Chapter 7
The future of civil contempt

Approach in other jurisdictions

7.60The problem of retaining a cogent distinction at law between criminal and civil contempt has been discussed in a number of other jurisdictions, and proposals for reform have been mooted. Although there has been much criticism and calls for reform in Australia and the United Kingdom, the distinction between civil or criminal contempt still remains in these jurisdictions.

United Kingdom

7.61In 1974, the Phillimore Committee concluded that the distinction was complex and artificial and recommended that all distinctions between civil and criminal contempt in England and Wales should be abolished.383
7.62The Committee said that, in England and Wales, the traditional view was that disobedience to an order made in civil proceedings is primarily a civil, not a criminal, matter, and thus it is designated civil contempt. The main purpose of sanctions for disobedience is coercion not punishment. The Committee noted that, over time, the more important distinctions had been whittled away, and the line between the two has become blurred.384 The view that contumacious or wilful disobedience to an order ought to be a criminal contempt rendered the distinction less important and more difficult to define. The Committee reported that the rights of appeal in respect of both classes of contempt were similar, and the criminal standard of proof was being applied in the courts because of the penal nature of the sanctions that could be imposed. The Committee recommended that the same strict standard as was required in a criminal matter should be applied.385
7.63However, the recommendation of the Phillimore Committee that civil contempt be abolished was never adopted. In the United Kingdom, the distinction remains. Arlidge, Eady and Smith on Contempt note that:386

Although the distinction between civil and criminal contempt continues to be made, and has to be considered carefully, the two categories have rather more in common than their traditional separation would imply.

AustraliaTop

7.64The distinction has been strongly criticised and there have been calls for reform in Australia as well.

7.65The Australian Law Reform Commission in its 1987 report recommended abolishing the common law of civil contempt and replacing it with statutory forms of proceedings for civil enforcement of court orders and a separate offence of a disobedience contempt that would cover defiant breaches of both civil and criminal court orders.387
7.66The Australian Commission said that there should be two quite distinct forms of action to replace what is now dealt with as “civil” contempt. One, essentially still civil in character, should be a “proceeding for the enforcement of a court order” and would probably best be dealt with by avoiding the terminology of “contempt”. The other should be a separately instituted criminal proceeding whose purpose is clearly punitive at the outset, which should be surrounded with the safeguards appropriate to a situation where a person is at risk of imprisonment.388
7.67Subsequently, the High Court of Australia has considered the distinction between civil and criminal contempt to be artificial and has suggested that all proceedings for contempt should realistically be seen as criminal.389 In Witham v Holloway, the Court said that the distinction between proceedings that are coercive in the interests of the private individual (civil) and proceedings in the public interest to vindicate judicial authority or maintain integrity of the judicial process (criminal) is not a satisfactory basis for distinguishing civil and criminal contempt.390 The Court said there is not a true dichotomy between proceedings in the public interest and proceedings in the interest of the individual, because even when proceedings are intended to secure the benefit of an order or undertaking that is not being complied with, there is also a public interest aspect in the sense that the proceedings vindicate the Court’s authority.391
7.68The Court identified a number of distinctions between civil and criminal contempt that no longer apply, including standing to bring an action, waiver, unlimited imprisonment, the power to fine and standard of proof. The tendency to break down distinctions reflects recognition of the public interest in having court orders obeyed. The distinctions that do remain include clarity as to the right to appeal and the right to administer interrogatories. The Court concluded that: “The differences upon which the distinction between civil and criminal contempt is based are, in significant respects, illusory.”392
7.69In a more recent 2003 report reviewing the law of contempt, the Law Reform Commission of Western Australia has concluded the civil contempt should be abolished and replaced by an offence.393 The Commission said that, given the serious penalties available and the broader public interest in securing compliance, an offence, which would normally be prosecuted by public officials, was appropriate. Acknowledging the legitimate and particular interests of applicants as well as the very wide range of orders and undertakings to which contempt proceedings may be subject, they recommended that the proposed criminal offence for disobedience contempt should also be able to be prosecuted by the applicant with leave of the court in which the contempt occurred. However, where it is prosecuted by the applicant, imprisonment should not be available upon conviction.394
383At 73.
384At 72.
385At 75.
386Eady and Smith, above n 349, at [3.6].
387Australian Law Reform Commission Contempt (ALRC Report 35, 1987) Summary of recommendations at [64] and Appendix A cl 46.
388At [65]–[68] and Appendix A cl 46.
389Witham v Holloway (1995) 183 CLR 525.
390At 532.
391At 533.
392At 534.
393Law Reform Commission of Western Australia Report on Review of the Law of Contempt (LRWA, PN 93, 2003) at 92–95 and recommendation 46.
394At 98 and recommendation 48.