Replacing common law contempt with statutory offences
International approaches to codification
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not a comprehensive code of contempt law, so the common law exists alongside the piecemeal forms of contempt that have been replaced by statute.
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. 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:
- The common law principles of contempt should be abolished and replaced by statutory provisions that would govern all Federal Courts except the High Court.
- Current forms of contempt should be replaced by criminal offences. To establish that a person is criminally liable, specific criteria should be met. These would clarify the law and limit liability to situations where the conduct is sufficiently severe.
- With the exceptions of contempt in the face of the court and disobedience contempt, new contempt offences should be tried in the same way as normal criminal offences, rather than by summary procedure, to ensure the protection of an accused’s rights.
- Contempt in the face of the court should be treated as a criminal offence, and the matter should continue to be heard summarily. However, the accused person should be able to require the original judge not to be in charge of the trial.
- The law governing disobedience contempt should be replaced by a statutory system of “non-compliance proceedings”. Where a person has disobeyed an order, the other party should be able to request that the court impose sanctions (such as imprisonment or fines) to punish disobedience or pressure the disobeying person into complying with the order.
- Where the abolition of the common law forms of contempt would otherwise leave the courts without power to punish certain forms of interference with the administration of justice, the Crimes Act 1914 (Cth) should be amended to remedy this situation.
- Specific recommendations for the reform of contempt in family law matters, including replacing the system of contempt and quasi-contempt in the Family Law Act 1975 (Cth) with a single procedure for the enforcement of orders.
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. There has been substantial implementation of the report’s proposed reforms relating to family law, however.
8.10Canada has a Criminal Code. 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, which was followed by a Bill in 1984. 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:
- Knowingly making a publication creating a substantial risk of seriously impeding or prejudicing pending proceedings.
- Affront to judicial authority.
- Disruption of judicial proceedings.
8.12The Bill lapsed when the government at the time was not returned to office, 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.