Contempt
(ALRC Report 35)
Key recommendations
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The common law
principles of contempt should be abolished and replaced by statutory provisions
that would govern all Federal Courts except the High Court. These wide-ranging
reforms would overhaul each existing form of
contempt.
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Current forms of
contempt should be replaced by criminal offences. To establish that a person
was criminally liable, however, specific criteria should be met. ALRC Report 35
provided a list of recommended criteria for each form of contempt, the main
purpose of which was to clarify the law and limit liability to situations where
the conduct was sufficiently severe.
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These offences should
be tried in the same way as normal criminal offences, rather than by a
compressed form of hearing (summary procedure) to ensure that an accused's rights
were protected.
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There would be two
exceptions to this practice: improper behaviour in court and disobedience
contempt. Contempt in the face of the court should be treated as a criminal
offence, but the matter should continue to be heard summarily. To overcome the
concerns raised about the fairness of this practice, the accused person should
be able to require the original judge not to be in charge of the trial.
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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.
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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
Commission recommended that the Crimes Act 1914 (Cth) be amended to
remedy this situation.
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Specific
recommendations were made in ALRC Report 35 for the reform of contempt in
family law matters, including replacing the present system of contempt
and quasi-contempt contained in the Family Law Act 1975 (Cth)
be replaced by single procedure for the enforcement of orders. A number of
policy considerations should be kept in mind when enforcing orders: punishment
should only be used as a last resort when counselling has failed to resolve the issue; a wider range of sentencing options should be available; in
punishing those who do not comply with orders, the court should consider how
the disobeying person's conduct harmed others, but must also consider how the
punishment would affect any children involved.
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A specific offence
should be created for breach of a restraining injunction. Where a person has
breached a custody order by abducting a child, the police should have explicit
power to arrest the abductor.
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Each Family Court
Registry should establish an 'enforcement list' to ensure that non-compliance
proceedings are heard as quickly as possible.1
1 https://www.alrc.gov.au/inquiries/contempt
(accessed 2 November 2017).
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