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Attacks on Victorian judges 'grossly improper'

Attacks on Victorian judges 'grossly improper'

By Law Institute Journal

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Judges and lawyers have united in their condemnation of inflammatory statements by federal politicians about the Victorian judiciary.

President of the Judicial Conference of Australia Justice Robert Beech-Jones, said “unfounded, grossly improper and unfair” statements about senior members of the Victorian Supreme Court were “an apparent co-ordinated and direct attack on the character and independence of the Victorian judiciary” and could be misconstrued as an attempt to interfere with the outcome of a case before the Victorian Court of Appeal.

The statements attributed to ministers in the media in June, were made in response to comments by the Chief Justice of Victoria Marilyn Warren and Judge of Appeal, Justice Mark Weinberg, during argument on an appeal by the Commonwealth Director of Public Prosecutions (CDPP) against a sentence imposed on an offender for a terrorist offence. The reported comments concerned an apparent difference between the sentences imposed by NSW and Victorian courts for terrorist offences under the Commonwealth Criminal Code. The Court reserved its decision.

The court comments could, a minister was reported as saying, have the effect of “undermining the public’s confidence in the judiciary to take terrorism seriously” and that the “attitude of judges like these has eroded any trust that remained in the legal system”.

Ministers were also reported saying; “the Victorian court system is becoming a global forum for ‘ideological experiments’ that ignored the reality of the local and global terrorism threat” and “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”; the “continued appointment of hard left activists has come back to bite Victorians" and judges were “divorced from reality”.

“These comments are a slur on the character of the Victorian judiciary,” said Justice Beech-Jones, adding references to “ideological experiments” and “hard-left activists” had no evidentiary foundation.

“These comments are capable of undermining public confidence in the judiciary . . . they are deeply troubling. They represent a threat to the rule of law. They should never have been made.”

The ministerial statements were also “grossly unfair” in that while the court is reserved on the appeal, the judges were unable to directly respond to the misinterpretation of their comments in court or the “slurs upon their character”.

Victorian Attorney-General Martin Pakula said the ministers came "dangerously close" to contempt of court.

The Law Council of Australia (LCA) called for an end to political attacks on the judiciary, especially in cases where they might be perceived to interfere with matters currently before the courts.

LCA president Fiona McLeod SC said it was “gravely concerning” that ministers suggested the Victorian judiciary was carrying out “ideological experiments” when deciding cases. “Commenting on a matter that is currently before the courts could be perceived by members of the public as an attempt to influence the outcome and interfere with the court process. It is inappropriate to suggest that judges decide their cases on anything other than the law and the facts presented to them by the parties.

“The Court of Appeal will in this case, as in all cases, decide the matter on the facts and the applicable law.

“Australian politicians have traditionally, and quite correctly, been very careful to avoid any perception of attempting to influence the courts. This is a standard that should be upheld by every member of parliament.

“Attacking the independence of the judiciary does not make Australia safer, in fact it erodes public confidence in the courts and undermines the rule of law.

“It is Australia’s robust adherence to the rule of law that has underpinned this nation’s status as one of the most peaceful, harmonious, and secure places in the world.”

LIV president Belinda Wilson said she was concerned about the pattern of behaviour that had been developing to attack the judiciary and also the comments that were being made by politicians when cases were still before the court.

“It is worrying that some federal MPs are prepared to make deliberate comments about the Victorian judiciary and state issues."

Ms Wilson said sentencing of offenders generated a great deal of public interest. Sentencing was a complex task, and judicial officers are under enormous pressure, but they remain in the best position to hand down the most appropriate sentence in every case, she said.

The Victorian Bar condemned “the unwarranted attack on the rule of law and independence of the judiciary by federal politicians” and said it was of great concern comments made by judges during an appeal, yet to be determined, were taken out of context in the political debate.

“Once judgment is handed down there will be ample time for informed debate,” said Vic Bar president Jennifer Batrouney QC.

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