It may seem ironic that the doctrines of the rule of law and the separation of powers find themselves under unrelenting attack from conservatives rather than anarchists. Actually, it’s not irony; rather, an error of nomenclature: those loudly proclaiming the “conservative” badge today are the true anarchists.
One thing that a person of truly conservative mindset — and in particular, a minister of the Crown in Her Majesty’s government formed by a conservative party — would never seek actively to do is to undermine the integrity of the Westminster system of checks and balances, which we’ve spent a thousand years developing in support of our precious democracy.
More than anything, that person would not want to invade the sacred space inhabited by the courts, our final bulwark against injustice, personified in the quaintly robed figure of the incorruptible judge. Beyond judges is only the rule of the mob.
Three senior federal government ministers who are each also lawyers — Greg Hunt, Alan Tudge and Michael Sukkar — felt it appropriate that they should make public statements about the sentencing practices of the Victorian criminal courts while the Court of Appeal was considering the sentences in a current terrorism appeal. What they expressed wasn’t mild dismay. Hunt said: “Comments by senior members of the Victorian courts endorsing and embracing shorter sentences for terrorism offences are deeply concerning. The state courts should not be places for ideological experiments.”
Sukkar went further: “Labor’s continued appointment of hard-left activist judges has come back to bite Victorians.” Tudge added that the public was “fed up”, which qualifies as a considered statement coming from him.
It was a co-ordinated attack, of course, from three ministers who would struggle to find the exit without directions. Anyway, it was such a seamless segue from the Prime Minister’s newfound passion for the virtues of the “Australian patriot” and the corresponding attachment of suspicion to every foreigner who dares to want to become one, there can be no doubt that this is just another irresponsibly expedient play in the endless Festival of Fear, which substitutes for policy these days.
The ministers are the ones being hauled before an icily angry Court of Appeal to explain why they shouldn’t be charged with criminal contempt, but they’ve had plenty of support. Senator Derryn Hinch pitched in with comments that suggest that the reason for his own contempt convictions isn’t so much his fearlessness as his ignorance of the law.
The Twitter account of The Real Mark Latham took the opportunity to call for judges to be elected, because you’d have to be as big an idiot as whoever writes those tweets to think that that is something we should entertain even sardonically.
Or so I thought, until I read the words of a former prime minister who said, in 2010 while commenting on crime and punishment, that “If judges don’t treat this kind of thing appropriately, sooner or later, we will elect judges. And we will elect judges that will better reflect what we think is our sense of anger at this kind of thing.”
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The same sticky paw prints were evident at the same time as the contempt story was breaking, in comments condemning the $70 million settlement Immigration Minister Peter Dutton had just done with the Manus Island asylum seekers. Our hero, yes you know by now who, condemned the judges who hadn’t actually had a chance to hear the case before it settled, saying “we’ve got a judiciary that takes the side of the so-called victim rather than the side of common sense”.
Ah, Tony, the conservative-a-la-mode. If he’s to be remembered for anything in a coherent sense, it will be as a wrecking ball of precious convention. It was his turning of the irresponsibility dial to 11 when he took the Liberal leadership in 2009 that started the trend leading to the current, frankly appalling, spectacle. No wonder the judges’ union, the Judicial Conference of Australia, took the incendiary step of issuing a press release calling the ministers’ “co-ordinated and direct attack” on the independence of the courts a “threat to the rule of law”.
Last Friday, the ministers’ counsel appeared before chief justice Marilyn Warren and justices Mark Weinberg and Stephen Kaye to explain their actions. Warren made it clear that the matter is not over, as the judges will consider whether contempt charges should be brought.
Hinch, ever helpful, said he’d have told the judges to “go jump”. The government was sending out its usual co-ordinated signals, with Barnaby Joyce uncharacteristically refusing to throw petrol on this fire while the Prime Minister defended people’s right to criticise judicial decisions.
Ah, Malcolm, ever the sophist. As he well knows, the issue here is not one of criticising a decision already made, but attempting to influence one that is still under consideration.
Hinch has an answer to that too, of course: the case in which the ministers are accused of interfering is not being heard by a jury, and everyone knows you can’t really intimidate a judge into changing his or her mind. Which is precisely not the point. Well done, Derryn.
What is contempt of court anyway, and why are judges so bloody sensitive? Well, perhaps only the wrongly accused can really appreciate the true importance of a sacrosanct judiciary, but the principle was laid down in 1765:
“[Contempt] excites in the minds of the people a general dissatisfaction with all judicial determinations, and indisposes their minds to obey them; and whenever men’s allegiance to the laws is so fundamentally shaken, it is the most fatal and most dangerous obstruction of justice … to be impartial and to be universally thought so, are both absolutely necessary for the giving justice that free, open and uninterrupted current, which it has, for many ages found all over this kingdom, and which so eminently distinguishes and exalts it above all nations upon the earth.”
The rationale behind the courts’ right to protect themselves from attack has been restated a thousand ways, but that’s basically it: belief in justice is an act of collective faith. Without it, on what basis could any court’s verdict in any case ever hold up?
As Hinch doesn’t understand and Tony doesn’t care, this has nothing to do with whether particular judges in particular cases are too soft or not sufficiently cognisant of public opinion. It’s not hard to understand that no two reasonable people will ever agree on the outcome of every case. We entrust justice to judges, and we back them to get it right. Otherwise,we might as well decide guilt and sentences by phone-in poll.
The ministers’ statements, whether or not they constitute criminal contempt (the court will decide that), were contemptible. They have damaged public faith in the only pillar of government that stands uncorrupted by our 116 years of constitutional nationhood. Their behaviour is the very definition of anarchy.