Chapter 8
Replacing common law contempt with statutory offences

International approaches to codification

United Kingdom

8.6The Contempt of Court Act 1981 (UK) provides for strict liability contempt by publication. It is not a comprehensive code of contempt law, so the common law exists alongside the piecemeal forms of contempt that have been replaced by statute.

AustraliaTop

8.7In Australia, contempt of court still largely exists at common law. Although some provisions are found in statute, the common law remains critical to interpreting the statutory provisions, including the test for strict liability contempt. Also, there is variance in the way in which contempt of court fits into the framework of criminal law in the states and territories.398 In New South Wales and Victoria, there has been partial codification of the criminal law, but both statutory and common law offences, including contempt of court, continue to exist outside those Acts. The other states have adopted comprehensive criminal codes. As an example of the interrelationship between statute and common law, section 8 of the Criminal Code Act 1899 (Queensland) provides that:

Nothing in this Act or in the Code shall affect the authority of courts of record to punish a person summarily for the offence commonly known as ‘contempt of court’, but so that a person can not be so punished and also punished under the provisions of the Code for the same act or omission.

8.8In 1987, the Australian Law Reform Commission recommended the following:

8.9Although the Australian Law Reform Commission’s report focused on contempt at a Commonwealth level, it stated that the majority of its recommendations were suitable for use by state and territory governments. In this regard, it appears there were attempts by the federal and state governments to agree on a uniform contempt law, but state and territory interest in the project lapsed, and it appears this is no longer being actively pursued.406 There has been substantial implementation of the report’s proposed reforms relating to family law, however.

CanadaTop

8.10Canada has a Criminal Code.407 Contempt of court is the only surviving common law offence. Criminal law is a federal responsibility.
8.11The Law Reform Commission of Canada published a report on contempt of court in 1982,408 which was followed by a Bill in 1984.409 This proposed to abolish the common law of contempt and replace it with the following three new offences to be incorporated into the Criminal Code:
8.12The Bill lapsed when the government at the time was not returned to office,410 and it does not appear that any similar Bill has been introduced since. This is likely due to the adoption of the Canadian Charter of Rights and Freedoms 1982.
398David Barker Essential Australian Law (2nd ed, Cavendish Publishing, Sydney, 2005). See Law Commission of England and Wales Contempt of Court – A Consultation Paper (LC, CP 209, 2012) Appendix C: Contempt in overseas jurisdictions.
399Australian Law Reform Commission Contempt (ALRC Report 35, 1987) Summary of recommendations at [1].
400At [1].
401At [59]–[60].
402At [3]–[16].
403At [64]–[84].
404At [17]–[28].
405At [85]–[112].
406Australian Law Reform Commission “Contempt” (12 July 2010) <www.alrc.gov.au>.
407Criminal Code RSC 1985 c C-46.
408Law Reform Commission of Canada Contempt of Court (LRCC Report 17, 1982).
409The provisions were included in an omnibus Bill; Criminal Law Reform Act, 1984, Bill C-19, 32nd Parl., 2d sess.,1983–1984, (1st reading 7 Feb. 1984). See L Puerst “Contempt of Court” [1984] Ottawa L. Rev. 316; P Healy “Bill C-19: Reforming the Criminal Law” [1984] Ottawa L. Rev. 297.
410Australian Law Reform Commission Contempt (ALRC R35, 1987) at [13] and [111].