John Fairfax and Sons Pty. Limited v. McRae [1955] HCA 12; (1955) 93 CLR 351

Ex parte Tubman; Re Lucas (1970) 3 NSWR 41 at 53-54

Registrar, Court of Appeal v. Collins (1982) 1 NSWLR 682

Ex parte Tuckerman; Re Nash (1970) 3 NSWR 23

Attorney-General v. Times Newspapers Ltd (1974) AC at 308

Brambles Holdings Ltd v. Trade Practices Commission [1980] FCA 120; (1980) 44 FLR 182

Hinch v. Attorney-General (Vic) [1987] HCA 56; (1987) 74 ALR 353 at 394

Attorney-General v. Butterworth and Others (1963) 1 QB 696

Counsel for Director General of ASIO: Mr. R. Williams QC

1. The contemnor be fined the sum of $1,000 to be paid to the

Registrar within one month for payment out to the Australian

Capital Territory.

2. If the fine is not so paid, the matter is to be restored for

hearing by the Court.

3. Until further order nothing be done by way of publication to

identify the contemnor.

MILES CJ This is the return of an order nisi calling upon the respondent to show cause why he should not be dealt with for contempt of court. Although the name of the respondent is known to the Court, it has been withheld from publication for reasons which will be stated.

2. The matter comes before the Court in the following way. On 11 February 1994 the Court's business for the day included the resumption of proceedings for the sentencing of ten persons found guilty by a jury on various offences arising out of events at the Embassy of the Islamic Republic of Iran on 6 April 1992. Those events and the lengthy trial which followed had received considerable publicity in the Canberra media. At about 10 a.m. on 11 February, a Sheriff's officer informed the Deputy Registrar that one of the persons convicted and awaiting sentence complained about being photographed by a male person in the foyer of the court and that upon being spoken to by the Sheriff's officer in a witness room, that person refused to identify himself. The Deputy Registrar accompanied the Sheriff's officer to the witness room and spoke there to a male person with a camera bag. The person again declined to identify himself except to state that he was from the Attorney-General's Department.

3. The Deputy Registrar spoke to a member of the Australian Federal Police who was concerned in the sentencing proceedings and, some time later on the same day, to an officer of the Australian Security Intelligence Organization (ASIO), who had been informed of the incident. The Deputy Registrar was told that the male person was an ASIO officer. The male person then left the court building in the company of the other persons mentioned.

4. These matters were reported to me briefly by the Deputy Registrar during the course of the day. I directed the Deputy Registrar to report to me in writing at the conclusion of sentencing. On 18 February 1994 at the conclusion of sentencing, I received the written report of the Deputy Registrar and directed her to place her knowledge of the events on affidavit. I directed the Registrar to commence proceedings by way of notice of motion for an order nisi addressed to the respondent, the male person already referred to, whose name remained unknown to me at that stage. I directed that a copy of the notice of motion and the affidavit be served upon the Australian Government Solicitor, the Commonwealth Director of Public Prosecutions and the solicitors who had acted for the persons sentenced.

5. On 25 February 1994 at the initial hearing for an order nisi, Mr. Williams QC appeared for the respondent to oppose the making of the order. On the respondent's behalf an affidavit was filed by the Acting Director General of ASIO and an unsworn draft affidavit to be sworn by the respondent was received into evidence. I decided that the order nisi should be made and now Mr. Hastings QC appears for the respondent, Mr. Williams QC appears by leave for the Director General of ASIO, and Mr. Birmingham, an officer of the Commonwealth Director of Public Prosecutions, appears by leave to assist the Court. The Registrar is not represented. An affidavit sworn by the respondent in the same terms of the draft affidavit just referred to, but disclosing the name of the respondent, was handed up, read by me and returned to counsel. The respondent in his affidavit expressed fears for the safety of himself and his family if his name were disclosed and for that reason I took the view that until further order there should be no publication of anything to identify the respondent. I noted an undertaking by counsel for the respondent to disclose his client's address if called upon to do so.

6. The facts as established by the unchallenged affidavit material are relatively simple. In addition to what was disclosed in the affidavit of the Deputy Registrar to which I have already referred, the facts are as follows. The respondent is an officer of ASIO. With another officer, the respondent was directed to photograph by covert means a person whom, so he was informed, was a likely visitor at the court on 11 February and whose whereabouts in the Australian Capital Territory were otherwise uncertain. The respondent was instructed, by whom it is not disclosed, that the best opportunity for a photograph might occur when the person was "milling around" with others in the precincts of the court. The officer was given no advice or guidance by ASIO about the propriety of taking covert photographs at or near a court building. The respondent did not believe that there was anything wrong in taking a photograph in the precincts of a court and he intended no harassment of any person or any discourtesy to the Court.

7. The precise nature of the instructions given to the respondent is not clear insofar as they might have related to whether or not the respondent received specific direction to photograph the target person whilst within the court building. However, no case was raised by way of defence that a contempt of court was not committed simply because the respondent was acting in accordance with instructions from a superior.

8. The order nisi calls upon the respondent to show cause why he should not be dealt with for contempt of court in that he did on the 11th day of February 1994 harass and interfere with litigants, witnesses and members of the public present in the foyer of the Law Courts Building, Knowles Place, Canberra.

9. Different jurisdictions adopt various procedures for dealing with alleged contempt of court. The procedure by way of order nisi is one such procedure which is commonly used in the ACT. It should perhaps be emphasised that contempt proceedings are proceedings of a criminal nature and that the procedure of an order nisi calling upon the respondent to "show cause" in no way shifts the onus of proof or reduces the standard of proof required to make out a case of contempt against an alleged contemnor.

10. I do not think that it is necessary to state exhaustively the law relating to contempt of court. However, it is desirable that I summarise the principles to be applied in the present case.

11. This Court has the power to deal with contempts of itself and the power may be exercised summarily: John Fairfax and Sons Pty. Limited v. McRae [1955] HCA 12; (1955) 93 CLR 351 at 360 and 365. The summary power is to be used sparingly and exercised strictly for the purposes of the prevention of interference with the due and fair administration of justice: Attorney-General for New South Wales v. Mundey (1972) 2 NSWLR 887 at 907.

12. The nature of contempt is not precise and is not to be divided into precise categories. It was described by Lord Diplock in Attorney-General v. Leveller Magazine Ltd. and Others (1979) AC 440 at 449:

"... although criminal contempts of court may take a variety of

forms they all share a common characteristic: they involve an

interference with the due administration of justice either in a

particular case or more generally as a continuing process. It is

justice itself that is flouted by contempt of court, not the

individual court or judge who is attempting to administer it."

13. One aspect of contempt of relevance in this case is contempt in the face of the court (or improper behaviour at hearings). The power relating to contempt in the face of the court extends beyond the boundaries of the courtroom itself to include persons and their behaviour in the precincts of the courtroom, that is to say, within the court building and even on the verandah and steps of the court building: Ex parte Tubman; Re Lucas (1970) 3 NSWR 41 at 53-54, per Asprey J and Registrar, Court of Appeal v. Collins (1982) 1 NSWLR 682.

14. Actual physical disruption of the hearing is not an essential element in establishing contempt in the face of the court. The essential element is that the conduct in question tends to cause an interference with the authority of the courts in the sense that there may be a detraction from the authority of the judicial process and an impairment of confidence and respect in the courts: Ex parte Tuckerman; Re Nash (1970) 3 NSWR 23 at 28.

15. Connected to this aspect of the concept of contempt in the face of the court is another aspect, that of interference with parties to proceedings. The general principle underlying this aspect was stated by Lord Diplock in Attorney-General v. Times Newspapers Ltd (1974) AC at 308:

"The due administration of justice requires ... that all citizens

should have unhindered access to the constitutionally established

courts of criminal or civil jurisdiction for the determination of

disputes as to their legal rights and liabilities."

16. Another aspect of relevance in the present case relates to the need for the Court to ensure that its processes are open to the public and that access by the public for the purpose of observation and scrutiny of the Court's processes be unhindered except so far as the Court authorises such restriction as is necessary for the security and order of those processes. In Ex parte Tubman; Re Lucas at 51 Asprey JA put it thus:

"... when the proceedings of a court are to be administered as a

forum open to the public, any person who, without lawful authority

or justification, prevents or attempts to prevent not only

parties, their legal representatives or witness but also members

of the public who are desirous of being at those proceedings, from

entering the court or its precincts could be adjudged guilty of

contempt of court ..."

17. This dictum has subsequently been supported in the Australian cases of Brambles Holdings Ltd v. Trade Practices Commission [1980] FCA 120; (1980) 44 FLR 182.

18. It is not necessary that the offending conduct be carried out with the actual purpose or intention of prejudicing the due administration of justice. In Hinch v. Attorney-General (Vic) [1987] HCA 56; (1987) 74 ALR 353 at 394 Toohey J said as follows:

"It might be thought ... that such proceedings cannot succeed

unless they establish an intention on the part of the person

charged to interfere in the administration of justice. But the

weight of authority is now firmly against such a view. The

conduct of the person charged must be deliberate in the sense that

he must have intended (to do the particular act) ... But that is

a far different thing. Intention to interfere in the

administration of justice has been held to be a relevant

consideration, but its existence unnecessary for a conviction."

19. The pertinent issue is whether the conduct itself in all the circumstances has an inherent tendency to interfere with the administration of justice: John Fairfax and Sons Pty. Limited v. McRae, or was calculated so as to interfere, considering not the state of mind of the person involved, but the inherent nature of the act itself: Attorney-General v. Butterworth and Others (1963) 1 QB 696 at 725 per Donovan LJ.

20. As the majority in Registrar of the Supreme Court, Equity Division v. McPherson and Others (1980) 1 NSWLR 688 at 700 cautioned, where the dominant motive is directly to interfere with the administration of justice, contempt is more easily made out and more serious. Where the dominant motive is not so direct, there is a greater need for close "examination of whether the possibility of interference was a matter of practical reality or was more theoretical".

21. It was submitted by Mr. Williams that, as there was nothing inherently unlawful about taking a photograph in the precincts of a court building, the absence of any intention of the respondent to interfere with the administration of justice or to harass anyone on the court premises should be decisive of a conclusion that no contempt was committed. Reliance was placed upon a passage in the judgment of the High Court in Lane v. The Registrar of the Supreme Court of New South Wales (Equity Division) [1981] HCA 35; 1981 148 CLR 245 at 258. The passage, however, needs to be read in the context of the judgment as a whole which confirms that intention to interfere with the administration of justice whilst relevant and sometimes important is not necessary. Furthermore, the submission is partly answered, in my view, by a recognition that the act of the respondent to which the intention is relevant is not simply the covert attempt to take photographs without being detected, but the act of taking photographs in circumstances where, viewed objectively, there must have been a real possibility that the act would be observed by the persons in the vicinity and the likely effect on the ability of such persons to feel confident that they could be present within the court building without being subject to official surveillance.

22. It was submitted by Mr. Hastings that the scope of the contempt power does not extend to conduct beyond the precincts of the court, that the taking of photographs in the street, even in close proximity to the court cannot be subject to control by the court through the use of its contempt powers and that the mere location of the act of photography cannot convert an otherwise lawful and benign act into an unlawful contempt of court. It was also submitted that if harassment was to be relevant, it had to be deliberately induced by the respondent. In relation to all these submissions, I think that it must be emphasised that the general principle is that it is a contempt to knowingly engage in conduct which tends to interfere with the administration of justice. No purpose is served by attempting to limit the general principle by reference to particular factual circumstances, and then, for the purpose of showing that the general principle is too widely stated, to express the particular circumstances in terms of the general principle. Of course there is no principle of law that it is a contempt of court to take a photograph in a court building. The general principle that it is a contempt to knowingly engage in conduct which tends to interfere with the administration of justice is to be applied in the light of all the surrounding circumstances in the particular case. Hence, to take the various examples of photographing suggested in argument which might not amount to contempt of court does not assist in evaluating for present purposes the facts proved in the present case.

23. Another submission put by Mr. Hastings was that the limits of conduct constituting contempt must be seen in the light of what he called the acquiescence of this Court itself in the activities immediately outside the court building of media photographers who, it is said, frequently focus their cameras on people coming and going from the court. Far from acquiescing in this conduct, the Court has in recent times issued repeated warnings that such conduct may constitute contempt and that, if knowledge of such conduct comes to the notice of the Court, contempt proceedings may follow. In many such situations the freedom of the media to go about its lawful business (which may or may not be the same as the freedom to publish or the public's right to know) has to be balanced against the duty of the Court to protect the administration of justice. However, in the present case no issue arises of freedom of expression or freedom to publish. It should hardly be necessary to add that the Court will not act of its own motion unless the facts are clear, nor to add that the Court will not make pronouncements about what constitutes contempt unless it is done as part of proceedings properly conducted before it.

24. I conclude then that the ASIO officer was in contempt of court in covertly attempting to photograph inside the court building a person or persons there for a legitimate purpose connected with proceedings being conducted, or about to be resumed, in the adjoining courtroom. The conduct of the officer was close enough in time and space to be regarded as contempt in the face of the court although it did not occur within the view or hearing of the Judge presiding over those proceedings. Contempt in the face of the Court need not involve the actual disruption of the hearing, nor does the absence of an intention to interfere with the administration of justice mean that no contempt has been committed. Otherwise it might be said that the only thing the ASIO officer did wrong was to be found out. In truth the very need for him, as he saw it, to carry out his activities surreptitiously meant that he was using the facilities of the Court for an improper purpose. That in itself is only a starting point. The ASIO officer must have known by any proper objective standard that there was a risk that his activity would become known to his target and to others in the vicinity. Accordingly, by the objective standard, his conduct had a real tendency to put pressure on litigants, witnesses and other persons who must be left to come and go in connection with court business free from threat or harassment. Moreover the public nature of the court process in this country, and the public interest in securing the freedom to attend and observe court proceedings in which the observer has no personal stake at all, is fundamental. That freedom is put at risk when it is to be exercised in the knowledge, or with the apprehension, that representatives of a governmental agency are likely to be within a court building secretly attempting to photograph those persons present whom it considers should be so photographed in the interests of national security.

25. There are at least two special features of significance in the present case which point to its seriousness. The first is that the trial which preceded the sentencing hearing on 11 February took place over some eight weeks during which the accused on many occasions expressed fears that the trial itself might have repercussions both for themselves in this country and for their families in Iran. I do not pass judgment on the justification of such fears, but I have no doubt that they are genuinely held. Some accused sought suppression orders in relation to their addresses in order to avoid the repercussions. On one occasion, one accused objected to a person in the gallery of the court sketching him, and a similar warning was given that nothing was to be done in the courtroom or precincts to give any of the accused reason to fear that his or her presence at court could be used to gather information on that accused which could be used in a way as was feared. On at least two occasions during the trial I had cause to state publicly that if representatives of the media through the use of cameras or otherwise hindered the ability of the accused to come and go freely from the court, then proceedings for contempt would be considered. I mentioned too that in the early weeks of the trial the security aspects of the trial itself were such that, with the approval of the Court, all persons entering the court building were subject to electronic search. That was in itself an extraordinary measure, but it was obvious that the limited restriction placed on persons entering the court building was imposed in order to secure to the accused a fair trial, in order to ensure that the trial process was not disrupted by actual disorder and indeed in order to avoid the very sort of events now under consideration. If the ASIO officer had sought to enter the court building at that stage, any camera concealed upon his person would almost certainly have been detected. By the sentencing stage, the security situation was such that only persons entering the courtroom were subject to electronic search, so that by then the ASIO officer was able to enter the building with his camera unnoticed.

26. I find it difficult to believe that ASIO's interest in the trial was confined to the day of 11 February 1994 and that ASIO in a general sense was entirely unaware of the sensitive aspects of the trial and of the warnings I had given. It is hardly necessary to add that it must be obvious that if a representative of the media whilst within the court building had taken photographs of persons connected with the trial that would have been regarded as a serious contempt. There is little difference, in my view, between that hypothetical situation and the situation in the present case.

27. The other element of aggravation is that it is precisely because the contempt was committed by a member of a government security organization that the authority of the Court to adjudicate free from executive pressure or influence stands to be compromised unless the Court itself takes steps to vindicate its position. That is more particularly so when some of the persons subject to scrutiny by the State security apparatus and likely to feel harassment by the State are themselves the subject of prosecution by another arm of the State, or connected with persons subject to such prosecution.

28. There are some mitigating factors. Not least is that the facts have been readily admitted, although the ASIO officer has not conceded that they amount in law to contempt of court. The individual officer, I presume, has no previous convictions. No similar conduct on the part of ASIO officers has previously come to light. Both ASIO and the officer apologise for what happened, and whilst not acknowledging that it amounts to contempt, at least concede that it was "unwise". The acting Director-General acknowledges the importance of the independence of the justice system and that ASIO activities are to be organised so as not to compromise that independence.

29. Counsel for the ASIO officer had undertaken to make known to the Court the name of the officer if called upon to do so. In the circumstances there is no need to have the officer identified. However, the contempt is serious enough to call for more than a nominal rebuke. The independence of the Court and the right of litigants, witnesses and the public to attend court free from interference are to be protected. Conduct which compromises that independence or infringes those rights is to be deterred by a substantial deterrent measure. The officer remains on the staff of ASIO and I expect that he is in receipt of income. It is appropriate that he should have to pay a fine for his misconduct.

30. The orders and findings of the Court are as follows. I find the contempt proved. I note the undertaking of counsel for the contemnor to disclose to the Court the address of his client, if called upon to do so. The contemnor is fined the sum of $1,000 to be paid to the Registrar within one month for payment out to the Australian Capital Territory. If not so paid, the matter is to be restored for hearing by the Court. Until further order, I order that nothing be done by way of publication to identify the contemnor.