The government’s war on the law
The gravity of their situation appeared to dawn slowly on Messrs Hunt, Sukkar and Tudge.
Proceedings were well under way in the Melbourne Supreme Court last Friday before the three Turnbull government ministers seemed finally to appreciate they were in a lot of trouble over the outrageous slurs they had directed against the court and its justices, via
the pages of The Australian newspaper, and that they should back off a bit.
One might have thought they would have come to this realisation a couple of days earlier, when they received letters from the court requiring that they or their counsel appear before three justices of the Court of Appeal “to make any submissions as to why they should not be referred for prosecution for contempt”.
The letters were strongly worded, noting the three had made their comments about matters that were still sub judice – that is, under judicial consideration and therefore prohibited from public discussion – and further that they appeared “to intend to bring the court into disrepute, to assert the judges have and will apply an ideologically based predisposition in deciding the case or cases and that the judges will not apply the law”.
But at first the tough letters seemed to have no effect. The three stood by their words, and numbers of their government colleagues rallied round to defend them on free speech grounds. So did the class clown of the 45th parliament, independent senator David Leyonhjelm, who called the “unelected” judges “dear little daffodils” and suggested real contempt of court was “when you do a brown eye”.
Thus supported, the three ministers remained stubbornly unrepentant. And they remained so for just on 39 minutes into last Friday’s court proceeding.
Then the federal solicitor-general, Dr Stephen Donaghue, QC, who was representing the ministers at taxpayers’ expense, told the three stern-faced judges he had received new instructions from Assistant Treasurer Michael Sukkar “to expressly withdraw the statement about hard-left activist judges”.
A further 11 minutes in, Donaghue announced his instructions had changed again. Now Greg Hunt, the minister for health, wished to withdraw his comment about the courts engaging in “ideological experiments”, and Alan Tudge, the human services minister, wished to withdraw his line accusing the judges of being “divorced from reality”.
As if withdrawing the words made any difference, after they had been published in a national newspaper and picked up and commented on by most other media. It was a matter of shutting the gate after the horse had bolted, and the ministers did not even have the grace to say sorry for allowing it to bolt. The solicitor-general said he had received no instructions to apologise.
This was in contrast to the newspaper, which had also been called to explain itself and whose lawyer acknowledged “a serious argument that this article contravened the two limbs of the law of contempt … namely, sub judice rule, secondly, what’s colloquially, shorthandedly called ‘scandalising the court’ ”.
His appeal to the judges was that they should not “shoot the messenger” and he proffered “a full and sincere apology to this honourable court”.
Pretty clearly the newspaper had a much sharper appreciation of the seriousness of the situation than the government. For this is shaping up as one of the most interesting and consequential contempt matters to come up in many a long year. Apart from the potential damage to the reputations and political careers of the three ministers – contempt can mean jail time – it reflects on the broader issue of this government’s attitude to the law.
We’ll come back to that. First, some background on this case.
Its genesis was in two matters before the Appeals Court, appeals by the prosecution over the length of sentences handed down on a couple of terrorism-related cases, in the course of which there was discussion of the comparative severity of sentences handed down by courts in Victoria and in New South Wales. The ABC ran a straight account of this discussion, which noted comments that NSW appeared to give longer jail terms.
That story ran on Friday, June 9.
On the following Monday, at 12.36pm, the first of three text messages came to the phone of The Australian’s political editor Simon Benson. It was from Hunt. At 12.43 another appeared, from Sukkar. And at 1.42, one from Tudge.
The following day the story ran under the provocative headline “Victorian judiciary ‘light on terrorism’ ”, quoting at length the three ministers’ words. Here is some of what they said:
From 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.”
Tudge was quoted: “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.”
And Sukkar’s words were most inflammatory of the lot.
“It’s the attitude of judges like these which has eroded any trust that remained in our legal system,” he said.
“Labor’s continued appointment of hard-left activist judges has come back to bite Victorians.”
There was more: Tudge and Sukkar also sent out tweets suggesting Victoria’s judges were going soft on terror. These have since been deleted.
The question is, what could have motivated the three ministers to send those unsolicited comments to a friendly media outlet, despite their portfolio responsibilities having nothing to do with terrorism or the Victorian courts, that the appeals court was still considering the cases, and that they knew nothing of the facts of the matters being considered?
The answer would appear simple: politics. In that ABC story Hunt, Tudge and Sukkar saw an invitation to a bit of populist posturing: a chance to present as tough on crime, and to bag their Labor opponents, in this case the Victorian government. All three ministers hail from Victoria and the rather hapless Victorian opposition currently is campaigning for tougher laws on terrorism.
In his efforts to defend them, though, the solicitor-general read to the court a long joint statement from Hunt, Sukkar and Tudge in which they claimed more noble intentions.
They said they appreciated the opportunity “to reassure the court that we deeply respect its independence and that it was never our intention nor would it ever be to influence its decision-making process.”
They emphasised their deep respect for “the fundamental importance of the independence of the judiciary and the constitutionally enshrined separation of powers.”
In making their comments, they said, they had only sought to “play our own role as ministers within our system of government, which necessarily involves participating in public debate on controversial issues.
“While we intended to make legitimate comment on that particular issue, we did not intend our remarks to undermine public confidence in the judiciary. Nor did we intend to suggest or imply that the court would not apply the law in disposing of the matters before it,” their statement said.
“In retrospect, we regret using language that was capable of conveying that meaning when no such meaning was intended.”
The judges weren’t buying it. How could statements about “hard-left activist judges … favouring the rights of convicted terrorists” and “ideological experiments”, et cetera, not be directed at the bench hearing the two cases?
By their comments, said Chief Justice Marilyn Warren, the ministers had put the court in an invidious position whereby if it dismissed the appeal in the two terrorism cases “we’ll be accused of engaging in an ideological experiment or being hard-left activist judges”, and if it increased the sentences “the respondents may have an understandable grievance that we were doubtlessly affected by what three prominent ministers for the Crown had to say”.
Later, she suggested “some of the statements in the article would imply that some of the judges, particularly Justice [Mark] Weinberg and I, were corrupt in the sense that we came to the hearing with an intellectual predisposition”.
Oh, the judges were scathing. We have not the space to repeat more than a fraction of their critique of the ministers and the paper that reported them.
They were, in the words of Justice Stephen Kaye, disturbed. Disturbed “that three ministers of the Crown are clearly so ignorant of the separation of powers and sub judice concept. That disturbs me greatly, not only as a judge of this court, but as a member of our nation.”
With all due respect to the judge, though, the ministers might better be described as heedless, rather than ignorant. All three are lawyers. One of them, Hunt, is both a cabinet minister and a past associate to the former chief justice of the Federal Court, Michael Black.
Robert Richter, QC, who appeared for one of the convicted parties, certainly did not see the ministers’ comments as being simply ignorant. They were, he said, “calculated to intimidate this court”.
And a case involving Hunt’s former boss, Justice Black, some 15 years ago makes an interesting comparison with the current proceedings. The circumstances, in a nutshell, were thus:
The Howard government had passed new laws intended to limit the right of appeal in immigration matters. The validity of those laws was challenged in the Federal Court. And while those cases still were being heard, then immigration minister Philip Ruddock went on television and commented on the role of the courts in such matters.
Justice Black took a dim view of this and called Ruddock to account for possible contempt, much as happened in the current case.
The solicitor-general of the time, David Bennett, QC, was sent to assure the court that Ruddock regretted the remarks. He conveyed a statement from the minister in which he said he was referring not to the particular cases under consideration but to a “trend” of legal challenges to government actions and to the position taken by the Labor opposition. So Ruddock escaped a contempt case.
But what was it that he said that so upset Justice Black?
The offending words, uttered on Channel Nine’s Today show, were these: “And what we’re finding is that notwithstanding that legislation, the courts are finding a variety of ways and means of dealing themselves back into the review game.”
That was all. Just 15 years ago that was considered to be bordering on contempt. The “increasingly strident attacks” against the courts by Ruddock and other Howard government ministers were deplored widely in the media. Ruddock was roundly condemned by various lawyers’ groups and civil libertarians for allegedly interfering in the independence of the judiciary.
That his words seem so relatively mild now speaks to the coarsening of public debate since, and in particular to this government’s attitude to the law.
“We’ve seen a real decline in respect and understanding when it comes to legal institutions and the role they play in a civilised society,” says Professor George Williams, dean of law at the University of New South Wales.
“It’s certainly been shown in sharp relief by recent events,” he says, adding that the judges of the Victorian Appeals Court had “good reason to be scathing”, given the circumstances of the case,
and the fact that no apology was offered soon after.
“That itself demonstrates a lack of respect. This notion of withdrawing is nonsensical.”
The matter of the Hunt–Sukkar–Tudge comments, though, is but part of a broader picture in which the government seeks to arrogate greater power to itself and “subvert”, to use Williams’ word, the powers of independent decision-makers.
“The notion that has underpinned a lot of the way we approach governance is that politicians shouldn’t have the final power in many cases. It’s important that it’s an independent person. Sometimes that’s a judge, sometimes a tribunal.
“There is a very large shift away from what had been a bipartisan recognition that you need to take politics out of some things and respect the decision of an independent expert person.
“It’s very significant. They have quite a different sense of things like the separation of powers and, frankly, I think it’s dangerous,” says Williams.
He sees social changes driving it.
“I think it’s in part due to the diversification of the media and in particular social media, which can be quite brutal. I think in general our society’s becoming less tolerant of conventions or practices and legal niceties that underpin civil society. There’s a sense of this behaviour being egged on by the growing tide of populism and impatience with the courts.”
Good point. Back in 2002, when the Ruddock case came up, there were no Twitter trolls, because there was no Twitter. There was no Facebook to direct the highly partisan if not fake news that undermines people’s trust in institutions. The great populist outrage machine of talkback and tabloids was not yet running at full speed.
One might think, though, that conservatives would be leading the resistance.
“Good conservative principles would say that respect for the courts and the rule of law is an integral value. But what we see is very much at odds with what we would expect from a conservative government, in upholding the longstanding democratic institutions, inherited from the United Kingdom,” says Williams.
Yet it is the political right leading the assault and, says Williams, “There’s nothing conservative about it. It’s actually quite a radical shift, seeking to destabilise very longstanding arrangements that underpin our system of government.”
Nor is it just a phenomenon in Australia.
He cites United States President Donald Trump’s “disdain” for the courts. He points to the attacks by the right-wing media in Britain on judges involved in decisions related to Brexit.
In this country the war on the law is pursued in many ways other than straight-out attacks of the kind directed at the Victorian courts or, most notably and grossly, the Human Rights Commission and its now outgoing president Gillian Triggs.
Williams points to the defunding of environmental defenders’ offices and notes the moves by Attorney-General George Brandis to make the funding of other community legal centres contingent on them agreeing not to advocate policy changes.
In an address to the Sydney Writers’ Festival, as part of PEN Sydney’s Free Voices Lecture series a few weeks ago, Australia’s former solicitor-general, Justin Gleeson, spoke of the “pressing issue of the law being used to suppress legitimate criticism of those who govern us”.
He was not criticising section 18C of the Racial Discrimination Act, which has lately so obsessed the political right. Indeed Gleeson defended it as “to civilise a particular form of debate, not for the sake of shutting it down, but because those most harmed by the insults it targets are those in society least able to protect themselves merely through their own speech”. He was addressing more insidious things.
“What our parliaments have done increasingly over the last 20 years is to delegate more and more functions to a minister. I say ‘functions’ because the line becomes blurred between delegating mere administrative discretions and delegating law-making powers,” he said.
His argument was detailed and somewhat legalistic in parts, but what it boils down to is a trend towards ministers taking greater discretionary powers, and also making them non-reviewable.
He cited a number of examples, one of them literally Kafkaesque:
“Indeed there is currently a challenge before the High Court to a law which allows the minister to cancel a person’s visa in reliance on information that cannot be seen by a court,” he said.
Space does not allow us to do credit to Gleeson’s detailed and disturbing critique. Suffice to repeat his warning that there are powerful forces in Western liberal democracies – including in Australia – intent on shutting down critical voices and freedom of expression.
“We need to be vigilant,” said Gleeson. “We need to defend and strengthen those institutions within our society that seek to hold those who exercise public power to account. And we need to identify and reform those laws that are the real impediments to that freedom.”
And Gleeson is in a unique position to know, by virtue of his former position as the nation’s second law officer, and having taken the decision to quit in protest at Brandis’s outrageous – and ultimately unsuccessful in the light of public exposure – attempt to politicise his office.
And yet even now, the government is endeavouring to further concentrate unreviewable power in its own hands.
This week parliament has been debating proposed changes to the Citizenship Act. Most of the discussion has been about English language tests and pledges of allegiance, but the scary part is not so amenable to soundbite debate.
The changes also would give Immigration Minister Peter Dutton wide new discretionary powers, including to override decisions by the Administrative Appeals Tribunal at any time he considers it to be “in the public interest”.
As Khanh Hoang said in a recent detailed analysis for the University of New South Wales’s Kaldor Centre for International Refugee Law:
“These new powers would give the minister for immigration unchecked and almost unrestrained powers to act as a gatekeeper to formal membership of the Australian community.”
Greg Barns, a barrister, civil libertarian and once, before he was driven out by the rightward lurch of the Liberal Party under John Howard, a senior Liberal adviser, was very blunt in a recent opinion piece about the government’s attitude to the law.
The immigration changes, the attacks on the Victorian court, were part of a pattern of behaviour that sought to undermine the separation of powers and diminish checks on executive government, he wrote.
“The target of those seeking to impose an authoritarian state is the independent judiciary.”
If that sounds a bit alarmist, consider this. On Wednesday, government MP George Christensen rose to give a glowing endorsement of the authoritarian president of the Philippines, Rodrigo Duterte, who has encouraged the extrajudicial killing of some 2000 of his citizens as part of an alleged war on drugs, and who has boasted of killing people himself. Christensen said Australia might learn from the Philippines’ tough approach.
The salient point is not that some crazy backbencher said it; it’s the fact that none of his seniors in government, according to his office, rebuked him. They need his vote.
Just as no one senior in the government has taken a position against three ministers of the Crown scandalising some of the most senior members of the Australian judiciary.
At last, late on Thursday this week, 10 days after their co-ordinated texting of The Australian and six days after they refused to apologise when given the chance in court, it seems the penny finally dropped with ministers Hunt, Sukkar and Tudge that they were in big, big trouble.
Word leaked out in Parliament House that they had requested another hearing by the court. And the court subsequently announced: “Chief Justice Warren, Justice Weinberg and Justice Kaye will convene a further mention following the hearing on Friday 16 June involving three Federal Ministers and The Australian. This will be held at 11.30am on Friday 23 June…”
At time of writing we don’t know how it will go. At the very least, an abject grovel is expected.
This article was first published in the print edition of The Saturday Paper on Jun 24, 2017 as "The Coalition’s war on the law". Subscribe here.