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The independent, low profile third arm of government

The independent, low profile third arm of government

By Justice Emilios Kyrou

Courts Human Rights 

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A role of the courts is to protect fundamental human rights by ensuring other arms of government do not exceed or abuse their powers.

Snapshot:

  • As courts depend on parliament for funding and the executive to enforce their decisions, they are described as the weakest arm of government.
  • However, their independence enables courts to ensure the other arms of government are accountable.
  • The recent case involving three federal ministers demonstrates how contempt of court enables courts to protect their independence and the integrity of the administration of justice.

 

The courts are generally referred to as the third arm of government and are sometimes described as the weakest arm of government.1 This is because, unlike the parliament, courts cannot raise income to fund their activities and, unlike the executive, they do not have either an army or a police force to enforce their decisions. They are dependent on parliament to allocate sufficient funds to enable them to perform their functions and on the executive to ensure that their decisions are implemented.

Interaction between the judiciary and the other arms of government

Although the judiciary may have a lower profile than the executive and the parliament and is often regarded as the weakest arm of government, it performs the key function of judicial review. This ensures that the other arms of government do not exceed or abuse their powers.

Independence enables judges to strike down invalid laws and to order the executive to cease acting in an unlawful manner. Through a writ of habeas corpus, a judge can order that a person be released from unlawful detention. By standing between the state and its citizens, judges protect fundamental human rights and liberties.

The High Court of Australia has considerable power because, under the Commonwealth Constitution, it has the final say on the validity of state and federal legislation and the exercise of executive power. There are many examples of the High Court striking down legislation embodying key policies of the government of the day, including the bank nationalisation case,2 the Communist Party case,3 and the Malaysian solution case.4 The High Court can also change and develop the common law and, in doing so, require governments to transfer property or pay compensation to members of the community. The Mabo native title case5 is a good example.

As we have seen in recent months, the High Court can also determine whether a member of parliament has been validly elected.

At the state level, the Supreme Court can also strike down Victorian legislation and overturn executive action. In recent times, the Supreme Court has forced the Victorian government to remove youth offenders from an adult prison.6

It is important to note that the courts can only exercise the power to strike down legislation and overturn executive action for constitutional or other legal reasons. Unless there is a constitutional impediment, parliaments can change the law as found by a court. They sometimes do so with retrospective effect.

The principle of impartiality means that, in exercising their powers, the courts cannot give favourable treatment to any individual or group of individuals. This obviously applies in relation to government ministers. If a minister has infringed the law, a judge will make a finding accordingly and will not give the minister any special treatment.

Contempt of court

Contempt of court can be either criminal or civil. Civil contempt generally covers disobedience with court orders, such as an injunction. Criminal contempt covers a number of different categories, the best known of which are contempt in the face of the court, the sub judice rule and scandalising the court.

Contempt in the face of the court deals with conduct by a person in the courtroom or in the precincts of the court which interferes with, or tends to interfere with, the course of justice.7

The sub judice rule deals with conduct which as a matter of practical reality has a real and definite tendency to prejudice or embarrass the trial in a pending proceeding.8

Scandalising the court deals with any conduct which is calculated to undermine public confidence in the judicial process, and to lower the authority of a judge.9

In June this year three federal ministers were required by the Victorian Court of Appeal to show cause why they should not be charged with criminal contempt of court. This request arose in the context of two appeals to the Court, namely, Director of Public Prosecutions (Cth) v Besim and Director of Public Prosecutions (Cth) v MHK.10

In both cases, the DPP appealed to the Court of Appeal against sentences imposed on the offenders, who had been convicted of terrorism offences. The DPP alleged that the sentences were manifestly inadequate. The Court heard the appeals on 9 June 2017. During the course of the hearing, there was discussion between counsel and the bench about differences in the sentences imposed in NSW and Victoria in relation to terrorism offences. The Court reserved its decision on each of the appeals.

Four days later, while the Court’s decisions were pending, The Australian published a front page article about the Besim appeal under the headline “Judiciary light on terrorism”. The article attributed statements to three federal ministers, which were highly critical of the Court. The statements were sent to the same journalist within an hour of each other. The most serious statements were:

  • Health Minister Greg Hunt stated that the Court was becoming a forum for “ideological experiments”
  • Assistant Minister to the Treasurer Michael Sukkar described judges of the Court as “hard-left activist judges”
  • Minister for Human Services Alan Tudge, stated that judges were “divorced from reality”.
  • The article described the ministers’ statements as “an extraordinary attack on the Victorian judiciary”.

The Court convened a mention in both cases on 16 June 2017. Three days before that date, the Registrar of the Court of Appeal wrote to the Attorney-General with respect to the three ministers and to the publisher, editor and journalist responsible for the article. The letter requested them or their legal representatives to attend the mention to make submissions as to why they should not be referred for prosecution for contempt of court.

Following the Registrar’s letter, but before the mention, the ministers publicly stated that they stood by their statements in the article.

At the mention, there was discussion of both the sub judice and scandalising the court heads of contempt. Counsel for the parties associated with The Australian apologised for publishing the article and retracted it in full. The Solicitor-General for the Commonwealth, who appeared for the ministers, did not offer an apology on their behalf. He read out a joint statement on behalf of the ministers which said that they respect the Court’s independence and did not intend to influence its decision-making process or bring the Court into disrepute. The ministers said that in making their comments, they were discharging their responsibilities as ministers to participate in public debate on an important issue. In the course of the mention, however, the Solicitor-General informed the Court that he had received instructions that the ministers retracted the three statements quoted. He said that he did not have instructions to apologise to the Court. The Court then adjourned to consider its position.

At the mention on 16 June 2017, the Court said the following about the ministers’ statements and publication of the article:

“The statements, on their face, [fail] to respect the doctrine of separation of powers, breach the principle of sub judice and reflect a lack of proper understanding of the importance to our democracy of the independence of the judiciary from the political arms of Government.

“The parties in both cases, on both sides, namely the Director, Besim and MHK, should comprehend that this Court has not been and will not be affected by the statements at all, made in The Australian article or elsewhere in the media.

“We particularly emphasise to the public that it should be assured and have the utmost confidence that the Court will decide these matters independently, impartially and in accordance with the rule of law.

“There are important principles of law that arise when anyone speaks about a court’s decision or its conduct during a hearing, before the decision is delivered.

“We would add in the strongest terms the legal notions of contempt of court do not exist to protect judges or their personal reputations. These laws exist to protect the independence of the judiciary in making decisions that bind governments and citizens alike. These laws further exist to protect public confidence in the judiciary.”11

Four days later, and while the Court was still considering whether to initiate contempt charges, the three ministers requested the Court to convene a further mention so that they could apologise to the Court. The mention took place on 23 June 2017, immediately after the Court published its decisions on the two appeals, in which it increased the sentences for both offenders.12

At the mention, the Solicitor-General read out a joint statement of the ministers in which they offered an unconditional apology to the Court and unreservedly withdrew all the comments they had made. The statement also said that the ministers intended “to exercise greater care in the future to avoid making any remarks that might be thought to interfere with the due administration of justice either generally or in particular cases”.13

As a result of the ministers’ change of position and the earlier apology by the parties associated with The Australian, the Court decided not to initiate contempt of court proceedings.The incident is a very dramatic manifestation of the powers that the courts possess and their willingness to exercise them to protect their independence. The incident also illustrates that, in deciding whether to exercise their powers, it is immaterial to the courts whether the parties are rich or poor, powerful or vulnerable. The Supreme Court has the power to charge anyone with contempt of court where there are grounds to do so and to punish anyone found guilty of contempt of court, including by imposing a term of imprisonment.

The other important point is that the Court’s contempt powers are not used to shield the court from criticism by the community or to protect individual judges from personal embarrassment. Rather, the powers are used to protect the integrity of the administration of justice in order to maintain the community’s confidence in the court system. No contempt issue would have arisen if the ministers had made comments such as “courts are too soft on crime” or “sentences for terrorism offences are inadequate”. Such comments would have been treated as forming part of genuine public discussion in a democracy, even if they are ill-informed.

On the other hand, comments which interfere with a pending court case or threaten the integrity of the court system are treated as being antithetical to the rule of law. That is why they may attract sanctions under the laws of contempt of court.

Thus, in respect of the sub judice head of contempt of court, at the mention on 16 June 2017 the Court of Appeal expressed concern that the community might form the view that the Court’s decisions on the two appeals would not be based purely on the submissions made by the parties but would be influenced by the article in The Australian. In respect of the scandalising the court aspect of contempt of court, the Court of Appeal expressed concern that the community’s respect for the Court might be diminished if the community formed the view that judges were engaged in ideological experiments or were activists for a “hard-left” agenda rather than basing their decisions on the merits of the arguments presented before the Court.

At the mention on 23 June 2017, the Court of Appeal’s focus was the sub judice head of contempt of court. It made the following concluding remarks which left the ministers and the parties associated with The Australian in no doubt about what would happen if they engaged in similar conduct in the future.

“The Court has formed the view that there is a strong prima facie case with respect to the Ministers. We have formed the view that the publication and the statements involved a serious breach of the sub judice rule. It must be understood that sub judice is designed to protect litigants’ right to have their cases decided on their merits without external intervention, influence and commentary. Furthermore, it was of significant concern to the Court that three Ministers of the Crown would make the statements they did.

“There is one matter we emphasise. The Court has accepted in this instance the apologies and retractions proffered. It should not have come to this, namely two court hearings. But for the apologies and retractions we would have referred the groups, namely the Ministers and The Australian parties to the Prothonotary of the Supreme Court for prosecution for contempt of Court.

“The Court states in the strongest terms that it is expected there will be no repetition of this type of appalling behaviour. It was fundamentally wrong. It would be a grave matter for the administration of justice if it were to reoccur. This Court will not hesitate to uphold the rights of citizens who are protected by the sub judice rule.”14

 

Justice Emilios Kyrou is a judge of the Victorian Court of Appeal and the Victorian patron of the Hellenic Australian Lawyers Association. This is an edited version of a speech delivered by him on 17 August 2017 to the La Trobe Law Students’ Association.

 

1. Justice McHugh, ‘The Strengths of the Weakest Arm’ (2004) 25 Australian Bar Review 181, 181–2.

2. Bank of New South Wales v Commonwealth (1948) 76 CLR 1.

3. Australian Communist Party v Commonwealth (1951) 83 CLR 1.

4. Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144.

5. Mabo v Queensland [No 2] (1992) 175 CLR 1.

6. Certain Children v Minister for Families and Children (No 2) [2017] VSC 251.

7. Lewis v Ogden (1984) 153 CLR 682, 688.

8. Hinch v A-G (Vic) (1987) 164 CLR 15, 34, 46, 70.

9. A-G (NSW) v Mundey (1972) 2 NSWLR 887, 906.

10. DPP (Cth) v Besim [2017] VSCA 158; DPP (Cth) v MHK [2017] VSCA 157.

11. Transcript of Proceedings, DPP (Cth) v Besim; DPP (Cth) v MHK (Victorian Court of Appeal, S APCR 2016 0199; S APCR 2016 0001, Warren CJ, Weinberg and Kaye JJA, 16 June 2017) 2–4.

12. DPP (Cth) v Besim [2017] VSCA 158; DPP (Cth) v MHK [2017] VSCA 157.

13. Transcript of Proceedings, DPP (Cth) v Besim; DPP (Cth) v MHK (Victorian Court of Appeal, S APCR 2016 0199; S APCR 2016 0001, Warren CJ, Weinberg and Kaye JJA, 23 June 2017) 3.

14. DPP (Cth) v Besim; DPP (Cth) v MHK (No 2) [2017] VSCA 165 [27], [32]–[33].


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