The claim

The right of our politicians to criticise the courts has caused controversy in recent weeks.

Three senior members of the Federal Government made provocative comments about the Victorian Court of Appeal and were called to explain themselves.

They ran the risk of prosecution for contempt of court, and the Opposition has since called on them to resign their ministerial posts.

When asked about the controversy, Prime Minister Malcolm Turnbull told Melbourne radio on June 15, 2017, that "in a free society, a person is entitled to criticise the conduct of the courts or of a judge".

Mr Turnbull added: "Obviously, a different standard applies when you are talking about cases that are before a jury."

Does the Prime Minister have a point? Are there any limits to what you can legally say about the justice system?

RMIT ABC Fact Check investigates.

The verdict

Mr Turnbull accurately refers to a general principle: all Australians, including politicians, have the freedom to criticise the courts and judges without the risk of criminal prosecution.

But there is more to the story. There are limits to this freedom.

A person who comments on ongoing court proceedings may face criminal charges for sub judice contempt if there is a real risk that the person's comments will prejudice a fair trial.

As Mr Turnbull alludes to, the risk is greater when a jury is involved.

Similarly, people who criticise judges or the justice system in a particularly abusive or unfair way (as determined by the court itself) may also face criminal prosecution for the offence of scandalising the court.

The offence of scandalising the court has been criticised as oppressive and has been abolished in the United Kingdom, but it remains part of Australian law.

What has been going on?

On June 9, 2017, the Victorian Court of Appeal heard an appeal by the Commonwealth Director of Public Prosecutions of the sentence given to man who pleaded guilty to preparing and planning a terrorist attack.

During the appeal hearing, Victorian Chief Justice Marilyn Warren discussed the difference in sentencing outcomes between Victoria and New South Wales, and these comments were reported by the ABC.

Three senior members of the Government — Health Minister Greg Hunt, Human Services Minister Alan Tudge and Assistant Treasurer Michael Sukkar — then commented on sentencing issues to The Australian newspaper.

The comments were published on June 13, 2017. The article described them as "an extraordinary attack on the Victorian judiciary". Some of the comments included:

A statement from Mr Hunt that "comments by senior members of the Victorian courts" are "deeply concerning"

A statement from Mr Hunt that "comments by senior members of the Victorian courts" are "deeply concerning" A mention by Mr Sukkar of "hard-left activist judges" and a comment that "it's the attitude of judges like these which has eroded any trust that remained in our legal system"

A mention by Mr Sukkar of "hard-left activist judges" and a comment that "it's the attitude of judges like these which has eroded any trust that remained in our legal system" An assertion from Mr Tudge that "some of these judges are divorced from reality"

In response, the Court of Appeal's Judicial Registrar wrote to the Commonwealth Attorney-General George Brandis and The Australian giving notice that "the court required the individuals or their legal representatives' appearance before [the court on June 16] to make any submissions as to why they should not be referred for prosecution for contempt".

According to the Chief Justice, the court was concerned that the statements were "an attempt to influence the court" and some of them "purported to scandalise the court".

In the Senate, Senator Brandis responded to a question on the controversy:

"[T]he independence of the judiciary has never been understood by the judiciary themselves to be a prohibition against criticism ... The courts cannot be and are not immune from criticism which may extend to robust observations of a particular decision or penalty."

On June 16, the Commonwealth Solicitor-General Dr Stephen Donaghue QC appeared in the Victorian Court of Appeal on behalf of the three government members.

In a statement read to the court, the frontbenchers said "it was never our intention, nor would it ever be, to influence the decision-making process".

They expressed "regret" for the language they used.

The matter was brought back before the court on June 23, 2017, at which time the ministers made a further statement and apology:

"Since the hearing before the Court of Appeal last Friday, each of us has watched the recording of that hearing. We have also had an opportunity to review the transcripts of the hearing before the Court of Appeal on 9 June 2017. As a result of having done those things, we have realised that we should have offered an unconditional apology to the court for our comments that were reported in The Australian on 13 June ... We offer that apology now and unreservedly withdraw all comments we have made in relation to this matter."

Given the apologies, the court decided not to take any further action about the alleged contempt. Justice Warren said:

"The court has accepted in this instance the apologies and retractions proffered ... But for the apologies and retractions, we would have referred the groups, namely the ministers and The Australian parties, to the prothonotary of the Supreme Court for prosecution for contempt ..."

Sorry, this video has expired Chief Justice Marilyn Warren reads her decision

What does the law say?

Australian law allows anyone to comment on judges and court decisions, but there are limits.

Professor Jeremy Gans of the University of Melbourne Law School tells Fact Check that "the Prime Minister is right".

"There is nothing unlawful about criticising the judge," he says. "But, of course, that can be affected by the circumstances: if your criticism had some particular sort of effects, then you can be prosecuted for contempt."

There are a few different types of contempt.

One of the more common is "contempt in the face of the court", which essentially comes about when someone misbehaves or causes a disturbance in the court room.

But the issues raised by the Victorian Court of Appeal, and the Prime Minister's comments, relate to two other types of contempt, known as:

Sub judice contempt

Sub judice contempt Scandalising the court

Sub judice contempt

The offence of sub judice contempt may be committed when someone says or publishes something about a matter currently before the court which runs a real risk of interfering with those proceedings.

The test was stated in a British case from the 1960s:

"The test must always be, in my judgment, whether or not in the circumstances of the particular case what has happened is something which is likely to prejudice the fair trial of the action, and the risk that it will prejudice the fair trial of the action must be a real risk."

There are numerous examples of people being charged with this offence.

In 1986 now Senator Derryn Hinch disclosed on his radio program the prior criminal record of a priest who was about to be tried on charges of child molestation.

The High Court upheld the ruling of the Victorian Court of Appeal that Mr Hinch was guilty of contempt, as the "broadcasts constituted a substantial risk of serious interference with the fairness of the trial".

But the cases also show that sub judice contempt is less likely to be found if no jury is involved.

When considering the principles of contempt in the 1980s, Lord Salmon of the British House of Lords said:

"I am and have always been satisfied that no judge would be influenced in his judgement by what may be said by the media. If he were, he would not be fit to be a judge."

Opinions differ though: in the same case, Viscount Dilhorne took the view that:

"[I]t should, I think, be recognised that a man may not be able to put that which he has seen, heard or read entirely out of his mind and that he may be subconsciously affected by it."

In 2006, the late Adelaide radio host Bob Francis made on air comments about a man who had been charged with child pornography offences.

The police had also allegedly found notes from the accused that included "addresses of young girls" and indicated a desire to "eat the internal organs of young girls".

In addition to discussing the accused, Mr Francis also took issue with the magistrate mentioning the possibility of bail being granted.

During his radio program, Mr Francis made comments including:

"Don't tell me, Attorney-General, that this man is innocent until proven guilty. These were bloody lists that he said he wrote, under the bloody cupboard that his wife found and the judge may give him bail next week. How dare he?"

Later, when talking with a caller on air, Mr Francis said "smash the judge's face in!"

South Australian Supreme Court judge David Bleby found Mr Francis to be in contempt, given that the comments were made at a time when a jury trial was possible.

His Honour said:

"So graphic was the description, so unusual were the allegations and so persistent was Francis in reminding the public of the name of the accused that the allegations would be bound to persist ... Any juror, having heard or heard of the broadcast, could well be influenced to conclude any disputed facts against the accused because of the prejudice engendered against him by the broadcast."

However, Justice Bleby said that he might not have found a contempt if there was no chance of a jury trial, with the likelihood of the comments influencing a magistrate being "negligible".

Scandalising the court

A person can be guilty of the other contempt offence, "scandalising the court", even if their actions do not interfere with a specific court case.

Originating in English law, this offence occurs when someone makes derogatory statements about "individual judges or courts or of the judiciary in general or a section of it" that are "likely to undermine the administration of justice or public confidence therein".

Courts in Australia and England have recognised that there is a delicate balance between the right to criticise the courts and judges and the need to protect the public's confidence in the system.

So, people are free to be critical of the courts, if their comments are made in good faith.

In a House of Lords case dating back to the 1930s, Lord Atkin said that:

"[N]o wrong is committed by any member of the public who exercises the ordinary right of criticising, in good faith, in private or public, the public act done in the seat of justice ... [P]rovided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely expressing a right of criticism, and not acting in malice or attempting to impair the administration of justice, they are immune. Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men."

In the 1960s, Lord Denning — described as the "best-known and best-loved judge of this, or perhaps any, generation" — stated:

"It is the right of every man, in Parliament or out of it, in the Press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest. Those who comment can deal faithfully with all that is done in a court of justice. They can say that we are mistaken, and our decisions erroneous, whether they are subject to appeal or not. All we would ask is that ... those who criticise us will remember that, from the nature of our office, we cannot reply to their criticisms. We cannot enter into public controversy. Still less into political controversy. We must rely on our conduct itself to be its own vindication."

In a 2002 speech, former chief justice of the High Court of Australia Sir Anthony Mason suggested that:

"Recognising the strong public interest in free discussion of the matter of public importance, the courts have been increasingly reluctant to use the contempt power simply to protect judges from criticism. Statements criticising judges for their decisions do not attract an exercise of the contempt power, at least when the criticism is fair and honest."

So what are the barriers? The answer is, like many aspects of law, it depends.

The New South Wales Supreme Court (in the 1972 case of Attorney-General for NSW v Mundey) suggested that a comment about the courts or a judge may be contempt if it:

"is merely scurrilous abuse" or

"is merely scurrilous abuse" or "excites misgivings as to the integrity, propriety and impartiality brought to the exercise of the judicial office" (quoting from a 1935 High Court case).

But the court also noted that the second type will not always amount to contempt. The boundary comes down to "questions of degree and therefore uncertainty".

Professor David Rolph of the University of Sydney Law School tells Fact Check:

"The defence of fair comment does apply to scandalising the court. There is great latitude given to people to comment, in good faith, about courts and judges because courts and judges exercise public power."

However, Dr Rolph adds: "It is unclear whether truth is a defence as it is in defamation."

"Because this type of contempt is prosecuted so rarely, there is still uncertainty about this basic issue of principle," he says.

The future of scandalising the court

The late High Court justice Lionel Murphy, a former Labor attorney-general under prime minister Gough Whitlam, took the view that "the law of criminal contempt in scandalising the courts is so vague and general that it is an oppressive limitation on free speech".

"No free society should accept such censorship," he said in a 1983 dissenting High Court judgment.

The offence of scandalising the court fell out of use in the United Kingdom from the 1930s, and was abolished in 2013.

In a report to the UK Parliament, the Law Commission noted there were other criminal offences for behaviour covered by scandalising the court, including prohibitions on threatening, abusive or insulting words and behaviour under the UK's Public Order Act and laws against malicious communications.

Sources