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Gallagher v Durack [1983] HCA 2; (1983) 152 CLR 238 (15 February 1983)

CATCHWORDS

HEARING

DECISION

2. The facts of the matter, so far as it is necessary to state them, are as follows. On 11 May 1982 Keely J., a judge of the Federal Court of Australia, held that the Australian Building Construction Employees and Builders Labourers' Federation (the "Federation"), the applicant, Mr Gallagher (who is the Federal Secretary of the federation), and one, B. Boyd, were guilty of contempt of court. On 18 May 1982 Keely J. fined the Federation $15,000 for the contempt and directed that the fine be paid by the Federation by an agent properly authorized in writting by the Federation to make that payment on its behalf. On the same day Keely J. sentenced the applicant to two months' imprisonment and fined Mr. Boyd. On 21 July 1982 a Full Court of the Federal Court unanimously dismissed an appeal by the Federation but by a majority (Evatt and Deane JJ., Smithers J. dissenting) allowed the appeal by the applicant and set aside the finding that he was guilty of contempt of court and the sentence of imprisonment which had been imposed on him. The court also unanimously allowed the appeal by Mr. Boyd. On the same day, and after judgment had been given in the Federal Court, a number of journalists, television cameramen and others assembled outside the office of the Federation at Carlton seeking an interview with the applicant in respect of the judgment of the Full Court of the Federal Court. At about 1.00 p.m. on that day the applicant, accompanied by others, came out of the office of the Federation and was interviewed. No reliance was placed by the respondent on anything said by the applicant in that first interview. The applicant then distributed to those present copies of a resolution passed by the federal management committee of the Federation. The first sentence of the resolution read as follows:
"The decision of the Federal Court is a credit to the rank and file of the Federation whose significant stand, alongside their elected representatives, is the key to the reversal of the decision to jail Norm Gallagher."
At the request of a representative of a television channel, the applicant consented to a second interview and to answer further questions. One of the questions was as follows:
"Mr. Gallagher, what is your reaction (or response) to the Court's decision?"
To this question the applicant replied:
"I'm very happy to the rank and file of the union who has shown such fine support for the officials of the union and I believe that by their actions in demonstrating in walking off jobs . . . I believe that that has been the main reason for the court changing its mind."
It has been held by the Federal Court that in making that statement, the applicant was guilty of a contempt of Court. (at p242)

3. Before us counsel for the applicant submitted that the Federal Court, in convicting the applicant, relied entirely on the principles stated by Rich J. in R. v. Dunbabin; Ex parte Williams [1935] HCA 34; (1935) 53 CLR 434 and that those principles imposed an undue and unwarranted restriction on the freedom of speech and discussion and that this Court should adopt the principle, accepted by the Supreme Court of the United States in cases arising under the Constitution of the United States, that a publication should not be held to be a contempt of court unless it amounts to a "clear and present danger" to the administration of justice. (at p243)

4. The principles which govern that class of contempt of court which is constituted by imputations on courts or judges which are calculated to bring the court into contempt or lower its authority had been discussed by this Court in Bell v. Stewart [1920] HCA 68; (1920) 28 CLR 419 and R. v. Fletcher; Ex parte Kisch [1935] HCA 1; (1935) 52 CLR 248 before R. v. Dunbabin; Ex parte Williams was decided, and the judgment of Rich J. in the last mentioned case is consistent with what had been said in the earlier decisions. The law endeavours to reconcile two principles, each of which is of cardinal importance, but which, in some circumstances, appear to come in conflict. One principle is that speech should be free, so that everyone has the right to comment in good faith on matters of public importance, including the administration of justice, even if the comment is outspoken, mistaken or wrong-headed. The other principle is that "it is necessary for the purpose of maintaining public confidence in the administration of law that there shall be some certain and immediate method of repressing imputations upon Courts of justice which, if continued, are likely to impair their authority": per Dixon J. in R. v. Dunbabin; Ex parte Williams (1935) 53 CLR, at p 447 . The authority of the law rests on public confidence, and it is important to the stability of society that the confidence of the public should not be shaken by baseless attacks on the integrity or impartiality of courts or judges. However, in many cases, the good sense of the community will be a sufficient safeguard against the scandalous disparagement of a court or judge, and the summary remedy of fine or imprisonment "is applied only where the Court is satisfied that it is necessary in the interests of the ordered and fearless administration of justice and where the attacks are unwarrantable": R. v. Fletcher; Ex parte Kisch, per Evatt J. (1935) 52 CLR, at p 257 . There is no reason to reconsider these principles in the light of the American authorities, which are of course decided on constitutional provisions which have no counterpart in Australia, and which in any case lay down rules not dissimilar to those of the common law. (at p243)

5. It has not been shown that the Federal Court ignored or misapplied proper principles in the present case. The statement by the applicant that he believed that the actions of the rank and file of the Federation had been the main reason for the court changing its mind can only mean that he believed that the court was largely influenced in reaching its decision by the action of the members of the union in demonstrating as they had done. In other words, the applicant was insinuating that the Federal Court had bowed to outside pressure in reaching its decision. It is fundamental that a court must decide only in accordance with the evidence and argument properly and openly put before it, and not under any outside influence. What was imputed was a grave breach of duty by the court. The imputation was of course unwarranted. In considering whether this statement was calculated to lower the authority of the court, and whether it was necessary in the interests of the ordered and fearless administration of justice to fine or imprison the applicant, the Federal Court was entitled to consider, as it did, the fact that the applicant is a union leader, very well known to the Australian public, holding an important office in a large national trade union, and the fact that some members of the public might have been the more ready to accept the assertions of the applicant as true because of their awareness that on some occasions employers and even governments are influenced by the pressure which trade unions are able to bring to bear. Further, it was open to the court to consider that the publication by the applicant of the resolution of the Federal Management Committee was relevant to the question whether the applicant's statement was a deliberate one, for the court was entitled to think that even if the resolution, by itself, was ambiguous, the circumstances showed that it was to the same effect as the applicant's own statement. On the other hand, in favour of the applicant, it was right to consider that the offending statement was made in the course of a second interview which the applicant might not have expected to be held, that it was only one of a number of statements made, and that the newspapers and television channels responsible for giving publicity to the applicant's statement were not themselves charged with contempt of court. However, there is not the least ground to suppose that the Federal Court overlooked these matters, since all the relevant facts are referred to in the course of the judgments. One final matter upon which reliance was placed by counsel for the applicant was that the statement was made after the proceedings before Keely J. and the Full Court in relation to the matter with respect to which the statement was made had concluded. It is however obviously incorrect to say that public confidence in the administration of the law cannot be affected by comments made about a court after it had given the judgment which was the subject of the comment; the fact that the matter is no longer pending is simply one of the circumstances to be considered. (at p244)

6. There can be no doubt that the offending statement amounted to a contempt of court, and if repeated was calculated to undermine public confidence in the Federal Court. The question whether it was necessary, in order to vindicate and protect the court's authority, to imprison the applicant called for the most anxious consideration, but no ground has been shown to justify our granting special leave in order to interfere with the decision made by the Federal Court. (at p245)

7. An independent ground on which special leave to appeal was sought was that it was erroneous for the Federal Court to take into account as one of the reasons for imposing a sentence of imprisonment instead of a fine the fact that the court thought that the applicant would not pay a fine out of his own funds. Counsel relied upon cases in which it has been held that it is wrong to impose a sentence of imprisonment not because it is merited but because of a belief that the convicted person cannot pay a fine. Such cases however are quite distinguishable from the present, whose circumstances were most exceptional. The applicant, in the course of the interview, made it clear that the Federation would not pay the fine imposed upon it out of its ordinary funds, and it can be inferred from his further remarks that moneys to pay that fine would be provided by employers who could not afford to have industrial trouble with the union. The Full Court did not rely on the latter circumstance, although it was entitled to do so. The object of the imposition of a penalty upon a person convicted of contempt of court is to endeavour to ensure that the unwarranted statements which he has made about the court or a judge are repelled and will not be repeated. In the present case, the applicant, who did not go into the witness box to explain the meaning of his statement or his attitude towards its repetition, was given an ample opportunity to apologize to the court but has chosen not to do so. If the court comes to the conclusion that a person convicted of contempt of court will not personally suffer or be deterred by a fine, that is a matter which it may consider in imposing sentence. It is of course clear that the Federal Court reached its conclusion that a sentence of imprisonment should be imposed chiefly because of the gravity of the contempt, and that the matters to which reference has just been made provided only an additional consideration. (at p245)

8. For these reasons we are of the opinion that special leave to appeal should be refused. (at p245)

MURPHY J. Mr. Gallagher applies for special leave to appeal against his summary conviction by the Federal Court of Australia for contempt by scandalizing that court, and also special leave to appeal against the sentence of three months' imprisonment. The question is not whether Mr. Gallagher was correctly convicted, but only whether he shall be permitted to appeal. The case has important implications for freedom of speech, the maintenance of the integrity of the courts and the proper principles of sentencing.

Leave to appeal against conviction. (at p246)

2. Special leave to appeal against the conviction should be granted in order that the Court may have the opportunity to re-define what amounts to the offence of contempt by scandalizing the court. Use of the contempt power is a limitation on that freedom of expression which is essential to the achievement and maintenance of a democratic society. The extent to which the limitation is warranted by the need to maintain the integrity of the courts is a question of great public importance. (at p246)

3. Mr. Gallagher claims that an earlier decision of this Court, R. v. Dunbabin; Ex parte Williams [1935] HCA 34; (1935) 53 CLR 434 , which the Federal Court applied, places an undue limitation on freedom of expression in regarding as criminal contempt any statement which would tend to lower the authority of the court. He claims that the standards, expressed in the United States in cases such as Pennekamp v. Florida [1946] USSC 101; (1946) 328 US 331 (90 Law Ed 1295) ; Bridges v. California [1941] USSC 148; [1941] USSC 148; (1941) 314 US 252 (86 Law Ed 192) (and implied in English cases such as Reg. v. Metropolitan Commissioner of Police; Ex parte Blackburn (No. 2) (1968) 2 QB 150 ), which require not a mere tendency to detract from but a clear and present danger to judicial administration, state a better balance between the conflicting interests of free speech and of integrity of the judicial system, and should be adopted here. I agree. (at p246)

4. In 1920 Isaacs and Rich JJ. in this Court declared: "Modern conditions have . . . rendered obsolete in England the summary procedure of the Court for that species of contempt which consists in 'scandalizing it'" (Bell v. Stewart (1920) 28 CLR 419, at pp 428-429 ). They stated that the occasions for using it would be "exceptional" because the contempt involved "is primarily abuse only from which the good sense of the community is ordinarily a sufficient safeguard, and, such contempt not touching any pending proceeding, its effect on the administration of justice must generally be remote" (1920) 28 CLR, at p 429 . (at p246)

5. However the 1935 case of Dunbabin was a strong revival of the censorial power. The Sydney newspaper The Sun published a sarcastic article headed "Courts and Cabinets" mostly about several recently decided cases. Its tenor appears from passages such as the following:
"Some time ago the Assistant Treasurer (Mr. Casey) complained of the manner in which the High Court knocked holes in the Federal laws. Those laws have certainly been perforated by the keen legal intelligences of the High Court Bench."
and
"to the horror of everybody except the Little Brothers of the Soviet and kindred intelligentsia, the High Court declared that Mr. Kisch must be given his freedom."
This Court found that it was a serious contempt by the editor and proprietor of the newspaper. The main judgment was by Rich J. who stated (1935) 53 CLR, at pp 444-445 :
"The tone in which these matters are discussed is not that of informed or reasoned criticism but of sarcastic suggestion . . . I think the effect of the article, as well as its purpose, is to represent that the Court exercises its ingenuity in order to defeat legislation to which great public importance attaches and that the Federal Government encounters in the Court an obstacle it might well seek to remove. This is combined with a suggestion that one of its decisions pleased no one but the 'Little Brothers of the Soviet'. Such imputations, if permitted, could not but shake the confidence of litigants and the public in the decisions of the Court and weaken the spirit of obedience to the law."
He said (1935) 53 CLR, at pp 442-443 that the:
"summary power of punishing contempts of Court . . . exists for the purpose of preventing interferences with the course of justice. Such interferences may . . . arise from publications which tend to detract from the authority and influence of judicial determinations, publications calculated to impair the confidence of the people in the Court's judgments because the matter published aims at lowering the authority of the Court as a whole or that of its Judges and excites misgivings as to the integrity, propriety and impartiality brought to the exercise of judicial

office.
The jurisdiction is not given . . . for the purpose of restricting honest criticism based on rational grounds of the manner in which the Court performs its functions. The law permits in respect of Courts, as of other institutions, the fullest discussions of their doings so long as that discussion is fairly conducted and is honestly directed to some definite public purpose. The jurisdiction exists in order that the authority of the law as administered in the Courts may be established and maintained." (at p247)

6. The decision is criticized in the Law of Contempt (1973) by Borrie and Lowe. It imposes severe limitations on freedom to criticize or comment on the courts. Critics are liable to be held guilty of criminal contempt unless their criticism is honest, based on rational grounds, fairly conducted (in the eyes of the court) and honestly directed to some definite public purpose. They may be held guilty even if what they said does not directly tend to interfere with the administration of justice. The decision had a chilling effect on public criticism of courts in Australia. The chill persisted for about four decades. (at p248)

7. As stated by this Court, the law of criminal contempt in scandalizing the courts is so vague and general that it is an oppressive limitation on free speech. No free society should accept such censorship. The absence of a constitutional guarantee does not mean that Australia should accept judicial inroads upon freedom of speech which are not found necessary or desirable in other countries. 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 the courts in a way that does not constitute a clear and present danger to the administration of justice. There is a stark contrast between the approach of the United States Courts, and that of the Australian courts. A reading of Bridges [1941] USSC 148; [1941] USSC 148; (1941) 314 US 252 (56 Law Ed 192) shows that not only the majority, but also the minority, of the United States Supreme Court would have rejected out of hand the proposition that what Mr. Gallagher said after his appeal had concluded, was criminal contempt; it could not directly interfere with the administration of justice. The Court stated (1941) 314 US, at p 263 (86 Law Ed, at p 203) as the working principle: "the substantive evil must be extremely serious and the degree of imminence extremely high before utterances can be punished". It specifically rejected the "reasonable tendency" or "inherent tendency" to interfere with the orderly administration of justice as enough to justify a restriction of free expression. The minority, in tracing the history of the contempt power said (1941) 314 US, at p 287 (86 Law Ed, at p 216) :
"As in the exercise of all power, it was abused. Some English judges extended their authority for checking interferences with judicial business actually in hand, to 'lay by the heel' those responsible for 'scandalizing the court,' that is, bringing it into general disrepute. Such foolishness has long since been disavowed in England and has never found lodgment here." (at p248)

8. In 1974 the British Phillimore Committee on Contempt of Court reported:
"Authority, including the courts, is questiioned and scrutinised more than it used to be. The Lord Chief Justice said in his evidence to us: 'Judges' backs have got to be a good deal broader than they were thought to be years ago'. It is no doubt because of this, . . . that practice has reverted to what it was before the turn of the century when it was said that - 'Courts are satisfied to leave to public opinion attacks or

comments derogatory or scandalous to them.'
We feel that the time has come to bring the law into line with this practice." (at p249)

9. Recently Australian courts have again been subjected to robust public criticism including criticism of the kind which was condemned as criminal in the Dunbabin Case; this has been healthy for the courts and the people. (at p249)

10. The power of a court to punish for scandalizing it is very dangerous and should be strictly confined. Amongst its dangers are the unlimited sentencing power and the absence of trial by jury.

Unlimited power to fine or imprison. (at p249)

11. Criminal contempt differs from most other crimes in that it is generally accepted that conviction exposes the person to imposition of unlimited fines and imprisonment. In my view, there are unexpressed limits deriving from great constitutional principles which prevent the imposition of excessive fines or the imposition of cruel and unusual punishment (see Sillery v. The Queen (1981) 55 ALJR 509, at p 513; 35 ALR 227, at p 234 ). However, any charge for this offence against the law of the Commonwealth exposes the accused to severe consequences.

Trial by jury. (at p249)

12. The Constitution s. 80 states: "The trial on indictment of any offence against any law of the Commonwealth shall be by jury . . . ". This Court has construed this section to mean that if there be an indictment there must be a jury but there is nothing to compel procedure by indictment (R. v. Archdall and Roskruge; Ex parte Carrigan and Brown [1928] HCA 18; (1928) 41 CLR 128, at pp 139-140 ). In a famous dissent Dixon and Evatt JJ. described this construction as a mockery of the Constitution and considered that anyone charged with any serious offence against the laws of the Commonwealth was entitled to trial by jury (see R. v. Federal Court of Bankruptcy; Ex parte Lowenstein [1938] HCA 10; (1938) 59 CLR 556, at p 582 ). I agree with them. (See Beckwith v. The Queen [1976] HCA 55; (1976) 135 CLR 569, at pp 584-585 ; Li Chia Hsing v. Rankin [1978] HCA 56; (1978) 141 CLR 182, at pp 197-202 ). However the Court has continued to endorse the view that s. 80 is not a great constitutional guarantee, but a mere procedural provision (see Spratt v. Hermes [1965] HCA 66; (1965) 114 CLR 226 ). Thus the use of procedure by motion, rather than indictment, deprived Mr. Gallagher of trial by jury. (at p250)

13. Originally, any charge of scandalizing the Court was tried on indictment. By an error in a never delivered judgment of Wilmot J. in R. v. Almon [1765] EngR 25; (1765) Wilm 243 (97 ER 94) , it was assumed that the procedure of summary process was founded on immemorial usage. This error has since been pursued (see Reg. v. Gray (1900) 2 QB 36, at pp 40-41 ; Dunbabin's Case (1935) 53 CLR, at p 446 , Starke J.). It should be corrected, and trial by jury restored. (See Fox, "The King v. Almon", Law Quarterly Review, vol. 24 (1908), p. 184; Fox "The Summary Process to Punish Contempt", Law Quarterly Review, vol. 25 (1909), p. 238; Frankfurter and Landis, "Power of Congress over Procedure in Criminal Contempts in Inferior Federal Courts - A Study in Separation of Powers", Harvard Law Review, vol. 37 (1924), 1010, at p. 1047.) (at p250)

14. Mr. Gallagher's counsel claimed that the statement charged was not premeditated as the Federal Court considered, but fortuitous. He contended that the evidence showed that the applicant gave a media interview at which he handed out copies of a resolution of the Australian Building Construction Employees' and Builders Labourers' Federation Committee of Management, made a statement and answered questions, none of which were contemptuous. One television reporter, requested a repetition, because his camera had "not got the right view" in the interview. The following exchange then took place:
Reporter: "Mr. Gallagher, what is your reaction (or response) to the

Court's decision?"
Gallagher: "I'm very happy to the rank and file of the Union who has shown such fine support for the officials of the Union and I believe that their actions in demonstrating, in walking off jobs . . . I believe that that has been the main reason for the court changing its mind." (at p250)

15. The resolution which he distributed stated in part:
"The decision of the Federal Court is a credit to the rank and file of the Federation whose significant stand, alongside their elected representatives, is the key to the reversal of the decision to jail Norm

Gallagher.
Today is our members' day. Once again the unity between rank and file and officials and preparedness to engage in class struggle has won the day." (at p251)

16. Counsel for the Attorney-General submitted that the resolution was a criminal contempt and the fact that Mr. Gallagher handed it out showed that he had a premeditated intent to commit criminal contempt. He submitted that, in particular, references in the resolution to the effect that courts were involved in the class struggle and that the winning and losing of litigation was part of the class struggle, amounted to criminal contempt. (at p251)

17. The theory of class struggle, though not always known by that name, is widely propagated in newspapers and journals as well as in numerous political and sociological texts (see Law and Politics; The House of Lords as a Judicial Body 1800-1976 (1979), by Stevens; and The Politics of the Judiciary (1977), by Griffith). Its adherents include many scholars, trade unionists and members of political parties. Public statements that the courts are involved in the class struggle may tend to impair confidence in the courts (and amount to criminal contempt on the Dunbabin standard) but do not constitute any clear and present danger to the administration of justice. If all those who advocate that the courts are involved in the class struggle were to be imprisoned for criminal contempt there would not be enough gaols. (at p251)

18. The Federal Court is in a difficult position in that its extensive original and appellate jurisdiction includes an industrial jurisdiction inherited from the Australian Industrial Court and added to since, which involves it in labour disputes. It is, for example, invested with power to issue injunctions against unions and their members in certain labour disputes, and to deregister federal trade unions. The present case is related to proceedings to deregister the union of which Mr. Gallagher is federal secretary. In the United States the practice of federal courts intervening in labour disputes by injunction and use of the contempt power against unions and union officials brought the courts into such actual contempt that Congress virtually excluded the courts from labour disputes (see The NorrisLa Guardia Act 47 Stat. 70 (1932); Frankfurter and Green, The Labor Injunction (1963), p. 131; Swayzee, Contempt of Court in Labor Injunction Cases (1935), pp. 35-36; Gompers v. Bucks Stove and Range Co. [1911] USSC 79; (1911) 221 US 418 (55 Law Ed 797) ). In England, the Phillimore report noted that the creation of the National Industrial Relations Court has led to many attacks on that court which have been ignored (pp. 68- 69). The involvement of the Federal Court in labour disputes means that it must deal with many persons who genuinely believe that there is a class struggle and that the courts are part of it. If the Federal Court is to treat expressions of belief in the class struggle as criminal contempts then the scene will be set for the court to be brought into actual contempt. (at p252)

19. At this stage, I am persuaded that, no doubt because of Dunbabin, the Federal Court did not properly address itself to whether what Mr. Gallagher said constituted, in the circumstances, any clear and present danger to the administration of justice.

Leave to appeal against sentence. (at p252)

20. Special leave should also be granted to appeal against the sentence of three months' imprisonment. It is very rare for imprisonment to be imposed in a contempt of this kind where the court orders are not being wilfully disobeyed. (See Dunbabin's Case (1935) 53 CLR, at p 448 ; Solicitor-General v. Radio Avon Ltd. (1978) 1 NZLR 225, at p 242 ; Dean's Case (1567) Cro Eliz 689, at p 690 (78 ER 925, at p 926) .) The Federal Court observed that imprisonment was necessary because a fine would be no deterrent to Mr. Gallagher as it would be paid by others. Special leave would enable the Court to consider whether this represents a departure from proper principles of sentencing. The question is of public importance. It has grave implications for newspaper editors whose fines for contempt are paid for by newspaper companies. If the approach of the Federal Court on this question was wrong, the sentence should be reconsidered. (at p252)

21. We were informed that Mr. Gallagher had no previous conviction for contempt of court or for anything else (except for refusal to answer before a Royal Commission in circumstances such that the Federal Court correctly decided to disregard it). In the light of the fact that normally fines only are imposed even for serious contempts in scandalizing the court, the sentence of three months' imprisonment appears to be a savage penalty. It would be unfortunate if this departure from the normal created the impression that imprisonment for scandalizing the court is reserved for militant trade union leaders. (at p252)

22. Special leave would also enable consideration of another aspect which concerned the Federal Court. Although the statements emanated from Mr. Gallagher they were given national publicity by the media. Yet Mr. Gallagher alone has been prosecuted. If, as the Federal Court thought, the statements were a clear contempt, this is an instance of selective prosecution. The Federal Court noted that no explanation was advanced by the Attorney-General for proceeding only against Mr. Gallagher. The authority and standing of the Federal Court can only be lowered if it allows itself to become the vehicle of unexplained selective prosecutions for contempt of itself. The fact that no one else who participated is to be punished should have been an important factor in considering whether to sentence Mr. Gallagher to imprisonment (see Attorney-General (N.S.W.) v. Mundey (1972) 2 NSWLR 887 ). Although some attempt was made in this Court to explain the prosecution of Mr. Gallagher alone, it was not persuasive. (at p253)

23. Another disturbing feature of this case is that the trial judge sentenced Mr. Gallagher on the basis of what is conceded to be clear error about the meaning of the answer which was charged as contempt. He held that Mr. Gallagher's answer was "an assertion that the Federation is able to force the Court to a decision, not according to law and to the facts proved in Court, but according to the strength and actions of the Federation and its members. It asserts that the Federation and its members are outside the law". The Full Federal Court correctly stated that the answer did not bear this meaning. I am far from satisfied that they responded adequately to the trial judge's error which must have influenced him in arriving at such a severe sentence. (at p253)

24. It is undesirable that guilt and sentence be finally decided by the court alleged to be offended. The public sense of justice requires that if possible the person convicted be given the opportunity of appeal to a different court. (at p253)

25. Special leave to appeal should be granted in respect of conviction and sentence. (at p253)

ORDER

No order as to costs.