Contempt

Terms of Reference for this inquiry were received on 7 April 1983. The doctrine of contempt had developed to allow courts to punish those who interfered with the administration of justice. At the time of the reference, a number of criticisms were being made of the doctrine as a whole. It was unclear exactly what form of conduct would be classed as contempt. In some forms of contempt, the standard was often left to the judge to define. The procedures used were regarded as unfair. In many cases, the judicial officer or court alleged to have been offended was also responsible for trying the contempt charge. The use of contempt charges in the Family Court was also seen as being in need of reform.

The forms of contempt covered by the terms of reference include:

• improper behaviour in court;
• attempting to influence participants in proceedings;
• failing to comply with a court order or an undertaking given to a court; and
• contempt by publication, which includes:
  • publishing material that tends to prejudice the fair trial of a case;
  • publishing allegations tending to undermine public confidence in the administration of justice by a particular judicial officer or court; and
  •  compromising the secrecy of jury deliberations.

During its deliberation, the Commission was required to strike a balance between a number of 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.

As part of the inquiry the Commission published one Issues Paper, Reform of Contempt Law (ALRC IP 4) in 1984, and three Discussion Papers, Contempt and Family Law (ALRC DP 24) in 1985, and Contempt and the Media (ALRC DP 26) and Contempt: Disruptions, Disobedience and Deliberate Interference (ALRC DP 27), both in 1986. The final report, Contempt (ALRC Report 35) was tabled in June 1987.

Key recommendations

• The common law principles of contempt should be abolished and replaced by statutory provisions that would govern all Federal Courts except the High Court. These wide-ranging reforms would overhaul each existing form of contempt.
• Current forms of contempt should be replaced by criminal offences. To establish that a person was criminally liable, however, specific criteria should be met. ALRC Report 35 provided a list of recommended criteria for each form of contempt, the main purpose of which was to clarify the law and limit liability to situations where the conduct was sufficiently severe.
• These offences should be tried in the same way as normal criminal offences, rather than by a compressed form of hearing (summary procedure) to ensure that an accused’s rights were protected.
• There would be two exceptions to this practice: improper behaviour in court and disobedience contempt. Contempt in the face of the court should be treated as a criminal offence, but the matter should continue to be heard summarily. To overcome the concerns raised about the fairness of this practice, the accused person should be able to require the original judge not to be in charge of the trial.
• The law governing disobedience contempt should be replaced by a statutory system of ‘non-compliance proceedings’. Where a person has disobeyed an order, the other party should be able to request that the court impose sanctions (such as imprisonment or fines) to punish disobedience or pressure the disobeying person into complying with the order.
• Where the abolition of the common law forms of contempt would otherwise leave the courts without power to punish certain forms of interference with the administration of justice, the Commission recommended that the Crimes Act 1914 (Cth) be amended to remedy this situation.
• Specific recommendations were made in ALRC Report 35 for the reform of contempt in family law matters, including replacing the present system of contempt and quasi-contempt contained in the Family Law Act 1975 (Cth) be replaced by single procedure for the enforcement of orders. A number of policy considerations should be kept in mind when enforcing orders: punishment should only be used as a last resort when counselling has failed to resolve the issue; a wider range of sentencing options should be available; in punishing those who do not comply with orders, the court should consider how the disobeying person’s conduct harmed others, but must also consider how the punishment would affect any children involved.
• A specific offence should be created for breach of a restraining injunction. Where a person has breached a custody order by abducting a child, the police should have explicit power to arrest the abductor.
• Each Family Court Registry should establish an ‘enforcement list’ to ensure that non-compliance proceedings are heard as quickly as possible.

While the Commission’s report focused on how contempt operated at a Commonwealth level, it held that the majority of its recommendations were suitable for use by state and territory governments.

Implementation

A discussion paper dealing with some aspects of the report was circulated to Chief Justices of the High Court, Federal Court and Family Court and the item was placed on the agenda of the Standing Committee of Attorneys-General for discussion of a possible uniform contempt law. In 1992, a position paper was prepared and circulated, outlining the federal government’s position on the Commission’s recommendations. Although four jurisdictions initially agreed to work together for the purpose of agreeing on uniform contempt legislation, state and territory interest in the project lapsed and the project is no longer being actively pursued.

However, there has been substantial implementation of the report’s proposed reforms in family law. The Family Law Amendment Act 1989 (Cth), which came into force on 25 January 1990, implemented significant aspects of the recommended reforms for enforcing the orders of the Family Court. As implemented, the legislation required that breaches of orders are only to be punished where that conduct was intentional and done without a reasonable excuse; that, as a general rule, before imposing sanctions for a breach of an order, the parties must have attended counselling; and that imprisonment for non-compliance should only be used as a last resort.

In 1992, the Report of the Joint Select Committee on Certain Aspects of the Operation and Interpretation of the Family Law Act 1975 concluded that the Court was not making full use of the powers under the Act. As a result, the Family Law Amendment Act 2000 (Cth) was passed. The main way in which the Act sought to improve the enforcement of orders was the introduction of a three-level system, which requires the Court to take different kinds of action depending on the nature of the breach, ranging from measures to improve communication, to punishment as a last resort. The enforcement of orders regime was further reformed by the Family Law Amendment Act 2003 (Cth).

Continuing issues

The NSW Law Reform Commission received a reference on contempt by publication in 1998. The Commission completed its inquiry in 2003 with the release of Contempt by Publication (Report No 100).

The Law Reform Commission of Western Australia completed an inquiry into contempt in the face of the court in 2003 and released a final report, Report on Review of the Law of Contempt (Project No 93).