Australia: Why contempt of court matters, even for government ministers

The independence of the judiciary from the political arm of government is a fundamental principle of democracy. If judges and the courts can be directed or pressured to reach certain judgements and sentences by politicians or others in positions of power, then public trust in the rule of law that binds society is badly eroded.

Victorian judiciary accused of giving light sentences for terrorism offences

That is why the three Supreme Court judges in the Victorian Court of Appeal called on three federal government ministers to explain why they should not be charged with contempt of court after they publicly accused the Victorian judiciary of deliberately handing down soft sentences to those found guilty of terrorism. (See Statement of the Victorian Supreme Court of Appeal in Terrorism cases.)

This is a very serious matter, as the attacks on the judiciary from three federal ministers – Greg Hunt, Michael Sukkar and Alan Tudge, all from Victoria – seemed to have been orchestrated for political purposes, attacking the Labor government for supposedly installing left-wing judges.

The judges were accused of giving light sentences as part of what Mr Hunt called "ideological experiments" and what Mr Sukkar described as having more concern for terrorists' rights than for victims. Mr Tudge described the judges as being "divorced from reality".

While their target may have been the Victorian Labor government, the ministers badly overstepped the bounds of the law by accusing the judges.

Freedom of speech and speaking in the public interest

Certainly, we have an element of free speech in this country and people can comment on judgements once a case is concluded. But the ministers – all with law degrees – should have known it can amount to contempt of court to attack the judiciary while an appeal is still underway.

On the other hand, there is a defence of speaking in the public interest. This was an appeal not before a jury, but before judges, who are expected to be able to ignore improper influence.

Contempt of court charges and "scandalising the court"

Before this highly unusual summons to the three ministers by the Victorian judges, contempt of court was usually associated with rudeness or disrespect in court, such as people refusing to stand when a judge or magistrate enters the courtroom. Journalists have been jailed for contempt of court after refusing to reveal their whistleblowing sources for stories that embarrassed authorities.

Before he was elected to the Senate, journalist Derryn Hinch was twice jailed for contempt – once when he breached court suppression orders and once when he publicly revealed prior convictions of a paedophile priest facing court. However, he did not accuse the judges of being ideologically driven in reaching their decisions.

Contempt of court can also arise from "scandalising the court" through attempts to undermine public confidence in the courts. When this comes from government ministers whipping up a frenzy of public outrage against judges on Facebook and Twitter, it has the potential to prompt a much more severe reaction from the judiciary.

Sentencing for Anzac Day terror plot

The sentencing of Sevdet Ramadan Besim, 18, to ten years' jail with six years non-parole, for plotting to attack people and behead a police officer on Anzac Day as a terrorist act may seem inadequate to some, fair to others. The reasons behind the sentencing are interesting and worth reading – his youth, prospects for rehabilitation and his early guilty plea. (See The Queen v Besim [2016] VSC 537.)

Prosecutors appealed the sentence, arguing that Besim would become a greater threat as he got older. As a result of the appeal, Besim's sentence was increased from ten to 14 years, of which he will have to serve at least ten and a half years. (See DPP (Cth) v Besim [2017] VSCA 158.)

Separation of powers and independence of judiciary

The ministers were critical of the original sentence, both in a front-page story published by The Australian and on social media, and the judges said they were concerned that the ministers' statements were "improperly made in an attempt to influence the court in its decisions".

The judges said this could also breach the principle of sub judice, failure to respect the doctrine of separation of powers, and demonstrate a lack understanding of the importance to democracy of the independence of the judiciary.

Retraction followed by unreserved apology, contempt of court charges not pursued

The ministers retracted part of their statements, but initially refused to apologise to the court. However, as the row escalated and the ministers faced the very real prospect of being charged with contempt, all three had a sudden change of heart.

Although they did not appear in court in person, the Commonwealth Solicitor-General told the court that the ministers now apologised unreservedly for their comments. The Victorian Court of Appeal determined that on the basis of that apology, it would not pursue contempt charges against the three ministers.

It is worth noting that the penalty for contempt of court can be a fine and/or imprisonment, but no maximum is set in the statutes.

Politicians should resist temptation to criticise judges before decisions handed down

Judges should not be immune from criticism, but it is important to a healthy democratic society that judges are not pressured by politicians to reach decisions the government wants. If governments dictate judges' decisions and the sentences they hand down, we have lost our freedoms and our democracy.

Maurie Stack
Personal injury
Stacks Law Firm

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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