“Disgraceful” Tudge puts him self above the law

Late last month, the Federal Court’s found that Minister, Alan Tudge engaged in criminal conduct by keeping an asylum-seeker in detention and depriving of his liberty for five days in defiance of an order by the Administrative Appeals Tribunal that the man be released. 

The Court described Tudge’s decision to deprive the man of his liberty as “disgraceful”, and said: “The minister cannot place himself above the law”:  “The minister has acted unlawfully.  His actions have unlawfully deprived a person of his liberty.  His conduct exposes him to both civil and potentially criminal sanctions, not limited to a proceeding for contempt.”

On 5 October, Tudge was questioned by the ABC’s Virginia Trioli about the criminal conduct finding.

Trioli asked Tudge why he believes he can continue as a Minister when he’s “been found by one of the highest courts in the land to have engaged in conduct that is criminal”.  Tudge said “I strongly reject those assertions made in commentary by the judge.”  When Trioli took issue with whether the court’s findings could be dismissed as assertions, Tudge responded:  “They were comments by a particular judge, which I strongly reject.  We’re looking at our appeal rights presently.”  Trioli commented that she didn’t “think Ministers are above the law”.  Tudge said again that “it was commentary of this particular judge.”  Tudge reiterated that the “court that made some comments that I completely and utterly reject”.  So Tudge is aggressively unrepentant.

When this matter originally blew up on 22 September, the Attorney–General, Christian Porter remarked condoning Tudge’s conduct, implicitly agreeing with Tudge that government policy trumps the criminal law and trumps the orders of courts or tribunals.  That despite the Attorney–General’s highest duty being to uphold the law.

One might have expected that, in the two weeks since the Federal Court’s finding and Tudge’s contemptuous dismissal of it, two things would have happened:  First, Porter would have come to his senses and told Tudge not to make matters any worse by doubling down; if Tudge couldn’t find the moral courage to withdraw and apologise for his remarks, at least he should shut up about it.   Secondly, even without wise counsel from the Attorney–General, on his own, Tudge would have come to that same conclusion.

That matters have come to this is a clear indication of the arrogant and contemptuous attitude of the Federal Government to the Rule of Law in Australia.  These are worrying developments for the Rule of Law.

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Lawyer, formerly senior federal public servant (CEO Constitutional Commission, CEO Law Reform Commission, Department of PM&C, Protective Security Review and first Royal Commission on Intelligence and Security; High Court Associate (1971) ; partner of major law firms. Awarded Premier's Award (2018) and Law Institute of Victoria's President's Award for pro bono work (2005).

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