Judgment in the balance

Judges need to exercise caution in dealing with political criticism.

The front page of The Australian reporting the comments of three government ministers.

Sometimes it is said that the work of judges should not be criticised because it is not open to judges to defend themselves. But there are defensive techniques open to ­judges. Judges may, for example, rely on support from others, such as professional organisations, academics or politicians. A further technique of judicial self-defence was employed in Victoria last year.

It involves recourse to the law of contempt. It arose out of a guilty plea in 2016 by Sevdet Besim to having done acts in preparation for, or planning, a terrorist attack. His plan was to drive a car into a randomly selected police officer at the 2015 Anzac Day commemorations in central Melbourne. His goal was to kill or seriously injure the officer, behead the officer, seize the officer’s gun and use it to kill or seriously injure as many people in the area as possible.

The maximum penalty is life in jail. The accused was sentenced to 10 years’ imprisonment. A non-parole period of seven years and six months was fixed.

The Commonwealth Director of Public Prosecutions embarked on an uncommon and difficult course. She appealed to the Victorian Court of Appeal on the ground that the sentence was manifestly inadequate. The argument took place on June 9, 2017. On June 23 the Court of Appeal ­allowed the crown appeal and ­increased the sentence to 14 years’ imprisonment, with a non-parole period of 10 years and six months. The present concern arises not out of that sentence but from the aftermath of a statement apparently made during oral argument on June 9 by the chief justice. She said there was an “enormous gap” ­between NSW and Victoria in sentencing for terrorism offences. She said that was because in NSW less weight was put on the personal circumstances of the offender and a more “tough on crime” approach was taken. Another judge called the gap “extremely worrying”.

On June 13 — that is, while judgment was still reserved — The Australian published an article about the appeal. It was headed: “Judiciary ‘Light on Terrorism’ ”. It referred to statements attributed to federal ministers Greg Hunt, Michael Sukkar and Alan Tudge.

What the ministers said, as ­reported, was attacked almost ­immediately. This reaction tends to weaken the often-asserted idea that judges should be immune from criticism because they are not adequately defended by political leaders. In turn, the Prime Minister and three other ministers expressed support for the beleaguered ministers.

Ministers, from left, Michael Sukkar, Alan Tudge and Greg Hunt could have faced immense problems for their future careers if they had been charged with contempt of court. Picture: AAP

The Court of Appeal requested the attendance of the ministers and of persons responsible for the articles on June 16. What then took place is recorded in a judgment of the court on June 23 indicating that it would not procure the institution of contempt proceedings.

Proceedings on June 16 began with a statement being read out. After criticising what the ministers said, it concluded: “This morning is not an occasion to debate whether … contempt has been committed. That may be for another court to determine. Rather, it is an opportunity for those ­involved to inform the court of any relevant matters they wish before we determine whether to refer the publication for prosecution for contempt of court.”

It will be seen that whatever the Court of Appeal debated, it seemed to find repeatedly that contempt had been committed.

UK Policy Exchange: Does Political Criticism of Judges Damage Judicial Independence? (PDF)

The ministers were in a very difficult position. It is usually ­regarded as permissible, indeed as right and proper, for politicians to debate matters of public interest like criminal sentencing and communicate with their constituents about these matters. On the other hand, for the ministers to be charged with contempt, let alone convicted, would have created ­immense problems for their future careers and possibly for the survival of the government.

What did the Court of Appeal actually say that provoked the ministers’ statements? And what did the ministers actually say that provoked the reaction by the Court of Appeal? Strangely, these are very hard questions to answer.

The court quotes a few of the ­offending ministerial phrases in passing. But its judgment does not at any stage ­appear to have conveyed to the interested public in a full and ­coherent way, in context, what the ministers said or what the newspaper reported. Was it perhaps thought their language was too horrid to be repeated? Nor did the Court of Appeal set out the passages in the transcript of the June 9 hearing on which the ministers’ statements were based ­(securely or not). Yet it seems one or more of the ministers said the judges were “divorced from ­reality” and were “hard-left activist judges”, conducting “ideological experiments”, who had “eroded any trust that remained in our legal system”.

The substantial silence of the Court of Appeal about what it and the ministers said is not compatible with the idea that litigation is to be conducted in public. It is not compatible with the idea that ­intelligible reasons must be given for decisions. It is not compatible with the idea that reasons must be capable of being read in their own right without having to go to other sources like a newspaper article that might not be easy to find or a court transcript that may or may not be available. The Court of ­Appeal’s reasons are partial in the sense that they are neither complete nor freestanding. Thus, they are not easy to follow or evaluate.

The ministers can perhaps be criticised on three counts. First, they did not consult any primary source revealing what the Court of Appeal judges said on June 9. However, as will be seen, had they tried to consult the best source — the transcript — they would have been told it was not available. It ­remained unavailable at least until after the article was published.

Second, can one say worse of what the ministers said than that for the most part it was a collection of tired and demotic slogans? For example, for judges to be described as “divorced from reality” is scarcely novel. Some judges would wear as a badge of pride the title “hard-left activist judge”. Indeed, it is truthful to call some judges that, though people do not normally think in this way of the Victorian Court of Appeal, for more reasons than one. The proposition that among members of the public there is little trust in the legal system is to some extent true. To ­assess a statement that the Court of Appeal had eroded that trust ­depends on knowing precisely what they said.

Third, it might have been better for the ministers to have abstained from comment until the appeal was over. What judges say in judgments matters more than what they say in ­debates with counsel. Similar criticisms perhaps can be made of the newspaper people, though they might be thought unfortunate so far as they were only ­reporting what was, if not what Talleyrand would have called an event, at least a piece of news.

The federal solicitor-general began by reading a statement by the ministers. They said they intended to make legitimate comment but not to undermine public confidence in the judiciary. They said they did not intend to suggest the court would not apply the law or to pressure the court. They expressed regret for their language. This was not good enough for the Court of Appeal. It repeatedly noted that there was no apology or retraction.

The solicitor-general then conceded that terrorism and sentencing were not among the portfolio responsibilities of the ministers. But would the court’s response have been different if terrorism and sentencing had been among the portfolio responsibilities? Can ministers not speak about any topic of public interest, whether or not it is within their portfolio ­responsibilities, subject perhaps to the prime minister or cabinet ­deciding otherwise? Cannot any person within the Queen’s peace in Australia discuss matters of public interest like the merits of what appellate judges say in the course of public hearings?

Later the solicitor-general said he had instructions from one of the ministers that he was content ­expressly to withdraw one statement attributed to him about “hard-left activist judges”.

Later still the solicitor-general said he now had instructions on behalf of all ministers to withdraw that remark as well as the statements about “ideological experiments” and “judges being divorced from reality”. The court said this followed “the court expressing doubt, scepticism, even incredulity at what was being said on behalf of the ministers”.

This is a disturbing passage. First, the office of the solicitor-general is one of the highest in the country. Its occupant is the principal non-parliamentary legal adviser to the federal government, and conducts all major constitutional and other civil litigation for the government. Its current occupant is of great probity, skill and reputation. Was this incredulity directed at him? Second, to be incredulous is to experience an incapacity to ­believe a proposition. It is legitimate for a court in argument to express doubt and scepticism. But does not the time for deciding whether one is incapable of believing a proposition, and for expressing that state of mind, come only after the process of receiving all relevant materials and hearing all argument has been concluded, not in the middle of the process?

The court then recorded that senior counsel for the newspaper people stated the ministers had given unsolicited statements over the period of one hour to the journalist. He also said the transcript of the June 9 hearing had not been obtained or sought before publication. Research by the court after June 16, while not contradicting what senior counsel said, ­revealed that the newspaper had in fact ­inquired as to the availability of the transcript on June 13, the day of publication, and had been told that it was not available. Senior counsel for the newspaper people then apologised for and retracted the publication. After the hearing, the ministers followed suit.

The language of the Court of Appeal in its June 23 judgment on contempt repeatedly asserted that there was an actual contempt.

To take one of many examples, the court stated that the delay by the ministers in apologising for and retracting the statements “is most regrettable and aggravated the contempt”. The court continued by saying it “accepts that the ministers have sufficiently acknow­ledged and accepted their contempt … and sufficiently purged their contempt”. Again, are these passages not findings of contempt, as distinct from statements of a prima facie position? The ministers cannot have aggravated or purged their contempt unless they had earlier committed it.

Is it not a serious thing for a court to assert, while protected by judicial immunity, that there actually had been a contempt of court, a serious criminal offence, at a time when no charges had been formally laid, the evidence was ­incomplete, no sworn or affirmed testimony had been received, and the proceedings of June 16 had begun with an assertion the court would not on that day ­“debate whether contempt has been committed”, thus precluding any contribution from the ministers or the newspapers on that subject?

The court’s words were: “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 (— another finding of actual contempt). It would be a grave matter for the administration of justice if it were to reoccur (sic — and yet another finding of actual contempt). This court will not hesitate to uphold the rights of citizens who are protected by the sub judice rule.”

This language left the impression that the ministers and the newspaper had been guilty of contempt despite the absence of the usual safeguards a prosecution for that crime would have afforded.

What exactly was the contempt that troubled the court? The statement read out on June 16 made various vague complaints. One was failure to respect the doctrine of separation of powers. Another was failure to understand the ­importance of the judiciary being independent. These complaints do not necessarily involve illegality. If one peers through the fog gene­r­ated by the court’s failure to set out either what it said on June 9 or what the article said on June 13, it seems the court raised or hinted at one view on sentencing terrorists, while the ministers asserted another. But judges continually criticise politicians — convincingly or not. 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 governments and seek to remedy them — not just those of the legislature and the executive.

Underlying the court’s language may be the idea that it is dangerous to criticise the judiciary because over time this tends in an incremental, perhaps subliminal, way to undermine public confidence in the ability, integrity and sense of responsibility of the ­judicial branch, so as to encourage governments to increase controls over the judicial branch, and thereby reduce its independence.

This idea is complex. It may be right. But it is controversial. ­Assuming it to be right, it might be said the danger will increase where the criticism is not answered.

It is notable that the court did not ­endeavour to answer the ministers’ criticisms. It considered ­instead whether to punish the ministers for making them. It used the hearing of June 16, which it ­initiated, to deter anyone contemplating criticisms in future when it said: “It is expected that there will be no repetition of this type of appalling behaviour.” But it did not in any way directly refute the truth of what the ministers said. Is this because it thought the truth was ­irrelevant?

The hearing before the court was not in fact dedicated to ­abstract questions about the separation of powers and the independence of the judiciary. It was directed to whether proceedings should be instituted against the ministers for contempt of court which, if successful, could have led to their imprisonment, to heavy fines and certainly to the destruction of their political and probably their post-political careers. What sort of contempt of court did the court have in mind?

On one reading, the primary concern of the court seems to have been the sub judice rule. Under the sub judice rule, contempt is committed by comments on pending proceedings that carry a real risk of being likely to prejudice the trial of an action. The vices it seeks to deal with arise most intensely where there is a trial by jury. Perhaps they also arise, one hopes very unusu­ally, before junior or inexperienced judges. The prosecution appeal before the court did not ­involve trial by jury. It was not a trial. It was not an appeal from a jury trial. It was an appeal from a sentencing judge to the apex court in Victoria. It was heard by three of that court’s most senior and ­experienced judges. Even if the sub judice rule applies to appeals, it is safe to act on Lord Salmon’s view that judges will not be influenced by what is said in the media, and that if they were so influenced they would not be fit to be judges.

The June 16 statement expressed a concern that the statements were improperly made in an attempt to influence the court’s decision-making process. It is highly unlikely that any minister would make that attempt in relation to the three judges concerned because that minister would know the three Court of Appeal judges had more than enough stomach to adhere faithfully to their task whatever the ministers said.

Taken by itself, the court’s stress on the sub judice rule suggests its reaction might have been much milder if the offending opinions were expressed after the proceedings were over. But the court indicated the timing was immaterial. They said the statements “purported to scandalise the court … by being calculated to improperly undermine public confidence in the administration of justice” in the particular appeals. This is a second type of contempt.

Despite criticisms of this type of contempt by Murphy J, in Australia prosecutions have succeeded in recent times. In contrast, this type of contempt was obsolescent in England and Wales and in Nor­thern Ireland even before it was ­recently abolished by statute.

To prove this type of contempt, it is necessary to establish one of two things. One is a real risk as distinct from a remote possibility of undermining public confidence in the administration of justice. It is highly questionable whether that could have been established in this case beyond reasonable doubt. The material may have been discourteous. But it fell short of scurrilous personal abuse of the judges. It was rather a criticism of the thinking that leads to relatively light sentences. It was criticism that was strong in the sense that it advocated a sharply contrasting position. But strong criticism is not of itself contempt. The remarks do not allege personal partiality. They do not reveal personal dislike. They reveal only dislike of a particular approach.

The other way in which contempt through scandalising the court can be established arises where the defendant aims to lower the authority of the court or its judges. The ministers denied that aim. The Court of Appeal did not say it did not accept that denial. And the Court of Appeal gave no reason for concluding the denial should not be accepted. It would have been difficult to establish the remarks were not made bona fide.

Were the proceedings before, at and after the hearing on June 16 a waste of time? Were they a public embarrassment? The court, with a degree of self-approbation, twice described the June 16 hearing as involving a “stern discussion”. The court’s summary of the discussion suggests that in a sense that seems to have been true. And there is nothing wrong with stern discussion. But the discussion was conducted on incomplete materials. It and its outcome smeared the reputations of the ministers in a confusing way. The ministers escaped from prosecution. But they did not escape from the slur involved in being alleged to be, and in some degree being found to be, guilty of contempt. The court did not ­articulate how the conduct could have been a contempt or why it was. Was the court’s concluding observation ringing rhetoric or was it only fustian? Was the language and behaviour of the court wholly virtuous? Or was it only shrill, petulant and precious? Was the tone only tinny? Could it be said the court’s conduct in fact tended to support the truth of one or two of the ministers’ statements? Above all, was the performance not marked by absurdity? For, like judges the world over, members of the Victorian Court of Appeal do not agree with other judges unless they think it is right to do so. They do not feel overborne by other judges. Why, then, should anyone think they would be affected by some cliches uttered by politicians in the course of a long-running ­debate between those who think convicted terrorists are punished too harshly and those who think they are punished too leniently?

There are many admirable Australian judges, with respect. But Australian courts have several faults. Some judges lack the ­capacity to have merited appointment. A few are unjustifiably rude. A few are bullies. Some are appallingly slow, through inefficiency or laziness or indecisiveness. Some are insensitive. Some are ignorant. Some are undignified. As a result, some judicial work is poor. The whole system is rotten with ­excessive delay, some of which, but certainly not all of which, ­judges are responsible for. It is in the public interest for these failings, whether they are widespread or not, to be exposed with a view to their eradication.

But how can they be exposed by critical contributions in public debate if the Victorian Court of Appeal’s opinion is representative? For if contempt is to be found in a statement creating a risk that confidence in the ­administration of justice will be lost, it is no defence that the statement happens to be true. On that approach, public criticism cannot extend to the judiciary. That outcome cannot be justified by ­appeals to judicial independence. For, as has been said, “there is a difference between judicial independence and stopping work at lunch time”.

Now it is true the ministers did not criticise the judiciary for any of the faults recorded above. It would go too far to say the Court of Appeal would actually threaten contempt against politicians who criticised a judge for rudeness, ­inefficiency, insensitivity or ignorance, for example. But did the court, in threatening contempt proceedings, create an atmosphere inducing those with legitimate complaints to feel unable to make them without risking public embarrassment and possibly criminal sanctions?

The goal of contempt of court rules is to increase respect for the law. Respect for the law has been said to be a core condition of ­judicial independence. Even if the court’s intention in doing what it did was to vindicate respect for the law, can it be said that what it did in fact actually engendered less ­respect for the law?

In Scotland, the Lord President once said that restraint should be employed in relation to prosecution for scandalising the court “lest a process, the purpose of which is to prevent interference with the administration of justice, should degenerate into an oppressive or vindictive use of the court’s ­powers”. Might that have happened, or did it happen, in the Victorian Court of Appeal in this case?

Where judges seek to preserve judicial independence in response to political criticism by threatening use of the contempt power, do they actually strengthen the hands of those who oppose judicial independence?

Dyson Heydon is a former justice of the High Court of Australia. This is a revised version of a paper given in January in London to Policy Exchange, Judicial Power Project. A full version may be viewed at www.policyexchange.org.uk.