New concerns surround the government’s increased use of legislative powers to bypass the parliament and create laws that cannot be amended or overturned. The federal government has embedded special powers in new Covid-19 laws to make unilateral changes to non-pandemic-related legislation, using what are known as ‘Henry VIII clauses’ – named for the unchecked power they involve.
Peter Dutton’s contempt of court battle
In this story
Kurt Esser and his client, Akuoch Akuoch, have wildly different histories, but those histories are for a time braided. Both men are involved in a legal case against the minister for immigration, Peter Dutton. It is a case that challenges executive power and the independence of courts and, if successful, will find Dutton in contempt of them. It is a little-known case, but with fascinating ramifications.
Esser is a Melbourne barrister. Blunt and impassioned, he speaks with the slow assurance of experienced lawyers. In 2004 he established the Justice Project with his wife. Its members included Malcolm Fraser and Julian Burnside, and it was originally conceived to reform refugee policy and to lobby for the instatement of a bill or charter of human rights. In 2004, the ACT enacted such a charter; Victoria followed two years later. “The Justice Project played some small role in that,” Esser tells me. “And Fraser’s influence was inestimable. He had a fantastic nose for the right time to do something. I enjoyed his wisdom and guidance.”
Esser’s client Akuoch was born in Sudan. When civil war erupted there in the 1980s Akuoch joined about 20,000 boys in a perilous exodus from family and country. The boys – many orphaned – fled to avoid death or conscription, making their way to relative safety in Ethiopia, more than a thousand kilometres away. About half of the boys died on the march, claimed by dehydration, drowning, wild animals or crossfire. When war broke out in Ethiopia in the early 1990s, they fled again to Kenya.
Those who comprised the exodus became known as the Lost Boys of Sudan. In early 2001, under the authorisation of president Bill Clinton, 4000 were offered sanctuary in the United States. Akuoch Akuoch – still unsure of the fate of the family he left behind – was one of them. He is now a US citizen.
It was in the States that Akuoch learnt – to his astonishment – that his siblings had not only survived the war that claimed some two-and-a-half-million lives, but that they had emigrated to Melbourne.
In 2011, Akuoch received an Australian visiting visa. The following year, on account of his family living in Australia, he applied for a remaining relative visa which “allows someone outside Australia whose only near relatives are living in Australia to live in Australia as a permanent resident”. He was rejected for this status, a rejection that was upheld by the Migration Review Tribunal in February last year.
Not long after Akuoch arrived in Australia, he met someone. She fell pregnant and the following year he became a father.
But it is neither his visa applications nor his fatherhood that involves Kurt Esser. The matter of law involved is much simpler, and fundamental.
In June this year, Victoria Police charged Akuoch with assaulting his former partner – the mother of his child – in her home in Melbourne’s west. In a later plea hearing, he offered “not guilty” and expressed his desire to prove his innocence in court. The matter was set for April 13, 2016, in the Melbourne Magistrates’ Court.
Which is where the minister for immigration comes in. Akuoch is currently on a bridging visa, which Dutton refuses to extend to permit Akuoch his day in court. Dutton has been clear that Akuoch has until the end of this month to leave Australia, otherwise he’ll be placed in detention. The question is whether ministerial power may be legally invoked to interfere with a person’s right to face charges in a court – an entitlement that stretches to the Magna Carta, a document marking its 800th anniversary this year. Kurt Esser is challenging in the Supreme Court of Victoria the minister’s intervention, arguing that it amounts to contempt of court.
“There are two kinds of contempt of court,” Esser tells me. “The first is that one or more of the parties to litigation offends the decency of the court. For example, a witness assaults someone in court, or someone subpoenaed refuses to appear. It might be two barristers having a dust-up in court – this happens from time to time.
“The second type is committed by someone that’s not party to proceedings, not physically in the court. This is a different class of contempt, one committed by a third party. An interferer, you might say. This is our situation. One example might be, for argument’s sake, that a crazed drug addict lives opposite the magistrates’ court. You’re heading to court to face charges, and this man assaults and hospitalises you. You can’t appear. Now, the drugged derelict can’t be found in contempt of court unless he knew that you were appearing before it and knew that in assaulting you he was stopping you from appearing. Those principles were developed in the Spycatcher case.”
It was the Spycatcher case that brought international attention to a young, gifted and extravagantly self-assured lawyer – Malcolm Turnbull. Turnbull represented Peter Wright, a former British intelligence officer, who had immigrated to Tasmania and was attempting to publish his colourful – and dubious – memoir, Spycatcher: The Candid Autobiography of a Senior Intelligence Officer, in Australia. Turnbull faced the legal might of the British government, and succeeded in having the book published in Wright’s new country.
However, the book was subject to a suppression order in Britain. For years you could read the book in most countries in the world, except for the one it was written about. And it is the specifically British litigation that offers Esser his precedent for third-party contempt. In 2000, a British court ruled that the satirical magazine Punch was guilty of breaching an earlier intervention order – applied against a separate publication – by publishing a column from a former British intelligence officer, David Shayler. This breach was tantamount to contempt of court, even though Punch was not party to the original injunction. The judgement cited the Spycatcher precedent: “The Spycatcher litigation is the best known recent instance of this. It is a contempt of court by a third party, with the intention of impeding or prejudicing the administration of justice by the court in an action between two other parties, himself to do the acts which the injunction restrains the defendant in that action from committing.”
In the case of contempt against Dutton, it of course does not pertain to an injunction or suppression order, but the broader, encompassing right for a person to face his or her charges in a court. “The minister has made decisions,” Esser tells me, “which deprive a person from accessing court, accessing the right to cross-examine witnesses. By refusing to extend my client’s visa, he’s blocking fundamental access to trial – access to the opportunity to disprove the prosecution’s case.”
Esser principally cites the long flow of common law, which enshrines access to your day in court. “The most compelling argument,” Esser says, “is the common law entitlement to an access to courts, and the minister is interfering in this. This right flows from the Magna Carta, designed to prevent the excesses that follow when a king believes he is divinely empowered and can imprison his enemies. Now, I argue that this refusal to extend the visa is an abuse of executive power, and courts must zealously protect their jurisdiction and independence. We have a separation of powers in this country, and a minister’s powers are subservient to the court.”
Esser’s second argument against Dutton draws upon the Victorian Charter of Human Rights – the legislation he helped conceive. Section 24, part 1 decrees: “A person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.”
The problem with the Victorian charter, Esser admits, is that it’s applicable only to institutions within its jurisdiction. “Ideally, this would be streamlined federally,” he tells me. “We’re making baby steps at the moment – systemised rights in the ACT and Victoria. Over time, there may be an increase in public hunger for those rights and we might see an enlargement of them and courts streamlining them into something closer to the US’s Bill of Rights – a document that really means something.”
The Australian government solicitor, on behalf of Peter Dutton, is fighting these appeals assiduously. Last week, an attempt was made to question the “competency” of the Supreme Court to hear these matters of contempt. It was dismissed. Meanwhile, Esser faces an interesting dilemma: if his client is placed in detention and cannot face his charges, Akuoch may be found in breach of his bail conditions. “The bail question is interesting,” he says. “Bail conditions must be attended unless you have a satisfactory reason otherwise. We’re hoping that if this poor bugger’s in detention then that’s a pretty good reason.”
While little reported, Esser’s case pits the Supreme Court against ministerial power – a power, Esser says, that has been “put on steroids”. Esser hopes that Dutton will “take the sensible course and negotiate an outcome”, but failing that, the next court hearing on the matter of contempt is set for December 17.
Where Akuoch will be then is anyone’s guess. His bridging visa will expire this weekend.
After going to press, The Saturday Paper has learnt that the minister has extended Akuoch's bridging visa, meaning he will have his day in court come April. However, the matter of contempt is still being pursued in the Supreme Court by Esser. The hearing initially slated for December 17 has been brought forward to this week.
This article was first published in the print edition of The Saturday Paper on Nov 28, 2015 as "Dutton’s contempt of court battle".
A free press is one you pay for. In the short term, the economic fallout from coronavirus has taken about a third of our revenue. We will survive this crisis, but we need the support of readers. Now is the time to subscribe.