In ACCC v Chaste Corporation Pty Ltd (No 7)  FCA 1103 the Federal Court has held that it has jurisdiction to order the early release of a person (here, Peter Foster) serving a term of imprisonment as punishment for contempt — ie that a court is not functus officio once a sentence in respect of a criminal contempt has been imposed.
This early release jurisdiction existed, given that the Federal Court (s 31, Federal Court of Australia Act 1976) has the same power to punish contempts as is possessed by the High Court and in turn, the High Court has the same power to punish contempts as is possessed by the Supreme Court of Judicature in England as at 25 August 1903, the date of commencement of the Judiciary Act 1903 (Cth). Logan J agreed with the judgment of Kirby J in Young v Registrar, Court of Appeal (1993) 32 NSWLR 262 that English law at that time included the power to order early release of a contemnor.
Logan J then noted that r 42.22 of the Federal Court Rules 2011 (providing that “if a person charged is committed to prison for a term, the person may apply to the Court for an order for the person’s discharge before the end of the term”) was clearly designed to permit discharge short of the service of a specified term. Logan J added: “Of course, a rule of court cannot be inconsistent with statute. Neither party submitted that there was any inconsistency between the apparent general application of r 42.22 to the present case and a scheme, evident from s 31(1) of the Federal Court of Australia Act and s 24 of the Judiciary Act, which assimilates this Court’s jurisdiction with respect to contempt with that of the Supreme Court of Judicature in England in 1903.”
Considerations relevant to early release
His Honour then discussed the difference between a contempt founded on a breach of a mandatory order and a contempt grounded in a breach of a prohibitory order (as here) in the context of whether the contemnor could be said to have purged his contempt as being one consideration relevant to whether early release was appropriate. However, as noted in an English case (CJ v Flintshire Borough Council (2010)), although a person committed to prison for breach of a mandatory order to do an act might reasonably be said to purge his contempt if he thereupon caused it to be done, the notion was less easily applied to an act which amounted to the breach of a prohibitory order and which, once done, could not be undone. Here Mr Foster had breached a prohibitory order so that the issue of purging the contempt in the sense of him eradicating the act or cleansing it of its previous ill-effect could not arise.
However, many other considerations would be relevant. Logan J referred with approval to the judgment of Wilson LJ in Flintshire stating in a non-exhaustive way, a number of questions which fell to be answered in applications for early release:
(i) Can the court conclude, in all the circumstances as they now are, that the contemnor has suffered punishment proportionate to his contempt?
(ii) Would the interest of the state in upholding the rule of law be significantly prejudiced by early discharge?
(iii) How genuine is the contemnor’s expression of contrition?
(iv) Has he done all that he reasonably can to demonstrate a resolve and an ability not to commit a further breach if discharged early?
(v) In particular has he done all that he reasonably can (bearing in mind the difficulties of his so doing while in prison) in order to construct for himself proposed living and other practical arrangements in the event of early discharge in such a way as to minimise the risk of his committing a further breach?
(vi) Does he make any specific proposal to augment the protection against any further breach of those whom the order which he breached was designed to protect?
(vii) What is the length of time which he has served in prison, including its relation to the full term imposed upon him?
(viii) Are there any special factors which impinge upon the exercise of the discretion in one way or the other?
Wilson LJ added: “I am clear that the success of an application for an order for early discharge does not depend on favourable answers to all the questions. Nevertheless the first is a general question which … probably needs an affirmative answer before early discharge should be ordered. The second will surely require a negative answer. An affirmative answer to the third will usually (although not always …) be necessary but may not be sufficient.”
Logan J, adopting most of those considerations as relevant to the case before him (although his Honour did redact part of the judgment which followed as remaining confidential to the parties), then concluded: “Although Mr Foster’s deliberate and false purporting to have been in Fiji when all the while he remained in Australia both at the time of his sentencing for the contempts and thereafter until arrested in 2014 was deeply dismissive of the administration of justice and entirely consistent with the deficiency of character described when he was sentenced for those contempts, there are countervailing considerations, albeit of a nature which must remain for the present confidential, which warrant his early release from prison, subject to the continued contingency of his being required to serve the 18 month balance of the original three year term of imprisonment. There will be a related, consequential extension in the period of the conditions to which he will be subject upon his release.”