The Coali­tion’s war on the law

An at­tack on the Vic­to­rian ju­di­ciary by three govern­ment min­is­ters highlights a larger cam­paign against the pow­ers of independent of­fice.

The Saturday Paper - - Front Page - By Mike Sec­combe.

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 ter­ror­ism­re­lated 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.

“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. IT’S CER­TAINLY BEEN SHOWN IN SHARP RE­LIEF BY RE­CENT EVENTS.”

Health Min­is­ter Greg Hunt in the house of rep­re­sen­ta­tives last week.

MIKE SEC­COMBE is The Satur­day Pa­per’s na­tional cor­re­spon­dent.

MIKE SEC­COMBE is The Satur­day Pa­per’s na­tional cor­re­spon­dent.

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