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Law of contempt

The submission to the Senate Legal and Constitutional Affairs References Committee in relation to its inquiry into the law of contempt was prepared by the Law Council. The Law Council is grateful for the assistance of its National Human Rights Committee, National Criminal Law Committee and Federal Court Liaison Committee, as well as input from the New South Wales Bar Association, the Law Society of South Australia, the Law Society of New South Wales and the Law Society of Western Australia in the preparation of this submission. 

On 15 August 2017, the Committee was asked to examine the law of contempt, guided by the following Terms of Reference:

a. the recommendations of the 1987 Australian Law Reform Commission report on contempt, and in particular, the recommendation that the common law principles of contempt be abolished and replaced by statutory provisions;

b. the recommendations of the 2003 New South Wales Law Reform Commission on contempt by publication and the need to achieve clarity and precision in the operation of the law on sub-judice contempt;

c. the development and operation of statutory provisions in Australia and overseas that codify common law principles of contempt;

d. the importance of balancing principles, including freedom of speech and expression, the right of fair trial by an impartial tribunal, public scrutiny of the operations of the court system and the protection of the authority, reputation and due process of the courts; and

e. any other related matters.

It is noted that the Terms of Reference for this inquiry are broadly drafted, drawing on earlier recommendations across two extensive law reform reports, together with references to the codification of contempt laws generally, and the inherent balancing of competing rights and freedoms associated with such reforms.

Given the potential impact on the courts of any proposed reforms to the law of contempt, the Law Council recommends that they be consulted prior to reforms being introduced.

This submission is limited to the published Terms of Reference, namely, the codification of common law principles of contempt, with a particular focus on contempt by publication, both in the sub-judice context and the laws regarding scandalising of the court.

In general, the Law Council suggests that the law of contempt as it currently stands operates satisfactorily and is well equipped to manage the competing interests inherent within existing contempt measures. However, the Law Council is not opposed to the codification of contempt law in line with the proposals of the Australian Law Reform Commission (ALRC), and is broadly supportive of those reform measures contained in its 1987 report. Such proposals, if implemented appropriately, have the potential to provide clarity and certainty to the law of contempt, two principles that are central to the Law Council’s policy and ongoing interest in maintaining and promoting of the rule of law.1

You can read the full submission below.

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