Under Australian law, a person can be jailed or fined for criticising a court or a judge, an action that is known as “scandalising the court.”

This type of contempt has been described as “dangerous” by former High Court judge Lionel Murphy, who noted the offence is so vague and general, it is an oppressive limitation on free speech.

The offence, which has been abolished in the UK, particularly affects journalists and those commenting on court decisions publicly. In a democracy, courts should be accountable for their decisions. Thus, the power of courts to punish critics of judicial decisions should be removed.

Contempt in the spotlight

Contempt of court laws are currently in the spotlight in Victoria after 36 journalists and media organisations were charged with contempt by the director of public prosecutions for allegedly breaching suppression orders in the trial of Cardinal George Pell. The Victorian Law Reform Commission is currently reviewing these laws.

Read more: PODCAST: Pell trial reporters, a judge and a media lawyer on why the suppression order debate is far from over

In 1987, the Australian Law Reform Commission recommended the principles developed by the courts over the years regarding contempt of court laws be replaced by statutory provisions. More than 30 years later, this recommendation has not been acted on – contempt of court laws, which apply in every Australian state and territory, remain unclear on what type of conduct is punishable.

Broadly speaking, four main types of contempt are punishable by law:

Sub judice contempt involves making public comments on a current or pending trial. This seeks to ensure that criminal defendants receive a fair trial. Disobedience contempt involves failing to comply with a court order, such as the suppression orders in the Pell trial. Contempt in the face of the court involves interfering with or interrupting a court hearing. Lastly, contempt by scandalising the court targets conduct that may undermine public confidence in the courts or which threatens a court’s authority. This could include statements alleging judicial bias or impropriety on the part of judges.

The most famous Australian court decision on scandalising contempt involved a newspaper article that humorously criticised the High Court’s rulings in the 1930s. The High Court held that this scandalised the court. Although the case was decided in 1935, it has never been overruled and has often been referred to by other courts.

Features of contempt by scandalising

Four features of contempt by scandalising the court highlight the danger it presents to free speech, particularly when it comes to journalists and media organisations who are publicly commenting on the courts and court decisions.

First, as mentioned above, the offence of contempt is currently defined by numerous court decisions that do not clearly articulate what type of conduct may be punished.

Read more: Explainer: why three government ministers might face contempt of court charges

Second, contempt of court can be decided by the judge alleged to have been scandalised. There is no requirement for a jury trial, or any other procedural safeguards.

The Victorian Charter of Human Rights and Responsibilities Act 2006 requires all court hearings to be “fair.” Arguably, a hearing would not be fair if a person’s guilt and punishment were determined by the judge alleged to have been scandalised. This undermines public trust and confidence in the courts.

Third, there is no limit in any Australian jurisdiction on the fine or jail term that can be imposed for contempt of court. Being a common law offence, ordinary sentencing principles and limits do not apply. Jail terms of varying lengths have been imposed on Australian journalists for contempt – and an unlimited jail term is even possible under the law.

Fourth, there is no requirement to prove that the person alleged to have scandalised a court intended to do this.

A better way to deal with criticism

These problems could be rectified through legislation by clarifying the scope of the contempt of court offences, specifying maximum penalties and introducing procedural safeguards.

Arguably, however, there is no need in a modern democracy to punish statements that criticise the decisions made by the courts. Judges can and often do respond to criticism by the media by publicly explaining their decisions. This seems to be more effective for maintaining public confidence in and respect for the courts than punishing individuals.

Since the High Court’s free speech cases of the 1990s, there is a greater emphasis on transparency and accountability in government. In this light, the offence of scandalising the court seems archaic and oppressive. Especially considering the extent to which the Australian public relies on media reports and commentary on court proceedings – and the public interest in allowing such commentary – the arguments for abolishing the offence of scandalising the court now seem overwhelming.