Melbourne Law School - Theses
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ItemSub judice contempt regarding publications : an evaluation and proposals for reform with particular attention to Australia's international law obligations( 1992)The current Australian law of sub judice contempt as it relates to publications attempts to strike a balance between two competing public interests: the public interest in freedom of speech and the public interest in the proper administration of justice. In Chapter I the adequacy of this approach to the values underlying the sub judice rules is examined. In that Chapter it is submitted that such an approach to the values underlying the sub judice rules should not be endorsed. Rather than couching the values underlying the sub judice rules in terms of competing public interests, it is suggested that those values should be recast in terms of a conflict between individual rights. It is submitted that, if the values underlying the sub judice rules are correctly characterised as individual rights, those rights are the right to freedom of speech and the right to a fair trial. The social-scientific literature concerning the free press-fair trial debate is evaluated to determine whether those rights are competing, or complementary. On the basis of that literature, it is concluded that pre-trial media comment can have a significant detrimental effect upon the capacity of the judicial system to provide a fair trial; and that no remedial or other preventative measure, whether alone or in conjunction with other measures, can counter the adverse effects of prejudicial media comment. In Chapter I it will also be argued that, as a matter of policy, the right to freedom of speech should yield to the right to a fair trial to the extent necessary to resolve any conflict which might arise between those rights. It is submitted that a publisher who publishes material which denies to another person his or her right to a fair trial should be punished for publishing the material and that liability for prejudicing another person's right to a fair trial should be imposed irrespective of the publisher's intention. It is suggested, however, that liability should not be imposed upon a publisher which has taken all reasonable steps to avoid the risk of harm from arising. In Chapter II, Australia's international obligations as they relate to the law of sub judice contempt regarding publications are identified. In that Chapter it is argued that the right to a fair trial, provided by article 14 of the International Covenant on Civil and Political Rights (ICCPR), encompasses the right to have a trial free of prejudicial media or other comment. It is suggested that, unlike the right to a fair trial provided by article 14 of ICCPR which is an absolute right, the right to freedom of speech provided by article 19 of ICCPR is a qualified right. Thus a State could legitimately restrict freedom of speech on the ground that the restriction is necessary for the protection of the right to a fair trial. On that basis, it is submitted that Australia would not be in breach of its international obligations if it places a limitation upon one individual's right to freedom of speech to protect another individual's right to fair trial. Further, if Australia does not place a limitation upon the right to freedom of speech and as a result of that failure an individual's right to a fair trial is prejudiced, Australia will be in breach of its international obligations. In Chapter III, the current Australian law relating to sub judice contempt by publication and the various proposals suggested for its reform are evaluated in light of the considerations of policy examined in Chapter I and Australia's international obligations as identified in Chapter II. A number of suggestions are made for reforming the law so that it achieves the resolution of the values underlying the sub judice rules which the considerations of policy examined in Chapter I and Australia's international obligations discussed in Chapter II require.