Contempt of court will occur in circumstances of the sort considered by the High Court only if there is an actual interference with the administration of justice or "a real risk, as opposed to a remote possibility", that justice will be interfered with (Attorney-General v Times Newspapers Ltd [1974] AC 273 at 299). There must be a substantial risk of serious injustice (per Gibbs CJ at 56, 88, per Mason J at 99, 122);
The reasons behind contempt in those circumstances is the "real and definite tendency to prejudice or embarrass" the proceedings in the court (John Fairfax & Sons Pty Ltd v McRae [1955] HCA 12; (1955) 93 CLR 351 at 372) (per Gibbs CJ at 56, 88).
If the commission were required to find that a person were guilty or not of a criminal offence, it would be in contempt of court if a prosecution were commenced during the course of its inquiry and it were to continue its inquiry on that matter before the completion of the prosecution (per Gibbs CJ at 54, 87 and see the later case of Hammond v Commonwealth of Australia [1982] HCA 42; (1982) 152 CLR 188 at 198-9[1982] HCA 42; , 42 ALR 327 at 333-4, per Gibbs CJ);
If publication of material before a commission would prejudice mankind against a litigant, that publication would prejudice any pending trial by jury (per Gibbs CJ at 57, 89).
If the proceedings before the Commissioner were to be publicised and if the trial is before a judge alone, it would not be contempt for it is part of the everyday task of a judge to put public discussion aside (Attorney-General v British Broadcasting Corporation [1981] AC 303 at 342-3) (per Gibbs CJ at 58, 90, Mason J at 102, 123-4). "The position may be different if the publication exposes the litigant to public and prejudicial discussion of the merits of the facts of his case while it is still pending" (Attorney-General v Times Newspapers Ltd at 310) (Gibbs CJ at 57-58, 89-90);
There is a public interest in a person's case being tried free of all prejudice but that public interest must be weighed against other public interests. Those other public interests include the discussion of public affairs and the denunciation of public abuses, actual or supposed (Attorney-General v Times Newspapers Ltd at 296-7 citing with approval Ex parte Bread Manufacturers Ltd; Re Truth and Sportsman Ltd (1937) 37 SR (NSW) 242 at 249). They also include the importance of the public's having access to information that it has a legitimate interest in knowing for without information there can be no proper discussion of public affairs and the denunciation of public abuses, actual or supposed. (per Gibbs CJ at 59-60, 91 and Mason J at 94-98, 119-121, per Wilson J at 133-6, 149-151);
The balancing of the public interests is a matter of law and not for a court to decide in a particular case (per Gibbs CJ at 60, 91-92);
Regard must be had to the circumstances in which material is to be published outside of court proceedings. If the material is published in a newspaper in advance of a criminal trial, the paramount public interest is in maintaining the administration of justice free from prejudice and interference. The countervailing public interest in freedom of discussion is exclusively related to the issue to be tried in the court i.e. the person's guilt or innocence. In that situation the public interest in freedom of discussion is subordinated to the administration of justice. (per Mason J, at 98-99, 122)
Proceedings before a Royal Commission attract publicity and the public has a substantial and legitimate interest in knowing what is happening before the Commissioner. That is a public interest that is not easily subordinated to the need to maintain the administration of justice free from interference (per Mason J at 99, 122);
If there were a real risk that the Commissioner's continuing conduct of the proceedings would deter witnesses from coming forward to give evidence to the Federal Court or would influence the evidence that they gave, there would be reasonable grounds to apprehend that the conduct of the inquiry would amount to contempt of court (per Gibbs CJ at 58-59, 90). That must be determined on something more solid than speculation (per Gibbs CJ at 59, 91, Mason J at 103, 125); and
Even if public proceedings held by the Commissioner prejudiced or biased the public mind against the BLF, any prejudice that arose would be of a general character as the Commissioner was not examining the specific issues arising before the Federal Court. (Mason J at 103-4, 125-126)