Three Commonwealth ministers — Allan Tudge, Greg Hunt, and Michael Sukkar — faced the Victorian Court of Appeal on 16 June to make submissions as to why they shouldn't be charged with contempt of court. This extraordinary occurrence arose because the ministers, apparent independently of each other, made public comments about a sentencing matter still under deliberation of the court.
The comments, reported in The Australian, included an accusation that the Victorian legal system was becoming a forum for 'ideological experiments', and that some judges were 'divorced from reality', and that 'Labor's continued appointment of hard-left activist judges has come back to bite Victorians'. Further, the comments claimed the judiciary should focus more on victims and less on terrorists' rights.
Following an apology on 23 June, the court ruled that the ministers would not be charged with contempt despite there being a prima facie case for sub judice. Nonetheless, the case holds important lessons for the effective operation of our system of governance.
The charge of contempt of court is a means of protecting the due process of the court. In particular, it seeks to prevent publication of comments that might interfere with proceedings under active consideration. For this reason, we often hear people in public life respond to journalists' questions along the lines of: 'I cannot comment on this matter as it is currently before the court'.
This is not a means of quarantining the court from public scrutiny. Instead, it is designed to permit 'space' around the court's deliberations, to limit the loud noise of public opinion from intruding on the decision-making process.
Andrew Hamilton has in these pages looked at how the ministers' comments might offend the presumption of innocence. However, there is a further issue at stake in the matter of the ministers' comments — a question of good government.
Public discourse would have us believe that government comprises the ministers appointed from the ranks of the 'winning' party following a general election. 'Government' in this context is limited to executive government, while the true and more extensive definition includes parliament and the courts. There are, in our system, three 'arms' of government. Power is distributed according to the Constitution, although the parliamentary power is paramount within constitutional bounds.
The distribution of power is part of the checks and balances within our system, providing accountability in the exercise of power. The important underlying concept in this institutional arrangement is that the three arms operate as part of a system.
"This case is not about putting the judiciary or the courts above criticism. It is about the functioning of one arm of government without interference from another."
In this context the fact that the comments were made by ministers — members of the executive government — instantly locates their comments within the realm of government in its expanded, 'three arms' sense. It is one thing for a citizen to 'scandalise the court' in suggesting that the citizen might influence the court's findings. Such a scenario, while grave, is an individual instance. It is quite another for the executive branch of government to be involved in any suggestion that the system itself, the separation of powers, might be affected at an institutional level.
For this reason, the ministers' comments were not simply 'speech'. The ministers in their submissions to the court on 16 June indicated that it was proper that they make the comments as a contribution to public discourse on an issue of relevance to their portfolios, and to their constituencies. They appealed therefore to their dual governmental roles within both the executive branch, and the legislative branch of government. The ministers were represented by the Solicitor General, the government's lawyer, further highlighting that this was a government matter rather than a personal question.
Some saw the Court's summonsing of the Ministers as breaching freedom of speech, which demonstrates the poor comprehension of the nature of freedom and perhaps of speech also. To the extent that speech is free, it has never been comprehended as carte blanche to say anything anywhere to anyone at any time. This case is not about putting the judiciary or the courts above criticism. It is about the functioning of one arm of government without interference from another. Further, it is about maintaining public confidence in the way in which the courts work within our system of governance.
Whether or not the comments would be found to be contempt is a question of law for determination of a judge. As no charges will be made, this is now an abstract question. The real issue remains however. Members of parliament, and ministers, in taking on those roles are required to adhere to the principles of governance that include upholding the separation of powers. This is no abstract notion, but a living principle that is performed daily by ministers, public servants, and parliamentarians including through speech. Failing to adhere to these basic norms of good governance puts our system at risk.
Kate Galloway is a legal academic with an interest in social justice.
Main image: Michael Sukkar
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23 June 2017
Was it the late Joh Bjelke-Petersen who was unable to explain what the separation of powers in the Westminster system meant? The three ministers could be accused of the same thing. Our system of Law is not perfect but it does protect us from all sorts of arbitrary rule.
24 June 2017
This is wrong, all this shows is that Australian politicians believe they are above the law, have been proven that they now are
24 June 2017
Minister Sukkar is also my local member. He was reported to have said 'It's the attitude of judges like these which has eroded any trust that remained in our legal system’. I suggested to him that if he really did say that, then ‘it’s the statements of politicians like these which have eroded any trust that remained in our political system’. It is incredible that three Ministers of the Crown, all lawyers to boot, could have spoken out as they did.
Roy Chen Yee
25 June 2017
“This is no abstract notion, but a living principle that is performed daily by ministers, public servants, and parliamentarians including through speech. Failing to adhere to these basic norms of good governance puts our system at risk.” Karen Percy, ABC, 25/6/17, writes: “Three ministers have avoided charges after apologising for comments about "weak" terrorism sentencing in Victoria, as the state's appeals court increased the jail terms given to two would-be terrorists…. In the case of Besim …. a court statement said…. "The sentence did not accord with community expectations" …. In the case of MHK, the Court of Appeal found the sentence to be "wholly inadequate"” The ministers were correct. The sentencing by the lower Victorian courts was ‘weak’. But they were speaking outside their portfolios. Why shouldn’t the federal minister whose portfolio covers terrorism, or a backbencher in the Commonwealth or Victorian parliaments, this week, now that the cases are over, speak in the chamber about how the Victorian executive picks judges? Some of the most stinging comments on a majority US Supreme Court decision come from dissenters on the same bench. Why shouldn’t a member of the executive or legislature pick up and run with that ball?
27 June 2017
We have in power men who have no compunction with regard to thuggery. Joh is a good model: he excelled at flinging his verbal weight around. The way business is done is that you get away with what you can, you destroy anyone you don't like, especially if they are on the other side of politics, by denigrating them, insulting them, ridiculing them, trying to hound them out of office. I know very little about the workings of the courts of law, but constantly I am relieved that they are there to rein in the worst excesses, to bring to justice former ministers of the crown who have disregarded the law in their grab for wealth and to bring a skerrick of protection for those most vulnerable among us, including the asylum seekers and refugees we, as a nation, so cruelly oppress. God help us if the executive arm ever succeeds in hobbling the legal arm.
27 June 2017
Thanks, Kate. In essence the "free speech" argument may have some validity if it were a matter of three ordinary citizens talking in the pub, but not for ministers of the government.
27 June 2017
That the court has determined that there is a prima facie case that the statements were sub judice should have been reason enough for these three parliamentarians to resign their seats. They have not done so and thus show themselves to be unfit for public office. They and their party ignore their constituted role as elected representatives which demands wise political conduct that protects the integrity of the courts. That they have not resigned after this statement by the court shows continued contempt and unwillingness, and the continued contempt and unwillingness of their party machine, to discipline themselves according to principles of democratic governance which they, and we their electors, are bound to uphold. There are many other examples of parliamentarians - with Liberal Party Parliamentarians leading the way - assuming that election to parliament gives them permission to "vent" in the way they have done. They may retain their seats but they do so by further eroding public trust in our parliamentary system of public governance, avoiding basic principle in order to continue to blame their opponents for blurring the line of separation between parliamentary power and that of the courts.
03 July 2017
An excellent piece on a very significant problem... thanks
20 July 2017
The near simultaneous comments on the courts by the three ministers was not a spontaneous outpouring but a carefully calculated attack. But although it was directed at the judiciary, this was not its real purpose. Its purpose was to appeal to a section of the electorate that the Coalition desperately needs for re-election, namely ignorant bigots. It is a tactic that was used to great effect in Trump's election campaign and its source is Steve Bannon who perfected it when he was editor of the Breibart News website. It was directly aimed at the lowest instincts of the "deplorables" in our society whom Turnbull sees as his last hope. As Sam Tanenhaus pointed out in a recent column in the New York Review of books, Bannon's tactic was to spread lurid stories of a crime- and sex-crazed immigrant population, growing but half hidden, which set upon white citizens and the police, who were powerless to make arrests and get convictions because of liberal politicians and judges. In this case the particulars may be different but the tactic was the same. It was a disgraceful intervention by one arm of government on another. Hunt , Tudge and Sukkar stand condemned.