Wednesday 28 June 2017

It's time to change the contempt of court laws.

Let it be said, for it is no secret among people that know me, that I am no fan of lawyers or the law. But even I must begrudgingly concede that some sort of system of laws and courts is a necessity. What I would insist, however, is that they are only a necessity - that is to say, a means - largely regrettable - for achieving a specific goal which is a peaceful, safe, non-violent society.

There is for me, nothing magical or mysterious about the law or the legal system. They are simply tools for achieving social harmony, just as electric wires and water pipes are tools for delivering power and water to my kitchen. The Law is not some sort of magical Harry Potter world of arcane knowledge and be-robed wizards though you might well imagine it was if you go into a court room. Australian lawyers still prance about the court in black robes and wigs while judges preside from the bench in long tresses and robes which increase in splendour as they rise up the ranks. There is also a pervading sense that lawyers and jurists see themselves as superior class of beings who are not going to take any impudence from us muggles.

Recently, three members of the Australian Parliament were summoned before the Supreme Court of Victoria to "show cause" why they should not be charged with contempt for criticising the sentencing decisions of some (unnamed) judges.  At first the politicians admitted they had perhaps expressed their views a little immoderately but did not apologize. When threatened with contempt of court however, they were all forced to apologise.

I cannot express how outraged I am at the thought of three members of Parliament, duly elected representatives of the Australian people, being forced to abjectly apologise to what is essentially a group of public servants: the only reason being that these paid government employees had the power to send then to jail if they didn't. It is not only a violation of the right to freedom of speech but a perversion of how power in society ought to be exercised.

Contempt of court is, of course, a law which makes it an offence to disobey an order of the court. Fair enough, but it has been expanded however to include such things as making comments about matters that are sub judice in other words, relating to a trial that is in progress. This, it is claimed, is because, such comments can be construed is being an attempt to influence the decisions of the court.

Now, it might be faintly possible to see how comments might influence a jury hearing a case, but I'm not sure why it would be a problem in cases where only a judge is presiding. Are judges worried that a newspaper editorial in a paper, or television interview might cloud their judgements? Are they so unconfident about their own power to decide a case that they don't want to hear anyone else's opinion because it might confuse them?

Of course not. The reality is just that judges don't want people saying anything that might contradict them, and they will particularly not countenance anyone making any derogatory comments about them or the court procedure. It's the impertinence of a lay person presuming to comment on a trial, or indicating anything less than respect and deference to the court that is not to be tolerated. Thus it is an offence to comment unfavourably on a court's decision even after the case is over when clearly there is no risk of influencing the decision.

In the Victorian case, the judges justified their decision to take action against the politicians by citing the constitutional rules on "separation of powers." This simply states that the separate branches of government, the Legislative, the Executive and the Judiciary must operate independently and one must not be able to influence the other.

This is of course an absurd principle that has no justification in the modern world, and particularly not in Australia where, for a start, there is no separation between the Legislative and the Executive. However, while it is obvious that courts must be independent from outside influences in making their decisions it is equally obvious that the principle is designed to prevent anyone influencing any particular case, not the overall operation of the courts as an public agency.  

It is also important to note that the comments of the politicians were in relation to sentencing, which is already not a wholly independent function of the court. The Victorian Chief Justice noted that attempting to influence the court in its sentencing decisions is ‘impermissible in law”. Now, if that is the case, then how are victim-impact statements, pre-sentence reports and other testimony from experts, which are considered by judges and are specifically intended to influence sentencing decisions, permissible in law? If victim impact statements are permissible, in a case where the victim is the wider community, as in the case of terrorism, why should not representatives of the community be allowed to make statements that reflect the concerns of the community. Surely the public at large has a legitimate interest in the sentencing of people who have declared themselves to be enemies of the public.

And surely, if all sources of influence are to be eradicated than the reportage of all crimes, especially those of highly disturbing nature would have to be prohibited until after the completion of the trial.


In regard to the fact that is “constitutionally impermissible” for one branch of government to influence another let us say that, for a start, it would be absurd to imagine that the Legislative branch of the Australian government does not influence the Executive Branch as they are drawn from the same group of people who alternately sit in Cabinet one day and Parliament the next. Unlike the United States where the President is separately elected and empanels his own Cabinet from whomever he chooses, the operations of the Australian Executive, i.e. the Cabinet and Public Service, are inextricably entwined with decisions made in the Parliament. What do we imagine is going on when an Senate Estimates Committee interrogates Ministers and public servants about their actions?
Secondly, defining the Judiciary as a branch of government is anachronistic and repugnant. Judges are not elected and they have no power to pass laws. Essentially the Judiciary is a branch of the public service and shares the same status as the Police, the Armed Forces and the Departments of Health, Education, Customs and so on. Like those other agencies they are paid for from tax payers' funds and ultimately accountable to Parliament to fulfil the role assigned to them. The Courts are one part of the trio of agencies that make up the Law Enforcement system - Police, Courts and Correctional Services. Significantly the Police and Correctional Services are legally, and frequently criticised. So why can't the courts be since they are part of the same system? 


Of course independence is a necessity, but the question is what constitutes independence. The concept of anyone in power, elected or not, being able to influence the court to find someone guilty or not guilty is unthinkable. In the same way, the notion of a politician being able to tell a doctor how to perform an operation is unthinkable. However, if a disturbingly large number of patients start dying, the doctor responsible can be suspended, investigated, fired or even charged with criminal negligence. In other words, the independence of the medical practitioner and the doctor-patient relationship is respected, but still conditional upon the doctor providing the service they are hired to, which is make people well.
If a judge were, hypothetically, to start making decisions that were dangerously irrational some intervention on the part of the government would surely be not only justified but essential.
In any case, sentencing is a different matter. As mentioned above, judges typically request and receive advice from a variety of people before making sentencing decisions because sentencing in not based on a knowledge of law alone. Indeed it has been suggested from time to time that, because of their inexperience in assessing the likelihood of offenders re-offending, sentencing should be taken out of hands of judges and passed over to specialist sentencing tribunals. It is not known whether this would be an improvement but the notion itself is an acknowledgement that a different skill set is involved.


Finally, however, the reliance on "the separation of powers" argument by the court is misleading because the reality is that any citizen who openly criticizes the court can be charged with contempt of court whether they are in a position of power or not.  This notion that respect for the court and the judicial system supersedes all over considerations (such as freedom of speech) is uncomfortably reminiscent of prelates who placed the reputation of the Church above justice for victims of abuse.
The Contempt of Court laws must be amended to apply solely to situations were people directly disobey orders from the Court. To use them to shield judges from criticism is itself contemptible.



No comments:

Post a Comment