Wednesday, June 21, 2017

The texts that could cost three government ministers their jobs

Rarely do we get to see how newspaper stories are made.

Nine days ago, across almost the entire width of its front page, The Australian published a headline that read: Exclusive: Judiciary "light on terrorism". 

They had been talking about a court case, the transcript of which we now know they hadn't read. All three were relying on no more than an ABC Online report, according to evidence given on their behalf by the Commonwealth Solicitor-General.

Each had sent a single text message to Simon Benson, national affairs editor of The Australian. One was sent at 12.36 pm on the Monday afternoon, one at 12.43 pm, and the last at 1.42 pm. They weren't sent in response to questions.

Hunt's text said: "Comments by senior members of the Victorian courts ­endorsing and embracing shorter sentences for terrorism offences are deeply concerning — deeply concerning." State courts should not be places for "ideological experiments".

Sukkar bemoaned "Labor's continued appointment of hard-left activist judges".

Alan Tudge, Michael Sukkar and Greg Hunt could be charged with contempt of court.CREDIT:ANDREW MEARES

Tudge said some were "­divorced from reality". They seemed "more concerned about the terrorists than the safety of the community".

Benson packaged their texts with quotes from judges at the hearing in question, all but one of which he took from the ABC website.

His lawyer confirmed that, like the ministers, he had no other source.

The Victorian Court of Appeal had been considering the sentence handed down for two men convicted of terrorism over a plan to run down and behead a police officer at an Anzac Day march in 2015.

What infuriated the judges was that they hadn't yet made a decision.

The minister's texts, amplified through The Australian, could be seen as an attempt to influence their decision. Much worse, they ran the risk of being damned whether they took account of them or not.

"On the one hand if we dismiss the appeals, then we will be accused of engaging in an ideological experiment or being hard-left activist judges, or on the other hand, if we increase the sentences ... the respondents may have an understandable grievance that we were doubtlessly affected by what three prominent ministers for the Crown had to say," Chief Justice Marilyn Warren said.

"Can I add to that?" added Justice Stephen Kaye. "If we dismiss the appeals, it may be said we are reacting, perhaps overreacting, against the content of what your client said."

The technical term is "scandalising the court". Justice Kaye said he had never seen anything like it in more than 40 years in the law. Warren and Justice Mark Weinberg agreed.

The three had invited the three ministers to appear before them on Friday to explain why they should not be tried for criminal contempt of court.

It was their last and only opportunity to put a case before the judges decided whether to refer their conduct to the Office of Public Prosecutions. None turned up. Instead, they sent the Commonwealth Solicitor-General Stephen Donaghue, QC, who made it clear he was representing them in their "role as ministers within our system of government".

He had his work cut out. The video shows him opening by reading a statement in which the ministers neither withdrew what they had said nor apologised.

Then after 39 minutes of excruciating questioning, he received his own text.

"I have just received instructions from Mr Sukkar that he is content to expressly withdraw the statement about hard left activist judges," he informed the court.

"Does he apologise for it? He doesn't apologise," Kaye noted, amid nervous laughter from the packed public gallery.

"Sounds like somebody's on the telephone," Weinberg observed, before adding: "Could I ask whether any of your three clients are lawyers or legal practitioners with any experience in the law at all?"

All three were lawyers. None had turned up.

"In other instances where these kinds of developments have occurred, the minister has taken the opportunity to retract the statement and apologised to the Court," the Chief Justice pointed out.

And then another text, amid more nervous laughter. "My instructions have evolved somewhat in the course of the morning," Donaghue stammered. "I can convey to the Court that I have received instructions to withdraw three of the statements in the article."

"Ideological experiments" and "divorced from reality" were also withdrawn.

And, on further questioning, the statement about the judges being appointed by Labor governments was withdrawn.

They had "multiple appointments to judicial offices for governments of both the Coalition and Labor," Warren pointed out.

Hunt, Sukkar, and Tudge may have left it too late for an apology. If it goes to trial and they are convicted, they could lose their seats.

But there's a potential upside. They would most likely be replaced by ministers with a clearer knowledge of the law who devoted attention to health, housing and Centrelink.

In The Age and Sydney Morning Herald