For a start what the three Federal ministers did was attack the judiciary in Victoria, for which they got a right bollocking from the Chief Justice of Victoria. Some sagely assert that they breached the doctrine of the separation of powers suggested by the Constitution. It is pretty clear that, insofar as their comments prejudiced a matter still to be determined, they had gone way too far. They attacked judges who by convention do not engage in political controversy, although sometimes having to decide matters which have varying degrees of political effect – that is, they were kicking someone who can’t really kick back. Others might say they were interfering with the independence of the judiciary, a cornerstone of the “checks and balances” enshrined in the Constitution.
That is the theory, but does it fairly represent reality ? Who are these judges ? There is some fairly learned writing which shows that judges are not representative of the community in its diversity. Private school education and usually of a conservative origin, trained in the doctrine of stare decisis to follow precedent. How do they get there ? They are appointed by the government – it really does help if you know the Attorney General. You do not have to look far to find judges who have previously been Ministers or ministerial staffers. Some are appointed it would seem as a reward for service to the Government. So for that reason alone the “independence” seems a little prejudiced. To varying degrees, appointments are made at the behest of,or with the agreement of the Chief Justice or head of jurisdiction. That also might narrow the field from which they come, and the kind of “independence” they represent.
The big issue in the doctrine of contempt is respect for the law. As Gilbert put it:
“The Law is the true embodiment of everything that’s excellent, it has no kind of fault or flaw, and I milords, embody the law”
Judges expect respect, and the law will punish disrespect of an open and obvious kind. But barristers regularly give cheek and even admonish judges in court without penalty.
The issue here is that there was public disparaging of judges, who “apply the law” and, the argument goes, this goes against the Rule Of Law which protects us from tyranny, and abuse by the rich and powerful. And a good thing too, to the extent that it does that. Of course there are judges who are bullies, who are pompous, let alone unfair.
Politicians are fair game, so why not judges? The difference is that politicians make the law, the judges are forced to apply it, as best they can. They rarely get an opportunity to fight back.
The interesting feature of the Three’s contempt was that it was ideological, suggesting that Victorian judges were a bunch of lefties, soft on terrorists. Anyone acquainted with said judges would be inclined to smile, but in a way that was the wickedness involved; it politicised a conventionally apolitical judiciary. Just like Donald Trump did when courts stayed his travel bans on citizens of muslim majority, mostly Middle Eastern, countries. That the Three were “ill-advised”, if they were, is clear. They had crossed a constitutional boundary.
Is the doctrine a Good Thing ? In some parts of the world, even in the USA, judges are elected and are in the thick of partisan politics. They have played a role in constitutional crises in Brazil and other South American countries. That does blur the lines of the “separation’ of the powers of the legislature and the judiciary. In Civil Law countries the judiciary is often a fierce opponent of politicians, as in Italy with the magistrates pursuit of Mafia connections to the Andreotti regime
The doctrine is a bulwark that makes the Rule Of Law a protection against the executive power of the State. This has probably been more for the benefit of corporations than for the lone citizen, but even that may be a justification. Doubtless there could be more protection for the citizen.
Interfering with a case before the courts, under the Common Law, is clearly improper. Attacking the judiciary undermines the separation of powers in the constitution, so better not to do it.
Jim Coombs is a retired magistrate and economist (and, yes I was a friend of a friend of the Attorney who appointed me)
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