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- 4 September 2002
Contempt Of Court
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Page: 4546
The Hon. JOHN HATZISTERGOS [9.29 p.m.]: On Tuesday 20 August I attended a lecture by Justice Margaret Marshall, Chief Justice of the Supreme Judicial Court of the Commonwealth, Massachusetts. The lecture was part of the Distinguished Lecture Series conducted by the University of Sydney as part of its sesquicentenary celebrations. It was entitled "Dangerous talk, Dangerous Silence: Free Speech Judicial Independence, and the Rule of Law".
In recounting American experience Chief Justice Marshall referred to the United States case of Bridges v California, which largely defined modern United States law on the contempt of court. It was held in that case that no considerations of disrespect for the judiciary or disruption of the judicial process could justify censorship unless the comments presented a clear and present danger of substantially distorting the administration of justice. According to that case, the assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appraises the characteristics of American public opinion. Her Honour went on to state from her own experience as follows:
Freedom to criticise judges and their decisions, save for those cases of real and imminent danger, is a necessary condition of judicial independence. This is particularly true, I think, for those pluralistic democracies in which judges hold office for life, or for a very long time during good behaviour, with virtually no check on their power save an unwieldy impeachment process. In the context of the United States one scholar has termed this the most extreme form of judicial independence. The power vested in judges in such circumstances can hardly be underestimated. It is near absolute. The only viable defence available to the people against abuses of such formidable judicial power is the public accountability of judges.
She then went on to state:
By placing the onus of upholding the judiciary's integrity on the muzzled populace the crime of scandalising the court gets it exactly backward: the burden of accountability falls most probably on a transparent judiciary.
Referring then to circumstances in Australia, Her Honour suggested that our law could be more tolerant of judicial criticism. The view that Her Honour expressed should have some resonance for all of us. In Australia liability for sub judice contempt is governed by common law rather than by legislation. In broad terms the test of a breach is whether the publication has a real and definite tendency as a matter of practical reality to interfere with the due administration of justice in specific legal proceedings or the publication prejudges the issues to be decided in the proceedings.
A practical demonstration of the potential impact of this restrictive test was recently drawn to attention when Commissioner Cole, QC, in the Royal Commission into the Building Industry, said that a leaflet distributed by the union that stated "This royal commission is being pushed by a hostile Howard Government, which is trying to abolish workers rights" bordered on contempt. Rhetorically, one must ask : Why cannot such comments be made, why cannot they be responded to and why cannot the public be the judge of the validity or otherwise of the statements made?
Lack of codification of the law of sub judice contempt and the restrictive approach of the Commonwealth have been the subject of large volumes of reports but principally by law reform commissions both in Australia and overseas. Interestingly, a draft bill entitled Crimes (Protection of the Administration of Justice) Amendment Bill 1993 of the Commonwealth was prepared and circulated for comment. It was never introduced. In 1994 the Irish Law Reform Commission published a report No. 47 dealing with contempt, relying heavily on the recommendations of both the English Phillimore Committee and the Australian Law Reform Commission. However, it has not resulted in legislation.
In July 2000 our own New South Wales Law Reform Commission published a discussion paper on the subject. That paper emphasised the desirability for uniformity of contempt laws, since without it the media would be forced to follow the law of the most restrictive jurisdiction when transmitting across State borders. The report criticised the tendency test on the grounds that it was imprecise and too broad. It suggested an alternative test adopted in the United Kingdom and favoured by the New Zealand and Canadian courts. This was basically a test that a publication having substantial risk of interference or prejudice with particular legal proceedings would amount to contempt.
Referring particularly to the case of publications influencing judicial officers, the Law Reform Commission decided by majority that concern about influence on judicial officers is essentially speculative and supports the general assumption that judicial officers are not susceptible to any significant degree of influence by media publicity. It suggested that the risk of influence on judicial officers ought not be a ground of liability for sub judice contempt. This tentative view does not go as far as Chief Justice Marshall has suggested was appropriate. However, the experiences that were recounted by Her Honour in her lecture suggested that the consequences of exposing the judiciary to greater criticism, even if it was in some cases informed, has not affected the faith of United States citizens in the judiciary. Rather, it has made it stronger.
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