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