Politicians Should be Allowed to Criticise Judges, Argues Former High Court Justice

Former High Court Justice Dyson Heydon has written a searing critique of a hearing last year in the Victorian Court of Appeal (VCA), which determined whether to prosecute three federal ministers for contempt of court after they criticised the Victorian judiciary in the press.

Published on March 2 by the British centre-right think tank Policy Exchange, Heydon’s 15 page treatise poses the question, “Why can’t politicians criticise judges – convincingly or not?”

The conservative former justice describes the Australian court system as “… rotten with excessive delay, some of which… judges are responsible for.” He takes specific aim at those on the Bench, saying some judges “lack the capacity to have merited appointment.”

Mr Heydon served as a NSW Court of Criminal Appeal justice for three years, before being appointed to the High Court of Australia in 2003. He was labelled the Great Dissenter, due to the number of times he disagreed with majority judgments in highest court of the land.

Heydon considered himself a black-letter judge, one who follows well-established legal principles. This may be contrasted with activist judges, who, he explains, make rulings based on “some political, moral or social program.”

A convicted terrorist

The comments that landed the Coalition ministers in hot water were made prior to the judgement of a VCA appeal being handed down. The case involved convicted terrorist Sevdet Besim, who had pleaded guilty to planning a terrorist act, an offence carrying a maximum penalty of life imprisonment.

Mr Besim pleaded to a plot whereby he would drive a car into a Victorian police officer, behead his victim, seize their gun and shoot into the crowd at the 2015 Anzac Day commemorations in Melbourne’s CBD.

In September 2016, the Victorian Supreme Court imposed a sentence of 10 years imprisonment, with a non-parole period of 7 years and 6 months. This led the Commonwealth Director of Public Prosecutions to appeal the sentence on the ground that it was manifestly inadequate.

The difference across the Murray

The appeal was argued on June 9 last year at the VCA. That evening, the ABC reported that during the proceedings, then Victorian Chief Justice Marilyn Warren commented on the “enormous gap” between NSW and Victorian courts in terms of sentencing for terrorism charges.

Ms Warren asserted that NSW courts placed less weight on an offender’s personal circumstances and thus imposed more severe sentences. Her colleague, Justice Mark Weinberg, remarked that the difference in sentencing is “extremely worrying.”

Hard-left activist judges

On June 13, whilst judgment on the appeal was still pending, an article appeared in the Australian featuring input from the federal ministers.

Health minister Greg Hunt said the comments made by the justices endorsing “shorter sentences for terrorism offences” were “deeply concerning.” He added that the courts should not be a place for “ideological experiments.”

Assistant Treasurer Michael Sukkar described Labor-appointed judicial officers as “hard-left activist judges,” and blamed light sentencing on eroding any trust that remained in the legal system. While then human services minister Alan Tudge remarked that “some judges are divorced from reality.”

To prosecute or not to prosecute

In response to the article, the Registrar of the VCA called on the ministers to appear before the court on June 16 to explain why they shouldn’t be prosecuted for contempt of court.

The proceedings began with the VCA reading a statement that said it was concerned the comments were “impermissible at law and improperly made in an attempt to influence the court in its decision,” as well as “that some of the statements purported to scandalise the court.”

In his dissection of the proceedings, Mr Heydon points out that the VCA failed to clearly set out which comments the ministers had made that warranted the hearing, and it neither articulated how they could have been in contempt of court.

The former justice also remarked that the court said there was “a strong prima facie case” against the ministers. But, then it proceeded to use contradictory language pointing to actual contempt, such as stating that “a serious breach” had been made that “was fundamentally wrong.”

Commonwealth solicitor general Stephen Donaghue appeared on behalf of the ministers. He said that the politicians expressed their regrets. But, there was no apology or retraction forthcoming. And the ministers only made a formal apology and retraction of their comments at a later date.

The VCA made clear in its ruling on June 23 that the ministers would have been referred to the Victorian Supreme Court for prosecution had they not apologised. The court further asserted that it expected there would be “no repetition of this type of appalling behaviour.”

Uncertain contempt

Heydon goes onto question the sort of contempt of court that the VCA actually had in mind. He said the primary concern seemed to be regarding a breach of the sub judice rule: the principle that comment shouldn’t be made on pending proceedings as it could prejudice the outcome.

However, this type of transgression is really only a concern during a trial by jury, Heydon explained. And the Besim appeal didn’t involve one. He further stated that senior VCA judges were hardly going to be influenced by the comments made by the ministers.

Then there’s the contempt of scandalising the court. Heydon says to prove this two things must be established. The first would be to show that public confidence in the court had been undermined. But, he claims the comments only amounted to “strong criticism,” which “is not of itself contempt.”

And it also has to be proven that a defendant sort to lower the authority of the court or judges. But, the ministers denied they tried to do this. And the VCA gave no reason to dispute this denial.

Silencing warranted complaints

To Heydon, the proceedings were “a waste of time” and “a public embarrassment.” The ministers were not prosecuted, but, to some degree, they were found guilty of contempt. And he questions why judges would be affected by “some clichés and slogans uttered by politicians.”

As his paper draws to a close, Heydon describes a backlogged Australian court system, which is plagued by faults. There are some judges who are “unjustifiably rude,” a few who are “bullies,” while others “are appallingly slow, through inefficiency or laziness or indecisiveness.”

“It is in the public interest,” Heydon declares, that these failings “be exposed with a view to their eradication.” But, he then goes onto imply that the VCA proceedings have actually stifled legitimate complaints, as individuals will fear risking “public embarrassment and possibly criminal sanctions.”

In conclusion, Mr Heydon raises one last question in which he indicates that judges, who “seek to preserve judicial independence in response to political criticism by threatening use of the contempt power” could actually be strengthening those who oppose the independence of the judiciary.