Report No. 200

Power of Court to order postponement of publication is not inherent but has to be conferred by statute:

A question has arisen whether a court has inherent power to pass 'postponement order' as to publication ? In R v. Clement (1821) 4 B & Ald 218 there are observations that the Court has inherent power but this view has recently been not accepted by the Privy Council in Independent Publishing Co Ltd v. Attorney General of Trinidad & Tobago: (2004) UKPC 26 (see http://www.bailie.org) and it was held that there is no inherent power and power to postpone publication must be conferred by statute.

Likewise, the NSW Law Reform Commission, in its Discussion Paper 43 (2000) (Ch 10) (see paras 10.22 to 10.27) has held that the authority of Clement as to inherent power to restrain publication is shaken in Australia in cases such as John Fairfax Ltd v. Police Tribunal: (NSW) 1986 5 NSWLR 465. In this connection, it may be noted that Borrie & Lowe in their 'Law of Contempt' (see p. 279) say that the point has become academic in view of Section 4(2) of the UK Act of 1981.

In view of the criticism of the words, we do not want to use the words 'substantial risk of prejudice' in the new provision whereby power should be vested in the Court to pass orders for postponement of publication. As to what words have to be used in our statute for the purpose of postponement order, we shall deal with that in Chapter X.