Don’t quarantine judges from criticism: Christian Porter

Christian Porter has endorsed a devastating critique by former High Court judge Dyson Heydon of the Victorian Court of Appeal.

Attorney-General Christian Porter at his Commonwealth Parliamentary Offices in Sydney. Picture: John Feder.

Attorney-General Christian Porter has endorsed a devastating ­critique by a former High Court judge of last year’s threat by the Victorian Court of Appeal to have three government ministers charged with contempt for criticising soft sentencing in that state.

The incident, which required the ministers to apologise in order to avoid criminal convictions for contempt, has been severely criticised in London by former High Court judge Dyson Heydon.

Mr Porter said Mr Heydon’s ­remarks had highlighted the fact no part of the democratic system was immune from criticism. Mr Heydon outlined his concerns in a paper he delivered last month to a British think tank, the Policy Exchange, which has been described as a clarion call for free speech.

Mr Porter said the paper “highlights in a way that is relevant to new modern policy debates an older but enduring principle. That principle is that no part of our democratic system is immune from criticism and that it is well ­accepted that judicial decisions, reasoning and outcomes should be critiqued and, sometimes ­robustly.”

Mr Heydon’s remarks follow an incident last June in which Health Minister Greg Hunt, Citizenship Minister Alan Tudge and Assistant Treasurer Michael Sukkar criticised Victoria’s judges amid a number of sentencing appeals, including for Anzac Day terror plotter Sevdet Besim.

Marilyn Warren, who was Victoria’s chief justice at the time, said there was a strong prima facie case for contempt and had the ministers not apologised they would have been referred to the Supreme Court for prosecution.

Lawyers representing The Australian, which had accurately ­reported their remarks, also apologised.

A subsequent High Court ruling revealed that the Supreme Court had been acting in error by failing to hand down sentences that were proportionate to the ­objective gravity of offences and to the moral culpability of offenders.

Mr Heydon, who retired from the High Court in 2013, asks in his paper why it was wrong for politicians to criticise judges. He told his British audience that “if one peers through the fog” generated by the way the Victorian judges had handled the incident “it seems that the court raised or hinted at one view on sentencing terrorists, while the ministers asserted another”.

“But judges continually criticise politicians — convincingly or not,” he said.

“They do it in judgments, in submissions they make to government, in public speeches, in statements issued by the ­Judicial Conference of Australia.

“Why can’t politicians criticise judges — convincingly or not? One aspect of the responsibility borne by politicians is to identify defects in all three arms of government and seek to remedy them — not just those of the legislature and the executive.”

Mr Porter told The Australian that Mr Heydon’s essential observation was that “the right to debate the reasoning and outcomes of our courts should not be unnecessarily constrained by conflating regular criticism with the quite specific act of contempt”.

He said it was worth paying close attention to this when deciding how best to encourage debate “that serves to improve the outcomes for the Australian people who our legal and judicial systems exist to serve”.

Mr Porter’s endorsement of Mr Heydon’s remarks is in line with that of his predecessor, George Brandis, who is the incoming high commissioner in London.

Mr Brandis said Mr Heydon was one of the greatest jurists ever to have sat on the High Court and was “surely right in emphasising the primacy of freedom of speech and criticism in enabling public debate to take place”. “The law of contempt of court accepts that and accommodates it,” he said.

Simon Breheny, who is policy director of the Institute of Public Affairs, said Mr Heydon’s paper was a masterful examination of the issues surrounding political criticism of judges. It identified many of the problems of the modern court system and called for a serious public discussion about these issues, uninhibited by constraints imposed by state sanction.

“This is a clarion call for freedom of speech,” Mr Breheny said.

Mr Heydon told his London audience that the statements by the three ministers may have been discourteous but they fell short of scurrilous personal abuse.

“It was rather a criticism of the thinking which leads to relatively light sentences,” he said. “It was criticism which was strong in the sense that it advocated a sharply contrasting position. But strong criticism is not of itself contempt.”