Three ministers of the Commonwealth Crown criticised members of the Victorian Court of Appeal while they were hearing an appeal on sentence in a case of terrorism. The ministers said that the judges were too lenient. Even by the degraded standards of Australian politics, their language was disgraceful. They used phrases like ‘divorced from reality’ and ‘ideological experiments.’ The content, tone, and timing of the remarks suggested that this was a concerted political attack. In case you are in doubt as to the crude party politics involved, one comment was:
Labor’s continued appointment of hard-left activist judges has come back to bite Victorians.
Yes, it was as bad as that. The ministers sent their messages to an organ of the press that is known to be sympathetic to their cause. The Australian is loaded with Liberal rejects and Labor rats. That paper splashed the attack over its front page. The headline left no doubt that this was the paper that was the chosen vehicle of the attack: ‘Victorian judiciary ‘light on terrorism.’ ’
These events raised issues about the common law offence of contempt of court (which should be renamed as ‘interfering with the due administration of justice’). One form of contempt may be put this way. If someone publishes material that is either intended to interfere with pending proceedings or that has a tendency to interfere with pending proceedings, that person may be found guilty of contempt of court. Plainly there could be an issue about both the intent and tendency in the conduct of the ministers.
Another issue of contempt arose. The interference with the course of justice may occur in the context of a particular proceeding – this is called the sub judice rule – or by an attack on the system generally. The old name for this kind of contempt, which is rarely seen now, was ‘scandalising the court.’

But you need to bear one thing in mind about the first, or sub judice, kind of contempt. As indicated, that contempt may involve either an intent or a tendency. The law is clear about the first. If a person is found to have intended to interfere with the administration of justice in a way that would be unlawful, then that intentional conduct will found a finding of contempt, irrespective of whether that conduct could have achieved the desired result. Intent is not necessary but it is sufficient in this difficult part of the law. So, if I brandish a knife at a witness to deter her from giving evidence against me, I am guilty of the offence even if my conduct had no effect on the witness.
The question of intent is of course one of fact. As a judge said a very long time ago, the state of a man’s mind is as much an issue of fact as the state of his digestion.
This issue is important because the judges tend to hold that they are not and cannot be influenced by what the press says. That is just as well because the press very often gets it very wrong on sentencing, and you can’t help thinking that bleating about light sentences sells newspapers. Descendants from convicts curiously don’t often seek lighter sentences.
What normally happens when there is a credible allegation that a crime has been committed? The police investigate and the relevant officer of the Crown decides whether to prosecute the accused on that evidence before a court. In contempt cases, as with most serious criminal cases, it is the Director of Public Prosecutions who makes that decision. As I recall it, that office was created so that the Attorney General, an elected politician, does not have to make legal judgments that have political consequences.

The normal process of the law was not followed here. As far as I know, neither the police nor the DPP were consulted. The police could have investigated the issue of fact I referred to above. Did these ministers in fact intend to interfere with the course of justice in the case before the court? Had the police interrogated the ministers, the ministers could have sought advice on whether they might take the fifth – that is, whether they might refuse to answer on the ground that they might be incriminated. It is not hard to imagine the seismic reaction to that course. If the DPP had been approached, that office could have determined what on all the evidence was the best way for the public interest to be protected. That is precisely the job of that office.

Why didn’t any of that happen here? The short answer is that I don’t know, but one press report suggested that a previous Chief Justice of the Federal Court had pursued a course like that followed by the Court of Appeal here.
This is what happened. An officer of the court wrote to the ministers asking them to appear before the court to show cause why they should not be dealt with for contempt of court. They did not attend court personally, but the Commonwealth Solicitor-General did on their behalf. The result was a very unhappy shambles. The ministers were prepared to express regret, but not to apologise. Are these the kinds of games we pay our ministers and Law Officers to play, like little boys playing with matches behind the shelter shed? Should the Solicitor-General be appearing for politicians who get into trouble for taking part in a crude party political stunt? Is it part of the portfolio of a Commonwealth minister of the Crown to shaft the State government of the opposition party?
As a result of forces that we shall probably never know of, the ministers changed their minds. They again did not attend court personally, but this time the Solicitor-General on their behalf retracted all their claims and apologised unreservedly. They tossed the towel in. The judges said in that case they would not then seek to proceed further. Case closed. The Commonwealth Attorney-General gives one of his watery smirks, and the three naughty ministers, who have not set foot in the court, remain at large to practise their dark arts.
But some people, like Mercutio, have misgivings.
Three idiots who should have known better put three of our judges in a very difficult position. The judges had to react quickly and firmly to protect the integrity of their high office, both in this particular case, and generally. I have no reason to doubt the rightness of their course, but it may be as well to reflect on what we have lost because that course had to be taken.
This was a serious and calculated political attack by members of one arm of government upon another. If this kind of malice is tolerated, we could be in deep trouble in this country. This is precisely the form of cancer that was a symptom of the rise of those regimes that we least admire. Not many people trust their politicians now, here or elsewhere, but we do by and large trust our judges. A concerted political attack on them is therefore as vicious as it is sinister.
It matters not that the attack was childishly inept, but it does matter that the three miscreants were trained as lawyers. It also matters that with the benefit of the advice of the Solicitor-General, at my expense, they persisted in and aggravated their criminal conduct. It also matters that they sought to recite themselves into a possible defence by claiming that ‘our own role as ministers’ necessarily involved them in ‘participating in public debate on controversial issues’. The sentencing of terrorists has nothing to do with their portfolios, and their ignorance of the law is boundless.
Even these politicians must know that in these troubled times, when public faith in public office is falling through the floor, the most likely result of their initial offence – that is, their crime – and their contumacious persistence in it, was to bring into question the conduct of the judiciary. It’s as if having debauched their own currency, they were content then to debauch that of the judiciary.  Yet they walk away with nary a smack, and not even a reprimand to their face. Some people out there are, then, likely to feel short changed.
Due process goes both ways. The accused have rights. So do we, the public. (That’s what the appeals were about.) Did not the public have an interest is seeing that the serious issues raised here were dealt with in the ordinary way? Evidence is led and tested and arguments on the law are all held in public before a dispassionate and unengaged court. It then gives a considered judgment. There may then be appeals. The public knows exactly what is going on and why. These shabby ferrets would have been pursued into their burrows and then brought out again into the cauterising glare of a public hearing, where otherwise high personages get the same treatment as you or I would get. We are all, after all, supposed to be equal under the law.
And in addition to inquiring into the evidence of the state of mind that led to this attack, the court, including quite possibly the High Court, could have given us guidance on two important legal issues.
First, litigation cannot act as a brake on all public discussion. There is a defence to this kind of contempt, associated with the unromantic name of Bread Manufacturers. In that case, one of our distinguished jurists held that:
The discussion of public affairs and the denunciation of public abuses, actual or supposed, cannot be required to be suspended merely because the discussion or the denunciation may, as an incidental but not intended by-product, cause some likelihood of prejudice to a person who happens at the time to be a litigant.
You can see again the importance of the issue of intent, which is here expressed in the negative, so possibly raising nice questions about onus. The issue of intent would also be fundamental to the question of punishment if the ministers were found guilty.
A second question may then arise. Would this finding of guilt for an offence which is punishable by indefinite imprisonment disqualify these people from retaining their seats in parliament under the Constitution?
And if the court found that these men did intend to interfere, a political question, and possibly a legal issue, might then arise. Are they fit to hold office as ministers of the Crown?
In the events that have happened, we will not see any of those issues dealt with.
Instead, after the first appearance, the judges may have felt uncomfortably close to be being seen to have performed any one of the following roles – victim, informant, witness, prosecutor, judge, jury, and court of appeal. Some of that confusion may occur in what is called contempt in the face of the court, but that was not the issue here.
The judges may also have felt a little like Mr Bush or Mr Blair after they occupied Baghdad – it seemed like a good idea at the time, but what do we do if the natives don’t cooperate and play ball?
Then we have to ask whether it was right for the judges to be embarking on this contempt inquiry while sitting in judgment on the relevant case. What on earth may have happened if either party had asked the court to step aside because its members were publicly discussing the possible reaction of the public to their conduct in the case from the pressure being brought to bear on them by the government?
For reasons I can well understand, the Chief Justice put it to the Solicitor–General that the Ministers had put the court in a difficult position. If they dismissed the appeal, ‘we’ll be accused of engaging in an ideological experiment or being hard-left activist judges.’ But if they increased the sentences, ‘the respondents [the convicted terrorists] may have an understandable grievance that we were doubtlessly affected by what three prominent ministers for the Crown had to say.’ Well, sentences were increased, and we are left with the worry that not just the interested parties may think that the government had its way after all.
As it happens, some sentences were raised in a way that has brought a warm outer glow back to The Australian, whose front page headline reads this time ‘Bar raised for terror sentencing.’ This happens shortly after three members of the government have attacked not just the judiciary, but members of this particular court, for being too lenient. What inference does the average terrorist draw from that sequence? What does the fair minded observer in the public think?
That brings me back to the issues fact in this tawdry case. What did these ministers intend to achieve by their attack? As we saw, they were not interrogated by the police. They were not, so far as I can see, asked to put their response on oath. They certainly were not cross-examined – in a case where counsel would not have to be Buddy Franklin to be kicking goals from all round the ground. Instead, they were suffered through their mouthpiece, the Solicitor-General for the Commonwealth of Australia, to offer what lawyers call a bare denial. As indicated, they said in part that:
…. it was never our intention nor would it ever be to influence its decision-making process…we did not intend to undermine public confidence in the judiciary…
Well, then, what did these three soi disant lawyers intend to do – hold communion with the pixies, or have Crocodile Dundee sing Advance Australia, Fair? How would the average punter react to that rubbish? Try answering that question in polite language. It’s as if the apathy about honesty has wafted our way over the Pacific.
May I make one final observation about the course that these ministers by their conduct imposed on the court? In the 70s, 80s and 90s, I was involved in fighting many contempt cases. I lost them all – by some margin. Since then I have been involved in advising the press before publication. These issues are often difficult, especially with deadlines. Journalists, and their lawyers, don’t usually get the clear air that judges have. Nor do they get any sympathy from the judges. The risks are awful – for example, the Crown only has to prove a tendency; the accused has no right to a trial by jury; and the sky is the limit on penalty. The owner may be able to write a cheque, but it can’t do the jail time.
But in all my time, I cannot recall a journalist being asked to show cause why he or she should not be prosecuted for contempt – on the apparent footing that an apology will end the matter. In I think every case I have known, I would personally have embraced the offer – with both bleeding arms. Why is it then that ministers of the Commonwealth get offered this soft velvet treatment but journalists do not?
One thing looks clear. The next time a journalist is charged with contempt without having received the offer made to Commonwealth ministers, we can expect a thumping editorial about inequality – and possibly an industrial reaction.
How did the press react? The ABC News at 7 pm led with the story and said that the three judges had been ‘fuming.’ It would be tart to say that the judges aren’t paid to fume, but Aunty need not expect a rude letter. As I said, The Australian thought the increase in sentences was terrific. With their ineffable capacity to get legal affairs wrong, one article commenced with phrases captioned on page one:
Victoria’s Court of Appeal judges have muscled up. No longer will courts let convicted terrorists off with a lenient sentence.
The editorial is indeed remarkable. It begins by saying:
Victoria’s Court of Appeal made a fair and responsible ruling yesterday when it increased sentences of two men convicted of planning separate terrorist attacks in Melbourne.
Well, that’s nice for their Honours – they are secure in the knowledge that they have the blessing of The Australian. The editorial later referred to a ‘problematic twist.’ They referred to the purple language of the ministers that I have set out, like ‘hard-left activists’ and ‘divorced from reality.’ Then we get this:
Yesterday’s sentencing decision proves otherwise.
Have these people got no sense of decency at all? They apologised unreservedly to the court that they had published these vile and baseless charges – and now the editor finds that the judges are not guilty of them! The newspaper has found in favour of the judges! It passes belief. Then they go on to explain why the ministers’ ire had been raised’. Then they make one of their trademark infantile digs at the ABC. What mistake did the ministers make? They had based ‘their remarks on an ABC report that had not given the full context of the judges’remarks.’
God give us strength to endure all this. It’s as if Rupert Murdoch has done the people of Victoria a favour.
What is the most worrying thing here? These three bunnies were in the sewer up to their necks and they didn’t even smell it. That shows the shocking decline in standards in our public life.

Sir Owen Dixon is by common consent the greatest judge that this country has produced. He was a stickler for form. In a very well-known passage, his Honour said:
Such a function has led us all I think to believe that close adherence to legal reasoning is the only way to maintain the confidence of all parties in federal conflicts. It may be that the Court is thought to be excessively legalistic. I should be sorry to think it is anything else. There is no other safe guide to judicial decisions in great conflicts than a strict and complete legalism.
We may hope that Sir Owen’s view prevails and that it’s business as usual when cases like that of the three ministers come up again in the future. It would too much to hope that our politicians might get better.