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