Comments for Media Watch: Brittany Higgins leaks, contempt of court, and media dodginess
Media Watch asked me some questions for a story; here are my detailed answers. For the avoidance of doubt: in what follows I am not suggesting anyone in particular has done something dodgy. But someone has.
Questions from Media Watch: extract
'... we were wondering if you could provide some on the record comment.
Lawyers for Network Ten have complained and asked the AFP to investigate?the leaking of sensitive material to the media by an unknown person or persons.
That material included text messages and audio recordings supplied to Bruce Lehrmann’s lawyers in answer to subpoenas. Ten has suggested the leaked material was subject to the Harman implied undertaking which I understand precludes litigants from disclosing such material -provided under compulsion- for a collateral and ulterior purpose.
?If possible would you please be able to tell us:
1.??????What chance does Ten have of getting a contempt case up and what would success depend on?
2.??????How common is it for contempt of court proceedings like this to get up in court?
3.??????I understand contempt proceedings can be initiated in civil and criminal jurisdictions. Do you know which one is more common and why?
Feel free to add any other comment or background...'
My response
What chance does Ten have of getting a contempt case up and what would success depend on?
It is not clear that Ten is going to bring a contempt case itself. Rather, it is seeking an investigation to determine who may be behind the leaks.
If Ten later brings a contempt case, success would depend on showing that the leaking of the relevant information was done contrary to a legal obligation to a court.
This depends on determining who was responsible for the leaks and what were their obligations.
As for the obligations, it is notable that the information that was leaked was info provided by Ms Higgins to police for possible use as evidence in a criminal trial. Providing the info to the media is contrary to that intended purpose, which suggests someone has breached a legal obligation to the court.
The relevant obligation is sometimes described as a ‘Harman undertaking’. [On that, see below.]
If it turns out that someone in Mr Lehrmann’s camp leaked the info, contempt is very likely. If someone in the police or prosecution leaked the info, contempt is the least of their worries; careers will end. People could go to jail.
(But to clarify: I am not suggesting either of these hypotheticals to be true. I have no idea who is behind these leaks. Further, Mr Lehrmann has said in a statement: ‘I have not (and have taken the view I could not) even provide my solicitors in the defamation actions any material that was not already deployed in the criminal trial'.)
On the Harman undertaking
This week, Attorney-General Mark Dreyfus referred to a ‘Harman undertaking’.[1] The term comes from a famous English case.[2] Once upon a time, when you obtained documents in the course of litigation, you would give an express undertaking—or promise—not to use the documents for any purpose other than that for which you obtained them. If you breached that undertaking, you could get in serious trouble.
Australia’s top court has since clarified this Harman principle. In a case called Hearne v Street, the High Court explained that when you obtain documents through a compulsory legal process—like that involved when a prosecution discloses evidence to an accused in the context of a criminal prosecution—the person who receives the document has a ‘substantive legal obligation’.[3] They owe this obligation to the court. And they owe the obligation whether or not they made any actual ‘undertaking’ (or promise) to use the documents only for a limited purpose.
How common is it for contempt of court proceedings like this to get up in court?
Individuals find themselves in contempt of court reasonably regularly. Usually, it involves someone disobeying a court order. For example: media organisations were in contempt of court for publishing content about the George Pell trials despite court orders prohibiting them from doing so.
Another example of a possible contempt is in friendlyjordies’ recent defamation battle with John Barilaro. Justice Rares considered that YouTube videos published by Jordan Shanks would bring improper pressure on Barilaro and his lawyer not to pursue the case, which appeared ‘to be serious contempts of court’.[4]
Contempt for breach of a so-called ‘Harman undertaking’ is less common, because usually, these breaches are accidental. The person in the wrong (called the ‘contemnor’) can fall on the sword: they can make a full and frank disclosure, apologise, and in some cases, seek permission from the court to use the documents. Still, it does happen.[5]
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I understand contempt proceedings can be initiated in civil and criminal jurisdictions. Do you know which one is more common and why?
There are a couple of distinctions to be made here.
First, contempt of court could arise in the middle of a civil proceeding or a criminal proceeding.
An example of the former, which is in the civil jurisdiction: someone uses a document they obtain by subpoena in a civil case to start a second case, without seeking permission from the court. An example of the latter, which is in the criminal jurisdiction: the judge prohibits the media reporting the identity of someone involved, but the media report on it anyway.
Second, in either kind of proceeding, the contempt may be civil contempt or criminal contempt. The distinction is based on the nature of the dodgy conduct (the nature of the contempt) rather than the nature of the underlying proceeding.
The difference between the two kinds of contempt is hard to pin down. All contempts involve interference with the administration of justice; all are proved beyond reasonable doubt. But the procedure between the two forms of contempt may differ and the punishments for each may differ.
A breach of a so-called ‘Harman undertaking’ would usually be a civil contempt. But this case is a bit unusual.
What makes the current case so unusual is the deliberate character of the leaks. The leaking may even be characterised as ‘criminal’ rather than ‘civil’ contempt. High Court Justice McHugh once said, ‘disobedience to the order of a court constitutes criminal contempt when the disobedience is contumacious’.[6] These leaks look ‘contumacious’.
I don’t have stats for you on which form of contempt is more common. I will say that a court does not hold someone in contempt lightly; it is often a last resort, or the consequence of something that is unforgiveable.[7]
Further comment: the media sucks
The media’s coverage of leaked material in recent weeks has been disgraceful.
For example, The Australian has published material which has disclosed Higgins’s confidential information and seriously invaded her privacy.[8]
Higgins would be justified in suing some media orgs, and their people, for what is called ‘breach of confidence’.
These events undermine the media’s argument that proposed changes to privacy laws would be too harsh on them. In an ideal world, journalists would have ethics and media orgs only engage in responsible journalism. In that world, we would not need a legal mechanism to sue the media for serious invasions of privacy. But we do not live in an ideal world.
Dr Michael Douglas is a legal academic and media litigation lawyer. Views are his own.
[1] https://www.aph.gov.au/Parliamentary_Business/Hansard/Hansard_Display?bid=chamber/hansardr/26703/&sid=0103
[2] Harman v Secretary of State for the Home Department [1983] 1 AC 280.
[3] Hearne v Street (2008) 235 CLR 125, [3].
[4] Barilaro v Google LLC [2022] FCA 650, [407]. See https://jade.io/article/932681.
[6] Witham v Holloway (1995) 183 CLR 525, 538-9 (McHugh J).
[7] See, eg, https://www.watoday.com.au/national/western-australia/mount-claremont-home-sale-row-ends-with-jail-term-for-sovereign-citizen-20230223-p5cn7q.html
[8] See https://amp-smh-com-au.cdn.ampproject.org/c/s/amp.smh.com.au/politics/federal/how-brittany-higgins-leaked-texts-opened-yet-another-sorry-chapter-20230613-p5dg5z.html;