Any proposed reform of the law of contempt, including disobedience contempt, must be consistent with the limitations on legislative power, express or implied, in the Western Australian Constitution. This issue is pertinent because the contempt jurisdiction of the Supreme Court includes an inherent jurisdiction consequent upon its characterisation as a superior court of record. The sources of power in contempt matters come from both the provisions of the Supreme Court Act 1935 (WA) and through the Court’s earlier creation by the British Government. Section 6 of the Supreme Court Act continues, but does not create, the Supreme Court so it can reasonably be said that the inherent jurisdiction has an operation independent of the Supreme Court Act and therefore of the state Parliament.
Terms of Reference
The term of reference in the Law Reform Commission of Western Australia's reference on the law of contempt was:
to inquire into and report upon the principles, practices and procedures relating to contempt by disobedience to the orders of the court and whether the law pertaining thereto should be reformed and, if so, in what manner.
Outcomes
The Commission made 12 recommendations that seek to resolve key issues as to whether or not:
- codification is a priority;
- the distinction between civil and criminal contempt should remain;
- the process for prosecuting an alleged contempt of court should continue as a summary process under the Supreme Court Rules or whether it should follow another form of criminal (or civil) procedure;
- the sanctions presently available should continue, including imprisonment, fines and, in the case of a corporation, sequestration of assets;
- any limitation should be placed on penalties; and
- the role of the Director of Public Prosecutions should be strengthened in recognition of the public interest in securing compliance with court orders.
