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Litaba, Oyiela --- "Does the 'Offence' of Contempt by Scandalising the Court Have a Valid Place in the Law of Modern Day Australia?" [2003] DeakinLawRw 6; (2003) 8(1) Deakin Law Review 113

Does the 'Offence' of Contempt by Scandalising the Court have a Valid Place in the Law of Modern Day Australia?

OYIELA LITABA[*]



I. INTRODUCTION

Any society that claims to operate a system of open justice should expect, if not encourage, scrutiny and discussion of court decisions. Appeal processes and academic commentary are the most obvious and least controversial contexts in which this takes place and there is an assumption that such criticism, generally expressed in restrained if not respectful language, will be in the long term interest of the administration of justice and the rule of law. What then is the position of less eminent or articulate critics- particularly those who allege not errors of judgment but partiality or improper conduct on the part of the judiciary? How far can the media, politicians[1] or the public at large comment adversely on judicial behaviour without fear of criminal (or similar) sanctions? Should litigants and their lawyers be given greater latitude in doing so outside any appeal procedures that may be available?

The little known offence of contempt of court by scandalising (‘scandalising’) is the means by which the judiciary deals with publications that have, in its view, a tendency to undermine public confidence in the administration of justice. Implicit in this form of contempt is the idea that such publications interfere with the administration of justice as a continuing process. Prosecutions for scandalising will generally relate to recently completed rather than pending litigation. Where the publication relates to pending litigation, any charges brought are likely to fit more readily under one of the other forms of contempt (e.g. contempt in the face of a superior court, statutory provisions relating to contempt in the face of an inferior Court,[2] or the sub judice rule, including the offence of prejudgment.)

The offence takes on particular significance when judges make rulings on the controversial issues of the day. It has the potential to stifle or ‘chill’ discussion; either explicitly through overt threats of prosecution or covertly, by bringing about a culture of self-censorship or inappropriate deference. The scope for such self-censorship is increased by the fact that the scandalising jurisdiction lacks clear parameters.

In 1983 the High Court turned down an application for special leave in Gallagher v Durack,[3] where a trade union leader had been convicted of scandalising. In his dissenting judgment, Murphy J would have granted special leave ‘in order that the court may have the opportunity to redefine what amounts to the offence of scandalizing the court’.[4] Twenty years later the common law of Australia remains unclear.[5] There have been local developments in the field of freedom of speech[6] and overseas cases on scandalising that provide conflicting interpretations.[7] However, with no recent High Court authority directly considering the underlying principles, the time is ripe for an authoritative overview.[8]

This article will attempt to lay the foundations for such an overview; questioning whether the continued existence of scandalising as an offence, or its existence without clarification, truly serves the administration of justice in Australia.[9] This will be done by canvassing theoretical arguments that may underpin approaches to this constraint on freedom of speech and comparing the Australian situation with that in other common law jurisdictions.

Part 2 of the article examines the law in Australia and the extent to which it has clear parametres. The analysis also draws on common law cases from outside Australia;[10] decisions neither directly dependent upon, nor overtly influenced by, specific local constitutional provisions, local legislation or international conventions.

Part 3 of the article discusses arguments by which the offence (or abolition of the offence) might be justified.[11] How should the law seek to balance freedom of speech, and in particular freedom to criticise public institutions, with protection of the administration of justice? How can, or should, the law distinguish between protection of the administration of justice and protection of public confidence in it? Can we ensure that the offence protects the substance and not simply the appearance of a just system?

Part 4 of the article analyses how competing public interests have been handled in jurisdictions with explicit constitutional or equivalent guarantees of free speech. It refers to the application of the Canadian Charter of Rights and Freedoms,[12] to recent decisions in Fiji[13] and Hong Kong[14] and to a Privy Council decision[15] on whether scandalising is ‘reasonably justifiable in a democratic society’.[16] It concludes with reference to a decision of the Constitutional Court of South Africa[17] that reflects a constitutional requirement to ‘assist and protect the courts’ and the approach of the European Court of Human Rights’.[18] These cases suggest that explicit constitutional reference to free speech might not, of itself, provide any greater or clearer freedom to comment on judicial activity.

Part 5 considers whether scandalising in Australia is (or can be) defined in a way compatible with both the constitutional imperatives of the implied freedom of communication on political matters as set out in Lange,[19] and its origin in the contempt powers inherent in Chapter III of the Australian Federal Constitution.

In Part 6, I conclude by suggesting that ‘scandalising’ might be given a restrictive definition so as to protect the administration of justice without unduly compromising freedom of speech or being ‘at odds’ with constitutional imperatives and international obligations. This could be done by paying close attention to the way in which the elements of the offence are proved and incorporating defences (or immunities) based on justification, truth or fair comment.

II. WHAT IS THE LAW OF SCANDALISING?

The classic statement as to the nature of this form of contempt is that of Lord Russell in R v Gray,[20] by which ‘any act done or writing published calculated to bring a court or a judge of the court into contempt, or to lower his authority, is a contempt of court.’ The statement carries the qualification that ‘judges and courts are alike open to criticism, and if reasonable argument or expostulation is offered against any judicial act as contrary to law or the public good, no court could or would treat that as contempt of court.’[21]

Scandalising, like all contempts, is an offence derived from an inherent power of the superior courts, an ‘attribute of the judicial power of the Commonwealth which is vested in ...[those]...courts by s 71 of the constitution’.[22] Section 24 of the Judiciary Act 1903 (Cth) is said to be declaratory of such an attribute[23] and provides:

The High Court shall have the same power to punish contempts of its power and authority as is possessed at the commencement of this Act by the Supreme Court of Judicature in England.

The 1926 description of the contempt power as ‘a power of self protection or a power incidental to the function of superintending the administration of justice’[24] still found favour with members of the High Court in 1999;[25] a majority also deciding that it was appropriate for such cases to be dealt with summarily.[26]

A Behaviour to which the offence applies

Despite the emotive flavour of the word ‘scandalising’ the law does not exist to protect the pride or vanity of individual judges but rather to protect public confidence in justice as a continuing process. In 1999 the Privy Council described the offence as being ‘narrowly defined’ on the basis that it:

does not extend to comment on the conduct of a judge unrelated to his performance on the bench. It exists solely to protect the administration of justice rather than the feelings of judges. There must be a real risk of undermining public confidence in the administration of justice. The field of application of the offence is also narrowed by the need in a democratic society for public scrutiny of the conduct of judges, and for the right of citizens to comment on matters of public concern. There is available to a defendant a defence based on the right of criticising, in good faith, in private or public, the public act done in the seat of justice.[27]

To quote Sedley LJ in Bennett v Southwark LBC ‘scandalous...is not a synonym for shocking. It is a word, like its sibling ‘frivolous’ with unfortunate colloquial overtones that distract from its legal purpose’.[28] The types of publication held to scandalise the court are generally grouped into those that are said to be ‘scurrilously abusive’ and those that ‘impugn the impartiality of the court and its officers’.[29]

There has been only one UK prosecution since 1936. It was brought as a private prosecution in 1968, by an ordinary citizen who, after successful litigation against the police, was annoyed to see criticism of his victory in the satirical magazine ‘Punch’. The article[30] began by describing the decision as ‘a strange example of the blindness which sometimes descends on the best of judges’. In concluding that the article did not constitute contempt Lord Denning said of scandalising that:

It is a jurisdiction which undoubtedly belongs to us, but which we will most sparingly exercise: more particularly as we ourselves have an interest in the matter. Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. [31]

B Scurrilous abuse

It would appear that the courts feel less threatened by this form of contempt, casting doubt on the power of rude words, on their own, to undermine the administration of justice. In Badry v DPP (Mauritius)[32] a Member of the Legislative Assembly of Mauritius and former minister made a speech about a judge,[33] which included the phrase ‘we must tear off his trousers in this country’. Whilst giving judgment on this aspect of the case,[34] Lord Hailsham stated:

It must be said at once that the words found to have been uttered by the appellant in either variant version are vulgar, scurrilous, abusive and lacking in respect to the person of a judge which would be expected, though, were they uttered in this country, it may be doubted whether they would be calculated to lower the authority of the judge rather than the reputation of any public man who uttered them.[35]

In Anissa Pty Ltd v Parsons[36] Cummins J, echoing the approach taken in Badry[37] held that despite various aggravating circumstances it was not contempt of court for a litigant (himself a solicitor) to ‘describe a judge as a wanker’.[38] His Honour observed that the ‘words spoken by the defendant do not undermine confidence in the administration of justice. They undermine confidence in the person of the solicitor who spoke them.’[39] There was an unsuccessful appeal by the Prothonotary[40] suggesting that within the court administration there were those who took a less sanguine view.

C Statements impugning impartiality

Statements impugning impartiality tend to arise in two distinct (but sometimes overlapping) situations. The first is when a disgruntled, and usually unsuccessful, litigant comments unfavourably on a court decision.[41] The second is where a public figure (who is assumed to command some influence over public opinion) criticises the outcome of proceedings or the way in which a result was reached.

The intention to publish, without intention to undermine the administration of justice, is sufficient to provide mens rea. The court looks at the ‘internal logic of the words’[42] for the required ‘tendency’ to interfere with the administration of justice which, in this context, involves ‘a real risk as distinct from a remote possibility that the broadcast items would undermine public confidence in the administration of justice’ and ‘a real risk of interference with the administration of justice, a substantial risk of serious injustice or a real and definite possibility that the conduct may prejudice the administration of justice’. [43]

As such ‘tendency’ to undermine public confidence is not readily susceptible to proof the court will consider all the circumstances[44] and relevant factors will include ‘the statements published, the timing of their publication, the size of the audience they reached, the likely nature, impact and duration of their influence’.[45]

The alleged credibility of the speaker has been viewed as important; both in terms of the exercise of the discretion to prosecute (made by government legal officers or by the Court) and the courts’ findings as to whether the tendency is present. Ministers,[46] government officials,[47] politicians,[48] lawyers,[49] legal academics,[50] and trade union leaders[51] have been prosecuted, as have journalists and editors.[52]

Where the speaker is an unsuccessful litigant, credibility will be reduced by a kind of ‘sour grapes’ factor. The public will generally be aware that the person is speaking out of frustration and from a degree of self-interest[53] and may view it as ‘no more than the whining of an unhappy loser’.[54] Conversely, the credibility of politicians is often overestimated. Credibility can be influenced by the extent to which the public is ‘media savvy’ and ready to, or capable, of looking behind the bare facts and the way they are presented. The courts may underestimate how discerning the public really is. In R v Hoser[55] Eames J dismissed a number of particulars as disclosing no case to answer (in light of the circumstances of the publications), but arguably accorded Mr. Hoser an elevated level of credibility when considering whether the requisite tendency existed in respect of the counts on which he was convicted. He appeared to take the defendant’s exaggerated view of his own credibility, and the way he described himself in the offending books,[56] as a factor increasing his capacity to influence public opinion.

D Range of defences available

Is truth a defence to a scandalising charge? While Halsbury’s Laws of Australia states that it ‘is unresolved whether the truth or validity of the statement is a defence’[57] it can be argued that the existence of such a defence is implicit. References, albeit obiter, to ‘baseless’,[58] ‘unwarrantable’[59] or ‘unjustified’[60] statements suggest that in contrary circumstances contempt may not be made out. Support for such a defence dates back to the beginnings of the offence in R v Almon[61] where the fact, and not simply the perception, of impartiality were ‘necessary’ and therefore to be protected:

To be impartial and to be universally thought so, are both absolutely necessary for the giving of that free, open and uninterrupted current, which it has, for many ages, found all over this kingdom, and which so eminently distinguishes and exalts it above all nations upon the earth.[62]

Suggestions based on Ambard v AG of Trinidad and Tobago[63] that ‘mere imputation’ is enough to found a prosecution were not followed in 1999 when in Ahnee the Privy Council said that ‘so far as Ambard may suggest that such conduct must invariably be an offence their Lordships consider that such an absolute statement is not nowadays acceptable.’[64] In fact, Ambard itself contains pointers to defences of fair comment, truth or justification. Lord Atkin, after referring to ‘the liberty of any member of the public to criticise temperately and fairly but freely any episode in the administration of justice’ concludes:

there is no evidence upon which the court could find that the appellant has exceeded this right, or that he acted with untruth or malice, or with the direct object of bringing the administration of justice into disrepute.[66]

Nevertheless, in its 1987 report[67] the Australian Law Reform Commission stated that the cases to which it refers[68] ‘along with virtually all academic authorities, establish that there is no formal defence of justification (whether established by proving truth, or truth coupled with public benefit, or any other version).’[69]

If that statement accurately reflected the position at the time (which is doubtful) it does not sit well with the later decisions in Nationwide,[70] Re Colina Ex Parte Torney[71] or the overseas cases discussed below. In Nationwide [72] the High Court considered the validity of s 299(1) (d) (ii) of the Industrial Relations Act 1988 (Cth)[73] in the context of proceedings brought against the proprietors of The Australian in relation to a letter, published in that newspaper, and alleged to bring the Industrial Relations Commission into disrepute. One of the applicant’s grounds of defence was that the provision gave the Commission a greater level of protection than is given to the courts. In accepting this argument Brennan J stated:

It is not necessary, even if it be possible, to chart the limits of contempt scandalising the court. It is sufficient to say that the revelation of truth – at all events when its revelation is for the public benefit - and the making of a fair criticism based on fact do not amount to a contempt of court though the truth revealed or the criticism made is such as to deprive a court or judge of public confidence. The critical differences between the scope of s 299 (1) (d) (ii) and the scope of contempt of court is that the latter does not purport to suppress justifiable or fair and reasonable criticism which exposes grounds for loss of official repute, but s 299 (1) (d) (ii) purports to suppress all criticism which is likely to bring the Commission into disrepute including criticism that is justifiable reasonable and fair.[74]

Deane and Toohey JJ struck down the section because there was no scope for importing the kind of ‘special defences’ that might be available in contempt of Court or defamation cases. Dawson J did so because it purported to apply ‘even if the criticism is based upon facts which are true and consists of comments which are fair’. McHugh J endorsed the statement of Griffith CJ in R v Nicholls[75] who ‘was not prepared to accede to the proposition that an imputation of want of impartiality to a Judge is necessarily a contempt of Court’ and the statement of the majority in Gallagher[76] that the remedy is applied ‘only where the attacks are unwarrantable.’ Mason CJ made it clear that fair comment is a defence when he said ‘the facts forming the basis of the criticism must be accurately stated and the criticism must be fair and not distorted by malice’. [77]

R v Hoser[78] is relevant to this issue as several particulars of the charges related to claims that a named Magistrate had been bribed by a police officer. It appears that the defendant had ‘had his legged pulled’ by the officer who had foolishly taunted Hoser (on tape) over the latter’s conviction for perjury by saying ‘Well I paid him off, didn’t I’.[79] This led Eames J to treat the defence of truth as akin to those of provocation or self defence; involving a need to ‘identify some credible evidence which fairly raises either question and if the accused does so then the onus rests with the Crown to disprove the defence.’ [80] He then considered the circumstances in detail and concluded (in respect of these particulars) that:

notwithstanding my conclusion that Hoser was acting cynically and was deliberately misleading his readers in his statements about the magistrate, I can not be persuaded beyond reasonable doubt that the allegation is untrue, and accordingly...[the second count and part of the first count] have not been proved beyond reasonable doubt. [81]

The Fiji Court of Appeal considered a similar issue in Chaudhary v AG.[82] The court followed Solicitor General v Radio Avon[83] concluding that:

The logic in recognising truth as a defence is compelling and accords with current attitudes of the common law relating to this form of contempt. On the other hand the use of ‘unjustified’ ‘baseless’ and ‘unwarranted’...indicate an objective test, so that a mistaken belief in the truth of the allegations would not avail the defendant[84]

Where credible evidence is offered the approach of Eames J may provide a more effective way to avoid potential difficulties in trying the truth of the allegations.[85] It might, however, be preferable to characterise such a limitation on the scope of the offence as an immunity akin to those available in respect of sub judice contempt.[86] To do so may provide a clearer means of dissipating concerns regarding ‘prior restraint’ or any ‘chilling’ effect. Such ‘immunity’ has its beginnings in Ex parte Bread Manufacturers Ltd; Re Truth and Sportsman Ltd (the Bread Manufacturers’ case)[87] where the public interest in the ‘ventilation of a question of public concern’ was viewed as capable of constituting a superior consideration to that of avoiding prejudice to a litigant. In his judgment Jordan CJ stated:

The discussion of public affairs and the denunciation of public abuses, actual or supposed, cannot be required to be suspended merely because the discussion or the denunciation may, as an incidental but not intended by- product, cause some likelihood of prejudice to a person who happens at the time to be a litigant.[88]

The High Court held in Hinch v Attorney-General (Victoria)[89] that this concept involves a balancing exercise (as opposed to the application of a rigid principle)[90] through which the court must be satisfied, beyond reasonable doubt, that the public interest in freedom of speech should take precedence over the public interest in the administration of justice.[91] The New South Wales Court of Appeal considered this balance in Attorney General for the State of New South Wales v X,[92] a case decided since the development of the implied freedom of communication about government or political matters.[93] The judge concluded that there was no predetermined balance to prevent the court from conducting a balancing exercise even in circumstances where ‘there is an implication of, or suggestion of, or canvassing of guilt’.[94] Concerns expressed by Mason P as to the centrality of the right to a fair trial were accorded less weight by other members of the court.[95]

In view of some of the uncertainties highlighted above, it is now appropriate to consider factors that might be taken into account in determining the future of this offence. In setting out ‘grounds for a defence of justification’ the authors of the ALRC report noted that without such a defence:

well founded allegations of judicial misconduct may be punished and, more importantly, people in possession of sound evidence establishing judicial misconduct may be restrained from revealing it publicly out of fear of being convicted of contempt...a dangerous tradition of excessive deference to the judiciary may arise within the media and the community at large... Thus, far from vindicating the position of those who successfully investigate and bring to light abuses within the judiciary, the law, through not recognising a defence of justification, seems inclined to victimise them.[96]

III. WHY CONSIDER ABOLISHING THIS OFFENCE?

The scope for the use of scandalising prosecutions as an ‘overt political weapon’[97] and the fact that the offence ‘arose from the efforts of the political establishment to silence its critics’[98] are factors which prompt closer scrutiny. This is especially so given that the law ‘can punish those who transgress it by speaking out freely with summary trial and imprisonment.’[99] The dissent of Murphy J in Gallagher v Durack[100] raised issues of free speech and censorship drawing on principles addressed only indirectly in earlier cases. It could be argued that most previous cases balance conflicting aspects of ‘public interest’ using a ‘black letter’ or textual approach without analysing closely the premises behind the concept of freedom of speech; a tendency exacerbated by the fact that, despite the (real or potential) inhibiting effect on discourse, scandalising cases rarely come before the court. Murphy J began his review of the issues thus:

the law ... 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.[101]

This section will consider the arguments in general terms without attempting direct comparisons with the US cases cited by Murphy J. Not only is there ‘danger in adopting the American approach [in] that it is predicated upon the conception that scandalising contempt is to ‘preserve the dignity of the bench’[102] but the Americans take a very different approach to contempt generally. They also have different practices with regard to the appointment of judges leading to different expectations regarding independence, public perceptions of their role and their accountability to the particular constituency that elected or appointed them. As the New Zealand Court of Appeal observed:

The American courts appear to have directed their attention to the existence of a clear and present danger of a court being influenced, intimidated, impeded, embarrassed or obstructed in the administration of justice. English law, on the other hand, has also attached great importance to the need to preserve public confidence in the administration of justice generally. [103]

In The Cloistered Virtue[104] Barend van Nierkerk[105] sets out six premises on which a system of free speech in the legal domain may be predicated. He describes them as ‘inherently reflective of democratic values and expectations’ and suggests that they ‘constitute tolerably useful yardsticks and intellectual tools with which to assess the use to which legal free speech should be put’. The first four are based on the work of Thomas Emerson[106] and ‘two further interlocking premises’ are added to deal more closely with this context.

I will structure the remainder of this part of the article around the ideas behind those premises and the suggestion that freedom of speech in the legal domain:

a)encourages the achievement of individual self fulfillment (in particular self fulfillment of the lawyer and self fulfillment of other groups, particularly journalists);
b)is an essential instrument for the advancement of knowledge and truth in the administration of justice;
c)is a device of democratic participation in the administration of justice;
d)is a means of minimizing conflict and maximizing stability in the administration of justice;
e)is a prerequisite for justice to and the liberty of the individual; and
f)avoids the inefficacy and frequent counter productivity of free speech restrictions concerning the administration of justice.

Examining the arguments for the retention or abolition of the offence of scandalising (or its retention in any but a very tightly defined form) against these yardsticks may provide a means of bringing greater clarity to this area. In doing so it should be remembered that freedom means ‘the right to publish things which government and judges, however well motivated, think should not be published. It means the right to say things which ‘right-thinking people’ regard as dangerous or irresponsible’.[107]

A Individual self fulfillment

The role of lawyers and journalists includes that of speaking out on behalf of individuals who claim that they have not had a fair trial. To restrain such activity deprives both client and professional of their right to self-fulfillment. The special role of the press and lawyers should not be underestimated; the public tends to get caught up in social taboo and to ‘treat judges as a priestly caste to whom they are reluctant to apply the standards of criticism imposed on other public servants.’[108]

The lawyer’s role as ‘fearless advocate’ is at risk of compromise from social and professional pressures including the risk of disciplinary proceedings. The offence of scandalising may compound this effect by over-subordinating that facet of the lawyer’s role to duties as ‘officer of the court’. It is important that the advocate should be able to speak freely both during the proceedings,[109] and afterwards as in R v Kopyto.[110] While there are appeal procedures available, which may be more effective in practical terms than speaking out in front of the judge in question, these may prove very costly in time, energy and funds.[111] However, the media is a powerful force. The threat of criminal sanctions can ‘chill’[112] but may also serve to prevent it abusing its unique position of influence. In Wong Yeung Ng v The Secretary for Justice the contemnor, and extremely disgruntled litigant, was a Hong Kong newspaper with ‘2.3 million readers and 53% of the vibrant newspaper market’.[113]

B The Advancement of Knowledge and Truth in the Administration of Justice

This reason for supporting freedom of speech is acknowledged in AG (NSW) v

Mundey.[114] Mundey, then Secretary of the Builders’ Labourers Federation, had commented on the outcome of the high profile trial of two union activists and anti-Apartheid campaigners who had attempted to cut down the goalposts at the Sydney Cricket Ground during a tour by the South African Rugby Union team. Hope JA stated:

The truth is of course that public institutions in a free society must stand upon their own merits; they cannot be propped up if their conduct does not command respect and confidence; if their conduct justifies the respect and confidence of a community, they do not need the protection of special rules to shield them from criticism. Indeed, informed criticism, whether from a legal or social or any other relevant point of view, would be of the greatest assistance to them in the performance of their functions.[115]

It is important that obstacles are not put in the way of the making of informed criticism. This is particularly so as a person alleging corruption in the judiciary may be unclear as to where they should take their complaint.[116] Having a defence of truth (as opposed to abolishing the offence) may not be entirely helpful in this context. Defendants may be slow to rely on the assertion of truth as a defence if they fear that they may have difficulty providing conclusive proof; such an assertion might be viewed as an aggravating circumstance,[117] OR AS evidence of malice or other factor prompting harsher punishment if convicted.

The fact that there are few cases dealing with the defence of truth in respect of allegations of bias may be due in part to the ability of the litigant (before or during trial) to choose a different judge where they fear bias. Such an application ought to be successful where ‘a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide’.[118] Where, however, the comments complained of are made by someone other than a disgruntled litigant such mechanisms would not be available.[119]

C Ensuring democratic participation in the administration of justice

It has been suggested that the administration of justice ‘is better served by well - informed participants than by ignorance, and freedom of expression can contribute to a full and rigorous assessment of information in the judicial context.’[120] Does this mean that any comment or activity that prompts discussion of the justice system to be welcomed? With the introduction of media liaison officers, and court web sites explaining court procedures, it is harder to say that judges cannot respond to criticism. The ready availability of judgments on the internet means judges can better ‘rely on [their] conduct itself to be its own vindication’.[121] Judges are also increasingly willing to speak extra-curialy. The extent to which judges can or should respond to criticism and the nature of the role or duty of the Attorney General in this context are subject to controversy.[122]

Re Colina and another; Ex Parte Torney [123] involved a disgruntled Family Court litigant who:

Like a few others, typically men, who have lost their cases, ... began a quasi-political campaign - pamphleteering and sloganeering midway through his seven years of court proceedings. In September 1998, after two years of having [him] demonstrating on its Melbourne doorstep, the court reacted.... He was charged with an old, rarely used form of contempt. Contempt by scandalising the court represents an attack on its authority or influence
...[he] was hardly alone in assailing the court with complaints. [124]

Approximately a month later, the Chief Justice of the Family Court made a speech at a national conference ‘which received widespread media attention’.[125] In it he described the behaviour of some of the Court’s critics and the unreal expectations that they appeared to hold. He also claimed that in Australia ‘there is very much a culture, if unsatisfied with a family court outcome, to complain to a Member of Parliament’.

While the speech may have reflected the frustration said to be felt by members of the Family Court, it also fulfilled an educative function for the public and those MPs who might have to deal with complaints. Family Court judges are perhaps the most constrained in terms of maintaining confidentiality over details of their reasoning and the content of their judgments. However, the argument that the judges cannot respond, promulgated by Lord Denning in R v Police Commissioner of the Metropolis, Ex parte Blackburn (No 2),[126] and based in part on the Kilmuir rules,[127] was shown not to be such a powerful one. The effect that demonstrations might have had on public confidence was probably better neutralised by the Chief Justice’s speech than by a contempt prosecution. [128]

For citizens to participate effectively, they should not have to worry unduly that their comments might be misconstrued. However, much may depend on the way in which the words complained of are characterised and the cases do not contain any explicit reference to a clear requirement to use the characterisation most favourable to the accused. While such a principle may be inherent in issues relating to the burden of proof (as well as the question of tendency mentioned above) this could be explicitly set out. In Mundey[129] several aspects of the statement to the media were alleged to be scandalous. Hope JA was not ‘satisfied clearly and beyond reasonable doubt’ that the aspects of the statement that referred to racism (as opposed to those implying that the court had been intimidated by Trade Unionists) constituted contempt. As to the first part of this ‘racist’ aspect he said:

it does not seem to me to be more than an expression of a view that what the defendant thought should have been the trial of a racist issue was simply dealt with as a trial of an issue relating to damage to property.[130]

In dealing with the second part he found that it ‘seems to me not to be an attack upon the judge or court as such, but an attack on society, and its laws’. He compared the statement to one:

... by a socialist criticizing as capitalistic a court, the laws of larceny, and our society after the trial of a person charged with stealing food. Some might regard such criticism as ‘wrong headed’, some as ‘right headed’, but I do not think it would constitute contempt simply because the judge was caught up in a criticism of society and its rules.[131]

This interpretation worked to the advantage of the defendant but it is a reminder that the ‘inherent logic’[132] of a statement may be debatable especially in a tense situation. The need for careful characterisation of the statement was apparent in Bennett v Southwark LBC,[133] where Sedley LJ accepted the lay advocate’s explanation of his muttered comments to the Industrial tribunal as ‘an unfortunate overstatement of his sense that as a lay representative he was not making the headway that a professional advocate would make’.[134] His comments had been ‘If I were a white barrister I would not be treated in this way’ and ‘If I were an Oxford educated white barrister with a plummy voice I would not be put in this position.’ The need for patience on both sides is reflected in Ward LJ’s comments that as a result of the lay advocate’s ‘inexcusable petulance’ and ‘insolence’[135] the Tribunal ‘In getting on their high horse ... fell off the judgment seat’[136] - a reminder that judges, like others, may act differently on the spur of the moment than they would with the benefit of further reflection. The fact that scandalising procedures may be brought via a summary procedure exacerbates difficulties regarding interpretation of the words used. The High Court decision in In re Colina v Torney that the summary procedure is permissible increases the need for a clearer and narrower formulation of scandalising.[137]

D Minimizing conflict and maximizing stability in the administration of justice

Free speech enables citizens to let off steam, providing a safety valve during times of social change or tension and prompting changes without resort to violence. It is therefore of concern that issues underlying scandalising prosecutions have included industrial relations and the role of trade unions,[138] the colonial or imperial appointment or imposition of judges,[139] race,[140] gender issues[141] and police corruption.[142] Suggestions that the offence supports ‘judicial freemasonry’[143] or ‘an attitude coming from aristocratic and snob social origins’[144] do little to commend it in terms of promoting social cohesion; a fact compounded by the categories into which many defendants fall. [145] As protection of the administration of justice is for the long-term benefit of society as a whole,this argument for freedom of speech carries considerable weight. If the offence is invoked in point scoring battles between parties (a stick for bullies and a tool for vexatious litigants) true debate is stifled and the courts are brought into disrepute.

E Protecting the rights and liberty of individuals

Because scandalising does not generally relate to pending proceedings, the offence is ‘qualitatively different’[146] from other forms of contempt. It involves providing protection to the administration of justice as an ongoing process rather than preventing interference with actual proceedings. This premise can therefore be used to support arguments both for and against the retention of the offence. It is in the long-term interest of individuals to support the existence of competent, independent and impartial courts. Their existence is a fundamental tenet of democracy reflected in the High Court’s decision in Johnson v Johnson,[147] enshrined in the United Nations Declaration of Human Rights (‘UDHR’),[148] provided for in Article 14 of the ICCPR[149] and reflected in the ‘Basic Principles on the Independence of the Judiciary’.[150]

However, the continued existence of this offence renders individuals vulnerable to prosecution for an offence which, it has been argued, ‘is arbitrary, irrational, vague in its nature and constitutes a violation of the principle of legality’.[151] The fact that the offence is rarely invoked[152] does not remove (though it may reduce) either the potential for abuse or the extent to which it may lead to self-censorship or ‘chilling’.[153] Indeed, the fact that it is rarely used may lend weight to the suggestion that ‘the law of scandalising can become, or appear to be, an overt political weapon, used against prominent individuals who ‘challenge the system’.[154] In 1899 the Privy Council, in McLeod v. St. Aubyn, while exhorting the courts in England (but not elsewhere) to recognise their secure position or at least put their trust in public opinion stated:

Courts are satisfied to leave to public opinion attacks or comments derogatory or scandalous to them. But it must be considered that in small colonies, consisting principally of coloured populations, the enforcement in proper cases of committal for contempt of court for attacks on the court may be absolutely necessary to preserve in such a community the dignity of and respect for the court. [155]

This approach was continued in Ambard[156] where the comment that ‘the Board will not lose sight of local conditions’[157] revealed racist or colonial overtones to the manner in which the Privy Council reinstated (or confirmed the existence of) this branch of the law ‘in the colonies’ when it was supposedly obsolete in England. This idea of treating ‘local conditions’ as one of the main circumstances to be taken into account could be viewed as ‘some sort of appeal to cultural relativism’.[158] However, it is not clear that the idea amounts to anything more than glib assertion of difference and has been variously described as ‘racist’[159] and ‘apparently patronising and possibly racist’.[160] Close attention could usefully be paid to the way in which this area of the common law is applied in different jurisdictions and at different times. It is an aspect of the offence that would benefit from fuller treatment from a social and political standpoint and highlights the lack of empirical evidence as to the nature of confidence in the administration of justice.[161]

F Has the use of the offence been counterproductive?

The sixth point raised by van Nierkerk[162] is that freedom of speech in the legal domain will avoid the inefficacy and counter-productivity of restrictions. Prosecutions may be counterproductive in a dual sense; publicity may increase the audience for the words complained of and may open the door to the suggestion that the judicial system is oppressive. As in defamation cases, publicity may do more harm to ‘reputation’[163] than the original statement and the defendant may use the proceedings as ‘a public forum and focus for protest and for the wider dissemination of the truth’.[164] The public may liken contempt prosecutions to the use of ‘gagging writs’ and see the courts as doing themselves and the public a great disservice by standing on their dignity. Any appearance of a judicial or prosecution led cover up may be seen as a greater lapse in integrity than the initial allegations. The imprisonment of author Arundhati Roy[165] in March 2002, if only for a day, brought widespread attention via the international media[166] not only to her environmental activism but also to the sensitivities of the Indian Supreme Court concerning the affidavit she had filed as part of a successful defence of earlier contempt proceedings initiated by the opposing party.[167]

Where ‘scandalising’ comments arise in the context of already newsworthy proceedings, there can be a disquieting sense that the authorities[168] are seeking to use (or abuse) their undoubted power and have the last word.[169] The danger that the prosecution will be politically driven, or perceived to be so, is illustrated by the facts surrounding Attorney General (NSW) v Mundey.[170] Before bringing the action the Attorney General stated:

I believe this man Mundey, wants to destroy the institutions [the courts] to which I have referred. He has made an effort to do it on other occasions. This community is in real danger from people like Mr. Mundey and those who share his views.[171]

If use of the offence has been counterproductive, in the short run, (at least in some instances), whether it has been so in the long run is difficult to say without a clearer sense of how public confidence is made up and the effect that this may have on the administration of justice.

Although the rationale for this form of contempt is to support the proper administration of justice, it has the potential to restrict lawyers, journalists and others with roles within that system to limit the extent to which the public is informed about and involved in the administration of justice and to suppress political dissent. Any positive role in the protection of the rights and liberties of individuals can only be indirect, through the extent to which it strengthens an independent and impartial court system. Such a strengthening effect must be weighed against the uncertainties that leave individuals vulnerable to unexpected or selective prosecution, often in circumstances in which the individual already perceives themselves to be a victim of the court or political system.

How far the offence does in fact either strengthen public confidence in the administration of justice or chill speech is difficult to gauge. It is therefore appropriate, in the absence of clear evidence that the confidence of the public is easily undermined, to give a generous interpretation to potential defences. Many members of the public will be unaware of the existence of the offence but may lose respect for the administration of justice when prosecutions are commenced and receive publicity.

IV. THE USE OF CONSTITUTIONAL AND HUMAN RIGHTS TEXTS IN THIS CONTEXT

It might be thought that the presence of a Bill of Rights or explicit constitutional or equivalent free speech provisions would make it less likely that prosecutions for scandalising would be brought (or if brought would succeed). Recent cases in several common law countries suggest otherwise. Article 14[172] of the ICCPR with its reference to ‘a fair and public hearing by a competent, independent and impartial tribunal established by law’ and the reference to freedom of expression in article 19[173] provide competing textual contexts for the discussion of these issues but this has not necessarily led to a fuller analysis. Furthermore, in the cases discussed in this part (except for the Canadian case of R v Kopyto[174] where a majority of the Ontario Court of Appeal held that the offence of scandalising is incompatible with the Canadian Charter of Rights and Freedoms) the offence was held to be constitutional. This part examines several cases in which it was argued, on behalf of the defendants, that the offence did not survive constitutional or similar provisions. In Ahnee,[175] the Privy Council concluded that the inherent power to punish contempt survived constitutional provisions relating to freedom of expression[176] and was ‘reasonably justifiable in a democratic society’. The Fiji Court of Appeal dealt with similar constitutional provisions in Chaudhary v Attorney General[177] in a more detailed fashion; considering the objective of the offence and the proportionality of the means chosen to achieve that objective.[178] The Court found that the offence, defined so as to involve a real risk to the administration of justice was not such an impairment of freedom of speech as to be unconstitutional. In re Chinamasa, [179] a case brought against the Attorney General of Zimbabwe was decided along similar lines. Provisions based on the ICCPR were considered in Wong Yeung Ng v Secretary of State for Justice.[180] A four month prison sentence was upheld when the Court of Final Appeal declined leave to appeal and found that the restriction on freedom of expression was necessary for the maintenance of public order.

The final case in this part is S v Mamabolo[181] where the constitutional Court of South Africa used specific provisions within the Constitution to support the continued existence and validity of the offence.[182]

In Ahnee, the issues before the Privy Council related to whether the contempt power survived the adoption in 1968 of the Constitution of Mauritius and, if it did, whether the power was in conflict with specific guarantees under the constitution. After deciding that ‘the judiciary must as an integral part of its constitutional function have the power and duty to enforce its orders and to protect the administration of justice’[183] and therefore ‘the Supreme Court has an inherent power to punish for contempt’, the Privy Council considered the effect of s12 of the Constitution..[184] Lord Steyn, delivering the judgment, noted that ‘freedom of expression is the lifeblood of democracy’,[185] then confirmed that the offence exists ‘in principle to protect the administration of justice’ and declared the Committee ‘satisfied that the constitutional criterion that it must be necessary in a democratic society is in principle made out’.[186] It was not, however, suggested that such an offence would be necessary in all democratic societies.

An adaptation of part of the judgment in McLeod v. St. Aubyn,[187] and references to writers Feldman[188] and Barendt[189] were used to indicate why the offence might be necessary in Mauritius. Is this a tacit assertion that those judges who feel their position to be insecure are best placed to decide on the need for the continued existence of the offence? On the one hand, it might be said that the members of the Privy Council were paying strict attention to the limits of their appellate role in respect of former British colonies. An alternative view might be that this is a condescending attempt to justify the continuation of colonial attitudes.[190]

In the Canadian case of R v Kopyto[191] all five judges quashed the conviction. The majority[192] held that as scandalising did not require a ‘clear and imminent or present danger to the fair and effective administration of justice’ it was inconsistent with the Charter. The two dissenting judges thought the offence remained constitutionally valid following the coming into force of the Charter but was far from made out on the facts.

Mr. Kopyto was a lawyer charged as a result of comments he had made following an unsuccessful claim by his client (previously executive secretary and then chairman of the League for Socialist Action) that the police had improperly investigated him. Kopyto’s statement to a reporter included:

This decision is a mockery of justice. It stinks to high hell. It says it is okay to break the law and you are immune so long as someone above you said to do it. Mr. Dowson and I have lost faith in the judicial system to render justice.
We're wondering what is the point of appealing and continuing this charade of the courts in this country which are warped in favour of protecting the police. The courts and the RCMP are sticking so close together you'd think they were put together with Krazy Glue.[193]

Cory JA described the statement as a disgrace, as a ‘puerile manifestation of petulant pique’ but one that constituted protected speech. Analysis of the four separate judgments shows that the majority were influenced as much by the approach to freedom of speech evidenced in the United States cases that they referred to as by the Charter itself. After noting that the Charter ‘does more than recognize and declare pre-existing rights’ and should be interpreted ‘without undue reliance on the pre-charter view of those rights and freedoms’, Cory JA considered the history of freedom of expression and its importance since early times[194] before looking at the limitations permitted by s 1 of the Charter.[195] This provided a means to make explicit comparison with other ‘free and democratic’ jurisdictions[196] and led Cory JA to state that ‘the experience of other free and democratic jurisdictions which possess a constitutional guarantee of freedom of expression, does not support the argument that the offence constitutes a permissible limit on that protection’.[197]

Such a view is not reflected in the other judgments mentioned in this part where, although aspects of the majority have reasoned have found favour, the result in each case has been to prefer the views of the minority and support the continued existence of the offence. In February 1999, a month before the Privy Council decision in Ahnee,[198] the Fiji Court of Appeal gave their judgment in Chaudhary v Attorney General.[199] The case at first instance involved the publication by Mr. Chaudhary (then Secretary-General of the Fiji Labour Party and leader of the opposition), of a pamphlet containing a paragraph alleging judicial corruption.[200] It was argued on Mr. Chaudhary’s behalf that prosecution for scandalising contravened the protection of freedom of expression in the 1990 Constitution of Fiji; a freedom qualified by s 13 (2)[201] and the requirement that it be ‘reasonably justifiable in a democratic society.’ The Court adopted Canadian principles of interpretation,[202] said to correspond with the approach of Richardson J (of the New Zealand Court of Appeal) in dealing with contempt likely to interfere with a fair trial in the context of the New Zealand Bill of Rights Act.[203] The Fiji Court of Appeal noted the view of the majority in R v Kopyto that without the requirement of ‘real and substantial and immediate danger to the proper administration of justice’ the offence did not ‘impose a reasonable limitation on the right to freedom of expression’. However, they saw R v Kopyto as putting the threshold ‘unduly high’ as it would make scandalising ‘virtually impossible to establish’ despite the existence in the constitution of ‘explicit protection to laws aimed at maintaining the authority and independence of the courts’.[204] They preferred the minority view and the concept of a ‘real risk’ accepted in Solicitor General v Radio Avon[205] on the basis of which they said:

with the adoption of this threshold to liability as an appropriate ingredient of the proportionality test... [we] are satisfied that the common-law offence of scandalising the court meets its requirements... it is not irrational, arbitrary or unfair (para 2(a)); and with the defences of fair comment and truth, it impairs freedom of speech ‘as little as possible’ (para 2(b)); and is proportional to the Constitutional objective of maintaining the authority and independence of the courts (para 2(c)).[206]

In applying this test to the facts the Court concluded that:

Mr. Chaudhary’s statement went far beyond the voicing of mere suspicions. We are satisfied that his considered and unsubstantiated allegations of corruption were serious enough to constitute a real risk to the authority and independence of the Courts, and we agree ... that the charge against him was proved.[207]

In June 1999, in Wong Yeung Ng v Secretary of State for Justice[208] the Court of Final Appeal of Hong Kong refused to grant leave to appeal against conviction or sentence to the editor of the Oriental Daily News. He had been sentenced to 4 months imprisonment (described by the Appeal Committee as ‘extremely lenient’) and at the time of the appeal was on bail.[209] The argument put on his behalf was that the offences were incompatible with both the Bill of Rights Ordinance (Cap. 383) and the Basic Law. Article 16(2) of the Bill of Rights Ordinance,[210] read together with Article 27 of the Basic Law, required that freedom of expression shall only be subject to restrictions that are necessary for the maintenance of public order. It was argued following the approach in Kopyto that for such a restriction to be effective there must be ‘clear, present and imminent danger to the administration of justice.’[211]

The charges related to a campaign of vilification and intimidation of members of the Obscene Articles Tribunal and the judiciary after judgments adverse to the Oriental Press Group had been handed down. In giving its determination (by a majority) the Appeal Committee noted that:

The avowed purpose of the campaign was to ‘educate’ the judge, but the real purpose, as the High Court found, was to take revenge for the Court of Appeal's judgment and to punish the judge for his part in it. This was, as the High Court said in sentencing the applicant, unprecedented in the common law world.[212]

Counsel for the appellant had accepted[213] that ‘the articles were published maliciously in bad faith, and were scurrilous, abusive, shocking and reprehensible.’ The Divisional Court’s account of the articles was not challenged on appeal and is set out in the judgment of the Court of Appeal from which the appellant unsuccessfully sought leave to appeal.[214] There were a series of articles and features (only the later and more extreme of which were the subject of charges), which alleged ‘hostility, persecution and discrimination by the Tribunal against the Oriental Press Group’.

The Court of Appeal had chosen to follow the New Zealand approach (where the Bill of Rights Act is based, as is the Hong Kong Bill of Rights Ordinance, on the ICCPR) and their understanding of the approach of the European Court of Human Rights to Article 10 of the ECHR. This was said to mean that in accordance with sub article (3) any restriction would have to be; provided by law; intended to achieve one of the objectives set out therein; necessary for the achievement of that objective; and proportionate to the legitimate aim pursued. The restriction imposed by scandalizing was found to meet these tests. It was not thought necessary to adopt a test involving imminent or immediate danger in order for it to do so. However, the publications in this case might be thought to have been so extreme that they were unlikely to have survived even the stricter test suggested in Kopyto.[215]

In re Chinamasa[216] arose after Mr. Chinamasa, the Attorney General of Zimbabwe (and subsequently Minister for Justice, Legal and Parliamentary Affairs) was reported in a newspaper as saying that a sentence handed down:

induces a sense of shock and outrage in the minds of all right-thinking people.
...The Attorney-General's Office is left bemused by the meaninglessness of it all. The nation should know and be told that the leniency of the sentences constitutes a betrayal of all civilised and acceptable notions of justice and of Zimbabwe's sovereign interests.[217]

After detailed review of the cases, Gubbay CJ held that these comments came ‘within the protection of s 20(1) of the Constitution’ but that the restriction imposed by the common law offence of scandalising was saved by s 20(2) (b) (iii) as it ‘is contained in a law; is employed for the purpose of ‘maintaining the authority and independence of the courts’; and ‘has been shown to be reasonably justifiable in a democratic society. He noted that ‘the burden of proof is on the challenger to establish that the impugned law goes further than is reasonably justifiable in a democratic society; and not, as is common with the Constitutions of other countries, upon the State to show that it does not.[218] The court found that the Mr. Chinamasa had failed to do so and the matter was referred back to the trial judge for the case to proceed.

In S v Mamabolo[219] s 165[220] of the Constitution of South Africa was found to indicate the balance to be made between freedom of speech ‘not a pre-eminent freedom ranking above all others...not even an unqualified right’ and protection of the courts. Of special relevance was s165 (4) which provides that ‘[o]rgans of state, through legislative and other measures, must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts’. The crime of scandalising was held to be constitutionally valid (though not made out on the facts of the case) and in a form which rejects the ‘clear and present danger’ test applied in the US in other areas of contempt and adopted in Kopyto. It was noted that:

In the new era of constitutional supremacy and the rule of law the judiciary is invested with materially enhanced powers, including that of invalidating any law or governmental conduct to the extent that it is found to be inconsistent with the Constitution. Self-evidently the exercise of these powers could involve the judiciary in public contention and it is therefore significant that the Constitution, having reposed such trust in the judiciary, then directs this command to all organs of state. The Constitution thus recognises the importance -- and commands reinforcement, if necessary by ‘legislative and other measures’ -- of the dignity of the courts. This is the very feature the crime of scandalising aims to protect. [221]

It appears that a similar approach has been taken in the context of European Court of Human Rights decisions. Michael K Addo has suggested[222] that although the Court has had a ‘traditional bias in favour of the first paragraph of Article 10’[223] this is ‘reversed in favour of the second paragraph in cases involving the criticism of judges’. [224] He questions whether this area should be treated as ‘a separate category of cases’ but also asks whether to follow the ideals of a democratic society may ‘require different approaches when the facts, contexts and circumstances differ’.[225] He concludes that ‘on the matter of criticising judges, there is a consistent and firmly established practice (albeit of different approaches) not to tolerate it, especially if such criticism is immoderate.’[226]

V. THE AUSTRALIAN CONSTITUTIONAL CONTEXT

The Australian Constitution does not contain any express positive guarantee of freedom of speech. The ICCPR, although ratified, has not been implemented by way of domestic legislation, so neither Article 14 nor Article 19 have direct effect.[227] There is, however, an ‘implied freedom of communication about government or political matters’. Laws that limit such speech will be invalid if they fail the test set out in the unanimous decision of the High Court in Lange.[228] The source of the implied freedom is ss 7, 24, 64 and 128 of the Constitution. This was clarified in Lange[229] in a way that has been said to signal ‘a new, more restrictive interpretive approach’[230] relating the freedom more closely to the electoral and referendum processes (as opposed to wider concepts of democracy). In deciding whether the implied freedom takes effect, the first step is to consider whether the law preventing or discouraging the speech in question operates to ‘effectively burden freedom of communication about government or political matters either in its terms, operation or effect’. If, and only if, this can be shown (and the definition of government and political matters in this context is by no means clear), [231] it is then necessary to consider whether the law is:

reasonably appropriate and adapted to serve a legitimate end the fulfillment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government and the procedure prescribed by s 128 for submitting a proposed amendment of the Constitution to the informed decision of the people. [232]

The law must meet this second limb of the test or it will be invalid. This is the case whether the law in question is State, Federal or Territory legislation or a common law rule. A common law rule must be adapted so as to be in keeping with the Constitution. It is not necessary to show that the purpose of the law is to restrict political discussion or to interfere with the political process (whether defined loosely or more narrowly in keeping with the text and structure of the Constitution). The speaker is not given personal rights but is to be kept free:

from laws that effectively prevent the members of the Australian community from communicating with each other about political and government matters relevant to the system of representative and responsible government provided for by the Constitution. Unlike the Constitution of the United States our Constitution does not create rights of communication.[233]

The suspect law is to be examined rather than the detail of what the speaker is ‘communicating’ on a particular occasion. Applying the test to the offence of scandalising produces an interesting result. There can be no doubt that protection of the administration of justice is a ‘legitimate end’. Further than that the situation is not clear. The New South Wales Court of Appeal in A-G for NSW v X stated:

In Re Colina; Ex parte Torney[234] Kirby J indicated that he regarded it as still an open question whether or not the freedom of communication required by the constitution is compatible with the law of contempt. Cases in this Court indicated that there is compatibility.[235]

It is likely that the Lange test will have a different effect on ‘scurrilous abuse’ than it does on comments that constitute criticism.[236] An argument along these lines was put forward in the recent case involving a Deputy Chief Magistrate of Victoria[237] where the Lange test was seen as relevant only to the extent that a call was being made for the Magistrate’s removal. The High Court might also take the view that, the contempt power being sui generis, and based on inherent powers under chapter III, it is not appropriate to constrain such power by implications drawn from other parts of the Constitution.[238] A strict text and structure approach would make it harder to justify using implications to restrict judicial power. This is particularly so given that the contempt powers are the means by which the court is able to prevent the Parliament or Executive encroaching onto its domain. If the contempt power is an inherent power of the judiciary, any attempt to curtail it through legislation would be of doubtful validity. It is one thing for Parliament to restrict or clarify its own powers,[239] it is quite another for it to tamper with judicial power.

VI. CONCLUSION

As we have seen, the obiter comments in Nationwide [240] appear to have narrowed the parameters of the offence in Australia by their reference to potential defences. The incorporation of a defence (or immunity) based on justification or truth, perhaps building on the approach of Eames J in R v Hoser, and a defence of fair comment may be the means by which to make the offence suitably ‘adapted and appropriate’ to balance the rights of the individual against the need to protect the courts in the interests of the wider society. Nevertheless, for a law that may lead to severe punishment, there is still too much unpredictability as to how this contempt may be proved or defended. If ‘a serious case of scandalising a court would certainly be liable to extend beyond imprisonment for 12 months’,[241] clearer guidelines are needed. This is particularly so, given that it remains possible for the case to be heard by the very judge whose impartiality or standing is said to be impugned.

It might be thought that journalists and politicians hold sufficiently powerful positions that this is not a serious issue. Attempts by politicians to usurp or misrepresent the role of the Courts may be the activities against which this offence could serve its most useful purpose, but scandalising can be said to be irrelevant so far as politicians are concerned; provided they restrict their comments to statements in Parliament.[242] However, the lay agitator, activist, disgruntled litigant or other individual who feels that their story has not been heard deserves better protection from unexpected prosecution and should rightly expect a wide scope to air their complaints. At present they may ‘escape’ prosecution purely by virtue of a perceived lack of credibility. This is a frail protection that is vulnerable to being swept away by a tide of publicity; credibility and high profile may be hard to tell apart.

Arguments in support of judicial independence may suggest that the issue can and should be resolved simply by relying on judicial restraint.[243] The cases discussed above show that this might be an overly optimistic approach. Exhortations to use the jurisdiction sparingly in McLeod v. St. Aubyn [244] were ignored in R v Gray[245] and the various English and Australian cases between the two world wars which resulted in prison terms and the stifling of criticism.[246] A briefing paper for the organisation ‘Article 19’[247] summarises a range of recent examples of cases where judges might be thought to have stood on their personal dignity.[248] Although the judgment of Eames J in R v Hoser[249] can be seen as an example of judicial restraint in operation, clear guidance is needed from the High Court if protection of individual freedoms is to depend primarily on such restraint. However, if, in the interim, judges (and government officers) do exercise self restraint, it may be a long time before the substance of the offence is reviewed by the High Court. Until then, the challenge for those teaching and writing in this area will be to discuss and analyse the issues without thereby contributing to a stifling of discussion.


[*] Senior Lecturer, Faculty of Law, Monash University.

[1] A detailed study of the role of parliamentary privilege is outside the scope of this article. For an analysis of the parliamentary rules regarding comment on the conduct of judges and the role of Attorneys General in defending members of the judiciary, see E Campbell and M Groves, 'Attacks on Judges Under Parliamentary Privilege: A Sorry Australian Episode' [2002] Public Law 626-39.

[2] Eg County Court Act 1958 (Vic) s 54A (1) (a) the source of the jurisdiction in Lewis v Judge Ogden (1984) 153 CLR 682 and Magistrates’ Court Act 1989 s 133, the source of the charge in The Magistrates' Court at Prahran v Murphy (1997) 2 VR 186.

[3] [1983] HCA 2; (1983) 45 ALR 53.

[4] Ibid 57.

[5] In 1987 the Australian Law Reform Commission considered scandalising as part of Contempt, Report No 35. The chapter 10 of that report outlines the offence, considers the justifications for and appropriateness of the offence and recommends a limiting of the offence. The recommendations were not implemented.

[6] See Nationwide News Pty Ltd v Wills [1992] HCA 46; (1992) 177 CLR 1; Australian Capital Television Pty Ltd v Commonwealth [1992] HCA 45; (1992) 177 CLR 106; Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 ; Levy v Victoria [1997] HCA 31; (1997) 189 CLR 579 (High Court of Australia) and commentary on this issue which includes, Adrienne Stone, 'Lange, Levy and the Direction of Freedom of Political Communication Under the Australian Constitution' [1998] UNSWLawJl 38; (1998) 21 University of New South Wales Law Journal 117; Adrienne Stone and George Williams, 'Freedom of Speech and Defamation: Developments in the Common Law World' [2000] MonashULawRw 15; (2000) 26 Monash University Law Review 362.

[7] See below Parts 2 and 4.

[8] In Re Colina and Another; Ex parte Torney [1999] HCA 57; (1999) 166 ALR 545, a case which reached the High Court on the preliminary question of whether the matter could be dealt with summarily or must be pursued on indictment as a ‘law of the commonwealth’ under s 80 of the Constitution, Gleeson and Gummow JJ state at [4]:

The policy of the common law in this area has been the subject of controversy. The nature and scope of possible defences, and the effect of the law concerning freedom of expression and political discussion, may be matters to be determined.

[9]Although there is little recent academic comment on scandalising the first instance decision of Eames J in R v Raymond Terrance Hoser; Ex parte Attorney General (Vic) (Applicant) [2001] VSC 443 (unreported) includes a review of conduct which scandalises the court (paragraphs 45-55) and of the defences of truth and fair comment (paragraphs 58-910).

[10] Nigel Lowe and Brenda Sufrin, Borrie & Lowe's The Law of Contempt (1996) provides a useful starting point in this regard. The background and context to a large number of the cases in this area can be found in David Pannick, Judges, (1987). See also the Heads of argument of the Amicus Curae in the case of S v Mamabolo [2001] ZACC 17; (2001) 3 SA 409 before the Constitutional Court of South Africa accessible via the Constitutional Court’s web site at <http://www.concourt.gov.za/> . The amicus curae argued that ‘the common law test for scandalising the court entails an unjustifiable limitation on freedom of expression and is unconstitutional’ and that the ‘summary procedure for contempt, if applied to contempts committed ex facie curiae and not related to pending proceedings, entails an unjustifiable violation of the right to a fair trial.’

[11] This analysis adopts a structure suggested by Barend van Nierkerk, The Cloistered Virtue: Freedom of Speech and the Administration of Justice in the Western World (1987) Chapter 1,1-45.

[12] R v Kopyto (1987) 47 DLR (4th) 213.

[13] Chaudhary v Attorney-General [1999] FJCA 23.

[14] Wong Yeung Ng v Secretary of State for Justice [1999] HKCFA 46 and Wong Yeung Ng v The Secretary for Justice [1999] HKCA 66 HKCA.

[15] Ahnee, Sydney Selvon and Le Mauricien v DPP [1999] UKPC 11; [1999] 2 WLR 1305.

[16] Ibid, as required by the Constitution of Mauritius.

[17] S v Mamabolo [2001] ZACC 17; (2001) 3 SA 409.

[18] See Michael K Addo, 'Are Judges beyond criticism under article 10 of the European Convention on Human Rights' (1997) 47 International and Comparative Law Quarterly 425. For a review of the position across Europe see Michael Addo (ed) Freedom of Expression and Criticism of Judges: A Comparative Study of European Standards (2000).

[19] Lange [1997] HCA 25; (1997) 189 CLR 520

[20] R v Gray [1900] 2 QB 36, 40 (Lord Russell of Killowen CJ). Mr Gray, editor of the Birmingham Daily Argus, was fined 100 pounds plus costs for publishing an article which described the way in which Mr Justice Darling had warned the press against printing allegedly indecent aspects of evidence likely to arise in an upcoming case. The article included the following ‘No newspaper can exist except on its merits, a condition from which the bench, happily for Mr Justice Darling, is exempt. There is not a journalist in Birmingham who has anything to learn from the impudent little man in horsehair, a microcosm of deceit and empty headedness, who admonished the press yesterday’. The QB reports do not include the text of the article but it can be found at 82 LT Reports 534. For further discussion of the background to this case and criticism of Mr Justice Darling see Pannick, Judges (1987) OUP,111-112.

[21] Ibid. Approved in Ambard v Attorney General of Trinidad and Tobago [1936] 1 All ER 704.

[22] Re Colina and Another; Ex parte Torney [1999] HCA 57; (1999) 166 ALR 545,[16] per Gleeson CJ and Gummow J.

[23] Ibid, as was s 35 of the Family Law Act 1975 (Cth) under which Mr Torney had been charged.

[24] Porter v R; Ex parte Yee [1926] HCA 9; (1926) 37 CLR 432,432.

[25] Re Colina and Another; Ex parte Torney [1999] HCA 57; (1999) 166 ALR 545.

[26] Four justices found that the offence did not arise under a ‘law of the commonwealth’ and, therefore, fell outside any guarantee of trial by jury under s 80 of the Constitution; McHugh J viewed s 80 as inapplicable because the charges were not made on indictment and Kirby J gave a detailed dissent which includes his opinion on the role of section 80 of the Constitution as a guarantee of trial by jury: paras 95-104. See also Grant Webster,' Trial by jury? Re Colina; ex parte Torney' [2000] DeakinLawRw 11; (2000) 5 Deakin Law Review 217.

[27] Ahnee, Sydney Selvon and Le Mauricien v DPP [1999] UKPC 11; [1999] 2 WLR 1305. [21] citing Reg. v. Gray [1900] 2 Q.B. 36, 40; Ambard v. Attorney-General for Trinidad and Tobago [1936] A.C. 322,335; and Badry v. Director of Public Prosecutions [1983] 2 A.C. 297.

[28] Bennett v Southwark London Borough Council (2002) EWCA Civ 223, [27].

[29] Lowe and Sufrin, above n 10.

[30] Dated 14 February 1968 under the heading 'Political Parley' and written by Quentin Hogg, then a prominent QC and later Lord Chancellor.

[31] R v Police Commissioner of the Metropolis, Ex parte Blackburn (No 2) (1968) 2 QB 150, 154.

[32] Badry v The Director of Public Prosecutions (Mauritius) [1982] 2 AC 297 ('Badry').

[33] Mr Glover, later the target of comments in Ahnee, Sydney Selvon and Le Mauricien v DPP [1999] UKPC 11; [1999] 2 WLR 1305.

[34] Appeal against this aspect was allowed on the separate ground that the statement was made in respect of the judge’s role as a commissioner rather than as a judge.

[35] Badry [1982] 2 AC 297.

[36] Anissa Pty Ltd v Parsons (on application of the Prothonotary of the Supreme Court of Australia) VSC 430.

[37] Badry [1982] 2 AC 297.

[38] The words used were ‘Justice Beach has got his hand on his dick’.

[39] Anissa Pty Ltd v Parsons (on application of the Prothonotary of the Supreme Court of Australia) VSC 430, [22].

[40] Saltalamacchia v Parsons [2000] VSCA 83.

[41] In Gallagher the defendant was expressing approval of the decision but was taken to be alleging that it had been brought about by the intimidating influence of his union members.

[42] Badry [1982] 2 AC 297.

[43] Solicitor General v Radio New Zealand [1993] NZHC 423; [1994] 1 NZLR 48 citing: Solicitor-General v Radio Avon Ltd 1 [1978] NZLR 225 Hinch v Attorney-General (Vic) 23, 34, and 47; Attorney-General v New Statesman and Nation Publishing Co Ltd, 10, following Attorney-General v Leveller Magazine Ltd [1979] AC 440, 465 (Lord Edmund-Davies), and Hinch v Attorney-General [1987] VicRp 62; [1987] VR 721, 740, 742.

[44] Solicitor General v Radio New Zealand [1993] NZHC 423; [1994] 1 NZLR 48.

[45] Ibid.

[46] In re: Chinamasa (2000) 12 BCLR 1294.

[47] S v Mamabolo [2001] ZACC 17; (2001) 3 SA 409.

[48] Chaudhary v Attorney-General [1999] FJCA 23; Badry [1982] 2 AC 297.

[49] R v Kopyto (1987) 47 DLR (4th) 213; Anissa Pty Ltd v Parsons (on application of the Prothonotary of the Supreme Court of Australia) VSC 430; Lewis v Judge Ogden 153 CLR 682; R v Police Commissioner of the Metropolis, Ex parte Blackburn (No 2) (1968) 2 QB 150.

[50] S v Van Nierkerk (1970) 3 SA 655 (T) and S v Van Nierkerk (1972) (3) SA 711. Van Nierkerk (whose book is referred to above n 11, was prosecuted following the publication by him of research indicating judicial bias against black South Africans in the imposition of the death penalty.

[51] Gallagher v Durack [1983] HCA 2; (1983) 45 ALR 53; Attorney -General (New South Wales) v Mundey 2 NSWLR 887.

[52] Wong Yeung Ng v Secretary of State for Justice [1999] HKCFA 46; Ahnee [1999] UKPC 11; [1999] 2 WLR 1305; Solicitor-General v Radio Avon Ltd 1 [1978] NZLR 225; Wade and another v Gilroy [1986] FamCA 6; (1986) 83 FLR 14; Schwartkopff, In the Marriage of; Fitzgibbon v Barker (1992) 16 Fam LR 539.

[53] See, eg. The editorial in The Australian 15 - 16 June 2002 which was indignant over the result in Popovic v Herald and Weekly Times Limited 2002 VSC 174 (unreported) where a journalist employed by an associated newspaper was found to have defamed a Magistrate.

[54] R v Kopyto (1987) 47 DLR (4th) 213, 11 (Cory JA). A similar point was made by Evatt J in R v Fletcher; ex parte Kisch [1935] HCA 1; 52 CLR 248 , 259 where he notes ‘ the articles and letters complained of, though admittedly intemperate and unwarranted, bore on their face sufficient evidence of such qualities as to destroy their effectiveness.’

[55] Hoser [2001] VSC 443 (unreported).

[56] The first defendant, Hoser, was the author of booked entitled ‘Victoria Police Corruption’ and ‘Victoria Police Corruption 2’ which included comments about, and allegations of bias or corruption on the part of, a number of named judges and magistrates.

[57] Halsbury's Laws of Australia, on-line edition.

[58] Gallagher v Durack [1983] HCA 2; (1983) 45 ALR 53, 243 (Gibbs CJ Mason, Wilson and Brennan JJ).

[59] R v Fletcher; Ex parte Kisch [1935] HCA 1; (1935) 52 CLR 248, 257 (Evatt J) as cited in Halsbury's Laws of Australia, on-line edition.

[60] Ibid.

[61] R v Almon [1765] EngR 25; (1765) 97 ER 94. A detailed examination of the political history or background to this ‘undelivered’ judgment can be found in Douglas Hay, 'Contempt by Scandalizing the Court: a political history of the first hundred years' (1987) 25 Osgoode Hall Law Journal 431.

[62] R v Almon [1765] EngR 25; (1765) 97 ER 94.

[63] Ambard [1936] 1 All ER 704.

[64] Ahnee [1999] UKPC 11; [1999] 2 WLR 1305, [21] citing R v Nicholls [1911] HCA 22; (1911) 12 CLR 280. See also Solicitor General v Radio Avon Ltd where the New Zealand Court of Appeal contests the idea that Lord Atkin’s comments in Ambard65 should be taken to ‘exclude from protection any form of criticism imputing improper motives to those taking part in the administration of justice’ on the grounds that: ‘If this were the law then nobody could publish a true account of the conduct of a judge if the matter published disclosed that the judge had in fact acted from some improper motive. Nor would it be possible, on the basis of facts truly stated, to make an honest and fair comment suggesting some improper motive, such as partiality or bias, without running the risk of being held in contempt.’

[66] Ambard v Attorney General (1936) AC 322, final paragraph.

[67] ALRC report No 35, above n 5.

[68] Gallagher v Durack [1983] HCA 2; (1983) 45 ALR 53; R v Fletcher; Ex parte Kisch (1935) [1935] HCA 1; (1935) 52 CLR 248; Re 'The Evening News' (1980) 1 NSWLR 211,241-2; Ibid, 183.

[69] ALRC report No 35, above n 5, [415]. The Report recommended such a defence but no legislative change resulted from the recommendation.

[70] Nationwide [1992] HCA 46; (1992) 177 CLR 1.

[71] Re Colina and Another; Ex parte Torney [1999] HCA 57; (1999) 166 ALR 545.

[72] Nationwide [1992] HCA 46; (1992) 177 CLR 1.

[73] Which provided that ‘a person shall not by writing or speech use words calculated... to bring a member of the Commission or the Commission into disrepute.’

[74] Nationwide News Pty v Wills [1992] HCA 46; (1992) 177 CLR 1 (Brennan J).

[75] R v Nicholls [1911] HCA 22; (1911) 12 CLR 280, 286.

[76] Gallagher v Durack [1983] HCA 2; (1983) 45 ALR 53.

[77] Citing Evatt J in R v Fletcher; Ex parte Kisch (1935) 52 CLR ,257 – 258.

[78] Hoser [2001] VSC 443 (unreported).

[79] Ibid, [167].

[80] Ibid, [190].

[81] Ibid, [203].

[82] Chaudhary v Attorney-General [1999] FJCA 23 (Fiji Court of Appeal). This was a case where no ‘credible evidence’ was offered to the court as to the grounds of Mr Chaudhry’s belief.

[83] Solicitor-General v Radio Avon Ltd 1 [1978] NZLR 225.

[84] Chaudhary v Attorney-General [1999] FJCA 23, [17] (Fiji Court of Appeal).

[85] These difficulties were recognised by the ALRC and the UK Phillimore Commission.

[86] The case law on the public interest defence in the context of sub judice is instructive here. This is so despite the fact that it deals with the possibility of prejudice to particular proceedings as opposed to prejudice to the administration of justice as a continuing process. Balancing the different public interests in a case of alleged scandalising may involve both the prosecutor and the accused claiming to be pursing the very same interest. Each seeks to the protect justice as a continuing process; the one by restricting speech the other by pointing out deficiencies in the process.

[87] (1937) 37 SR (NSW)

[88] Ibid 242

[89] [1987] HCA 56; (1987) 164 CLR 15.

[90] Such as is said to exist in the context of legal professional privilege.

[91] See Felicity Robinson ‘No, No! Sentence First – Verdict Afterwards’: Freedom of the Press and Contempt by Publication in Attorney General For the State of New South Wales v X 23' [2001] SydLawRw 11; (2001) 23 Sydney Law Review 261.

[92] [2000] NSWCA 199; 49 NSWLR 653 Spigelman CJ and Priestley JA; Mason P dissenting.

[93] Discussed in Part V below.

[94] Ibid [110] and [111]. It had therefore been open to the trial judge (Barr J in AG for the State of New South Wales v John Fairfax Publications Pty Limited [1999] NSWSC 318) to hold that public interest in discussion of new drug dealers could protect the publication from a charge of contempt despite its acknowledged prejudicial effect on the right of the alleged drug dealer to a fair trial.

[95] If an individual’s right to a fair trial can be jeopardised by relaxing contempt law in this way (albeit that doing so may be a means of adapting and changing the common law to accommodate the new constitutional freedom), it becomes harder to justify the continued existence of contempt by scandalising.

[96] ALRC, above n 5, [439].

[97] Ibid [435].

[98] Nigel Lowe and Brenda Sufrin, Borrie & Lowe's The Law of Contempt (1996).

[99] Ibid.

[100] Gallagher [1983] HCA 2; (1983) 45 ALR 53.

[101] Ibid 59.

[102] In re: Chinamasa (2000) 12 BCLR 1294, 1349.

[103] Solicitor-General v Radio Avon Ltd 1 [1978] NZLR 225, 234.

[104] Van Nierkerk, above n 11.

[105] A South African academic charged with contempt on account of his research into the disproportionate use of the death penalty in sentencing black South Africans. See above n 50.

[106] Cited as Thomas I Emerson, The System of Freedom of Expression (1970).

[107] Hoffmann LJ in R v Central Television Plc (CA) [1994] Fam 192 at 202H to 203C as cited by Mortimer V-P in Wong Yeung Ng v Secretary of State for Justice [1999] HKCFA 46.

[108] David Pannick, Judges (1987) 105.

[109] Where the offence of contempt in the face of the court or a statutory offence of ‘wilful insult’ may be more relevant as in The Magistrates' Court at Prahran v Murphy (1997) 2 VR 186 and Lewis v Judge Ogden 153 CLR 682

[110] R v Kopyto (1987) 47 DLR (4th) 213. Discussed below n ?.

[111] The Australian approach to judicial bias as developed in Johnson v Johnson provides greater scope for seeking a change of judge or tribunal than may be the case elsewhere in the common law world. This may provide an argument for the continuance of the offence even as the existence of a summary jurisdiction works against it.

[112] See Stone and Williams, above n 5, for a review of this concept in the common law world.

[113] Wong Yeung Ng v The Secretary for Justice [1999] HKCA 66 HKCA per Mortimer V-P. This case provides an example of a prosecution for scurrilous abuse of an extreme nature.

[114] Attorney -General (New South Wales) v Mundey 2 NSWLR 887.

[115] Ibid. As cited in Sally Walker, Media Law Commentary and Materials (2000) 621.

[116] In New South Wales this can be done by contacting the Judicial Commission see <http://www.judcom.nsw.gov.au/complaints.htm> for a summary of the procedure.

[117] See, eg: an analogous situation where extra damages were awarded against Andrew Bolt in the defamation case of Popovic v Herald and Weekly Times Limited 2002 VSC 174 (unreported).

[118] Johnson v Johnson (2000) HCA 48 citing, for example, Re Lusink; Ex parte Shaw (1980) 55 ALJR 12; 32 ALR 47; Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288; Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568; Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41.

[119] For an analysis of the way in which the defence of ‘truth’ can nevertheless restrict even responsible reporting (in the context of defamation) see Stone and Williams, Freedom of Speech and Defamation: Developments in the common law world, above n 6.

[120] Addo, above n 18.

[121] R v Police Commissioner of the Metropolis, Ex parte Blackburn (No 2) (1968) 2 QB 150, 155 (Lord Denning MR).

[122] See Sir Anthony Mason, 'No place in a modern democratic society for a supine judiciary' (1997) 35 (11) Law Society Journal 51; Daryl Williams Judicial Independence (1998) 36 Law Society Journal 50 and E Campbell and HP Lee, The Australian Judiciary (2001) 254-256.

[123] Re Colina and Another; Ex parte Torney [1999] HCA 57; (1999) 166 ALR 545.

[124] Bernard Lane, 'Street protester beats judges at own game', The Australian, March 8 2000, Features; 14.

[125] Re Colina and Another; Ex parte Torney [1999] HCA 57; (1999) 166 ALR 545 where part of the speech is set out in para 9.

[126] R v Police Commissioner of the Metropolis, Ex parte Blackburn (No 2) (1968) 2 QB 150.

[127] Set out by the UK Lord Chancellor in a letter to the Director General of the BBC written in 1955 to prevent judges from being involved in the entertainment that might be provided by a series of radio lectures about great judges of the past.

[128] The matter was before the High Court on an application to prevent a judge of the Family Court hearing the contempt allegations. One of the grounds put forward was that in the light of the Chief Justice’s speech the judge before whom the matter was to be heard was disqualified from hearing it and/or there could not be a fair trial.

[129] 2 NSWLR 887.

[130] Ibid, 912.

[131] See Mundey 2 NSWLR 887, 913.

[132] See Badry [1982] 2 AC 297.

[133] Bennett (2002) EWCA Civ 223. The case came before the Court of Appeal (Civil Division) as cross appeals. An Industrial Tribunal had recused itself because the members ‘concluded that they could not continue to hear a case on race discrimination in which they themselves had now been accused of racism’. A reconstituted Tribunal struck out the claim under rule 13(2) (e) of the Employment Tribunal (Constitution and Rules of Procedure) regulations 1993 which provides ‘A Tribunal may... order to be struck out any originating application... on the grounds that the manner in which the proceedings have been conducted by or on behalf of the applicant...has been scandalous, frivolous or vexatious.’ and the appeal was a successful attempt to overturn that decision.

[134] Ibid [19] (Sedley LJ).

[135] Ibid [39].

[136] Ibid [42].

[137] For arguments as to the disadvantages of the summary a procedure see the dissenting judgment of Kirby J in In re Colina and Another; Ex parte Torney [1999] HCA 57; (1999) 166 ALR 545 [95] to [104]. Also the judgment of the South African Constitutional Court in S v Mamabolo [2001] ZACC 17; (2001) 3 SA 409 where it was held that ‘the summary contempt procedure employed in the present case is, save in exceptional circumstances such as those in Chinamasa’s case where ordinary prosecution at the instance of the prosecuting authority is impossible or highly undesirable, a wholly unjustifiable limitation on individual rights and must not be employed’ [58] (footnotes omitted); Chinamasa was the Attorney General of Zimbabwe and the case is discussed below.

[138] Gallagher v Durack [1983] HCA 2; (1983) 45 ALR 53; Attorney -General (New South Wales) v Mundey 2 NSWLR 887.

[139] Badry [1982] 2 AC 297; Wong [1999] HKCFA 46; Ambard [1936] 1 All ER 704; McLeod v St Aubyn [1899] AC 549; Ahnee, Sydney Selvon and Le Mauricien v DPP [1999] UKPC 11; [1999] 2 WLR 1305.

[140] Attorney -General (New South Wales) v Mundey 2 NSWLR 887; Wong Yeung Ng v Secretary of State for Justice [1999] HKCFA 46.

[141] Re Colina and Another; Ex parte Torney [1999] HCA 57; (1999) 166 ALR 545; Schwartkopff, In the Marriage of; Fitzgibbon v Barker (1992) 16 Fam LR 539.

[142] R v Kopyto (1987) 47 DLR (4th) 213; Hoser [2001] VSC 443 (unreported).

[143] Colin Warbrick as cited in Addo, above n 18.

[144] Australian Press Council submission (1 November 1983) as cited in para 453 of ALRC Report. above n 5.

[145] See above notes 46 -52.

[146] S v Mamabolo [2001] ZACC 17; (2001) 3 SA 409, 72 per Sachs J.

[147] Johnson v Johnson (2000) HCA 48.

[148] Article 10

Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.

[149] Opened for signature 19 December 1966, 999 UNTS 171, 6 ILM 368 (entered into force 23 March 1976).

Article 14 reads:

1. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. ...

[150] Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Milan, 26 August to 6 September 1985, U.N. Doc. A/CONF.121/22/Rev.1 at 59 (1985). Also available at <http://www.law.monash.edu.au/humanrts/instree/i5bpij.htm> .

[151] Milton, South African Criminal Law and Procedure (1996) 187-188 as cited by Sachs J in S v Mamabolo [2001] ZACC 17; (2001) 3 SA 409 [67].

[152] In terms of actual prosecutions, though the threat of prosecutions may be more common.

[153] See Stone and Williams, above n 6, for a review of US cases using this term.

[154] ALRC Report above n 5. The report goes on to quote from a conference paper delivered to a Conference on Contempt of Court, Media Law Association of Australasia, Regent Hotel, Melbourne (16 June 1984) 17-8

One can’t help wondering if the Attorney General would have taken action [in the Gallagher case] if the Chamber of Commerce had commented in the same way.

[155] [1899] A.C. 549; cited with approval by Hope JA in Attorney -General (New South Wales) v Mundey 2 NSWLR 887.

[156] Ambard v Attorney General (1936) AC 322 where the appeal was nevertheless allowed on the facts because of ‘a misconception of the doctrine of contempt as applied to public criticism’.

[157] Ibid,

[158] Thio Li-Ann, 'An 'i' for an 'I'? Singapore's Communitarian Model of Constitutional Adjudication' (1997) 27 Hong Kong Law Journal 152, 176.

[159] In re: Chinamasa 2000 (12) BCLR 1294.

[160] David Feldman, Civil Liberties and Human Rights in England and Wales (1993) 746 –747 (cited in Ahnee. Feldman refers to the ‘stability and structure of particular societies’ as possible grounds for suggesting that ‘[t]here may, therefore, be a core of good sense in the apparently patronising and possibly racist comments of Lord Morris’.

[161] For arguments that the offence requires ‘excessive emphasis on the impact of loss of public confidence’ and that the maintenance of public confidence is ‘not an absolute good’ see ALRC Report No 35, above n 5, paragraphs 424 and 425. See also Justice Michael Kirby, 'Attacks on Judges - A Universal Phenomenon' (1999) 72 Australian Law Journal 599 for reflections on the need for public education in this area.

[162] See above n 103.

[163] In this case the reputation of the justice system.

[164] Helen Steel and Dave Morris the ‘McLibel’ defendants in a case brought by Mc Donald’s Corporation and McDonald's Restaurants Limited as quoted in No Logo, Flamingo, London, 2001, 435. Helen Marie Steel and David Morris v McDonald’s Corporation and McDonald’s Restaurants limited [1999] EWCA Civ 1144 (31st March 1999).

See also <http://www.mcspotlight.org/> for various unofficial copies of court documents in a case which provides a clear example of how the oppressive use of the courts to limit speech may backfire.

[165] Campaigner against the construction of a damn in the Narmada Valley in central India and, inter alia, winner of the Booker prize for her novel 'The God of Small Things'.

[166] See <http://www.dfn.org/news/india/roy-jailed.htm> for the comments by parts of he Indian Press on alleged moves to restrict the powers of Indian judges.

[167] Ibid.

[168] Which depending on the context may be the Attorney General or DPP rather than the courts.

[169] See also Ahnee, Sydney Selvon and Le Mauricien v DPP [1999] UKPC 11; [1999] 2 WLR 1305 where the newspaper article arose in the context of defamation proceedings brought by the Chief Justice over ‘serious allegations about...impartiality’.

[170] Mundey above n 113.

[171] Meredith Burgman Verity Burgman, Green Bans, Red Union: Environmental activism and the New South Wales Builders Labourers' Federation (1998) 132.

[172] Set out in above n 148 .

[173] Article 19

1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordre public), or of public health or morals.

[174] R v Kopyto (1987) 47 DLR (4th) 313.

[175] Ahnee referred to above, n 27, for a description of the ‘narrow’ definition of scandalising at common law. The case was an appeal from a judgment of the Supreme Court of Mauritius convicting a journalist, editor and the owner and publisher of Le Mauricien and fining each of them 1000,000 rupees.

[176] Which were subject to a qualification ‘for the purpose of... maintaining the authority and independence of the courts’

[177] See Chaudhary v Attorney-General [1999] FJCA 23, an unsuccessful appeal against his conviction by the Prime Minister of Fiji in respect of statements he had made as leader of the opposition. The defendant was ordered to pay the costs of the proceedings but received no further punishment.

[178] Described as a consideration of whether the means are rationally connected to the objective and are not arbitrary, unfair or based on irrational considerations and are such that their effects on the limitation of rights and freedoms are proportionate. See below n 202.

[179] In re: Chinamasa (2000) 12 BCLR 1294. A case which followed comments by the Attorney General of Zimbabwe faulting what he saw as lenient sentences in a case involving gun running and mercenary/paramilitary activities.

[180] Wong Yeung Ng v Secretary of State for Justice [1999] HKCFA 46; also at <http://www.worldlii.org/hk/cases/HKCFA/1999/46.html> an extreme case of scurrilous abuse and allegations of impartiality directed at a judge of the Obscene Articles Tribunal of Hong Kong (together with a campaign of harassment seen as direct interference) by a Chinese language newspaper with 2.3 million readers. For the reference to the judgement of the Hong Kong Court of Appeal see above n 112.

[181] S v Mamabolo [2001] ZACC 17; (2001) 3 SA 409. An appeal against the conviction of a media officer of the Department of Correctional Services following comments concerning the order made on a bail application by Eugene Terre Blanche leader of the Afrikaner group Weerstandsbeweging.

[182] Though the summary procedure was to be reserved ‘for the most exceptional cases only. Ibid [58].

[183] Ibid [14].

[184] Section 12:

'(1) Except with his own consent, no person shall be hindered in the enjoyment of his freedom of expression, that is to say, freedom to hold opinions and to receive and impart ideas and information without interference, and freedom from interference with his correspondence.

(2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision -

(a) in the interests of defence, public safety, public order, public morality or public health;

(b) for the purpose of ... maintaining the authority and independence of the courts ...

(c) ...

except so far as that provision or, as the case may be, the thing done under its authority is shown not to be reasonably justifiable in a democratic society.'

[185] Ahnee, Sydney Selvon and Le Mauricien v DPP [1999] UKPC 11; [1999] 2 WLR 1305 , [21].

[186] Ibid. In dealing with the other constitutional points their Lordships decided that the meaning of scandalising the court is clear from the case law, and the range of appropriate penalties was at all times apparent from the decisions of the Supreme Court (of Mauritius). Whether this last point could be the case in a country with no history of the regular use of the scandalising jurisdiction is doubtful, but this is a difficulty that applies to the contempt as a whole.

[187] Quoted in text above n 154 above and including reference to ‘small colonies consisting primarily of coloured populations’.

[188] Civil Liberties and Human Rights, in England and Wales, 1993, 746-747. (book or report?)

[189] Barendt, Freedom of Speech (1985), 218-219.

[190] See text above n 157 .

[191] R v Kopyto (1987) 47 DLR (4th) 213.

[192] Cory JA, Houlden JA and Goodman JA.

[193] R v Kopyto (1987) 47 DLR (4th) 213 , 8.

[194] Citing Retail, Wholesale & Department Store Union, Local 580 v Dolphin Delivery Ltd (1986) 33DLR (4th) 174, and McIntyre J’s references to John Stuart Mill, On Liberty and Considerations of Representative Government (1946) and John Milton’s Areopagitica; A Speech for the liberty of Unlicenc’d printing, to the Parliament of England (1664); R v Zandel (1987), 58 OR (2d) 129, 35 DLR (4th) 338 and the US cases of Garrison v State of Louisiana, [1964] USSC 217; 379 US 64 (1964) and New York Times Co. v Sullivan, 376 US, 270.

[195] Section 1 reads:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

[196] Those chosen were the United States, Australia, New Zealand the United Kingdom and the European Court of Human Rights.

[197] at 26. Dubin J in his dissent took the view that the majority judges had ‘purported to follow American precedent in preference to long-standing precedent in the United Kingdom, in Canada, throughout the Commonwealth and to that on the European convention on Human Rights, 1950’

[198] Ahnee, Sydney Selvon and Le Mauricien v DPP [1999] UKPC 11; [1999] 2 WLR 1305.

[199] Chaudhary v Attorney-General [1999] FJCA 23.

[200] The paragraph read:

'There has been public suspicion since the coups that many in our judicial system are corrupt. In several cases well known lawyers have been identified as receiving agents for magistrates and judges. A number of lawyers are known to arrange for them to appear before their preferred magistrates or judges.'

[201] Section 13(2).

'Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision - ...

(b) for the purpose of ... maintaining the authority and independence of the Courts ...;

except so far as that provision ... is shown not to be reasonably justifiable in a democratic society.'

[202] Chaudhary v Attorney-General [1999] FJCA 23; referring to R v Oakes (1986) 26 DLR (4th) 200 as summarised by the Supreme Court of Canada in R v Chaulk (1991) 2 CR (4th) 1, 27-28:

1. The objective of the impugned provision must be of sufficient importance to warrant overriding a constitutionally protected right or freedom; it must relate to concerns which are pressing and substantial in a free and democratic society before it can be characterised as sufficiently important.

2. Assuming that a sufficiently important objective has been established, the means chosen to achieve the objective must pass the proportionality test; that is to say they must:

a) be ‘rationally connected’ to the objective and not be arbitrary, unfair or based on irrational considerations;

b) impair the right or freedom in question ‘as little as possible’; and

c) be such that their effects on the limitation of rights and freedoms are proportionate to the objective.

[203] Ibid [22] citing Ministry of Transport v Noort [1992] 2 NZLR260 (CA).

[204] A reference to s13(2) (b) of the 1990 Constitution.

[205] Solicitor-General v Radio Avon Ltd 1 [1978] NZLR 225.

[206] Chaudhary v Attorney-General [1999] FJCA 23 [24].

[207] Ibid [25].

[208] Wong Yeung Ng v Secretary of State for Justice [1999] HKCFA 46; also at <http://www.worldlii.org/hk/cases/HKCFA/1999/46.html>

[209] The newspaper had been convicted and fined $5 million but did not appeal.

[210] Bill of Rights Ordinance (Cap. 383), Article 16 follows exactly the wording of Article 19 of ICCPR; above n 172

[211] Kopyto (1987) 47 DLR (4th) 213.

[212] Wong Yeung Ng v Secretary of State for Justice [1999] HKCFA 46 per Mr Justice Litton PJ.

[213] Before the Court of Final Appeal.

[214] Wong Yeung Ng v The Secretary for Justice [1999] HKCA 66 HKCA.

[215] Leong JA, in Court of Appeal, states that the judges below

were entitled to conclude that “the newspaper clearly wanted its readers and the public to believe, that the \judiciary was an instrument of political persecution and that the judges had no integrity at all” and if that were believed, “ there would be very little left in the confidence of the public in the administration of justice in Hong Kong.” Their finding was clearly supported by the evidence...

[216] In re Chinamasa (2000) 12 BCLR 1294.

[217] He had added that this:

came against the backdrop of repeated complaints made to him by his law officers of hostility and verbal abuse directed at them and their submissions by the bench during proceedings. All these developments erode the office's confidence in the administration of criminal justice.

[218] Ibid 46.

[219] S v Mamabolo [2001] ZACC 17; (2001) 3 SA 409.

[220] Section 165 of the Constitution provides as follows:

(1) The judicial authority of the Republic is vested in the courts.

(2) The courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice.

(3) No person or organ of state may interfere with the functioning of the courts.

(4) Organs of state, through legislative and other measures, must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts.

(5) An order or decision issued by a court binds all persons to whom and organs of state to which it applies.

[221] Kriegler J giving a judgment with which 9 others concurred. Sachs J concurred with the judgment and order but also gave a separate judgment.

[222] Addo, above n 18, 427.

[223] The first paragraph refers to the right to freedom of expression whereas the second relates the type of ‘formalities, conditions, restrictions or penalties’ to which the right may be subjected.

[224] Addo, above n 18

[225] Ibid 427 where he cites Article 31 of the Vienna Convention on the Law of Treaties as support for such an approach.

[226] Ibid. The cases on which he bases this view include Barford v Denmark (1991) 13 EHRR 493 and Prager and Oberschlick v Austria [1995] ECHR 12_2; (1994) 21 EHRR 1.

[227] See Sarah Joseph, Jenny Schultz and Melissa Castan, The International Covenant on Civil and Political rights: Cases, Materials, and Commentary (2000).

[228] Lange [1997] HCA 25; (1997) 189 CLR 520.

[229] Ibid.

[230] Adrienne Stone, 'Lange, Levy and the Direction of Freedom of Political Communication Under the Australian Constitution' [1998] UNSWLawJl 38; (1998) 21 University of New South Wales Law Journal 117-134.

[231] See comments of Kirby J in ABC v Lenah Game Meats.

[232] Lange, above n 5.

[233] Levy v The State of Victoria [1997] HCA 31; (1997) 146 ALR 248 as cited in ‘Media Law’ Sally Walker (year), 56.

[234] Re Colina and Another; Ex parte Torney [1999] HCA 57; (1999) 166 ALR 545, [61].

[235] AG for NSW v X above n 91 citing : Attorney-General (NSW) v Time Inc Magazine Co Pty Ltd (New South Wales Court of Appeal, unreported, 15 September 1994) 4 (Gleeson CJ); Civil Aviation Authority v Australian Broadcasting Corporation (1995) 39 NSWLR 540, especially 558-560 (Kirby P) and 570-571 (Handley JA); John Fairfax Publications Pty Limited v Doe (1995) 37 NSWLR 81, 109-111 (Kirby P); Theophanous v Herald & Weekly Times Limited [1994] HCA 46; (1993-1994) 182 CLR 104, 187 (Deane J) and Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316, 324-325 (Ipp J) and 343 (Anderson J).

[236] It can be argued that as the courts are an arm of government media reports of their processes are a government or political matter. See Felicity Robinson, above n 90 citing Chris Nash ‘Panel Discussion’ [1999] UTSLawRw 20; (1999) 1 University of Technology Sydney Law Review 159-160.

[237] Popovic v Herald and Weekly Times Limited 2002 VSC 174 (unreported).

[238] See Part 1.

[239] As was done via the Parliamentary Privileges Act 1987 (Cth).

[240] See above Part 1.

[241] Re Colina and Another; Ex parte Torney [1999] HCA 57; (1999) 166 ALR 545, [105] (Kirby J) .

[242] See Campbell and Groves, above n 1

[243] See words of Lord Denning, above n 31

[244] [1899] A.C. 549 (at least in England and Wales if not in the ‘small colonies’)

[245] R v Gray (1900) 2 QB 36.

[246] See Pannick chapter 5 pages 105 to 139 for summaries of the circumstances of R v Vidah, The Times 18 November 1922; R v Freeman, The Times 18 November 1925; R v Editor of New Statesman; ex parte DPP 44 TLR 301 (1928); R v Wilkinson, The Times 16 July 1930; and R v Colsey, The Times 9 May 1931.

[247] Zahid Ebrahim, Matrix under Threat - A briefing paper on the offence of scandalising the court, Issues paper published by Article 19 The global campaign for free expression accessible via the web site <http://www.article19.org/> .

[248] See also the cases referred to by Sachs J in his judgment in S v Mamabolo [2001] ZACC 17; (2001) 3 SA 409.

[249] Above n 55.


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