Australia: Judge threatens contempt of court charges for delay in immigration decision

Australia's Home Affairs Minister Peter Dutton has caused long delays in an immigration case which involves a protection visa for an Iranian man.

A Federal Court Judge has now warned the Home Affairs Minister that could face contempt of court charges if he fails to make a decision about the man's case within days. Justice Geoffrey Flick also blasted Mr Dutton for making decisions 'contrary' to the law.

"An order is thus necessary to ensure that 'the Minister' responsible for administering the

Migration Act does so in accordance with law," remarked.

"The stance of 'the Minister', expressed as it is, makes a mockery of any concept of the Minister acting as a model litigant."

Justice Flick also said "parties to a proceeding who fail to comply with orders made are possibly guilty of a contempt of court and thereby exposed to sanctions ranging from the imposition of a fine through to (in an appropriate case) imprisonment".

"In the absence of argument, there is no self-evident reason why even a Minister of the Crown should not comply with orders made by this Court and, if found guilty of contempt, [be] liable to the same penalties as any other litigant."

...It is "to say the least, regrettable that those responsible for administering the Migration Act in accordance with law have deliberately decided to administer that legislation in a manner contrary to law".

It's understood that lawyers for the government ministers have told the Iranian man whose visa status is in question, that there would not be a ruling on his visa application because Mr Dutton was appealing the judgment.

The lawyers have claimed that Justice Flick "was in error in finding that the delay in making such a decision was unreasonable."

The Iranian man arrived in Australia by boat in July 2013. After spending about one month in immigration detention, he was given a bridging visa.

But the Immigration Department cancelled his visa in December 2016 and put the man back into detention. Since then his application has been exceptionally slow to process, having already taken more than 3 years, despite the Administrative Appeals Tribunal finding in November 2018 that he passed the 'character test' within the Migration Act, and was eligible for a protection visa.

The man hoped to speed up the decision on his application by taking the matter to court, but in response, Mr Dutton set aside the Appeals Tribunal Finding and denied the man a visa. That decision has since been overturned in court.

This is not the first time that the Home Affairs Minister has caused unnecessary delays making decisions over visas, wasting taxpayer money and court resources.

Perhaps the most well-known case is that of the Tamil Family, Priya and Nades Murugappan and their two Australian-born daughters Kopika and Tharunicaa, who continue to languish in detention on Christmas Island. Estimates put the cost of keeping the family there, where they are the only inhabitants, at $20,000 a day.

Several weeks ago a court ordered the Federal Government to pay the family more than $200,000 in legal fees after it found they had been denied procedural fairness. The family has been fighting for asylum for more than two years.

Contempt of court is an offence under section 24 of the Local Court Act 2007 and section 199 of the District Court Act 1973, which carries a maximum penalty of 28 days in prison and/or a fine of 20 penalty units.

The laws and procedures relating to contempt in the Supreme Court are contained in Part 55 of the Supreme Court Rules 1970.

A contempt of court is an act which has the tendency to interfere with or undermine the authority, performance or dignity of the court or those who participate in court proceedings.

The following conduct has been found to meet the legal test for contempt:

• Protracted swearing and yelling at a magistrate,
• Filming witnesses in an attempt to intimidate them,
• Evading questions in court or refusing to answer them,
• Refusing to take an oath or affirmation in court,
• Refusing to leave the courtroom after being directed to do so, and
• Disobeying court orders such as subpoenas to attend court or to produce evidence.

The courts have made clear that a contempt charge should be used as a 'last resort' to deal with unruly persons within the courtroom, and all other possible options should be considered before resorting to formal charge.

These options include:

• Giving a warning,
• Directing a person to leave the courtroom,
• Providing an opportunity to seek legal advice, such as advice relating to the privilege against self-incrimination when being asked questions on the witness stand,
• Considering whether the matter should be referred to the Attorney General for consideration of charging the person with engaging in disrespectful behaviour in court.

The courts have further found that rudeness or extreme discourtesy by lawyers does not amount to contempt.

In addition to this, the courts have made clear that, like police officers, magistrates and judges should be able to resist the sting of insults directed at them, as they are trained to be level-headed and to keep calm under stressful situations.

They should not, therefore, resort to a charge of contempt until and unless it is completely necessary.

For a person to be found guilty of contempt of, the prosecution must establish each of the following 'elements' (or ingredients) of the offence beyond reasonable doubt:

• The defendant engaged in conduct which had the tendency to interfere with or undermine the authority, performance or dignity of the court or those who participate in court proceedings, and
• The defendant intended to do the act.

The prosecution will fail if it cannot prove each of these elements to the required standard.

It is important to note, however, that the prosecution is not required to prove that the defendant intended to actually interfere with the administration of justice – just that he or she intended to do an act which, viewed by a reasonable person, had the tendency to do so.

This is known as an 'objective test', and means the defendant's reasons behind doing the act are not determinative of the offence.

In addition to the requirement to prove each element of the offence, the prosecution must also disprove any of the following defences if properly raised:

• Duress, which is where you were threatened or coerced,
• Necessity, where the act was necessary to avert danger, and
• Self-defence, where you engaged in the act to defend yourself or another

It must disprove any such defences beyond all reasonable doubt.

Section 199 of the District Court Act 1973 prescribes a number of procedural matters when it comes to contempt of court charges, and the Local Court adopts these matters through section 24 of the Local Court Act 2007.

The section prescribes the following procedure:

Where it is alleged, or appears to the Court on its own view, that a person is guilty of contempt of court committed in the face of the Court or in the hearing of the Court, the Court may:

• • by oral order direct that the contemnor (who is the person charged with or found guilty of contempt) be brought before the Court, or
  • issue a warrant for the arrest of the contemnor.
• Where the contemnor is brought before the Court, the Court shall:

• cause the contemnor to be informed orally of the contempt with which he or she is charged,
• require the contemnor to make his or her defence to the charge,
• after hearing the contemnor, determine the matter of the charge, and
• make an order for the punishment or discharge of the contemnor.

• The Court may, pending disposal of the charge:

• direct that the contemnor be kept in such custody as the Court may determine, or
• direct that the contemnor be released,

and such a direction is sufficient authority for the contemnor's being kept in custody or released, as the case may be.

• The Court may give directions which can include that the contemnor give security (eg deposit money) for his or her appearance in person to answer the charge.
• A warrant for the arrest or detention under this section of a contemnor shall be addressed to the Sheriff or a bailiff and may be issued under the hand of the Judge constituting the Court.

The procedures for contempt in the Supreme Court are contained in Part 55 of the Supreme Court Rules 1970.

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.