amended or deleted. The following brief notes on specific proposals are based on the assumption that the Commission is willing to re-think particular aspects of its approach.

1. Para 2.109. Due process of law should take precedence over freedom of speech.
   
   It is essential that NSWLRC takes account of the Press Council's view that freedom of speech, the right of the public to know, should be as important as due process of law. Laws should have due regard for an appropriate balance. Freedom of speech via the media is just as fundamental to individual freedom as to court processes. History shows that injustices to individuals are more prevalent in countries where these freedoms are curtailed than in countries where freedom of the press is valued. The NSWLRC should take more account of the need to find an acceptable balance.
   
   
2. Para 13 of the summary. Reform should take place by way of statutory modification of specific aspects of the current common law rules ...
   
   A better approach will be to take a fundamental look at the law rather than mess about with details of processes.
   
   
3. Proposal 1 Retain the sub judice law.
   
   If one is to be retained, it should be on a restricted exception basis rather than assuming any publication is wrong within whatever is determined as the prescribed period.
   
   
4. Proposal 2 A person or organisation is liable if they authorise, exercise a significant degree of control or supervise.
   
   This alternative Proposal is far too sweeping. Para 3.46 of the DP makes clear that this Proposal is intended to catch "each officer or employee who was in a position to exercise editorial control in relation to the contemptuous publication, or whose duties included the establishment or supervision of a system for ensuring the sub judice rule was not breached ..." It misunderstands completely responsibility and delegation within organisations. Any change to the common law should make the principals responsible, not the advisers, distributors and vendors low on the food chain.
   
   And, if such a definition is deemed necessary, there is a need to clear up the confusion in the use of "publication" within the Proposal (and in para 3.46 as quoted above.) "Publication" commonly refers to the organ, the newspaper or magazine. Here it appears to be used to refer to the "published material". If so, that construction might be better used.
   
   
5. Proposal 3 Proposes contempt if there is a substantial risk etc.
   
   The Council believes that the raising of the standard to creates a substantial risk, rather than words based on tendency, is a major improvement. However, the likelihood is that judges will still prefer to abort than give firm instructions to juries. Reform should certainly set the bar for abortion of trials higher using words that give more direction to judges. For instance, clause (b) of the proposal might be better as a third, and additional, clause on the necessary effect on juries, so it reads:
   

   (iii) be influenced by the publication in a way that seriously prejudiced the fairness of the proceedings.

   This would mean that for a matter to place a publication at risk, or lead a judge to conclude that a jury should be dismissed, s/he would need to be satisfied that there was a substantial risk that the jury members or witnesses will have seen the material; that they recalled it contents; and they had been influenced by it to such a degree as to seriously prejudice the fairness of the trial.
   
   
6. Proposal 4 Illustrative list of sub judice contempt statements.
   
   It would be better to have an unequivocal testable definition of when statements will be seen to be beyond legitimate limits (ie, Proposal 3 in a stronger form, as per para 5 [above]) than a list of examples in the legislation.
   
   In any case, while the Council would agree that, in most circumstances, statements along the lines suggested by the first two dot points would be ones which might seriously prejudice a trial, it would note that in the light of statements made by jurors in Chesterman et al and in the New Zealand study of their sceptical view of media reporting of trials in which they are jurors, dot points three and four are far too generally phrased and, in their present form, do not appear to give rise to serious prejudice in the same way as the first two. The third and fourth dot points should be redrafted in a tighter form.
   
   In respect of dot point five, publication of such images or descriptions is surely only prejudicial where identity is an issue at trial.
   
   
7. Proposal 5 Abortion of a trial to be admissible if and when there are contempt proceedings.
   
   Judges currently tend to dismiss juries (eg the case, mentioned in para 8.3 of the DP, concerning issues arising from a press conference given by Minister Paul Whelan) even when there is only a remote likelihood of a seriously prejudicial influence. Consequently, the fact that a trial has been aborted should not be admissible evidence, as it would appear to have little probative value and would open to dispute the earlier trial judge's reasons for dismissing, or not dismissing, a jury. An alternative, consistent with the Council's views on sub judice contempt would be to make the dismissal, or non-dismissal, of a jury relevant only on the question of penalty.
   
   
8. Proposal 6 Provides for publication to be in contempt even if the material has been previously published.
   
   In normal circumstances, it is not reasonable that a publication should be in contempt if it re-publishes material which was not itself in contempt. The Council recognises that there may be an exception to this if the material is re-published proximate to a trial.
   
   
9. Proposal 7 Defences of lack of knowledge and having taken reasonable steps.
   
   The Council agrees with the NSWLRC's proposal to introduce an element of fault in determining liability for sub judice contempt but believes the onus to show that fault rests with the prosecution.
   
   It also agrees that there should be no conviction on a charge of sub judice contempt if the person/organisation did not know it was in breach and if it had taken all reasonable steps to find out. It also concurs with the use of the civil standard of proof for such a defence.
   
   
10. Proposal 8 Defence, on the balance of probabilities, based on no control of the content and either did not know or, if knowing, took steps to prevent.
    
    The Council agrees that innocent distributors and vendors should be protected from charges of sub judice contempt. It again concurs with the use of the civil standard of proof for such a defence.
    
    
11. Proposal 9 Mere intent, without a substantial risk of prejudice, should not constitute sub judice contempt.
    
    The Council agrees.
    
    
12. Proposal 10 Publications prejudging the issues should not automatically be in contempt.
    
    The Council agrees but notes that this appears to contrast with the third and fourth dot points of Proposal 4 (above) which are issues of prejudgment.
    
    
13. Proposal 11 Proceeding pending defined as arrest without warrant, issue of summons etc.
    
    The definition of proceedings pending is far too sweeping. Restrictions should only apply when the matter has been set down for hearing.
    
    
14. Proposal 12 Proceedings pending from arrest in NSW and from time of orders for extradition from elsewhere.
    
    As for Proposal 11.
    
    
15. Proposal 13 Civil proceedings pending.
    
    Should be defined as from the date set down for hearing.
    
    
16. Proposal 14 Proceedings pending end with acquittal or other legal end to proceedings.
    
    This proposal would appear to interfere with a newspaper's ability to comment on, or argue for, a particular sentence after the conviction has been recorded. It has been a part of our system that it is juries, not judges, which are the subject of unfair pressure or prejudice. With the jury's service having been discharged, the Council can see no merit in a proposition that limits the press' ability to report, or comment on, matters of public interest.
    
    
17. Proposal 15 Proceedings not pending after a verdict and sentencing, and also pending appeal.
    
    Subject to its caveat regarding Proposal 14, the Council agrees.
    
    
18. Proposal 16 Proceedings become pending again, after an appeal in criminal cases, only when the date for a new trial has been set.
    
    The Council does not understand why legislation is necessary in this area as it appears to add nothing to the present situation.
    
    
19. Proposal 17 Proceedings not pending when there is abandonment or disposal of the case.
    
    See comments on Proposal 16.
    
    
20. Proposal 18 Same time limits for liability whether or not there was actual intention.
    
    This Proposal would seem to conflict with Proposal 9 which says that 'mere intent to interfere with the administration of justice does not constitute sub judice contempt'. The intent is to create a same set of time limits on all sub judice contempt matters. That is a proposition with which the Council agrees, despite the loose wording of the Proposal.
    
    
21. Proposal 19 Defences available to include need for public discussion and risk of impairment of that discussion.
    
    The Council strongly disagrees with this proposal. It is not convinced by the arguments in Chapter 8 of the DP for a new, narrower public interest defence. The Council believes that this proposal will unnecessarily lessen newspapers' abilities to report, and comment on, matters of public interest or matters on the public record. It can see no reason to narrow the existing common law interpretations in this area.
    
    
22. Proposal 20 Defence of necessity to achieve arrest, protect safety, or facilitate investigations with onus on the defence.
    
    The Council agrees with the test of sub judice contempt contained in this Proposal.
    
    
23. Proposal 21 Proposal for new section in the Evidence Act facilitating suppression orders by courts.
    
    Strongly disagree. There should only be suppression of reports of court proceedings under the most extreme of circumstances. The Council has argued elsewhere that there are already too many suppression orders being made under the current system. The report makes no credible case that there is a need for a further and more draconian suppression regime. This is a major incursion into current free speech rights.
    
    
24. Proposal 22 General right of access to court documents.
    
    The Council generally agrees with this right but believes that the formulation of the law must necessarily limit the circumstances in which lawful orders for restricted access are possible.
    
    
25. Proposal 23 General right to publish a fair and accurate summary.
    
    The Council generally agrees with this right, subject to the same caveat as expressed about Proposal 22.
    
    
26. Proposal 24 Obligation of private individuals to initiate criminal contempt proceedings to notify the Attorney-General and parties to the proceedings.
    Proposal 25 Appeal from contempt proceedings to go to Court of Criminal Appeal.
    Proposal 26 A-G to maintain a registry of outcomes.
    Proposal 27 Upper limits on sentences and fines.
    Proposal 28 Alternative methods of serving custodial sentences.
    Proposal 29 A-G and parties to be notified of injunctions to stop an apprehended criminal contempt.
    
    The Council makes no comments on Proposals 24-29, other than to note that they would appear to be reasonable matters to be part of any legislation governing contempt matters, were such legislation to be enacted.
    
    
27. Proposal 30 Power of Director of Public Prosecutions to apply for injunction restraining publications.
    
    Such a power should only be available to the DPP if, and only if, there is an extremely strong prima facie case, to be established to a court, that the proposed publication material breaches sub judice law. The Council believes that the formulation of the law must necessarily limit the circumstances in which such injunctions are possible.
    
    
28. Proposal 31 Supreme Court to be able to make an order for costs against publisher if publication causes discontinuance of the trial.
    
    If this proposed power is enacted in conjunction with the other proposals in the DP, the consequences will be far too draconian and illiberal. The risk and threat of excessive costs as much as anything else will result in inappropriate media self-censorship. As noted above, the Council believes that the issue of a trial abortion, or a judge's decision to continue the trial, should properly be a matter for a judge to consider when assessing any penalty for a conviction on a contempt charge.
    
    In a submission to members of the Legislative Council in September 1997, the Council argued:

    The Council is concerned that the [proposed Costs in Criminal Cases Amendment Bill 1997] will have a 'chilling effect' on free speech, particularly if it were to result in an increased willingness to abort trials because a media outlet, not the State, would pay for the aborted trial. In the light of such a possibility, broadcasters and publishers will tend to err on the side of caution when deciding what material to run and discussion of matters of public importance, such as the incidence of child sexual molestation in the community, is bound to be curtailed or severely limited, despite the public's right to know the information.

    The Council's information is that it is not common for trials to be aborted as a result of media broadcasts or publications. ... There have been a number of aborted trials arising from discussions on talk-back radio programs but not so many as to cause a major concern to the community. This Bill addresses a problem that does not merit such a draconian approach and does so in a way that will, inevitably, have negative consequences on the public's right to information that would enable it to participate in important community debates.

    Even with the changes as proposed in the DP, the Proposal would not be good law.
    
    
29. Proposal 32 Ten proposed modifications to the Costs in Criminal Cases Amendment Bill 1997.
    
    This would be a codification which is consistent with the general intent to unnecessarily restrict the media and make sure they pay if they transgress. In the light of paragraph 28 (above), the Council is of the view that the proposed Bill, even as modified, is not appropriate.
    
    
30. Proposal 33 Fines for contempt to take into account the likelihood of orders for compensation.
    
    How can this be done except by guesswork?

Conclusion

The Australian Press Council accepts that the press has to be both responsible and accountable and that the fundamental right of the public to be informed must be balanced with an accused person/organisation's right to a fair trial. It would like to work with the NSWLRC to achieve an appropriate formulation of any new legislation but asserts more work is necessary on both the fundamentals and the details of legislative provisions.

See also
Index of website material on courts and contempt

Return to
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Freedom of the Press overview

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