Contempt of court in Australia takes two broad forms. The first is civil contempt, which involves breaching a court order. The second is criminal contempt, which covers conduct that interferes with the administration of justice more broadly. Within that second category sits what courts sometimes call de facto contempt: behaviour that undermines judicial authority or the integrity of proceedings without directly violating any specific order. It's less well-known, but courts treat it seriously.
What de facto contempt actually covers
De facto contempt is not a term found in a single statute. Australian courts have developed the concept through common law to address conduct that falls outside a formal breach but still corrupts or obstructs the justice system. The category is wide. It includes publishing material that prejudices a fair trial, attempting to interfere with witnesses before or during proceedings, and behaving in a way that scandalises the court itself.
Witness interference is one of the most common triggers. If a person pressures, intimidates or attempts to influence a witness outside any existing injunction, a court can still hold that person in contempt on the basis that the conduct strikes at the fairness of the proceedings. The absence of a pre-existing order is no protection. Courts have made clear that the inherent jurisdiction to protect their own processes does not depend on an order first being made and then broken.
Scandalising the court is a separate but related strand. This covers publications or public statements that attack the integrity of a judge or a court in a way calculated to undermine public confidence in the justice system. It's a narrower doctrine than it once was, and Australian courts apply it cautiously given competing free speech considerations, but it has not been abolished.
How proceedings are initiated
Contempt proceedings in the criminal context can be initiated by the court itself or by the prosecution. Where a judge observes the contemptuous conduct directly, the matter can be dealt with summarily in the moment. This is called contempt in the face of the court. Where the conduct occurs outside the courtroom, the court typically requires a formal application supported by affidavit material setting out the alleged conduct.
The standard of proof matters. Because the consequences can include imprisonment, courts apply the criminal standard: proof beyond reasonable doubt. A finding of contempt is not made lightly, and the procedural safeguards that apply mirror those in ordinary criminal proceedings. The person accused has the right to be heard and, in serious matters, the right to legal representation.
Ann Valos Criminal Law represents clients facing contempt allegations, including those that arise unexpectedly in the course of criminal proceedings. If you are unsure whether your conduct or a third party's conduct may attract contempt liability, getting advice early is critical.
Penalties and outcomes
Courts have a wide discretion in how they respond to a finding of contempt. The options include a fine, a formal reprimand, a suspended sentence, or immediate imprisonment. For conduct that directly interfered with ongoing criminal proceedings, courts have imposed custodial terms in the range of months rather than days. The seriousness of the underlying proceedings is relevant. Contempt that threatens the integrity of a murder trial will be treated differently from conduct arising in a minor summary matter.
A court may also purge the contempt: that is, accept an apology or corrective action as sufficient reason to reduce or set aside the penalty. Purging is not automatic. The court must be satisfied that the conduct has genuinely stopped and that the apology reflects real remorse rather than tactical convenience.
De facto contempt and the accused person
Defendants in criminal proceedings face a specific risk. Conduct during the proceedings themselves, such as making repeated outbursts, refusing a lawful direction, or attempting to communicate improperly with jurors, can attract a contempt finding on top of the primary charges. The two sets of proceedings run separately. A finding of contempt does not affect the burden of proof in the underlying matter, but the distraction and reputational damage can be significant.
The right to silence, discussed in more detail in our article on the right to silence in Australia, is a different concept. It protects an accused from being compelled to give evidence against themselves. It does not insulate anyone from contempt liability arising from conduct that goes beyond silence and crosses into active interference.
It's also worth understanding how contempt interacts with the conduct of witnesses. Courts dealing with a witness who refuses to answer questions after being compelled can hold that witness in contempt in the face of the court. That process is separate from, though sometimes connected to, de facto contempt involving a third party who attempted to engineer the witness's non-compliance.
Media and social media risks
The rise of social media has made de facto contempt a live issue for people who are not lawyers and who may not appreciate the risk. Publishing material online that identifies suppressed evidence, names a protected witness, or comments on the guilt of an accused person while a trial is running can attract contempt proceedings. Courts in New South Wales and Victoria have both issued contempt findings in cases involving online publications.
Suppression orders and non-publication orders are formal orders, and breaching them is a direct contempt. But even without a suppression order, publishing material that creates a real risk of prejudice to a trial can constitute de facto contempt. The test is whether the publication has a tendency to interfere with the administration of justice in the particular proceedings. Intent is relevant but not the sole determinant: a careless post can be just as prejudicial as a deliberate one.
Courts have shown willingness to pursue individuals who share prejudicial content about criminal matters, not just media organisations. Anyone posting about an ongoing trial should treat the contempt risk as real. If you're unsure whether a proceeding is still active, our explanation of what happens at a committal hearing covers one of the earlier stages at which contempt restrictions can already apply.
Getting advice
De facto contempt can arise quickly and carry consequences that are disproportionate to what the person involved intended. Ann Valos Criminal Law has the specialist experience to advise on contempt risk, respond to contempt allegations, and represent clients in proceedings where contempt is alleged alongside or separate from the primary charge. Early advice is far more effective than trying to manage the situation after a finding has been made.
Ann Valos Criminal Law is an accredited criminal law specialist firm with over 15 years of experience serving clients across New South Wales. Contempt matters move fast. Contact Ann Valos Criminal Law as soon as the issue arises.