George Brandis confirms frontbenchers Greg Hunt, Alan Tudge and Michael Sukkar won’t appear in person to explain why they shouldn’t be charged

This article is more than 3 years old

This article is more than 3 years old

The commonwealth solicitor general will represent health minister, Greg Hunt, and two other front bench MPs in the supreme court of Victoria to explain why they should not be charged with contempt over comments relating to terrorist sentences.

Hunt has been ordered to appear in court in Melbourne on Friday, along with the human services minister, Alan Tudge, and the assistant treasurer, Michael Sukkar, for making comments in the Australian newspaper that the Victorian judiciary was being soft on terrorists.



In Senate question time attorney general, George Brandis, said he discovered on Wednesday the three had been invited to make submissions and confirmed he had authorised the solicitor general to represent them, meaning taxpayers will foot the bill.

Asked whether he had impressed the need for an independent judiciary on his three colleagues, Brandis replied: “My colleagues are well aware of the importance of the independence of the judiciary.”

“The independence of the judiciary has never been understood, by the judiciary themselves, to be a prohibition against criticism.”

He cited the Victorian supreme court case of Crown v Witt, that freedom of speech extends to criticism of judicial decisions, including “robust observations of a particular decision or penalty”.

On Thursday education minister, Simon Birmingham, also leaped to his colleagues’ defence over the matter.

Birmingham told a press conference in Canberra there were “legitimate community concerns” about sentencing and the Australian people expected their elected representatives to speak their mind.

“That applies as much to sentencing decisions of courts as to any other issue where people expect democratically elected representatives to stand up, to speak their mind, to argue the case on the behalf of their community - and that is all I’ve seen from my Victorian colleagues.”

A partner with law firm Minter Ellison, Peter Bartlett, says the case is “very, very rare” and has not been seen in Australia for “20, 30 years”.

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Bartlett said the ministers had crossed a line with their criticism of the judges but he was disappointed the court had taken action against them.

However barrister Greg Barns disagreed, saying the ministers’ comments went much further than simply criticising leniency by the courts, and the court was right to seek an explanation as to why the ministers shouldn’t be referred for contempt.

“It’s arguable the comments were designed and orchestrated to undermine confidence in the judiciary,” Barns told Guardian Australia.

“There are currently appeals before the Victorian Court of Appeal relating to terrorism matters and these comments, published in the Australian, may amount to an attempt by the executive to place pressure on the judiciary, and therefore they have to be taken very seriously.”



The three ministers this week criticised two of Victoria’s most senior judges, chief justice Marilyn Warren and judge Mark Weinberg, after remarks the judges made while hearing an appeal last week.



The commonwealth director of public prosecutions argued the 7.5-year non-parole sentence handed down last year by the Victorian supreme court on Anzac Day plotter Sevdet Ramadan Besim had given too much weight to Besim’s apparent good character and prospect for rehabilitation.

The judges made comments about the apparent differences between the NSW and Victorian judiciaries when imposing sentences for terror offences.

Hunt was quoted in the Australian as saying the Victorian judges had made “deeply concerning” comments during the appeal and he accused the court of becoming a forum for “ideological experiments”.

He told the Australian the judges were “endorsing and embracing shorter sentences” and urged the Victorian premier, Daniel Andrews, to reject their statements.

Hunt, Tudge, and Sukkar have now been told the Victorian court of appeal “requires you or your legal representatives to appear before the court of appeal on Friday 16 June 2017 at 11.30am to make submissions as to why you should not be referred for prosecution for contempt,” according to the Australian.

“The attributed statements appear to intend to bring the court into disrepute to assert the judges have and will apply an ideologically based predisposition in deciding the case or cases and that the judges will not apply the law,” a letter by judicial registrar Ian Irving, seen by the Australian, reportedly says.

“The attributed statements, on their face, also appear to be calculated to influence the court in its decision or decisions, and to interfere with the due administration of justice in this state.”

The editor of the Australian, the journalist who reported the remarks and Nationwide News Pty Ltd, publisher of the Australian, have received similar letters.

The shadow attorney general, Mark Dreyfus, said: “This contempt proceeding against three serving ministers is a very serious matter – and we will not be commenting further at this point”.

Contempt of court proceedings aim to uphold the administration of justice and can be initiated by the court when there are concerns a case may be undermined.



Contempt is criminal in nature but it generally follow the same process as civil proceedings. Because it’s part of the court’s inherent jurisdiction, punishment for contempt can vary considerably.

There is no maximum penalty or sentence for contempt and the court has broad discretion to determine the punishment it sees fit. The industry minister, Arthur Sinodinos, said he was surprised by the development.

“Politicians from time to time will say some pretty colourful things,” Sinodinos told ABC radio on Wednesday. “This is a country that prides itself on free speech.”

He said politicians had a right to comment on matters of public interest and policy but acknowledged they also should defend the independence of the judiciary.

Bartlett said the action against the ministers was an incursion into free speech.

“In this day and age of robust media and robust comment, the courts and judges are used to being criticised, and take it on the chin,” he said. “I think the ministers were clearly a bit over the top but in this day and age, we all do that from time to time.”

But Barns said this was not about freedom of speech.

“The issue in this case is whether or not it may amount to a coordinated attempt on the part of the executive to place pressure on the judiciary in relation to sentencing in matters that are currently before the court,” he said.

“That is not about freedom of speech. This issue goes to the issue of separation of powers.”

A spokeswoman for Tudge would not comment. Sukkar could not be contacted.