Whaling Company Fined for Wilful Contempt

The Federal Court of Australia has fined a Japanese whaling company $1 million for the criminal offence of ‘wilful contempt’ after it breached a 2008 order made under section 475 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) prohibiting whaling in Australia’s Antarctic whale sanctuary.

The Humane Society International brought the action, accusing the company, Kyodo Senpaku, of wilfully contravening the order by hunting whales in Australian waters on at least four separate occasions. The Court found the allegations to be proved ‘beyond reasonable doubt’ and imposed fines of $250,000 for each of the breaches.

In delivering her judgment, Justice Jagot stated:

“I am satisfied beyond a reasonable doubt that the actions of Kyodo fall within the category at least of wilful contempt. That is, there is no possible basis upon which an inference could be drawn that the breaches of the 2008 injunctions were casual, accidental and unintentional.”

It is hoped that the magnitude of the fine will deter other companies from flouting rules against whaling in Australian waters.

Criminal Contempt

Contempt of court can be either criminal or civil in nature.

Breaching a court order can amount to a criminal offence if it ‘involved deliberate defiance or, as it is sometimes said, if it is contumacious’; Witham v Holloway (1995).

But criminal contempt does not just involve breaching court orders – but can encompass a range of conduct, including:

• Publications or media reports that interfere with the proper administration of justice,
• Misconduct in relation to parties in a proceeding or witnesses,
• Breaches of undertakings, and
• Refusal to attend court on subpoena, or refusal to give evidence in court.

Contempt by Corporations

While most of the above would only apply to individuals, corporations can also be convicted of criminal contempt.

In the recent case of Construction, Forestry, Mining and Energy Union (CFMEU) v Boral Resources (Vic) Pty Ltd (2015), the High Court found that the following rules apply to criminal contempt by corporations:

• Failing to obey an injunction in a way that is “defiant and contumacious” amounts to criminal contempt;
• The remedy for criminal contempt is punitive – such as a fine – rather than remedial – which aims to fix a problem;
• The standard for criminal contempt is ‘beyond a reasonable doubt’; and
• Civil procedures are applied in proceedings for criminal contempt.

The Federal Court’s finding against Kyodo Senpaku is intended to send a strong message to other corporations that Australia will not tolerate wilful breaches of our court orders – but whether the company will pay up is another matter altogether.