Report No. 200

Australian Law Commission: On balancing the rights:

In Australia, the Australian Law Reform Commission (See ALRC Report No. 35 at page 247) looked at whether reform of the law governing contempt by publication was desirable and if so, in what respects. It concluded that -

"the right of citizens to a fair trial in criminal proceedings before a Jury would be significantly jeopardized if there were no restrictions whatsoever of freedom of publication relating to the trial".

While it attached considerable importance to the principle of Open Justice, which is promoted by reporting of what goes on in Australian Courts, it concluded that -

"prohibition currently imposed by contempt law on publications relating to current or forthcoming trials should not be completely dismantled".

It recommended, however, that prohibitions should be 'confined to the minimum necessary to eliminate substantial risk of prejudice'. That would mean that to the extent, the freedom of speech and expression must be subordinated to due process in protecting liberty.