Today’s reported contempt proceedings in the Supreme Court of Victoria do not (yet) involve the High Court. Rather, they concern an ongoing appeal in Victoria’s Court of Appeal by the Commonwealth Director of Public Prosecutions against a ten year sentence imposed on convicted terrorist Sevdet Besim by the Supreme Court. However, the issues are closely tied to several past High Court decisions.
One is a ruling in late 2015 allowing a Cth DPP sentencing appeal in a federal drugs matter, where the High Court unanimously held that:
to prefer one State’s sentencing practices to sentencing practices elsewhere in the Commonwealth, or at least to prefer them for no more reason than that they are different, is contrary to principle, tends to exacerbate inconsistency and so ultimately is unfair.
This ruling almost certainly is the background for reported comments by judges hearing the DPP’s appeal that, the case of terror sentences:
Warren CJ: “NSW courts appeared to put less weight on the personal circumstances of the offender than Victorian courts, with greater concern for denouncing the crime and sending a message to others in the community. It’s as if the Murray River is an enormous gap in terms of sentencing.”
Weinberg JA: “The range seems to be in the 20s [years] for offending somewhat similar to this. It is extremely worrying, I would have thought, that there is such a gap.”
Just as in the 2015 case, the difficulty faced by the judges is that Victorian courts consistently gave lower sentences than other states, notably NSW. The High Court has made it clear that Victoria should generally follow the national approach, rather than its own one.
The other High Court rulings in play today are ones concerning the common law offence of scandalizing the court. In its early years, the High Court confined that offence in an appeal involving an Argus editorial sarcastically complaining of future Court member Higgins J’s ignorance of the ‘slow down’ tactic in industrial relations. The Court quashed the conviction, holding that ‘It is difficult indeed to believe that any such comment would sap or undermine the authority of any Court in the mind of any reasonable person.’ But that changed in 1935, when the Court exercised its own power to hold the Sun in contempt for complaining that the High Court had ruined the White Australia Policy by ‘keen legal intelligences… to the horror of everybody except the Little Brothers of Soviet and kindred intelligentsia’ and for criticisms of the Court’s rulings on sales taxes and judicial power. And that trend continued in 1983 when the Court upheld a finding that Builders Labourers Federation head Norm Gallagher committed contempt when he attributed his successful appeal of an earlier contempt charge (including the finding of future High Court judge Deane J) ‘to the rank and file of the Federation whose significant stand, alongside their elected representatives, is the key to the reversal’. The majority observed:
The authority of the law rests on public confidence, and it is important to the stability of society that the confidence of the public should not be shaken by baseless attacks on the integrity or impartiality of courts or judges. However, in many cases, the good sense of the community will be a sufficient safeguard against the scandalous disparagement of a court or judge, and the summary remedy of fine or imprisonment is applied only where the Court is satisfied that it is necessary in the interests of the ordered and fearless administration of justice and where the attacks are unwarrantable.
This, then, is the test that is to be applied to the statements published by The Australian, which described them as ‘responses’ to the remarks of Warren CJ and Weinberg J:
Federal Health Minister Greg Hunt: “Comments by senior members of the Victorian courts endorsing and embracing shorter sentences for terrorism offences are deeply concerning — deeply concerning. The Andrews government should immediately reject such statements and sentiments. The state courts should not be places for ideological experiments in the face of global and local threats from Islamic extremism that has led to such tragic losses.”
Federal Assistant Treasurer Michael Sukkar: “Labor’s continued appointment of hard-left activist judges has come back to bite Victorians. Our judiciary should focus more on victims and the safety of our society, and less on the rights of terrorists who don’t respect our society, its laws or our people. This government can put up the best laws in the world but our efforts are undermined unless the courts use them for the purpose (for which) they were designed — as a penalty for acts of terrorism and a deterrent for those that might be planning them…. Most Australians would think as a principle that serious offenders should serve a sentence for every crime for which they are convicted, but not effectively reduced at the same time. In the US, they are happy to give them multiple life sentences … they can be effectively jailed for several hundred years.”
Human Services Minister Alan Tudge: “Some of these judges are divorced from reality. We have a crisis on our hands with people who want to kill indiscriminately and yet some judges seem more concerned about the terrorists than the safety of the community.”
Ominously for the three federal ministers, the High Court in 1983 also held that the Federal Court rightly opted to imprison Gallagher by taking into account that he would not personally pay any fine imposed.
Also possibly playing a background role is Murphy J’s famous dissent in the Gallagher case, where excoriated his judicial siblings’ stance:
As stated by this Court, the law of criminal contempt in scandalizing the courts is so vague and general that it is an oppressive limitation on free speech. No free society should accept such censorship… At stake is not merely the freedom of one person; it is the freedom of everyone to comment rightly or wrongly on the decisions of the courts in a way that does not constitute a clear and present danger to the administration of justice.
Arguing that the Court’s 1935 decision ‘had a chilling effect on public criticism of courts in Australia [that] persisted for about four decades’, he said that Australia should adopt the approach taken in the USA and England, where ‘Judges’ backs have got to be a good deal broader than they were thought to be years ago. Courts are satisfied to leave to public opinion attacks or comments derogatory or scandalous to them.’ He also attacked the contempt jurisdiction for a litany of procedural sins, including the unlimited punishments available and the absence of trial by jury. The Gallagher decision notably predated the High Court’s finding of an implied freedom of political communication in the Constitution, but Mason CJ nevertheless upheld the scandalizing offence in 1992, albeit emphasizing the stance of the United States Supreme Court that:
The assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appraises the character of American public opinion. … an enforced silence, however limited, solely in the name of preserving the dignity of the bench, would probably engender resentment, suspicion, and contempt much more than it would enhance respect.
Today’s proceedings are an opportunity to test whether similar things can be said about the character of Australian public opinion.
It’s a tough one at law, and the ministers’ statements are not all equal. It’s hard to know what the Court will do, although the fact that it has finally lost patience with cheap shots from politicians to the point of at least considering a contempt charge is a hint they might not back away so easily, despite the inevitable bollocking from the government and the media sources loyal to the government.
I’d say Hunt is in the most trouble with his “endorsing and embracing shorter sentences for terrorism offences” bit. That’s a pretty gross misrepresentation of the Court’s position, said for the purpose of smearing the judges. That’s not criticism, that’s abuse. If they want to make an example of someone, it’s Hunt.
Both Hunt and Sukkar implied or more than implied they believe the judges have a political agenda. While that is also a smear more than criticism, it is repeated about 20 times a day on right wing talkback radio by men at least as well known as Hunt and Sukkar. Why make an issue of it now?
I don’t think Tudge’s comments fall outside the category of criticism. They shouldn’t have folded him in with this.
I’m not sure that Hunt’s error goes beyond misunderstanding what the judges were saying, which I don’t think ought to be regarded as contempt. As well, we don’t know how the Oz described the quotes in question to him. Some people think his ‘ideological experiments’ remarks are the bigger problem, but I agree with you that those comments don’t go beyond standard tabloid criticism.
We will see what happens today, but I have my doubts that the government will see the message as one about the courts not backing away easily. The process of ‘calling in the suspect to respond’ may work well enough with journalists, but it seems like entirely the wrong approach for politicians.
If Hunt merely misunderstood (which I doubt), he now gets the opportunity to say so and back away (he won’t).
Jeremy, many thanks for your Twitter feed today, a massive improvement I’m sure over any media report of the hearing.
From the quotes you provided, it felt like the Court was quite frustrated at some bits of sophistry run by the SG on behalf of the Ministers- the claim ideology didn’t mean political ideology, the “regret” without an actual apology, the gradual withdrawal of bits of the remarks, and the self-serving argument (contradicted by the remarks in question!) that everyone knows the Court is beyond reproach and wouldn’t think the Court’s decision is affected by the Ministers’ statements.
Would that be accurate, or was the picture a bit different in the flesh?
Yes, I think that’s accurate about the Court being frustrated (and I think they were also very frustrated about the Cth’s ‘nuanced regret’, and more generally the refusal to apologise.) That being said, I was a lot more impressed with the SG’s stance than the Court was.
The Oz didn’t “describe” anything to Hunt, it would seem. Rather, according to what was said by counsel in yesterday’s hearing, the Minister’s read an article from the ABC’s website, and in true Trump form, sent off an unsolicited response to the article to the Australian journalist. They did so (a) in a co-ordinated way; and (b) without even attempting to find out the context in which the remarks they read in the ABC piece were made. (Ie they did not contact the court to seek transcript). More than just misunderstanding, I think.
Yes, I wrote that comment before the hearing. Like everyone, I assumed there was a link between the three ministers’ comments. I had thought the most likely link was the Oz, but the Oz expressly denied that yesterday and the SG didn’t contest that.
The SG rightly conceded that there must be a link or degree of coordination (I can’t quite remember the wording) but also rightly said that anything more than that would require evidence. It could be anything from the three of them reacting to an email from a hothead or a conversation at breakfast to a full-on planned campaign coordinated by George Brandis. Who knows?
But none of these things implies a deliberate misreading of what the judges meant, much less a knowing misreading by all three. All of that is possible, but so is the alternative – that the three are idiots who either didn’t pay attention or didn’t understand what they are reading. I have a natural bias in favour of stupidity over conspiracy theories…
If the ‘misunderstanding’ wasn’t deliberate, then none of these details matter at all, in my view (or at least they shouldn’t.) It is wholly inappropriate to impose serious criminal consequences – including possible disqualification from office, though that’s another story – for engaging in public debate without adequate research or understanding. Judges (and lawyers) have to be careful not to equate the wider world with a courtroom.
Kate Galloway at Bond has kindly Storified my live tweeting from today, available here: https://storify.com/katgallow/ministerial-contempt-of-court-hearing.
Live tweeting was certainly an interesting and exhausting experience – you have to get very good at paraphrasing, but I think that’s a skill that academics should have (and hopefully I have.)
Two procedural things to note: (a) A tipstaff told everyone to turn off (not just silence) their mobiles, citing some sort of electromagnetic mumbo jumbo. Everyone ignored that, as they have on planes for years. And I couldn’t have tweeted unless I did. (b) It was extremely hard to hear in the public gallery. The judges, in particular, spoke far too softly. Both of these problems are quite interesting in this context, because the judges made much of the failure of the Oz to attend court for the sentencing appeal, and for relying on the ABC instead. But if the Court of Appeal expects the public and the media to take everything they say in a hearing in context, then they need to work harder at making their hearings accessible.
I tend to think the Oz had a point there, that while they are most certainly alive to the issue with reporting on sub judice matters, the Ministerial comments were newsworthy. If someone has acted in contempt, it’s the Ministers making those comments, not the Oz for reporting them. It’s not up to newspapers to censor people. It would be different if the newspaper took it upon itself to make those comments in an editorial. In any event, the Oz apologised, no doubt prodded by their professional indemnity insurer, so nothing will happen there.
On your issue of hearing comments: didn’t the Court make a point of noting the availability of the transcript? With respect, this contempt issue didn’t arise because either the Ministers or the Oz misheard something out of context and made a mistake. They shot their mouths off to make a political attack without giving consideration to an ongoing case or to judicial independence.
I agree on the Oz (especially as the comments were unsolicited) though Murphy J queried why there was no prosecution of the media for publicising Gallagher’s statements. There’s am unexplored issue of complicity in contempt, though query whether part of the blame for publicity falls on Rob Stary and the Court itself – sort of Streisand Effect.
On the transcript, it was the judges who complained about the Ministers and Oz not checking the transcript. I don’t think this matters at all – it’s not up to the Court to place procedural limits on public debate, much less enforce court reporting methods from a bygone era. The best way response from the Court would have been to publicly release the transcript (perhaps a bit tricky here because of the suppression order on the child respondent) and make a statement about how the Court was taken out of context. Alas, hotter heads prevailed.
Jeremy
Isn’t Lord Atkin’s Privy Council decision relevant here (Ambard v Attorney-General for Trinidad and Tobago [1936] AC 322 at 335)? That is: even the wrong-headed may criticise the decisions of the court without being in contempt; however they may not attribute improper motives to the judges in making those decisions.
That’s an old decision. England and the USA long ago abandoned that test. Judges are public officials and debating their motives is a legitimate – indeed essential – part of public debate. Imagine if there was a ban on debating the role of politics in USSC decisions. Or if the UKSC hauled in the editors of British tabloids for calling judges ‘Enemies of the people’? Such a pity that Australia’s High Court (in 1935 and 1983) lacked that wisdom. And that so many on the left now seemingly repudiate the wisdom of one of Murphy J’s best dissents.
Note also that England abolished contempt by scandalising in 2013: http://www.legislation.gov.uk/ukpga/2013/22/section/33/enacted and greatly limited contempt by prejudicing justice in 1981: http://www.legislation.gov.uk/ukpga/1981/49.
One interesting thing Weinberg JA pointed out at Friday’s hearing was that he was counsel in the 1992 decision. He represented the prosecution arguing that The Australian had committed a statutory version of contempt against a member of the Industrial Relations Commission by publishing an article titled ‘Advance Australia Fascist‘. (Those were the days!) In unsuccessfully defending the constitutionality of the provision, Weinberg unsuccessfully argued that it should be read equivalently to the common law on scandalising, specifically:’reasonable criticism or even intemperate criticism does not per se constitute an offence. It is limited to criticism that transcends fair comment or fair criticism and amounts to scurrilous abuse or allegations of bias or corruption or lack of integrity.’
Great roundup, Jeremy.
The implied freedom of political communication obviously looms large, but from your live tweets it appears it did not get much of a run. One thing that concerns me about this proceeding is that he process of hauling Ministers before the Court and more-or-less explicitly demanding an apology seems calculated to chill speech. That is, irrespective of whether the legal rules for liability for contempt are consistent with the IPFC (and there are plenty of good arguments that they are not entirely so), political speech might be chilled by the process itself.
Do we need the Court to articulate (or at least imply) a standard for what might trigger the ‘show cause’ process, in order to avoid chilling effects?
My view is that the show cause process isn’t a process at all – it’s just for show. It’s purpose is to allow courts to embarrass anyone they think is guilty of contempt and threaten them into apologising. It has no place in a system that respects the rule of law.
Yes. While I probably wouldn’t put it as bluntly as you, I agree that the process is a serious problem here from a freedom-of-speech point of view, as well as from a rule-of-law point of view.
Thanks Jeremy (and others) for an interesting set of informed comments on the possible legal consequences of the ministers’ possibly misinformed and contemptous comments on the Victorian judiciary.
Two things:
1. You surely are aware, but if not, Friday’s hearing is viewable (or was last night) on the Vic. Supreme Court website.
2. Jeremy, you say that the possible disqualification of the MPs (as MPs) is “another story”. If an MP is convicted of contempt while still an MP, won’t the MP at that instant become disqualified from that moment and his seat vacant, the MP being at that moment convicted of and subject to sentence for an offence punishable by imprisonment of a year or more, a la Rod Culleton?
The fuller story on s44:
a. S44 doesn’t apply if the Ministers are found (or plead) guilty but no conviction is entered. [EDIT: But there’s actually some doubt about whether this general sentencing option under Victorian sentencing law is available for contempt: see http://www.austlii.edu.au/au/cases/vic/VSC/2014/134.html at [75]ff for a recent discussion. I don’t know if this means that no-one can be convicted for the purposes of s44(ii) for contempt in Victoria, or that all people found guilty of contempt in Victoria will be treated as convicted for the purposes of s44(ii).]
b. S44 also doesn’t apply if the Ministers are convicted and the proceedings immediately end. It only applies the Ministers are subject to, or given, a further punishment. (Culleton’s problem is that he was convicted in absentia and the proceedings were then adjourned for further consideration of sentencing, even though a further sentence was very unlikely. That’s stupid s44 for you.)
c. As well, s44 only applies to offences that could receive a punishment of more than one year in prison ‘under a law of the Commonwealth or a law of a State’. A state law (of sorts) – in order 75 of the Supreme Court’s civil procedure rules – provides that the Court cam put someone in prison or fine them for contempt. But it doesn’t say how long the penalty is. That is left up to the court. My view is that that means that s44 doesn’t apply to a contempt conviction at all, because the maximum punishment is not determined by a federal or state statute. The common law (or received English practice or whatever) is not a law of the Commonwealth or a State. But we won’t know whether that’s right or wrong unless or until the High Court rules.
d. What is clear is that any conviction (and perhaps the prospect of one) will trigger an immediate and intense political and constitutional crisis, with the High Court at its centre.
Re (c). An alternative view would be that if a person, as a convicted offender, can be lawfully punished in Australia with a year or more of imprisonment, then s44 would apply regardless of the particular source of the law (statute, common, precedent). My downloaded-from-APH-website version of the Constitution uses in s44 the definite “the law” and not the indefinite “a law” of the Commonwealth (or State). The common law is surely part of “the law” of our country?
The common law (received from England) is now regarded as the common law ‘of Australia’. But that doesn’t make it the law of ‘the Commonwealth’ (the federal government) or ‘a State’ (a state government.) (One mystery is whether Territory laws count.) You’re right about the definite article though, compare s109.