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Rotstein, F --- "Chewing the Fat of a Soft Underbelly" [2010] UMelbLRS 1

Last Updated: 6 July 2010

Chewing the fat of a soft Underbelly

Introduction

Like the television series it concerned, the ‘Underbelly’ litigation R v [A][1] and the subsequent appeal decision, General Television Corporation Pty Ltd v Director of Public Prosecutions[2]) could be described as a spectacle. The proceedings nearly had it all: a glorified presentation of sex, drugs and crime for all of the nation to see (except Victoria), a high profile media defendant that was publicly chastised for electing to chase ratings rather than respect the workings of the criminal justice system, and the expansion of circumstances in which a court may derogate from the principle of open justice. The ‘Underbelly’ litigation attracted significant media attention and has been the subject of discussion both academically[3] and politically.[4] Having the series’ publication suppressed in Victoria on the eve of the first show’s scheduled broadcast only heightened the public’s appetite for the already intriguing program. Reminiscent of past prohibitions on controversial books or films being released in Australia, such as DH Lawrence’s 1928 novel Lady Chatterley’s Lover or Larry Clark and Edward Lachman’s 2002 film Ken Park, the Victorian ban on ‘Underbelly’ added to the series’ allure and appeal. As John Silvester, crime writer for The Age, commented: [5]

‘Really, it’s been made sexy by being banned. It’s naughty to watch. And people are lapping it up.’

Once released on DVD, ‘Underbelly’ became the fastest selling Australian television drama on record.[6] A second series, ‘Underbelly: A Tale of Two Cities’, was rushed into production and its first episode received the highest television ratings ever for an Australian drama or comedy.[7] Little wonder Channel Nine announced plans to produce a third series exploring the Australian underworld of the 1990s.[8] This article intends to absorb the attention and intrigue surrounding the ‘Underbelly’ case to consider the significant practical effects, policy issues and limitations of the decision of the Victorian Supreme Court of Appeal (henceforth referred to as the ‘Court of Appeal’) in General Television Corporation Pty Ltd v Director of Public Prosecutions. The author will ‘chew the fat’ and discuss why the decision is both interesting and important.[9]

The structure of this article has five parts. First, the issues of the ‘Underbelly’ litigation are examined by presenting the facts of the case, as well as the decisions at trial and on appeal. Second, an important practical effect of the case is discussed by assessing how the Court of Appeal expanded the list of common law exceptions to the principle of open justice, considered an ‘inveterate’ principle of our system of law.[10] Third, the significant policy issues raised by the Court of Appeal’s judgment are considered. These relate to the limits of a superior court’s inherent power to derogate from the general principle of open justice, and whether the inherent jurisdiction of a superior court includes the power to make an order against a named party which would constitute a contempt of court. Whether other authorities support the Court of Appeal’s decision to suppress publication of material which, if published, would constitute a contempt of court will also be discussed. Fourth, the limitations of the Court of Appeal’s judgment are examined. As the non-publication of ‘Underbelly’ negatively affected the public interest and freedom of expression of Victorians, there are a range of issues that the Court of Appeal overlooked or should have explored further. Lastly, the article will make some concluding remarks about the practical effects, policy issues and limitations of the Court of Appeal’s judgment.

Part 1 – The ‘Underbelly’ litigation

2007 was an annus horribilis for Channel Nine. Losing the television ratings nationally for the first time since 1978 to its arch-rival Channel Seven, the station won only two weeks of the ratings year compared to Seven’s 38 weeks. In Victoria, where Seven had not won the television ratings since 1976, it won 32 weeks to Nine’s five, and tied with Nine for three weeks.[11] Following the public departure (some say ‘boning’[12]) of Nine’s new CEO Eddie McGuire in May 2007, the network wanted to get the next year off to a ‘bang’ by showing the first series of ‘Underbelly’ at the commencement of the 2008 ratings season. The network used well-known local actors, experienced directors and a large budget to produce a 13-part series which dramatised the events of the 1995-2004 ‘gangland wars’. Channel Nine spent more than $15 million producing and promoting the series it hoped would kick-start its ratings year.[13] An expansive marketing campaign was launched, consisting of repeated television advertisements, as well as the series being publicised in newspapers, on billboards, the radio and the internet. In Melbourne, where the story unfolded, trams advertising the series were plastered with the actors’ faces and the Channel Nine logo in bold print. The network’s executives had expected between 800,000 to one million Victorian viewers alone, bringing an estimated $3.9 million in advertising revenue over the series’ 13 episodes.[14]

However, due to the decision of the Victorian Supreme Court in R v [A], Channel Nine’s hopes of amassing viewers and profits in Victoria hit a major stumbling block. Justice King was highly critical of Channel Nine’s decision to broadcast some episodes of ‘Underbelly’ at the same time as a murder trial connected to the so-called ‘gangland wars’. The trial of ‘A’ for the murder of ‘B’ had, for a considerable period of time, been fixed for a hearing on 31 March 2008. Among other witnesses, the Department of Public Prosecutions (‘DPP’) intended to call a witness referred to as ‘X’. At the request of the DPP, on 7 February 2008, a directions hearing took place before Justice King who was listed to hear the trial of A. Justice King delivered her decision on 12 February 2008. The decision considered the effect that a broadcast by Channel Nine due to begin the following day, on 13 February 2008, might have upon the fair trial of A.

The prosecution made application for an order that the publication of ‘Underbelly’ on television be stayed until after the trial. It was submitted that such an order was necessary because the material in question would have an adverse effect on the right of the accused to a fair trial. The concern of the Crown was that the ‘Underbelly’ series was, to a large degree, based on fact. Justice King agreed with this submission. Her Honour stated:[15]

‘The series explains, to a very large degree, the reason why “B” was ultimately murdered. That is really the subject of the trial of “A”.’

Justice King held that publishing the series at the same time as the trial would make it ‘impossible’ for A to receive a fair trial.[16] Her Honour dismissed Channel Nine’s offer not to show episode 12 (where B is seen to be murdered) until after the completion of A’s trial. To delay the trial would be in breach of the Charter of Human Rights and Responsibilities Act 2006 (Victoria) which recognises the right of persons who are charged with criminal offences to have their trials heard as quickly as possible. There were also practical concerns with postponing the trial until the prejudicial effect of the broadcast had dissipated. Justice King estimated it would be at least a year until ‘one could contemplate’ relisting the matter and by then the series would have been aired and possibly achieved what Channel Nine ‘hopes of it’ and been a ratings success.[17] As the pool of jurors would come from the State where ‘Underbelly’ is set, there was concern that the series could ‘be in the lounge room of every person in Victoria’.[18] Her Honour explained:[19]

‘I think it would be exceedingly difficult to erase the material they have seen in this series from their minds, no matter what directions the judge gave. There must be a recognition that directions will be followed by juries, and that may well prevent them from looking up the Internet, searching for things. What it cannot do, in my view, is erase what has been put there in such graphic and compelling form.’

In Justice King’s opinion, as Channel Nine had put its own needs above the proper administration of justice, the network’s interests should be subordinated to those of the accused, A. Her Honour stated ‘...it is far more important that the criminal justice process works, than that a channel makes a profit’.[20] Accordingly, Justice King issued two suppression orders for non-publication of the television series and related internet materials. The orders were as follows:

‘1. The transmission and publication of the television series “Underbelly” be prohibited by any television channel, free to air or cable/pay television in the State of Victoria until after the completion of the trial and verdict in the matter of R v [A].
2. Direct that the television series referred to as ‘Underbelly’ not be published on the internet in Victoria and the ‘Family Tree site – inside the Underbelly, which looks at the evolving relationships between the key characters’ be prohibited until after the trial and verdict in the matter of R v [A].’[21]

The evening following the decision, 13 February 2008, ‘Underbelly’ was broadcast by Channel Nine throughout Australia but in compliance with the first order, television stations operated by it in Victoria did not screen the program. It soon came to light that some Victorians had access to the broadcast either via videotape or on the internet. On 15 February 2008, and as a result of a newspaper report that a Melbourne publican had exhibited the first episode to his patrons the previous evening, the DPP made application before Justice King to broaden order 1. After hearing submissions, her Honour widened the first order to read:

The transmission, publication, broadcasting or exhibiting of the production referred to as ‘Underbelly’ be prohibited in the State of Victoria until after the completion of the trial and verdict in the matter of R v [A].

Channel Nine appealed Justice King’s decision to the Court of Appeal. The appeal case, General Television Corporation Pty Ltd v Director of Public Prosecutions, was heard by Warren CJ, Vincent and Kellam JJA. The hearing took place on 29 February 2008 and judgment was delivered on 26 March 2008. The Court of Appeal agreed with Justice King that ‘the mixture of fact and fiction’ in the series, including in relation to the events surrounding B’s death, posed a ‘serious risk’ to the fairness of A’s trial.[22]
Like Justice King, the Court of Appeal was highly critical of Channel Nine’s intention to broadcast the series in conjunction with the trial of A. While judicial experience demonstrates that ‘juries do listen and comply with directions to put aside prejudices’, the unusual circumstances of the case put the trial judge in an ‘impossible position’.[23] The series was to be broadcast over a twelve week period, with episode eight to be broadcast by the time of the empanelment of the jury. The Court noted that had a jury been empanelled, the trial would have commenced with the prosecution case ‘effectively being supported every Wednesday evening by the weekly ‘docu-drama’.’[24] The Court upheld Justice King’s findings and stated that ‘the insidious nature of such prejudicial and irrelevant material’ as would likely exist in such circumstances ‘cannot be overstated’.[25]

Although the majority of Channel Nine’s appeal was dismissed, the part of the appeal relating to the breadth of the orders was allowed. Accepting that the Court does not have power to ‘bind the world’ by a suppression order made in the exercise of its inherent jurisdiction to ensure a fair trial,[26] both orders made by Justice King were narrowed. Rather than prohibit the transmission, publication, broadcasting or exhibition of ‘Underbelly’ by any person in Victoria, the first order was amended to refer to the applicant specifically. Order 1 was recast as follows:[27]

‘1. That General Television Corporation Pty Ltd and/or any related corporate entity be prohibited from publishing the television series ‘Underbelly’ or any part thereof in the State of Victoria until after the completion of the trial and verdict in the matter of R v [A].’

The breadth of order 2 was also confined. Instead of applying to the world at large and any publication of the series on the internet, the second order was recast to refer to the applicant specifically and to one aspect of a website within the applicant’s control. Order 2 was amended as follows:[28]

‘2. That General Television Corporation Pty Ltd and/or any related corporate entity be prohibited from publishing on the internet in Victoria the ‘Family Tree website – inside the Underbelly, which looks at the evolving relationships between the key characters’ until after the trial and verdict in the matter of R v [A].’

Part 2 – How the ‘Underbelly’ case expanded the list of exceptions at common law where a court may derogate from the principle of open justice

Before examining the limitations of the Court of Appeal’s judgment, it is useful to consider an important practical effect of the ‘Underbelly’ case. This section explores how the Court’s decision expanded the list of exceptions ‘strictly permitted by the common law’[29] where a court may deviate from the principle of open justice. First, however, the reasons for the importance of open justice will be discussed, and why there exist various exceptions to the aphorism that ‘justice should not only be done, but should manifestly and undoubtedly be seen to be done’.[30]

The principle of open justice

It is well accepted that open justice is one of the cornerstones of the common law. In his oft-quoted article, ‘Seen To Be Done: The Principle of Open Justice’, the Honourable JJ Spigelman writes:[31]

‘....the principle of open justice – is one of the most pervasive axioms of the administration of justice in our legal system. It informs and energises the most fundamental aspects of our procedure and is the origin, in whole or in part, of numerous substantive rules.’

The primary reason why open justice is central to our legal system is that it acts as a safeguard against the exercise of arbitrary power by the judiciary,[32] and provides an impetus for high judicial performance.[33] Open justice ensures that fair outcomes are reached by fair procedures and this creates confidence in the administration of justice. As Jeremy Bentham commented:[34]

‘Publicity is the authentic hallmark of judicial as distinct from administrative procedure. It is the keenest spur to exertion and surest of all guards against improbity. It keeps the judge, while trying, under trial.’

Lord Diplock expressed similar sentiments when his Honour said: [35]

‘If the way courts behave cannot be hidden from the public ear and eye this provides a safeguard against judicial arbitrariness or idiosyncrasy and maintains the public confidence in the administration of justice.’

From the perspective of the public, open justice serves four important purposes. First, it serves to ensure the honesty of witnesses, who are more likely to testify truthfully in an open courtroom than behind closed doors.[36] Second, it encourages discussion about judicial matters so that the public ‘becomes accustomed to take a deeper interest in the result’.[37] Open justice therefore may inspire individuals to become involved in the judicial process if they are called upon (i.e. to serve jury duty) or to come forward if they hold information which is important to the outcome of a case (i.e. to provide relevant evidence). Third, the transparent administration of justice serves to educate the community about court procedures, legal principles and sentencing, thus securing a confidence in judicial remedies ‘which could never be inspired by a system of secrecy’.[38] Fourth, open justice is capable of having a significant deterrent effect on the accused and on those who may be inclined to break the law.[39] The importance of open justice is reinforced by Australia’s ratification of the International Covenant on Civil and Political Rights which provides for the right to a fair and public trial in Article 14. This right is enshrined in section 24(1) of the Charter of Human Rights and Responsibilities Act 2006 (Victoria). [40] Open justice is therefore recognised as an integral means of ensuring judicial accountability. It allows judicial conduct to be open to criticism from all corners of the community. As Sir Harry Gibbs wrote, having legal proceedings conducted in their full view means that the administration of justice is ‘fully exposed to public and professional scrutiny and criticism, without which abuses may flourish undetected.’ [41]

Common law and statutory exceptions to open justice

Although the principle is considered fundamental to our system of law, the operation of open justice is not absolute. It may be displaced by common law and statutory exceptions. These immunities are a concession to the fact that the open administration of justice ‘serves the interests of society and is not an absolute end to itself.’[42] At common law, the exceptions that allow for derogations to open justice are ‘few and strictly defined’.[43] Legal proceedings should be held in public unless the contrary is ‘clearly required by the dictates of justice’.[44] As McHugh JA (with whom Glass JA agreed) explained in John Fairfax Group Pty Ltd v Police Tribunal of New South Wales:[45]

‘The fundamental rule of the common law is that the administration of justice must take place in an open court. A court can only depart from this rule where its observance would frustrate the administration of justice or some other public interest for whose protection Parliament has modified the open justice rule.’

Statutory exceptions to the principle of open justice, therefore, may be permitted only under the clear authority of Parliament. In order to ‘clarify or modify’ common law exceptions, legislatures may enact specific laws designed to permit courts to proceed in camera, or restrict the publication of evidence.[46] These laws are typically given a limited interpretation by courts. As Kirby P stated in Raybos Australia Pty Ltd v Jones:[47]

‘Statutory derogation from openness is the exception. In defence of the rule, such statutes will usually be strictly and narrowly construed. Unless the derogation is specifically provided for, courts are loathe to expand the field of secret justice.’

In the absence of statutory exceptions to open justice, the power to close a court is part of a superior court’s inherent jurisdiction and an inferior court’s implied jurisdiction. As will be further discussed in Part 3 below, superior courts possess an inherent power to make appropriate orders to ensure the proper administration of justice, such as the concealment of the identity of persons and other information within the courtroom.[48] However, inferior courts operate differently. Inferior courts with limited jurisdiction are created by statute and do not have any responsibility for the administration of justice beyond the limits of their jurisdiction.[49] Accordingly, inferior courts do not possess any of the powers inherent in courts of the common law.[50] But inferior courts do possess an implied power to ‘uphold, protect and fulfil the judicial function by ensuring that justice is administered according to the law and in an effective manner’.[51] Owing to the subtle differences at play, it is not surprising that the inherent powers of superior courts have often been confused with the implied powers of inferior courts.[52] The potential for uncertainty underscores Justice Dawson’s comment that the distinction between inherent jurisdiction and jurisdiction by implication ‘is not always made explicit, but it is ... fundamental.’ [53]

How the ‘Underbelly’ case expanded the list of categories where a court may derogate from the principle of open justice

In the ‘Underbelly’ case, the Court of Appeal added to the list of exceptions where a court may derogate from the principle of open justice. The category it created is the prevented publication of material which, if published, would constitute a contempt of court. According to the Court, it was ‘beyond argument’ that the publication of episode 12 of ‘Underbelly’ to prospective jurors, and more specifically the broadcast of that episode during the conduct of A’s trial, had ‘the potential to constitute a most serious contempt of court’.[54] A suppression order was issued prohibiting publication by Channel Nine of the entire ‘Underbelly’ series in order to provide A the right to a fair trial, a right considered ‘a touchstone of the existence of the rule of law’.[55] The Court found that ‘time was of the essence’ as the proposed publication of ‘Underbelly’ was to begin ‘very soon thereafter’.[56] The Court also cautioned that any person with knowledge of the order who published ‘Underbelly’ prior to the verdict in R v [A] ‘would run a grave risk of being found to have committed a contempt of court.’[57]

The basis upon which persons not directly bound by the order could run such a risk is because once a suppression order is issued at common law, it is the existence of the order and the potential of it being breached that creates the possibility of a contempt.[58] Although the common law does not impose a special legal duty to make inquiries with a view to ascertaining whether such an order has been made,[59] a person not bound by a non-publication order can be held guilty of contempt if he/she is aware of the order. Therefore, unlike a statutory suppression order, a non-publication order issued at common law does not bind the whole world. The fact that a party has the means and opportunity of discovering the existence of an order is not enough to render it liable for contempt. A party must actually know of the order and the conduct that frustrates the order must deliberately interfere with the administration of justice. As Mahoney JA held in Attorney-General for New South Wales v Mayas Pty Ltd, in order for there to be a contempt of court, ‘it must be apparent to anyone who was aware of the order that its purpose would be frustrated by the particular kind of act done by the defendant.’[60]

Moreover, it is important to note that the suppression orders in the ‘Underbelly’ appeal were not provided under the Court’s statutory powers in section 18 of the Supreme Court Act 1986 (Victoria). That section grants power, in the circumstances set out in section 19 of the Act, to make orders prohibiting the publication of a report of the whole, or any part of a (civil or criminal) proceeding, or of any information derived from a proceeding. Most suppression orders are issued pursuant to these statutory powers, as they are wider than the common law powers of the Court in so far as they go beyond what is necessary for the interests of justice in a proceeding and are applicable to the world at large. Section 19 allows the Supreme Court of Victoria to make non-publication orders to protect other interests (such as national security, the physical safety of any person, public decency or morality). However, in the ‘Underbelly’ case, the statutory powers of the Supreme Court were of no avail. The Court of Appeal conceded that it was unlikely that the statutory suppression power could support a ban on the broadcast of a docu-drama, as the power only extends to suppressing reports of proceedings, rather than the events underlying them. Rather than use the statutory suppression powers of the Supreme Court to prohibit the publication of ‘Underbelly’ in Victoria, the Court instead relied on its ‘inherent jurisdiction to make orders necessary for the fair trial of an accused’.[61]

Although the Court of Appeal narrowed the scope of the orders provided by Justice King, it did not doubt the basis upon which the orders were made. The Court of Appeal upheld Justice King’s ruling that the orders were issued because, in all of the circumstances considered by her, it was ‘not possible for a fair trial to be achieved for [A].’[62] Thus, the focus of this article relates to the power of a court at common law to limit what might lawfully be published concerning proceedings held before it in an open court. As will be further explained in Part 3 below, a number of decisions provide that a court has power to restrict the publication of a report of proceedings only if the restriction is necessary to secure the proper administration of justice in those proceedings.[63] However, the suppression order issued in the ‘Underbelly’ appeal was not to prevent the publication of a report of proceedings, but to prevent a re-enactment of fact and fiction of various activities which gave rise to a trial. This strange state of affairs was explained by the Court of Appeal as follows:[64]

‘The circumstances in which the prejudice to the fair trial of A arose were unusual indeed. As her Honour observed in the course of submissions: ‘I am unaware of a television show actually arriving at the same time as a criminal trial about the same event....’

Therefore, it appears that if anything was going to be a contemptuous publication – this was it. Indeed, one has to consider the logic of Channel Nine’s actions. As Phillip Dunn, Queen’s Counsel, commented on ABC television’s The 7.30 Report regarding Channel Nine’s decision to publish ‘Underbelly’:[65]

‘It’s hard to imagine they didn’t see the fuss that was going to come in Victoria when you’ve got gangland trials still coming and you’re going to show a television show, quasi documentary, about gangland killings and the players...I don’t know what they were thinking. They must have lost their sense.’

Part 3 - An examination of the broader policy issues raised by the Court of Appeal’s judgment

Having considered how the ‘Underbelly’ case expanded the categories at common law where a court may derogate from the general principle of open justice, there are three broader policy issues raised by the Court of Appeal’s judgment that should be discussed. These are: (i) the limits of a superior court to derogate from the principle of open justice; (ii) whether the inherent power of a superior court includes the power to make an order against a named party which would constitute a contempt of court; and (iii) what other authorities support the Court’s decision to prevent publication of material which if published, would constitute a contempt of court.

The limits of a superior court’s inherent power to derogate from the general rule of open justice

Whilst superior courts clearly have inherent power to regulate their proceedings for the purpose of administering justice, this power is not at large. In John Fairfax Publications Pty Ltd v Attorney-General (NSW), Spigelman CJ (with whom Meagher JA and Priestly JA agreed) held that the inherent power of a superior court may not extend to the creation of new occasions for the hearing of cases in camera.[66] Spigelman CJ further doubted the ability of courts to derogate from the principle of open justice in the absence of statutory authority. The Chief Justice held:[67]

‘...it has never been doubted that parliament, but not now the courts, can add to the list of exceptions. As the High Court put it in Dickson (at 51): ‘Power to exclude may be conferred expressly by law...’’

In John Fairfax Group Pty Ltd v Local Court of New South Wales,[68] Kirby P warned about the dangers of courts adding to the list of exceptions to which open justice may be curtailed. According to Kirby P, ‘wholly secret trials, unknown to friends and unreported to the community’ are features of ‘oppressive regimes’. He stated:[69]

‘The courts, as protectors of such abiding freedoms, must be ever vigilant against derogations from them. They should confine such derogations to those strictly permitted by the common law or allowed under the clear authority of Parliament.’

However, a number of cases provide that superior courts have power to derogate from the general rule of open justice only if the restriction is needed to secure the proper administration of justice.[70] Apart from statutory exceptions, where a superior court in the exercise of its inherent power departs in any way from the general rule of open justice, the departure is justified ‘to the extent and no more to the extent that the court reasonably believes it to be necessary in order to serve the ends of justice.’[71] The limits of a superior court’s inherent jurisdiction are conditioned upon the necessity of the case, not upon matters of mere convenience.[72] It has been suggested that the concept of necessity can be applied with varying levels of stringency and that in the context of non-publication orders, the test is to be applied strictly, ‘necessity’ being equated with ‘essential’.[73] There must be material before the court upon which the court can reasonably conclude that the non-publication order is necessary.[74]

Does the inherent power of a superior court include the power to make an order against a named party which would constitute a contempt of court?

Though the jurisdiction of a superior court to restrict open justice is not unlimited, the fact that the Court of Appeal did suppress the publication of ‘Underbelly’ raises the question whether the inherent power of a superior court includes the power to make an order against a named party from publishing information which would constitute a contempt of court.

In R v Kwok,[75] the New South Wales Supreme Court of Criminal Appeal expanded the list of categories where a court may derogate from open justice to include orders against the publication of names of alleged victims of sexual servitude. The Court held that this category is closely analogous to categories already established, particularly blackmail. According to Hodgson JA, a court will not ‘freely invent’ new categories of cases but ‘may identify categories that, while not coinciding exactly with the existing categories, are very closely analogous to them and have the same rationale for the making of non-publication orders.’ [76]

Using similar reasoning, the Court of Appeal in the ‘Underbelly’ case held that a suppression order directed to the prohibition of publication of matters which have a significant risk of causing serious prejudice to the fair trial of an accused person is ‘akin to an injunction to restrain a threatened contempt’.[77] However, rather than issue an injunction against Channel Nine, the Court of Appeal sought to restrain the threatened contempt by way of a suppression order made pursuant to the Court’s inherent common law powers. It was held that on occasions the exercise of the Court’s power to protect the right to a fair trial ‘might be on the Court’s own motion’.[78] This reasoning echoes that of Mahoney JA (with whom Glass JA agreed) in John Fairfax and Sons v Police Tribunal of New South Wales.[79] According to Mahoney JA, the power of a superior court is ‘not narrowly circumscribed’.[80] Mahoney JA held that the protection which a court may give ‘is not limited to persons who are parties or witnesses before it.’[81] Accordingly, the Court of Appeal quoted with approval[82] the following statement by Mahoney JA regarding the power of a court to protect the identity of persons who are not parties or witnesses in the proceedings before it:[83]

‘The relationship which must exist between the proceedings and the necessity of the case on the one hand and the order made will depend upon the circumstances of the case.’

The Court of Appeal offered very little explanation as to why it issued a suppression order to apprehend the publication of ‘Underbelly’ by Channel Nine rather than an injunction. In general, there are problems of proof associated with obtaining an injunction to restrain a threatened contempt. A court will grant an injunction only if it can be inferred on reasonable grounds that a publication of offending content will probably be made unless restrained.[84] A further shortcoming is that the reasonably precise terms in which an injunction must be framed might lead to the erroneous conclusion that slightly different behaviour from that proscribed by the injunction would be acceptable.[85] The test for issuing an injunction to restrain a contempt may also be higher than the threshold required for a suppression order. In The State of Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation, Mason CJ held that an injunction to stop a contempt should not be imposed unless it is established that it is ‘necessary to avoid a substantial risk of serious injustice.’[86] Whereas a number of cases have held that a court has power to issue a suppression order to restrain an apprehended contempt of court if the order is necessary to secure the proper administration of justice in those proceedings.[87]

This reasoning also appears applicable to other common law countries such as New Zealand and England. For a New Zealand court to issue an injunction, a clearly contemplated contempt must exist and it must be apparent what the injunction is meant to prohibit. For example, in R v Chignell and Walker,[88] Robertson J of the New Zealand High Court refused an application to prevent the media from publishing any interviews with, or any comment about, a certain ‘witness B’ who might testify in a murder trial. The application was held to be too vague to be appropriate for an injunction to be issued. Whereas a suppression order will be imposed if, as a matter of practical reality, there is a real risk, as distinct from a remote possibility, of interference with a fair trial.[89] In England, for a court to issue an injunction to restrain a threatened contempt, an applicant must prove to the criminal standard beyond reasonable doubt that the publication will create a real risk of prejudice and that the defendants will publish their material with a specific intent of causing that risk.[90] This appears more onerous than the test for issuing a suppression order that there is a likelihood the publication will cause prejudice to the administration of justice rather than an intention also required on the part of the defendant to create a substantial risk of prejudice.[91]

In the ‘Underbelly’ case, it was the Court of Appeal’s opinion that there was a real and definite tendency for the proposed publication to prejudice A’s right to a fair trial. According to the Court, the ‘heretofore unexplored’[92] events of the ‘Underbelly’ case justified the suppression orders issued. The Court highlighted the urgency of the matter and the fact that the power to be exercised by Justice King was not simply to determine private rights between litigants, ‘but was a power to ensure the right of the accused and the prosecution to a fair trial’.[93] In order to maintain this all-important right, the Court relied on its inherent jurisdiction to make the orders it thought appropriate in the circumstances.
Although Justice King later described herself (to a jury, no less) as ‘the queen of banning things’,[94] the Court of Appeal examined the circumstances of the case and saw no reason to disturb her Honour’s findings. Given that the application came before her Honour ‘in circumstances of exigency’, there was ‘a real risk’ that publication of ‘Underbelly’ would prejudice the trial seriously.[95] Her Honour was described as ‘a most experienced criminal judge’ who had presided as the trial judge in ‘numerous cases’ associated with the ‘gangland killings’.[96] Accordingly, Justice King was ‘entitled’ to exercise her discretion as a Judge of a superior court with inherent jurisdiction and suppress the broadcast of ‘Underbelly’ in Victoria.[97] The Court of Appeal found that Justice King had ‘ample power’ to do so ‘in the interests of justice and in order to avoid the risk of serious prejudice to a fair trial’.[98]

What other authorities support the Court of Appeal’s decision to suppress publication of material which if published, would constitute a contempt of court?

There are also a range of other authorities that support the Court of Appeal’s decision to suppress publication of material which, if published, would constitute a contempt of court. More liberal views have been expressed as to the circumstances in which courts have power to make non-publication orders, suggesting that the law in this area is in a state of flux. As has been observed, the judgments ‘do not speak with one voice’ on this issue.[99] Below, three cases that support that the Court of Appeal’s judgment are discussed, in addition to the views of the New South Wales Law Reform Commission.

In John Fairfax Group Pty Ltd v Local Court of New South Wales,[100] the New South Wales Supreme Court of Appeal considered whether a Local Court Magistrate hearing committal proceedings has power to make pseudonym orders protecting the identity of five alleged extortion victims by ordering that the victims’ names not be disclosed in the proceedings themselves where such orders may be seen as necessary to the proper administration of justice. Mahoney JA, with whom Hope A-JA agreed, held that the Magistrate was entitled to regard the pseudonym orders as necessary on the basis that revealing the identity of the extortion victims would have the same or similar effects to those produced by revealing the name of blackmail victims, namely, damage to the victim and mischief to the public. This was not a case where, if the victims’ names had been published (absent a specific order not to do so), the publication of the names would have been a contempt. Rather, according to Mahoney JA, if the names of extortion victims were widely published, there would likely be copycats would seek to extort money from the victim or other potential victims. Mahoney JA held that the phrase ‘necessary to the proper administration of justice’ should not be construed narrowly to mean that if an order curtailing open justice in some form were not made, the object of the proceedings would be defeated or the proceedings could not continue. In Mahoney JA’s view, an order restricting open justice is ‘necessary’ whenever it can be properly assumed that unacceptable consequences will follow if it is not made.[101]

As Butler and Rodrick observe, not many judges ‘have been prepared to go as far as Mahoney JA’.[102] However, one judge ‘prepared to follow the lead of Mahoney JA’[103] was Pincus J in J v L & A Services Pty Ltd [No 2].[104] The Queensland Supreme Court of Appeal considered an application by two people who were HIV positive that their identity in an action against their employer be suppressed. At trial, the applicants obtained from Thomas J orders of a limited character, inhibiting publication of their names in connection with the proceedings. Like the ‘Underbelly’ appeal, the orders of Thomas J created the possibility of a contempt if breached. However, a majority of the Queensland Court of Appeal set aside the orders issued at trial. According to the majority judgment of Fitzgerald P and Lee J, although there was a public interest in preventing or reducing the stress that might be caused to the plaintiffs if their HIV status was publicised, this did not outweigh the public interest in the open administration of justice. Information should not be withheld from the public merely to save a party or witness from loss of privacy, embarrassment, distress, financial harm or other collateral disadvantage. This was not, however, the opinion of Pincus J. In dissent, his Honour stated that cases in which orders restricting open justice have been made may be explained on the basis that in the absence of a restriction on publicity, damage will be caused to the public interest, to a class of persons or to individuals ‘to such an extent and of such a kind as absolutely to require some relief, in the interests of justice’. According to Pincus J, these are ‘unacceptable consequences’ referred to by Mahoney JA. [105]

Another case that supports the Court of Appeal’s decision in the ‘Underbelly’ case is Herald and Weekly Times Ltd v Magistrates’ Court of Victoria.[106] An order in the nature of certiorari was sought by the plaintiff quashing the order of a Magistrate to suppress the identities of two parties referred to as ‘X’ and ‘Y’ in a case alleging ‘X’ of stalking, breaching an intervention order and harassment. Beach J of the Supreme Court of Victoria Practice Court held that the suppression order be overturned. His Honour found that the Magistrate made an error of law by taking into account the embarrassment ‘X’ and ‘Y’ would suffer if their identities be disclosed when determining whether a suppression order should be made. However, Beach J stated that an expansive approach to the concept of ‘necessity’ should be taken when issuing suppression orders. His Honour found that it may be ‘strictly incorrect’ to say that a suppression order is limited to securing the administration of justice in the proceeding in which the suppression order is made.[107] In a case of blackmail, for example, a suppression order may be made:[108]

‘...not only to secure the administration of justice in the particular case but also to secure the administration of justice in later cases of blackmail, in that by the making of the order in the particular case, persons who are later the victims of blackmail will be encouraged to come forward and report the matter to the appropriate authorities.’

Lastly, the views of the New South Wales Law Reform Commission (the ‘NSWLRC’) are relevant. The NSWLRC has urged that courts be given a broader discretion to impose non-publication orders. In its 2003 report, Contempt by publication, the NSWLRC recommended a new provision be introduced into the Evidence Act 1995 (NSW) which provides that any court in any proceedings, has the power to suppress the publication of reports of any part of the proceedings, where this is necessary for the administration of justice.[109] The new provision should not replace the common law but exist alongside existing statutory powers that restrict publication.

According to the NSWLRC:[110]

‘Using the word “necessary” without a qualification such as “reasonably” is not intended to mean that suppression is absolutely necessary for the administration of justice. Rather, it is the Commission’s view that suppression may be ordered where required as a practical necessity to serve the ends of justice.’

Part 4 – Limitations of the Court of Appeal’s judgment

While there is authority to justify the suppressed publication of ‘Underbelly’ to restrain an apprehended contempt of court, the Court of Appeal’s decision is not without its shortcomings. This part examines five issues that the Court should have explored further or at least considered in its judgment. These are: (i) the difference between issuing an injunction and a suppression order against a named party to restrain a threatened contempt of court; (ii) what information could be published about ‘Underbelly’ in Victoria without invoking the law of contempt; (iii) why the television series was deemed more prejudicial than other representations of the ‘gangland wars’ available to potential jurors in Victoria; (iv) the potential public interest associated with proposed publication of the series; and (v) the freedom of expression interests that were negatively affected by the publication ban. It is submitted that when examining these limitations, several considerations outlined in two nearly factually identical cases are relevant. These are ‘X’ v General Television Corporation Pty Ltd[111] and Dagenais v Canadian Broadcasting Corporation.[112] Both cases, like General Television Corporation Pty Ltd v Director of Public Prosecutions, concern the potential for publication of a television program to prejudice a forthcoming jury trial.

The first limitation of the Court of Appeal’s judgment relates to its insufficient elaboration on the difference between issuing an injunction and a suppression order against a named party to restrain a threatened contempt of court. Although the decision to grant an injunction is always at the discretion of the court, courts regard the prior restraint of a publication as a drastic interference with freedom of speech and are therefore unlikely to do so except in the most serious contempt of court cases.[113] More generally, injunctions are available only in cases where other remedies prove inadequate,[114] and there is nothing to suggest that remedies for contempt often prove inadequate. In the ‘Underbelly’ case, the remedy for contempt was available because the Court of Appeal conceded that power to suppress publication to restrain a contempt of court ‘is not circumscribed narrowly’.[115] On the basis that the suppression orders were necessary for the administration of justice, the non-publication of both the television series and the website could be ensured. The Court held that the inherent power of a superior court extends beyond making orders prohibiting the publication of reports of court proceedings, and includes making broader orders restraining the publication of extrinsic materials (such as internet websites) that may prejudice a forthcoming trial. According to the Court, a superior court with inherent jurisdiction ‘has both the power and the duty to ensure that justice is done according to law and may make orders for the protection of those involved in proceedings before it.’[116]

However, the Court offered little consideration to the pervasiveness of the internet and its ability to render futile the orders issued. Indeed, various newspapers, television shows and radio stations featured stories regarding how easy it was for Victorians, in breach of the suppression orders, to obtain copies of the banned series on the ‘black market’ as bootleg copies for sale or on file-sharing computer networks.[117] Although Counsel for Channel Nine acknowledged that once the series was broadcast nationally on 13 February 2008, there would be a ‘high likelihood’ that it would be downloaded from the internet and available throughout the world to those who could access it, the Court of Appeal held that this circumstance was ‘entirely’ Channel Nine’s ‘own making’.[118] While the Court acknowledged that the immediate accessibility of ‘Underbelly’ episodes on the internet ‘will require clear directions from the trial judge to the jury’,[119] it declined to consider the real-world difficulties of enforcing the suppression orders to ensure that the flow of information to potential jurors would be meaningfully restricted.

The Court’s refusal to engage with the limitations of its orders due to the ubiquitous nature of the internet is in direct contrast to the majority of the Supreme Court of Canada in a factually similar case, Dagenais v Canadian Broadcasting Corporation. By a margin of 6-3, the Supreme Court of Canada quashed an injunction ordered at trial to restrain the broadcasting in Canada of a television program immediately before and during a criminal trial. Even though the television program did not dramatise the case on trial relating to four men charged with sexual abuse of young boys in their care at Catholic training schools (the television program was a fictional account of sexual offences in the Catholic Church context elsewhere) the publication was sufficiently closely related to the proceedings in issue and therefore is on par with the ‘Underbelly’ case. The Supreme Court of Canada majority questioned the efficacy of publication bans. Doubting that jurors are always adversely influenced by publications, it was held that the effectiveness of such restrictions has been reduced due to recent technological advancements, such as information exchanges available through computer networks. According to the majority judges, ‘In this global electronic age ... the actual effect of bans on jury impartiality is slowly diminishing’.[120] Owing to the difficulties of enforcing the suppression orders issued, it therefore would have been worthwhile for the Court of Appeal in the ‘Underbelly’ case to express similar concerns given the accepted ease with which the series could be downloaded by potential jurors.

The second limitation of the Court of Appeal’s judgment lies in its refusal to discuss what could be published about ‘Underbelly’ in Victoria prior to A’s trial without infringing the law of contempt. Suppressing the series’ publication was seen as a practical necessity to prevent sub judice contempt as the proposed publication struck ‘the very heart’ of the trial about to occur. [121] However, it is unclear what information could be published about ‘Underbelly’ in Victoria by newspapers, television shows or radio stations that was not the subject of the suppression orders issued. It appears that the Court’s major grievance was that a jury would be prejudiced by learning about the ‘background’ to the ‘gangland wars’.[122] The Court approved Justice King’s thwarting of Channel Nine’s offer to delay broadcasting episode 12 until after the trial[123] and held that publishing a ‘Victorian version’ where faces are pixelated and characters are given anonymous names ‘would have achieved nothing’.[124]

The Court of Appeal went to great lengths to explain how Channel Nine’s planned publication of ‘Underbelly’ was contemptuous. Such criticisms included giving the alleged murder victim B a ‘human face’ and ‘personality’,[125] suggesting a motive for his killing[126] and portraying the police as ‘heroic figures’.[127] Other complaints were that the series ‘names’ key players and portrays them with ‘actors’,[128] airs the ‘salacious behaviour of many of those portrayed’[129] and uses ‘music’ and ‘humour’ to entertain.[130] However, it should be noted that A appears only in episode 12 of the series and the earlier episodes dramatised events which occurred almost a decade before B’s murder. As the Court conceded, ‘Underbelly’ revealed relationships and associations that were ‘generally irrelevant to any issue in the trial.’[131] Further, a ‘serious risk of prejudice’ was only held applicable to the episodes immediately before and during the conduct of the trial.[132] Therefore, it is unclear why the Court was so dismissive of the changes proposed by Channel Nine to ‘Underbelly’ for broadcast in Victoria. It is also unclear whether the ideas and information imparted by ‘Underbelly’ were already in the public domain or would become known by the empanelled jury during the course of A’s trial. As Jeremy Gans notes in his less than glowing review of the Court of Appeal’s decision:[133]

‘Mysteriously absent is any suggestion that any episode of Underbelly, much less all of them, reveals anything that isn’t well known, would make a difference in this murder trial and won’t be adduced as evidence anyway, which is what Nine’s lawyers would have been looking out for. Instead, the Court’s beef is that the docudrama is bold, unprecedented and complex to manage (much like the killings themselves and the resulting prosecutions.)’

The Court of Appeal’s decision therefore raises the question whether the prevention of sub-judice contempt is better than a cure. It appears that the Court of Appeal issued the suppression orders to preclude the occurrence of a sub-judice contempt rather than prosecute a contempt of court after the event. There are two objectives which are said to underlie the operation of the sub-judice rules. These are: (i) the right to a fair trial before an impartial court or tribunal, and (ii) protecting the administration of justice from the risk of interference. In light of the ‘Underbelly’ appeal, it needs to be considered how far the courts will go to enforce these objectives. Following the conviction of Evangelos Goussis of the murder of Lewis Moran by a jury of the Victorian Supreme Court on 29 May 2008,[134] the suppression orders issued in the ‘Underbelly’ appeal ceased to have effect. However due to there being a number of criminal proceedings pending in Victoria which could be adversely affected if the television series were to be broadcast, the Director of Public Prosecutions, Mr Jeremy Rapke QC, cautioned members of the public and commercial organisations from deliberately publishing any part of ‘Underbelly’ in Victoria. In a press release, Mr Rapke said: [135]

‘I will not hesitate to take contempt of court proceedings against any person or organisation that deliberately publishes ‘Underbelly’ or any part of it’.

Mr Rapke gave no indication as to how he intended to identify and apprehend those whom he cautioned, or how long his personal campaign against contempt would last. While The Age reported that Mr Rapke had ‘a change of heart’,[136] it is conceivable that his planned prohibition was a result of the Court of Appeal’s refusal to consider what information about ‘Underbelly’ could be published legally. Further, it needs to be considered how wide the suppression orders issued by the Court of Appeal could be stretched to restrain other instances of sub-judice contempt brought about by broadcasting ‘Underbelly’ in Victoria. The Court of Appeal’s judgment demonstrates how the law of contempt can be used to prevent sub judice contempt, now matter how unclear or untenable the situation becomes.

A third limitation of the Court of Appeal’s judgment is that it did not consider the possible prejudicial effects of the myriad of other publications on the ‘gangland wars’ readily available in Victoria. Although the fact that prejudicial statements have already been published is not a defence to contempt,[137] the existence of other publications may be a material circumstance when considering the practical tendency of a publication to interfere with the administration of justice. This is because the abundance of media reporting of newsworthy events undoubtedly has an effect upon the extent to which a particular publication may affect a reader or viewer.[138] For example, in Attorney-General for New South Wales v TCN Channel Nine Pty Ltd,[139] the New South Wales Court of Appeal took the view that where information about a case has been extensively published, the influence of a subsequent publication can become merged in the effect of previous publications, making it difficult to single out any one publication as contemptuous. Even though the material that was published by the defendant in Attorney-General for New South Wales v TCN Channel Nine Pty Ltd had the necessary tendency to constitute contempt, the Court held that there may be cases where a recipient ‘is continuously bombarded with a never ending kaleidoscope of sensationalist and scandalous items of news so that the new recollection of each and every item is ephemeral’.[140] As Miller notes, the combined effect of prejudicial publications by numerous publishers can create a case of ‘collective guilt’ with a consequent ‘safety in numbers’ that may provide practical benefits for the media where there has been a widespread flouting of contempt laws.[141]

Given the fact that there had been other prejudicial publications in the lead-up to A’s trial, it is disappointing that there is no discussion by the Court of Appeal in the ‘Underbelly’ case as to why the television series is more contemptuous than other similar representations obtainable by potential jurors in Victoria. As the gangland killings had received widespread publicity and the book upon which the ‘Underbelly’ series is based had been dominating the non-fiction best-seller lists prior to A’s trial,[142] this would have been a pertinent issue for the Court of Appeal to discuss. The Court’s silence on this matter can be contrasted to the judgment of Vickery J in ‘X’ v General Television Corporation Pty Ltd. In circumstances which shadow the present case, the plaintiff ‘X’ similarly sought orders against Channel Nine which prohibited the publication, broadcasting or exhibition of ‘Underbelly’ in Victoria until after the criminal trial of X had been completed. Vickery J held that episodes 1 to 5 inclusive of an ‘edited Victorian version’ of ‘Underbelly’ were permitted to be published but episode 6 was prohibited until after the completion of the trial and verdict of R v [X]. In his judgment, Vickery J explained why suppressing the ‘Underbelly’ television series was necessary even though the information represented is widely available in other forms of media. According to Vickery J, the power of television lies in its immediacy and visual impact:[143]

‘No other source of information, including newspapers, books, radio and the internet, comes close to the pervasive power of television. Television combines the compelling images, music and dramatic narrative of the movies, with the personal immediacy and convenience of access in the loungeroom...what is seen on television enters directly into the mind of the audience with little opportunity for analysis.’

Fourth, it is submitted that the Court of Appeal had too narrow a view of the potential public interest associated with the publication of ‘Underbelly’ in Victoria. The Court considered that the public interest in viewing the series was ‘extremely limited’[144] and was very dismissive of the ‘expression’ captured by the series. The Court held: [145]

‘It is clear to us that the principal purpose of the series is that of entertainment.’

However, it is argued that the purpose of ‘Underbelly’ lies beyond its entertainment value. From an educational viewpoint, ‘Underbelly’ examines the motives behind the ‘gangland wars’, and the Victorian Police’s response to the events that occurred. As the Victorian Police are a public body that enforce and prosecute criminal laws embodied in State and Commonwealth Acts of Parliament,[146] it is important that the public appreciates how they sought to prevent and respond to organised crime. While ‘Underbelly’ is by no means a documentary, the series considers the links between violence, drug production and distribution by those in the public eye, and provides an insight into the foibles of police investigation. As acknowledged by the Court of Appeal, it is clear from the credits of episodes 1 and 2 that members of Victoria Police acted as ‘advisors’ to those producing ‘Underbelly’.[147] The series charts the Carlton and Williams Crews’ cat and mouse games with the Victorian Police over missing evidence and unwilling and murdered witnesses.[148] While the Court of Appeal labeled Channel Nine’s public interest argument a ‘somewhat specious submission’ and held that it is difficult to see that ‘Underbelly’ provides any information to the public ‘beyond that of any dramatized police television program’,[149] it appears that the Court too quickly overlooked this point. Clearly Channel Nine and its advisors should have known better than to broadcast ‘Underbelly’ at the same time as a concurrent jury trial, however, it cannot be said that the series is devoid of public benefit. In order to ventilate issues of relevance and encourage public discussion, the media should not be discouraged from telling Australian stories involving the police and public figures. For the interest of the Australian television industry, it is also commendable that good quality productions using local casts and crews are made and broadcast to national audiences.[150]

The Court of Appeal’s refusal to examine whether the ‘public interest principle’ applied to the proposed publication of ‘Underbelly’ can again be contrasted to the judgment of Vickery J in ‘X’ v General Television Corporation Pty Ltd. The public interest principle recognises that although a publication may be found to have a sufficient tendency to prejudice particular legal proceedings to attract sub judice liability, the detriment arising from the possible prejudice may be outweighed by the public interest served by freedom of discussion of, and dissemination of information about, a matter of public importance.[151] This ground of exoneration is also commonly referred to as the ‘Bread Manufacturers principle’, referring to the first Australian case where it was authoritatively formulated.[152] Although Vickery J dismissed ‘Underbelly’ as being ‘a long way’[153] from the considerations taken into account in the Bread Manufacturers case, at least his Honour considered whether the events depicted in ‘Underbelly’ are matters of public interest. By contrast, the Court of Appeal merely noted that the Bread Manufacturers principle is authority for the ‘balance to be struck’ when exercising the power to suppress publication given the interests of society in ensuring that a fair trial takes place and the competing interests of freedom of expression.[154]

Fifth, it is argued that the Court of Appeal placed too great an emphasis on fair trial concerns at the expense of freedom of the press and expression. The Court focused on the prejudicial potential of ‘Underbelly’ rather than the limiting effects on freedom of speech that were to be caused by suppressing publication of the series. According to the Supreme Court of Canada majority in Dagenais, it is not enough that a publication has a risk of interfering with a fair trial. Rather, fair trial concerns can be a reasonable limit on the free expression interests of those affected by a publication ban only if the following two conditions are satisfied:[155]

‘(a) Such a ban is necessary in order to prevent a real and substantial risk to the fairness of the trial, because reasonably available alternative measures will not prevent the risk; and

(b) The salutary effects of the publication ban outweigh the deleterious effects to the free expression of those affected by the ban.’

The Canadian Charter was fundamental to the publication ban test endorsed by the Supreme Court of Canada in Dagenais. The majority held that the traditional common law rule governing publication bans – that there be a real and substantial risk of interference with the right to a fair trial – emphasised the right to a fair trial over the free expression interests of those affected by the ban. In the context of post-Charter Canadian society, the Court believed that this does not provide sufficient protection for freedom of expression. The majority was of the opinion that ‘A hierarchical approach to rights, which places some over others, must be avoided, both when interpreting the Charter and when developing the common law.’[156] According to the Court, when the right to freedom of expression and the right to a fair trial come into conflict, as can occur in the case of publication bans, Charter principles requires a balance to be achieved that fully respects the importance of both rights.

In the ‘Underbelly’ appeal, Channel Nine decided not to pursue its rights under Victoria’s Charter of Human Rights and Responsibilities Act 2006. According to Maxwell P (the President of the Court of Appeal), the reason for this was that the Court made it clear on the day of the hearing that if Channel Nine wished to rely on the Charter, notices under section 78B of the Judiciary Act 1903 (Cth) would have to be given and the case held over a few weeks.[157] Section 78B of the Judiciary Act 1903 (Cth) requires a notice to be sent to the Attorneys-General of the Commonwealth and the States whenever a cause pending in a federal court ‘involves a matter arising under the Constitution or involving its interpretation’. The constitutional issue in the ‘Underbelly’ case concerned section 6(2)(b) of the Charter regarding its application to ‘courts and tribunals’. In light of the decisions of the High Court of Australia in Lipohar v R[158] and Esso Australia v The Commissioner of Taxation,[159] it is accepted that there is one unified common law of Australia which is not susceptible to direct influence by legislation in any one State. It is therefore argued that there is a constitutional issue with State legislation giving courts a human rights function,[160] thus requiring section 78B notices to be sent. As Channel Nine wanted to air episodes of ‘Underbelly’ as soon as possible, it was presumably concerned with the delays associated with sending section 78B notices and abandoned its Charter argument completely.

If, however, Channel Nine decided to pursue its rights under the Victorian Charter, it would have argued that section 15(2) applies, namely that ‘Every person has the right to freedom of expression which includes the freedom to seek, receive and impart information and ideas of all kinds, whether within or outside Victoria’. The Court of Appeal would have had to balance the application of section 15(2) against section 24(1) which provides that a person charged with a criminal offence has the right to have the charge decided ‘by a competent, independent and impartial court or tribunal after a fair and public hearing’. Further, the Court of Appeal would have needed to consider the application of section 7(2), a general limitation clause that lists the factors that need to be taken into account when balancing the human rights protected by the Charter against each other and against other competing public interests. Unlike the Canadian Charter, the Victorian Charter does not require a balance to be achieved between the two conflicting rights in the ‘Underbelly’ case. However, even if the Court had chosen to endorse Channel Nine’s freedom of expression over A’s right to a fair trial, the right to freedom of expression is limited by the operation of section 15(3) of the Victorian Charter. This section provides that freedom of expression ‘may be subject to lawful restrictions reasonably necessary (a) to respect the rights and reputation of others; or (b) for the protection of national security, public order, public health or public morality’.

The Court of Appeal would therefore have had to determine whether the proposed publication ban on ‘Underbelly’ was ‘reasonably necessary’ to serve one of the purposes in section 15(3)(b). As the Court considered it ‘highly unlikely’[161] that Channel Nine would be able to rely upon the Charter to protect its freedom of expression even if it could, the suppression orders would presumably have been held to serve the purpose of either public order or public morality. According to the Court, the right to a fair trial must be placed above the limited entertainment value the series offered the Victorian public. Characterising the right to a fair trial as ‘an essential safeguard of the liberty of the individual under the law’,[162] the Court dismissed Channel Nine’s competing right to freedom of expression. Even though it does not appear that the Dagenais case was argued before the Court of Appeal, it is submitted that the Court should have considered its application to the facts of the ‘Underbelly’ case. However, rather than feed off, or at least contemplate, the reasoning of the Canadian Supreme Court in Dagenais, the Court of Appeal adopted the diametrically opposed viewpoint as espoused by Richard J of the New Zealand Court of Appeal in Gisbourne Herald Co Ltd v Solicitor General:[163]

‘The present rule is that, where on the conventional analysis freedom of expression and fair trial rights cannot be fully assured, it is appropriate in our free and democratic society to temporarily curtail freedom of media expression so as to guarantee a fair trial.’ [164]
Thus, a major drawback of the Court of Appeal’s judgment is its refusal to engage with the Dagenais decision. Both limbs of the Dagenais test represent missed opportunities of what the Court should have considered when suppressing the publication of ‘Underbelly’. Further, it is disappointing that the Court refused to even compare Dagenais to Gisbourne. At least the New Zealand Court of Appeal in Gisbourne expressly considered whether Dagenais should be adopted in light of the New Zealand Bill of Rights Act (1990). Citing the absence of empirical data on either the positive or negative effects of a ban, the majority held that ‘the assurance of a trial by an impartial court is essential for the preservation of an effective system of justice.’[165]

It is therefore submitted that both steps of the publication ban test adopted in Dagenais are applicable to the suppression of ‘Underbelly’ and provide important considerations regarding the issues at play. In relation to the first limb of the Dagenais test, it would have been worthwhile for the Court of Appeal to examine whether alternative measures would be equally successful at controlling the risk of trial unfairness. Although this was not a ground of appeal as argued by Channel Nine, it is an issue that was worth considering. The majority in Dagenais held that restraining publication of the television series infringed the free speech of many Canadians and did so unnecessarily, given the availability of alternative remedies such as adjourning trials, sequestering jurors, allowing challenges for cause and voir dires during jury selection, and providing strong judicial direction to the jury.[166] While these options impose significant costs and burdens, all were open to the Court of Appeal in the ‘Underbelly’ case to at least consider in relation to the forthcoming trial of A.

Finally, an equally worthwhile issue for the Court of Appeal to have considered is the second step of the Dagenais test - whether the salutary effects of suppressing publication of ‘Underbelly’ outweigh the deleterious effects to the free expression of those affected by the publication ban. The Court refused to consider any interests that were limited by the suppression of ‘Underbelly’- be it those of the cast and crew, Channel Nine as the broadcaster, the public who may watch the show, and society’s interests in discussing the issues presented. It is arguable that some, if not all, of these interests were negatively affected by the publication ban. As Lord Simon of Glaisdale observed in Attorney-General v Times Newspapers,[167] freedom of speech is a necessary pre-requisite of informed decision-making in a democratic society. His following statement, cited with approval by the High Court of Australia in Nationwide News Pty Ltd v Wills, [168] is also applicable to the ‘Underbelly’ case:

‘People cannot adequately influence the decisions
which affect their lives unless they can be adequately informed on
facts and arguments relevant to the decisions. Much of such fact-finding
and argumentation necessarily has to be conducted vicariously,
the public press being a principal instrument.’

Part 5 – Concluding remarks

This article has considered the significant practical effects, policy issues and limitations of the Court of Appeal’s judgment in General Television Corporation Pty Ltd v Director of Public Prosecutions. It is submitted that although the decision has many interesting facets, one important practical effect is how it added to the list of categories where a court may derogate from open justice, a principle considered to be ‘one of the most pervasive axioms of the administration of justice in our legal system’.[169] Although there is authority to support the prevented publication of material which, if published, would constitute a contempt of court, it has been argued that there was a raft of issues that the Court of Appeal should have discussed or explored further. The Court’s judgment renders unclear what information could be published about ‘Underbelly’ in Victoria prior to A’s trial without invoking the law of contempt and why the television series was more contemptuous than other representations of the ‘gangland wars’ available to potential jurors in Victoria. Given that there was potential public interest in the ideas and information imparted by ‘Underbelly’ and the suppression of its proposed publication negatively affected freedom of expression, the case was not as clear-cut as the Court made out. As the Canadian Supreme Court held in Dagenais:[170]

‘Though there is a tendency in post facto assessments to say trials were either fair or not, the determination of whether to take preventive measures is by its very nature neither black nor white. The balancing which underpins the decision to order or refuse a ban is necessarily an imprecise science. Judges approaching such decisions either at first instance or at a review stage should keep this reality in mind.’

[1] [2008] VSC 73.
[2] [2008] VSCA 49.
[3] See, for example, J Gans, ‘No role for the Charter in Underbelly case’, Charterblog, 3 March 2008 <http://www.abc.net.au/news/stories/2008/02/28/2174818.htm> at 26 March 2009.
[4] See, for example, ‘Fred Nile gets behind Underbelly’, ABC News, 26 March 2009 <http://www.abc.net.au/news/stories/2009/03/25/2526401.htm> at 31 March 2009.
[5] J Silvester quoted in H Ewart, ‘Underbelly ban sidestepped in new media era’, ABC News, 28 February 2008 <http://www.abc.net.au/news/stories/2008/02/28/2174818.htm> at 26 March 2009.
[6] ‘Underbelly DVD breaks sales records’, ninemsn, 16 May 2008 <http://news.ninemsn.com.au/article.aspx?id=373402> at 1 April 2009.
[7] G Blundell, ‘Underbelly breaks ratings record’, The Australian, 10 February 2009 <http://www.theaustralian.news.com.au/story/0,,25034187-2702,00.html?from=public_rss> at 31 March 2009.
[8] Illustrating how popular (and bankable) the show has become, the third series is to be funded by the New South Wales Government. According to the New South Wales Premier, Mr. Nathan Rees, ‘It will create 170 jobs in production and post-production, helping contribute to NSW’s creative industries sector.’ See ‘Government to fund third Underbelly series’, The Age (Melbourne), 3 June 2009 <http://www.theage.com.au/news/entertainment/tvradio/2009/06/03/1243708488243.html> at 15 June 2009.
[9] The case may also have an increased relevance following an application on 1 May 2009 to the Criminal Division of the Supreme Court of Victoria by lawyers for an underworld figure to stop Channel Nine broadcasting further repeats of ‘Underbelly’ in Victoria due to the possible prejudicial effects on upcoming trials. On 28 April 2009, the network screened the first two episodes of ‘Underbelly’ in Victoria but the series’ remaining episodes have been replaced by the publication of Gordon Ramsay’s ‘Kitchen Nightmares USA’: see D Knox, ‘Underbelly dropped for Ramsay’, TV Tonight, 1 May 2009 <http://www.tvtonight.com.au/2009/05/underbelly-back-to-court.html> 5 May 2009.
[10] John Fairfax & Sons Ltd v Local Court of New South Wales (1991) 26 NSWLR 131 at 140 per Kirby P citing Earl Loreburn in Scott v Scott [1913] UKHL 2; [1913] AC 417 at 445.
[11] See D Enker, ‘The Stars of 2007’, Green Guide, The Age (Melbourne), 13 December 2007 <http://www.theage.com.au/news/tv--radio/the-stars-of-2007/2007/12/12/1197135533655.html> at 8 March 2009.
[12] See, for example, ‘Eddie McGuire ‘bones’ himself’, What’s on the tube, 18 May 2007
<http://whatsonthetube.net/2007/05/18/eddie-mcguire-bones-himself/> at 16 April 2009.
[13] See ‘Channel 9 scramble to replace gaps left by Underbelly’, The Herald Sun (Melbourne), 13 February 2008 <http://www.news.com.au/heraldsun/story/0,21985,23206544-2902,00.html> at 8 March 2009.
[14] See ibid.
[15] R v [A] [2008] VSC 73, [4]-[5].
[16] Ibid [9].
[17] Ibid [10].
[18] Ibid [10].
[19] Ibid [11].
[20] Ibid [13].
[21] The latter order related to a website operated by Channel Nine which enabled a person logging on to the website to understand the dramatis personae of both ‘Underbelly’ and the ‘gangland wars’, and the relationship between various persons including the accused, the deceased and others relevant to the forthcoming trial of A: ibid [7].
[22] General Television Corporation Pty Ltd v Director of Public Prosecutions [2008] VSCA 49, [8], [32].
[23] Ibid [54].
[24] Ibid [55].
[25] Ibid [55].
[26] Ibid [29].
[27] Ibid [67]
[28] Ibid [69].
[29] John Fairfax Group v Local Court of New South Wales (1991) 26 NSWLR 131 at 140 per Kirby P.
[30] R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256 at 259 per Lord Hewart.
[31] JJ Spigelman, ‘Seen To Be Done: The Principle of Open Justice’ (2000) 74 Australian Law Journal 290 at 292.
[32] David Syme & Co v General Motors-Holden’s Ltd [1984] 2 NSWLR 294 at 300; Attorney-General v Leveller Magazine Ltd [1979] AC 440 at 450; Harman v Secretary of the State for the Home Department [1983] 1 AC 280 at 303.
[33] R v Davis [1995] FCA 1321; (1995) 57 FCR 512 at 514.
[34] J Bentham, Judicial Evidence, Hunt and Clark, London, 1825, p 67.
[35] Attorney-General v Leveller Magazine Ltd [1979] AC 440 at 450.
[36] See D Butler and S Rodrick, Australian Media Law, Lawbook Company, Sydney, 2007, third edition, p 162.
[37] J Bentham, above n 34, p 69.
[38] J H Wigmore, Evidence, Little Brown, Boston, 1940, third edition, volume 6, p 335.
[39] See J Burrows and U Cheer, Media Law in New Zealand, Oxford University Press, Melbourne, 2005, fifth edition, p 326.
[40] For an example of the practical application of section 24(1) of the Charter of Human Rights and Responsibilities Act 2006 (Victoria), see R v Williams [2007] VSC 2.
[41] Russell v Russell [1976] HCA 23; (1976) 134 CLR 495 at 520.
[42] John Fairfax v Local Court of New South Wales (1991) 26 NSWLR 131 at 141 per Kirby P.
[43] McPherson v McPherson 1936] AC 177 at 200; R v Tait (1979) 46 FLR 386 at 482; David Syme & Co v General Motors-Holden’s Ltd [1984] 2 NSWLR 294 at 300.
[44] David Syme & Co v General Motors-Holden’s Ltd [1984] NWSLR 294 at 299.
[45] John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 476
[46] Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 at 55 per Kirby P.
[47] Ibid 55.
[48] John Fairfax Group v Local Court of New South Wales (1991) 26 NSWLR 131 at 159 per Mahoney JA (with whom Hope A-JA agreed).
[49] See Butler and Rodrick, above n 36, p 169.
[50] John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 476 per McHugh JA (with whom Glass JA agreed).
[51] I H Jacob, ‘The Inherent Jurisdiction of the Court’ (1970) 23 Current Legal Problems at 27-28 quoted in John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 476 per McHugh JA (with whom Glass JA agreed).
[52] See the comments of Kirby P in John Fairfax Group v Local Court of New South Wales (1991) 26 NSWLR 131 at 147 and Dawson J in Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1 at 16-17.
[53] Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1 at 16-17 per Dawson J cited with approval in John Fairfax Group v Local Court of New South Wales (1991) 26 NSWLR 131 at 147 per Kirby P.
[54] General Television Corporation Pty Ltd v Director of Public Prosecutions [2008] VSCA 49, [31].
[55] Hinch v Attorney General (Victoria) [1987] HCA 56 at 58 per Deane J cited with approval in General Television Corporation Pty Ltd v Director of Public Prosecutions [2008] VSCA 49, [27].
[56] General Television Corporation Pty Ltd v Director of Public Prosecutions [2008] VSCA 49 [26].
[57] Ibid [68].
[58] Attorney-General v Leveller Magazine [1979] AC 440; Attorney-General (NSW) v Mayas Pty Ltd (1988) 14 NSWLR 342.
[59] Attorney-General (NSW) v Mayas Pty Ltd (1988) 14 NSWLR 342 at 354 per McHugh J (with whom Hope JA agreed).
[60] Ibid at 356.
[61] Ibid [21].
[62] Ibid [20].
[63] See, for example, Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47; John Fairfax Publications Pty Ltd v Police Tribunal of New South Wales (1986) 5 NWSLR 465 at 476-477 per McHugh JA; John Fairfax Publications Pty Ltd v District Court of New South Wales [2004] NSWCA 324; (2004) 61 NSWLR 344 at 356-357 per Spigelman CJ (with whom Handley JA and Campbell AJA agreed).
[64] General Television Corporation Pty Ltd v Director of Public Prosecutions [2008] VSCA 49, [53].
[65] P Dunn quoted in H Ewart, ‘Vic ban creates ‘Underbelly’ black market’, The 7.30 Report, 27 February 2008 <http://www.abc.net.au/7.30/content/2007/s2174497.htm> at 31 March 2009.
[66] John Fairfax Publications Pty Ltd v Attorney-General (NSW) [2000] NSWCA 198, [70].
[67] Ibid [70].
[68] (1991) 26 NSWLR 131.
[69] Ibid 140.
[70] See, for example, Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47; John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NWSLR 465 at 476-477 per McHugh JA; John Fairfax Publications Pty Ltd v District Court of New South Wales [2004] NSWCA 324; (2004) 61 NSWLR 344 at 356-357. See also C Lane, ‘On Camera Proceeding: A Critical Evaluation of the Inter-Relationships Between the Principle of Open Justice and the Televisation of Court Proceedings in Australia’ [1999] MonashULawRw 3; (1999) 25 Monash University Law Review 54 at 58.
[71] Attorney-General v Leveller Magazine [1979] AC 440 at 450 per Lord Diplock.
[72] Scott v Scott [1913] UKHL 2; [1913] AC 417 at 438 per Viscount Haldane LC cited with approval by Mahoney JA (with whom Glass JA agreed) in John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NWSLR 465 at 472.
[73] See John Fairfax Publications Pty Ltd v Ryde Local Court [2005] NSWCA 101; (2005) 62 NSWLR 512 at 522; Herald & Weekly Times Ltd v Magistrates Court of Victoria [2004] VSC 194 at [17].
[74] John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NWSLR 465 at 477 per McHugh JA. But see The Age Company Ltd v Magistrates’ Court of Victoria [2004] VSC 10 at [12]- [14].
[75] [2005] NSWCCA 245.
[76] Ibid [19] per Hodgson JA.
[77] General Television Corporation Pty Ltd v Director of Public Prosecutions [2008] VSCA 49, [28].
[78] Ibid [28].
[79] (1986) 5 NSWLR 465.
[80] John Fairfax Group Pty Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 471-472.
[81] Ibid 471-472.
[82] General Television Corporation Pty Ltd v Director of Public Prosecutions [2008] VSCA 49, [28].
[83] John Fairfax Group Pty Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 472.
[84] See for example, John Fairfax Publication Pty Ltd v Doe (1994) 37 NSWLR 81 at 103.
[85] Law Reform Commission of Western Australia, Report on the Review of the Law of Contempt (2003), 46.
[86] [1982] HCA 31; (1982) 152 CLR 25 at 98.
[87] See, for example, John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 476-477 per McHugh JA; John Fairfax Publications Pty Ltd v District Court (NSW) [2004] NSWCA 324; (2004) 61 NSWLR 344 at 356-357; and Herald & Weekly Times Pty Ltd v A [2005] VSCA 189 at [32].
[88] (1990) 6 CRNZ 476.
[89] See Solicitor-General v TV3 Network Services Ltd and Television New Zealand Ltd HC Christchurch, M520/96, 8 April 1997. See also Gisborne Herald Co. Ltd v Solicitor-General [1995] 3 NZLR 563 at 567; and Solicitor-General v Broadcasting Corporation of New Zealand [1987] 2 NZLR 100 at 107 per Davison CJ.
[90] See Coe v Central Television Plc. [1994] EMLR 433, 441 per Glidewell LJ.
[91] See Oldhams Press Ltd. ex p. Attorney-General [1957] 1 QB 73, 80 where Lord Goddard CJ said: ‘The test is whether the matter complained of is calculated to interfere with the course of justice, not whether the authors and printers intended that result.’
[92] General Television Corporation Pty Ltd v Director of Public Prosecutions [2008] VSCA 49, [54].
[93] Ibid [26].
[94] See E Hunt, ‘I’m the queen of banning things, says Betty King’, Herald Sun (Melbourne), 22 April 2008 <http://www.news.com.au/heraldsun/story/0,21985,23577921-661,00.html> at 20 April 2009.
[95]General Television Corporation Pty Ltd v Director of Public Prosecutions [2008] VSCA 49, [26].
[96] Ibid [34].
[97] Ibid [35].
[98] Ibid [35].
[99] Herald and Weekly Times Ltd v Medical Practitioners Board of Victoria [1991] 1 VR 267 at 278 per Hedigan J.
[100] (1991) 26 NSWLR 131.
[101] Ibid 161.
[102] D Butler and S Rodrick, above n 36, p 176.
[103] S Rodrick, ‘Open Justice and Suppressing Evidence of Police Methods: The Position in Canada and Australia: Part One’ [2007] MelbULawRw 7; (2007) 31 (1) Melbourne University Law Review 171at fn 89.
[104] [1995] 2 Qd R 10.
[105] Ibid [49].
[106] (1999) VSC 232.
[107] Herald and Weekly Times Ltd v Magistrates’ Court of Victoria (1999) VSC 232, [36].
[108] Ibid [36].
[109] New South Wales Law Reform Commission, Report 100 (2003) Contempt by publication, Recommendation 22.
[110] Ibid 10.20.
[111] [2008] VSC 344.
[112] [1994] 3 SCR 835.
[113] See, for example, Attorney-General v British Broadcasting Corporation [1981] AC 303 at 362; Attorney-General (NSW) v Time Inc Magazine Company Pty Ltd (Unreported, New South Wales Court of Appeal, Kirby P, Handley and Sheller JA, 7 June 1994).
[114] New South Wales Law Reform Commission, Contempt by Publication, Discussion Paper No 43 (2000) [13.58] quoting P v Liverpool Daily Post and Echo Newspaper Plc [1991] AC 370, 381–82 per Lord Donaldson MR.
[115] General Television Corporation Pty Ltd v Director of Public Prosecutions [2008] VSCA 49, [28].
[116] Ibid [21].
[117] For television stories, see for example, MinterEllison, ‘Seven’s Today Tonight, Underbelly not to be seen in Victoria’, 15 February 2008 <http://www.minterellison.com/public/connect/Internet/Home/About+Us/In+the+media/M-Underbelly+not+to+be+seen+in+Victoria> at 31 March 2009; for newspaper articles, see for example, ‘Leaked copies haven’t hurt Underbelly ratings’, The West Australian (Perth), 28 February 2008 <http://www.thewest.com.au/default.aspx?MenuID=24 & ContentID=60649> at 31 March 2009; for radio stories, see for example, references to ‘Radio Presenter’ and ‘Radio Listeners 1 to 4’ in H Ewart, ‘Vic ban creates ‘Underbelly’ black market’, The 7.30 Report, 27 February 2008 <http://www.abc.net.au/7.30/content/2007/s2174497.htm> at 31 March 2009.
[118] General Television Corporation Pty Ltd v Director of Public Prosecutions [2008] VSCA 49, [70].
[119] Ibid [70].
[120] Dagenais v Canadian Broadcasting Corporation [1994] 3 SCR 835 at 886.
[121] General Television Corporation Pty Ltd v Director of Public Prosecutions [2008] VSCA 49, [37].
[122] Ibid [54].
[123] Ibid [31], [49].
[124] Ibid [47].
[125] Ibid [50].
[126] Ibid [33], [37], [50], [56].
[127] Ibid [55].
[128] Ibid [58].
[129] Ibid [39].
[130] Ibid [39].
[131] Ibid [9].
[132] Ibid [73].
[133] J Gans, ‘Crikey on Underbelly’, Chaterblog, 30 March 2008, <http://charterblog.wordpress.com/2008/03/30/crikey-on-underbely/> at 2 April 2009.
[134] R v Goussis [2009] VSC 16.
[135] See K Hagan, ‘Underbelly to screen after ruling’, The Age (Melbourne) 8 September 2008 <http://www.theage.com.au/national/underbelly-to-screen-after-ruling-20080908-4bqz.html> at 2 April 2009.
[136] K Hagan, ‘Reprieve to launch Gangland series’, The Age (Melbourne) 9 September 2008 <http://www.theage.com.au/national/reprieve-to-launch-gangland-series-20080908-4c9p.html> at 2 April 2009.
[137] Director of Public Prosecutions v Wran (1987) 86 FLR 92 at 104; Attorney-General v News Group Newspapers Ltd [1987] QB 1 at 11.
[138] See, for example, Attorney-General (NSW) v Willesee [1980] 2 NSWLR 143 at 159; Attorney-General (NSW) v John Fairfax & Sons Ltd (1985) 6 NSWLR 695 at 711; Director of Public Prosecutions v Wran (1987) 86 FLR 92 at 104.
[139] (1990) 20 NSWLR 368.
[140] Ibid at 383.
[141] C J Miller, Contempt of Court, Oxford University Press, Oxford, 2000, [5.89].
[142] See P Mickelburough and H Byrnes, ‘Underbelly book may cop a hit’, The Herald Sun (Melbourne) 28 February 2008 <http://www.news.com.au/heraldsun/story/0,21985,23287657-2862,00.html> at 2 April 2009.
[143] ‘X’ v General Television Corporation Pty Ltd [2008] VSC 344, [16].
[144] See General Television Corporation Pty Ltd v Director of Public Prosecutions [2008] VSCA 49, [43].
[145] Ibid [39].
[146] See generally Police Regulation Act 1958 (Victoria).
[147] Ibid [31].
[148] See D Knox, ‘First Review: Underbelly’, TV Tonight, 17 January 2008 <http://www.tvtonight.com.au/2008/01/first-review-underbelly.html> at 1 April 2009.
[149] General Television Corporation Pty Ltd v Director of Public Prosecutions [2008] VSCA 49, [43].
[150] In recognition of its contribution to Australian television, ‘Underbelly’ won all three of the peer-voted ‘outstanding’ television drama categories at the 2009 TV Week Logie Awards: ‘Most outstanding drama series, miniseries or telemovie’, ‘Most outstanding actor’ for Gyton Grantley who portrayed Carl Williams, and ‘Most outstanding actress’ for Kat Stewart as Roberta Williams.

[151] See Hinch & Macquarie Broadcasting Holdings Ltd v Attorney-General (Vic) [1987] HCA 56

per Deane J.
[152] Ex Parte Bread Manufacturers Ltd; Re Truth & Sportsman Ltd [1937] NSWStRp 22; (1937) 37 SR (NSW) 242.
[153] ‘X’ v General Television Corporation Pty Ltd [2008] VSC 344, [43].
[154] General Television Corporation Pty Ltd v Director of Public Prosecutions [2008] VSCA 49, [41]-[42].
[155] Dagenais v Canadian Broadcasting Corporation [1994] 3 SCR 835 at 878.
[156] Ibid at 877.
[157]See J Gans, ‘s78B v Charter’, Chaterblog, April 10 2008, <http://charterblog.wordpress.com/2008/04/10/s78b-v-the-charter/> at 3 November 2009.
[158] [1999] HCA 65.
[159] [1999] HCA 67.
[160] See, for example, Human Rights Consultation Committee, Rights, Responsibilities and Respect (2005), 3.4.1.
[161] General Television Corporation Pty Ltd v Director of Public Prosecutions [2008] VSCA 49, [38].
[162] Hinch v Attorney General (Victoria) [1987] HCA 56 at 58 per Deane J cited with approval in General Television Corporation Pty Ltd v Director of Public Prosecutions [2008] VSCA 49, [27].
[163] General Television Corporation Pty Ltd v Director of Public Prosecutions [2008] VSCA 49, [38].
[164] Gisbourne Herald Co Ltd v Solicitor General [1995] 3 NZLR 563, 575.
[165] [1995] 3 NZLR 563 at 571 per Richardson J.
[166] Dagenais v Canadian Broadcasting Corporation [1994] 3 SCR 835 at 881.
[167] (1974) AC 273 at 315.
[168] [1992] HCA 46 at [20] per McHugh J.
[169] JJ Spigelman, above n 31, at 310.
[170] Dagenais v Canadian Broadcasting Corporation [1994] 3 SCR 835 at 931.