Secretary of the Department of Communities and Justice and X and Ors

[2020] FamCA 186

FAMILY COURT OF AUSTRALIA

SECRETARY OF THE DEPARTMENT OF COMMUNITIES AND JUSTICE & X AND ORS [2020] FamCA 186

FAMILY LAW – PRACTICE AND PROCEDURE – Suppression and non-publication orders – Contempt of Court – s 112AP of the Family Law Act 1975 (Cth) – Consideration of whether a number of media entities should be subjected to contempt proceedings for their publication of articles and photographs contrary to suppression and non-publication orders – Where no order is made to instigate contempt proceedings – Previous order in relation to the investigation of an offence under s 102PK of the Family Law Act 1975 (Cth) is revoked.

Family Law Act 1975 (Cth) ss 102PK, 112AP

Australasian Meat Industry Employees Union v Mudginberri StationPty Ltd (1986) 161 CLR 98
Killen v Lane (1983) 1 NSWLR 171
Witham v Holloway (1995) 183 CLR 525

APPLICANT: Secretary of the Department of Communities and Justice

FIRST RESPONDENT: X

SECOND RESPONDENT: Y

THIRD RESPONDENT: Z

FIRST INTERVENOR: News Corp Australia (including Nationwide News Pty Ltd)

SECOND INTERVENOR: Nine Network Australia Pty Ltd

THIRD INTERVENOR: Fairfax Media Publications Pty Ltd

FOURTH INTERVENOR: Special Broadcasting Service Corporation

FIFTH INTERVENOR: Australian Broadcasting Corporation

FILE NUMBER: By Court Order File Number is suppressed

DATE DELIVERED: 30 March 2020

JUDGMENT OF: Aldridge J

HEARING DATE: 26 February 2020

REPRESENTATION

By Court Order the solicitors and counsels names have been suppressed

Orders

1. Order (8) of the orders made on 8 August 2019 is revoked.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Secretary of the Department of Communities and Justice & X and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: By Court Order File Number is suppressed

Secretary of the Department of Communities and Justice

Applicant

And

X

First Respondent

And

Y

Second Respondent

And

Z

Third Respondent

And

News Corp Australia (including Nationwide News Pty Ltd)

First Intervenor

And

Nine Network Australia Pty Ltd

Second Intervenor

And

Fairfax Media Publications Pty Ltd

Third Intervenor

And

Special Broadcasting Service Corporation

Fourth Intervenor

And

Australian Broadcasting Corporation

Fifth Intervenor

REASONS FOR JUDGMENT

1. This is a consideration as to whether a number of media entities should be subjected to contempt proceedings for their publication of articles and photographs contrary to Court orders. Only those media entities appeared on this aspect of the matter as the other parties sought to be and were excused from attendance. Senior counsel for the media entities indicated that the fifth intervenor “plays no part in this aspect of the proceedings” (Written submissions on behalf of the first to fourth intervenors “media entities” filed 16 January 2020, paragraph 2.8). Nonetheless, the evidence and submissions made in support of the media entities covered the position of the fifth intervenor.

2. On 28 June 2019, I made a set of ex parte suppression and non-publication orders, which expired at midnight on 3 July 2019. Media entities were notified accordingly.

3. On 3 July 2019, the following media entities appeared as intervenors in the proceedings:

   ·News Corp Australia (including Nationwide News Pty Ltd);

   ·Nine Network Australia Pty Ltd;

   ·Fairfax Media Publications Pty Ltd;

   ·Special Broadcasting Service Corporation (“SBS”); and

   ·Australian Broadcasting Corporation (“ABC”).

4. On that day, the orders made on 28 June 2019 were extended and the matter was stood over to 10 July 2019 for reconsideration of the orders.

5. The evidence establishes that on the evening of 3 July 2019 the following media entities published the following articles on their respective websites:

   a)[Redacted]

   b)[Redacted]

   c)[Redacted]

   d)[Redacted]

   e)[Redacted]

   f)[Redacted]

   …

   (Affidavit of Ms H filed 4 July 2019, paragraph 4)

6. The first article listed above included a photograph of some of the persons covered by the suppression and non-publication orders and their names, ages and general location. The other articles identified the children and their location.

7. These publications are in apparent contravention of the suppression and non-publication orders.

8. On the evening of 3 July 2019, an officer of a government department contacted a journalist at The Australian to express the view that the government department considered some of the articles outlined above to be in breach of the orders. The journalist then contacted a solicitor who contacted various media entities and, in some cases, their lawyers, to communicate the view expressed by the government department. The upshot of this intervention was that each organisation immediately took steps to remove the articles from their online publications. As a result, none appeared in any print versions. In the case of the SBS, the removal took some hours due to technical difficulties, but even so, the offending article was only available to be read for less than four hours.

9. The matter was relisted on 4 July 2019 when orders were made requiring the media entities to file affidavits setting out the steps that had been taken to ensure that “there will be no advertent or inadvertent non-compliance with the orders” in the future (Order (4) made on 4 July 2019). I also extended the opportunity to the media entities to give evidence and provide submissions as to whether contempt proceedings should be commenced against them, accepting that there was no obligation for them to do so (Transcript 4 July 2019, p.13 to p.14).

10. Hearing nothing in response from the media entities in subsequent hearings, I made the following order on 8 August 2019:

    (8)I direct the [Marshal] to consider whether an offence under s 102PK of the Act has been committed by the publication of the articles listed at paragraph 21 of the reasons delivered on 8 August 2019 or whether the publication involved a contempt of court and, if considered appropriate, take all necessary steps for the prosecution of the relevant entities or to commence contempt proceedings against them.

11. Subsequently, the media entities indicated that they did wish to explain the publications and have Order (8) made on 8 August 2019 revoked. This is a course that is open because such an order is interlocutory and ministerial in nature (Killen v Lane (1983) 1 NSWLR 171 at 179). It can therefore be revisited at any time.

12. On 15 August 2019, Order (8) was stayed.

13. This is not the hearing of any contempt charges. It is merely the consideration of whether the Marshal should be directed to commence such proceedings. Thus, no findings of fact can or should be made.

14. Contempt is a serious criminal offence (Witham v Holloway (1995) 183 CLR 525 at 530). It involves a wilful disobedience of the Court’s order. This was explained by Gibbs CJ, Mason, Wilson and Deane JJ in Australasian Meat Industry Employees Union v Mudginberri StationPty Ltd (1986) 161 CLR 98 at 113:

    It follows that a deliberate commission or omission which is in breach of an injunctive order or an undertaking will constitute such wilful disobedience unless it be casual, accidental or unintentional. It is immaterial that the existence of the power to impose a fine for wilful disobedience to a court order may not have been explicitly recognized in 1903.

15. This is reinforced by the terms of s 112AP of the Family Law Act 1975 (Cth) which refers to “a flagrant challenge to the authority of the court.”

16. I shall deal with the individual media entities separately but it is necessary to record that each entity made a complete and full apology for their respective publications, by senior counsel who appeared for them, in the presence of a senior executive from each organisation.

17. It is also relevant to record that the evidence satisfies me that each organisation has taken significant and appropriate steps to ensure that the suppression and non-publication orders, in whatever form they may be, will be complied with to the best of their ability.

SBS, Nine News, The Australian & The Daily Telegraph

1. The content that appeared on the websites of SBS and Nine News was generated by Australian Associated Press (“AAP”) and automatically published due to a syndication agreement. Whilst some types of articles such as “court stories” are automatically excluded from that process and are referred to editors for approval and uploading, the published articles in question were not of that kind.

2. It follows that the articles were published without any consideration by any person.

3. In response to the matters raised by the Court, SBS has gone to the extent of removing the automatic syndication process of articles.

4. SBS has disclosed the legal advice that they received as to what was permissible to publish after the orders were made on 3 July 2019. In short, that legal advice was that the name [Redacted] could be used and the following references could be made to the children; [Redacted]. Notwithstanding that legal advice, when the issue of contravention was raised on 3 July 2019, the decision was made to act cautiously and remove the article in full rather than amend it (Affidavit of Ms G filed 26 February 2020, paragraph 28).

5. Both The Australian and the Daily Telegraph are part of News Corp Australia (including Nationwide News Pty Ltd). It has a number of lawyers who provide prepublication advice to the various mastheads, each of which generally has its own editor, deputy editor and chief of staff.

6. On the afternoon of 3 July 2019, one of their lawyers was consulted about a proposed article for The Australian. In summary, the lawyer’s advice was:

   (a)There should be no publication of any details concerning [Redacted] including names, images, ages, details concerning the appearance of the children, or any personal characteristics that might identify them.

   (b)It would not be a breach of the 3 July 2019 Order to publish a story referring to the fact that [Redacted].

   (Affidavit of Mr K filed 26 February 2020, paragraph 16)

7. An email summarising that advice was also sent to senior editorial staff at the Daily Telegraph.

8. Each media entity accepted that the approach taken by the relevant government department whose officer first raised the difficulties with the publications, the applicant in this matter and the Court is somewhat narrower. Each has chosen to defer to the narrower view.

9. I accept, however, that in publishing the articles, The Australian and the Daily Telegraph followed a responsible course of seeking and following advice from a senior and reputable lawyer.

10. I am satisfied that an order should not be made to commence contempt proceedings against SBS, Nine News, The Australian or the Daily Telegraph.

The Sydney Morning Herald & The Age

1. Whilst the Sydney Morning Herald and The Age are owned by Nine News Entertainment Pty Ltd, the publisher of their newspapers and websites is Fairfax Media Publications Pty Ltd.

2. The article published by the Sydney Morning Herald is the most serious of those published because it contained a relatively recent photograph of some of the children and their names and ages. The article in The Age is an edited republication of the Sydney Morning Herald article and uses a different photograph.

3. At the time of the hearing, Fairfax Media Publications Pty Ltd had not given an explanation as to how the articles came to be published in the form that they were. There is a reference in the evidence given on its behalf to legal advice but its content is unknown.

4. That is a course that Fairfax Media Publications Pty Ltd is entitled to take and no adverse inference can be drawn from that decision.

5. On 20 March 2020, an Application in a Case was filed by Fairfax Media Publications Pty Ltd seeking to adduce further evidence to explain why the Sydney Morning Herald and The Age articles were published.

6. The explanation was that the people concerned with the publications considered the orders and came to the view that the articles were not in breach of them and hence that any breach was not intentional. The evidence did not say why that was so but a submission was made that, for example, the photograph that was published was archival and thus could be utilised. However, even an archival photograph tends to identify someone.

7. It follows, however, from the clear words of the orders that there was a prohibition on the publication of images and names, yet in apparent breach of the orders, Fairfax Media Publications Pty Ltd still published them. This, without more, is sufficient to justify a direction to the Marshal to commence contempt proceedings. Whether the evidence as to the relevant persons’ intention is accepted is a matter for those proceedings and not for me because of the concerns just raised (repeating, for clarity, that, at this stage, there is no obligation to explain anything).

8. Fairfax Media Publications Pty Ltd acted very promptly in removing the articles and taking steps to ensure further compliance with the orders. The evidence that it provided as to these matters is extensive and detailed.

9. In the circumstances, I am satisfied that it is unlikely that any further publications will be made that are in breach of the suppression and non-publication orders. On balance, taking into account all the matters to which I have referred, I am of the view that contempt proceedings should not be instigated against the Sydney Morning Herald or The Age.

Conclusion

1. It follows that Order 8 made on 8 August 2019 should be revoked.

2. I am conscious that the brevity of these reasons gives scant regard to the extensive evidence provided by the media entities and their lawyers, their extensive efforts to ensure compliance with the orders and the helpful and detailed submissions made on their behalf. Given the nature of the proceedings and the underlying orders, it is not necessary or perhaps appropriate to record it all. It is sufficient to say that the media entities clearly regarded this as a very serious matter indeed. Compliance with Court orders is essential, particularly where those orders have been made with the aim of protecting the safety of children, and organisations that report publicly must be scrupulous in complying with them. Where necessary, Courts will take steps to require compliance or punish those who act in contempt of those orders.

3. Finally, it emerged in the evidence that two other media organisations have continued to publish articles in apparent breach of the orders. They too should be given the opportunity to explain why contempt proceedings should not be brought against them and the Marshal will be directed to contact them for that purpose.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 30 March 2020.

Associate:

Date:  30 March 2020