Media Release – Terry O’Gorman, President of ACCL

Home Affairs Minister Peter Dutton is again engaging in overblown rhetoric in calling for an Australia wide Public Register to track child sex offenders.

Australian Council for Civil Liberties President Terry O’Gorman said that in claiming the National Register will allow the public to go online to check up on people in contact with their children or in the community, Mr Dutton appears to be unaware of the current array of schemes that exist that result in close supervision of people convicted of child sex offences.

“Around the country there are ever widening Blue Card Schemes which prevent people who have not even been convicted of child sex offences but have been convicted of other criminal offences from working with children, even indirectly”, Mr O’Gorman said.

Mr O’Gorman said that similarly, people convicted of child sex offences committed 30 or 40 years ago are forced onto State Reporting Registers thereby being prevented from having any contact with children.

“These Registers require people who come in contact with children, even accidentally, to report their contact to a supervising Police Officer who has the power to haul the person in for questioning”, Mr O’Gorman said.

Mr O’Gorman said that as well, Dangerous Prisoner legislation in all the States and Territories regularly results in an ever widening pool of prisoners being subject to Attorney‑General Applications in the Supreme Court to either keep a prisoner in jail beyond their full time release date or be released subject to an often very long list of restrictive conditions, often numbering in the twenties or thirties.

Mr O’Gorman further said that Mr Dutton is engaging in the same sort of sleight‑of‑hand tactic as revealed in the recent Prakash citizenship stripping debacle when he claims the National Register will allow the public to go online to check up on people in contact with their children or to check where such people are in the community.

“Blue Card and reporting schemes adequately deal with offenders being in contact with children”, Mr O’Gorman said.

“But allowing an online Register to be searched to ascertain who ‘in the community’ has a child sex offence no matter whether it is 40 years old or committed within a family setting will promote vigilantism and prevent rehabilitation and reintegration of a child sex offender into the community”, Mr O’Gorman said.

“As demonstrated by his overreach and incompetence in the Prakash scenario, Mr Dutton in pushing for a National Register of sex offenders is promoting a remedy for a non‑existent problem”, Mr O’Gorman said.

 

Mr O’Gorman can be contacted during business hours on 07 3034 0000

or after hours on 0418 787182


Media Release – Terry O’Gorman, Vice-President of QCCL

A threat by Queensland Police Union President Ian Leavers that pill testers “will be charged too” if a sanctioned pill testing site is established in Queensland was today slammed by the Civil Liberties Council.

Civil Liberties Council Vice-President Terry O’Gorman said that pill testing rightly is on the public agenda about drug harm minimisation after a serious spike in the number of young people who have died at music festivals on Australia’s east coast in the last number of months.

“However, it is the Police Minister in conjunction with the Police Commissioner who sets policy in this contentious area, not the head of the Queensland Police Union”, Mr O’Gorman said.

Mr O’Gorman said that Mr Leavers appears to be engaging in something of a veiled threat that his members will charge pill testers if a sanctioned pill testing site currently under consideration by the Palaszczuk Government “okays” music festival pill testing and then someone dies.

Mr Leavers needs to recognise that pill testers who have operated at interstate music festivals such as Groovin the Moo Music Festival in Canberra last year do not ‘give the okay’ to any pill presented for testing.

“The legal document signed by those seeking pill testing and the advertised policy of the pill testers is to advise what the make-up of the pill is and to urge festivalgoers not to actually ingest a pill that has been tested”, Mr O’Gorman said.

Mr O’Gorman said that there have been instances where festivalgoers have ‘binned’ pills after testing and this shows that testing has some practical ‘on the ground’ value.

“While Mr Leavers is entitled to express his opinion on pill testing, it is the Minister and the Police Commissioner who can make a policy decision to allow music festival pill testing as Police Ministers and Commissioners interstate have done”, Mr O’Gorman said.

Mr Leavers’ apparent threat that his members will charge pill testers, especially if someone dies after pill testing, should be immediately dealt with and slapped down by both the Police Minister and the Police Commissioner.

 

Mr O’Gorman can be contacted during business hours on 07 3034 0000

or after hours on 0418 787182

 

 


Letter to The Honourable Mark Ryan MP - Terry O’Gorman, Vice-President of QCCL

Dear Minister

RE:      SEXUAL OFFENDER REHABILITATION PROGRAMMES

I refer to the judgment of Queensland Supreme Court Justice Applegarth in Queensland Attorney‑General v FJA [2018] QCS291 delivered 6 December 2018 and appearing on the Queensland Supreme Court website by way of publication today.

I draw your attention to the highly critical comments made by Justice Applegarth in respect of what this Council contends is a fundamental failure of the Dangerous Prisoner Jail Treatment & Rehabilitation Programme:

  • At paragraph [3]: Unfortunately, and despite the fact that the Respondent (prisoner) has been in custody since June 2017 (when his parole was suspended), he has not been approached to undertake a Sexual Offender Treatment Program.
  • At paragraph [4]: I remarked at the hearing on 26 November 2018 that it was completely unsatisfactory that the Respondent (prisoner) had not been offered a place on the HISOP (a rehabilitation program for serious sexual offenders) long ago, and that it was simply not acceptable for this Court to order his continuing detention so as to undergo treatment …
  • At paragraph [119]: It is unfortunate, to say the least, that the Respondent was not offered and did not undertake sex offender programs in the second half of 2017 and throughout 2018. If he had completed them satisfactorily, he might have been paroled in 2018 or subject to a supervision order in late 2018. Instead he must be detained in custody for treatment he should have received during his term of imprisonment.
  • At paragraph [122]: If the system had offered the Respondent a much needed HISOP place over the last 18 months and he had completed the program satisfactorily, he probably would have been released in late 2018 on a supervision order. The system having failed the Respondent and the community[1] in this way, regrettably he must be detained in custody for treatment.

I observe that the underlining in the above extracts is mine.

It is to be observed that criticisms of the type aboveoutlined above are quite unusual coming from a Supreme Court Judge and accordingly deserve to be taken seriously and acted upon.

As a criminal defence lawyer I observe that the problem as exemplified by FJA is certainly not restricted to that case and, indeed, is widespread and close to being systemic.

I have had a number of cases over the last five years where I have written to Sentence Management at Correctional Centre level and thereafter to the Department of Corrective Services Head Office Level endeavouring to ascertain when a client is to be put on a programme. It is frequently the case that numerous letters have to be written.  Frequently the letters are not replied to and require constant follow up and when a reply is received it is often meaningless particularly as to information being sought as to when a particular client is going to be put on the relevant programmes especially MISOP and HISOP.

In making these observations I am not in any way being critical of individual sentence management staff particularly those I correspond with at Head Office level as I find them polite.

In the absence of other explanations it would appear that the problem in relation to putting sexual offenders on relevant rehabilitation programmes is inadequate resources not incompetent staff.

It is respectfully suggested that a review be conducted of the entire operation of rehabilitation programmes particularly for sexual offenders in light of Justice Applegarth’s trenchant criticisms. It is respectfully suggested that such a review should concentrate on the following issues:

  • Whether the resources for sentence management programmes generally within Queensland prisons but particularly in respect of sexual offenders are adequate.
  • Having a programme effected which provides written advice to a prisoner within a month of their reception into prison as to what programmes they will be required to undertake and the date and length of such programmes.
  • As the problem as exemplified in FJA should have been obvious to senior personnel within the Department of Corrective Services without problems having to be highlighted by a Supreme Court Judgement it is respectfully submitted that the review which we contend for should be undertaken by a credible entity completely external to the Department of Corrective Services.

Could I please obtain your response to this issues raised herein by 18 December 2018.

Yours faithfully

QUEENSLAND COUNCIL FOR CIVIL LIBERTIES

TERRY O'GORMAN

VICE-PRESIDENT

[1] All underlined points of emphasis are my points of emphasis and the underlining does not appear in the original Judgment.


Media Release – Terry O’Gorman, Vice-President of QCCL

Today’s Courier Mail report that prison staff are copping the brunt of anger over crowded jail cells has led to a call for the establishment of an independent Prisons Inspectorate to highlight ongoing problems within Queensland prisons.

Civil Liberties Council Vice-President Terry O’Gorman said that the bashing of a Woodford jail prison officer before Christmas highlights the serious problems within Queensland Prisons which only are brought out into the open when a prison guard is bashed and there is an increased threat of industrial action by the Prison Guards Union, the Together Union.

“But there are other systemic problems which never get public attention including prisoner on prisoner bashings, excessive force by guards towards prisoners and the significant inadequacies of rehabilitation programs in Queensland jails”, Mr O’Gorman said.

“In early December the QCCL highlighted harsh criticism by Supreme Court Justice Applegarth in respect of a prisoner who has been kept in jail well beyond his full time release date because he was not placed on a rehabilitation program for sexual offenders”, Mr O’Gorman said.

Mr O’Gorman said that Justice Applegarth in the case of Queensland Attorney‑General v FJA[1] said that “if the system had offered [FJA] a much needed (rehabilitation program) place over the last 18 months and he had completed the program satisfactorily, he probably would have been released in late 2018 on a supervision order. The system having failed [FJA] and the community in this way, regrettably he must be detained in custody for treatment”. (my underlining)

Mr O’Gorman said that the overcrowding issues revealed in the Courier Mail today showing Queensland prison numbers have increased by 43% in the 5 year period between 2013 and 2018 could not be solved simply by building more and more prisons.

“It cost Queensland taxpayers more than $500 million a year to house a ballooning prison population when over the last decade crime statistics show that crime generally is falling”, Mr O’Gorman said.

Mr O’Gorman said that the QCCL agrees with Together Union Secretary, Alex Scott, that the Queensland Government needs to make decisions about the long term direction of the system.

A first step is for the State Government to establish an independent Prisons Inspectorate similar to the Western Australian model.

“Unlike the current Queensland Inspectorate model which reports internally to the Corrective Services Commissioner, Peter Martin, the WA model report publicly to Parliament and is completely independent of the prison bureaucracy”, Mr O’Gorman said.

“Western Australia does not have the systemic problems in its prison system that Queensland has and this has a lot to do with unannounced prisons inspections by the independent Prisons Inspectorate”, Mr O’Gorman said.

“We cannot continue to mindlessly spend an increasing amount of taxpayers’ money on prisons”, Mr O’Gorman said.

Mr O’Gorman said that the Queensland Prisons budget is currently north of $½ billion and climbing.

“We have to get prisoner numbers down in line with the falling crime rate and push more of the ballooning prison budget towards health and education where it can be more effectively spent to benefit Queenslanders”, Mr O’Gorman said.

[1] See Judgment 11/12/2018 [2018] QSC 291

 

Mr O’Gorman can be contacted during business hours on 07 3034 0000 or after hours on 0418 787182

 


Media Release – Terry O’Gorman, Vice-President of QCCL

The Prime Minister’s proposal to take a religious discrimination Act to the next Federal election yet again raises the question why Australia is the only western democracy in the Westminster tradition that does not have a Bill of Rights.

ACCL President Terry O’Gorman said that the Federal Government should introduce a Charter of Rights rather than fiddling around the edges with standalone pieces of legislation to protect individual rights.

“Australia is the only country of the main western democracies not to have a national law protecting human rights across the board”, Mr O’Gorman said.

“The UK from where Australia derives its legal tradition has had a Charter of Rights for decades and the sky has not fallen in. So has Canada and New Zealand which has a similar legal structure to Australia as well as the US which has an entrenched Bill of Rights”, Mr O’Gorman said.

Mr O’Gorman said Australia has a hodge-podge of legislation particularly at Federal level providing for equality rights in the areas of race, age, disability and sex.

“Yet we have no Federal Charter of Rights (only a Charter of Rights in Victoria and the ACT and one under consideration in Queensland at a State level) protecting such fundamental rights as freedom of speech”, Mr O’Gorman said.

Mr O’Gorman said that while we have a ‘five eyes’ national security sharing of information arrangement with Canada, the UK, New Zealand and the US, and while that is clearly an important and vital arrangement to protect Australia’s national security interests, we do not have a protective national Human Rights Charter to guard against national security excesses such as exist with our ‘five eyes’ partners.

“We cooperate with the US, Canada, UK and New Zealand on national security matters, as we should, but we show no interest whatsoever in copying the human rights legislation of those countries with whom we have a national security partnership”, Mr O’Gorman said.

Mr O’Gorman said that protecting an Australian’s right to practise their religion, whatever faith they are, is fundamentally important.

“It is equally fundamentally important to protect a whole range of political rights which only a national Charter of Rights can achieve”, Mr O’Gorman said.

 

Mr O’Gorman can be contacted during business hours on 07 3034 0000 or after hours on 0418 787182


Media Release – Terry O’Gorman, Vice-President of QCCL

The Civil Liberties Council today called on Corrective Services Minister Mark Ryan to immediately fix significant problems with the Dangerous Prisoner regime.

Civil Liberties Council Vice-President said that a highly critical Queensland Supreme Court Judgment by Justice Applegarth released today shed much needed light on a fundamental failure of the Dangerous Prisoner Jail Treatment and Rehabilitation Program.

In the case of Queensland Attorney-General v FJA1, Justice Applegarth made the following unusual and highly critical comments:-

  • At paragraph [3]: Unfortunately, and despite the fact that the Respondent (prisoner) has been in custody since June 2017 (when his parole was suspended), he has not been approached to undertake a Sexual Offender Treatment Program.
  • At paragraph [4]: I remarked at the hearing on 26 November 2018 that it was completely unsatisfactory that the Respondent (prisoner) had not been offered a place on the HISOP (a rehabilitation program for serious sexual offenders) long ago, and that it was simply not acceptable for this Court to order his continuing detention so as to undergo treatment …
  • At paragraph [119]: It is unfortunate, to say the least, that the Respondent was not offered and did not undertake sex offender programs in the second half of 2017 and throughout 2018. If he had completed them satisfactorily, he might have been paroled in 2018 or subject to a supervision order in late 2018. Instead he must be detained in custody for treatment he should have received during his term of imprisonment.
  •  At paragraph [122]: If the system had offered the Respondent a much needed HISOP place over the last 18 months and he had completed the program satisfactorily, he probably would have been released in late 2018 on a supervision order. The system having failed the Respondent and the community2 in this way, regrettably he must be detained in custody for treatment.

Mr O’Gorman said that Justice Applegarth’s Judgment was delivered on 6 December 2018 but has only been published today.

“Criticism such as the system (has) failed the Respondent (prisoner) and the community are strong words coming from a Supreme Court Judge and cannot be ignored by the Corrective Services Minister”, Mr O’Gorman said.

“The problems caused by Corrective Services’ failure to devote sufficient money to prisoner rehabilitation programs for sexual offenders are not restricted to this case”, Mr O’Gorman said.

“As a criminal defence lawyer, I can say the problem is widespread. Sexual offenders liable to come under the Dangerous Prisoner regime frequently are not offered rehabilitation programs until close to their full time sentence often causing them to be kept in prison long beyond their proper release date”, Mr O’Gorman said.

Mr O’Gorman said that with ballooning prisoner numbers, Corrective Services’ failure to devote proper resources to rehabilitation programs, especially for sexual offenders, results in miscarriages of justice to prisoners being kept in jail beyond their Court ordered release date and is a problem for community safety as well.

Mr O’Gorman can be contacted during business hours on 07 3034 0000 or after hours on 0418 787182


MEDIA RELEASE TERRY O'GORMAN VICE-PRESIDENT QUEENSLAND COUNCIL FOR CIVIL LIBERTIES

Former Premier Campbell Newman’s comment that ex Chief Justice Carmody would have handed down a heavier sentence for the killing of Mason Jett Lee than current Chief Justice Holmes starkly demonstrates a worrying trend among law and order politicians that some Judges are ‘our Judges’ and the rest are out of touch.

Civil Liberties Council Vice President said that Mr Newman’s comments showed his total ignorance of the law and yet again demonstrates his fundamental unsoundness of the appointment of now Supreme Court Justice Carmody as Queensland’s Chief Justice.

"And some in the media are just as bad in barracking for a particular outcome in a publicly notorious case and if that is achieved the Judge is ‘wise and learned’ and if it isn’t, the Judge is useless and out of touch with community standards", Mr O’Gorman said.

Mr O’Gorman said that a reading of the Chief Justice’s sentencing comments unsurprisingly shows that she sentenced O’Sullivan on the basis of a number of Queensland Supreme Court and Court of Appeal precedents which were binding upon her in respect of sentencing laws passed by Parliament.

"It is the job of Parliament to reflect community standards, whatever that vague phrase may mean", Mr O’Gorman said.

"It is for Judges to apply the law as passed by Parliament not on a whim or by a Judge going out on a frolic of his or her own but according to precedents which by law bind a Sentencing Judge", Mr O’Gorman said.

Mr O’Gorman said that the law and order politicking is increasingly politicising the Queensland judiciary in the eyes of the public.

"Queenslanders need to think twice about letting law and order politicians and their media allies take them increasingly down the US judicial road where politicians positively ‘own’ their judicial appointments and tell them even before they are appointed how they should decide future cases", Mr O’Gorman said.

"Witness the current absurd sideshow currently playing out in the US Senate in respect of President Trump’s latest proposed pick for the US Supreme Court", Mr O’Gorman said.

Mr O’Gorman said that not so long ago both the LNP and Labor stuck to the bipartisan convention of not attacking Judges because Judges are not allowed to defend themselves.

"But in recent years, particularly under Mr Newman’s Premiership, and since, the LNP has broken away from this convention and in an incessant bid to gain law and order votes regularly attack Judges".

"If personal attacks on Judges sometimes bordering on personal abuse does not stop, less and less highly qualified lawyers will put their hands up for judicial appointment and the calibre of Judges will fall, much to Queensland’s detriment", Mr O’Gorman said.

Mr O’Gorman said that Mr Newman seems to be suggesting that if ‘his Judge’ (Justice Carmody) had heard the O’Sullivan case he would have thrown judicial precedents which clearly bound Chief Justice Holmes to the wind and sentenced O’Sullivan to a sentence demanded by law and order politicians and some journalists.

"Frankly, that is an insult to Justice Carmody’s judicial integrity which requires him as well as Chief Justice Holmes to apply the law in accordance with case precedent and not heed those who yell the loudest", Mr O’Gorman said.

Mr O’Gorman said "Chief Justice Holmes’ judgement is careful and reasoned. If the Court of Appeal disagrees with her sentence, so be it. That is what the Court of Appeal is there for".

Mr O’Gorman can be contacted during business hours on 07 3034 0000 or after hours on 0418 787182

 


MEDIA RELEASE BY TERRY O’GORMAN VICE-PRESIDENT, QUEENSLAND COUNCIL FOR CIVIL LIBERTIES

While the Attorney‑General is deciding whether to appeal Monday’s Supreme Court judgment that sex offender Robert Fardon can be released into the community unsupervised next month, two important issues need to be addressed in the meantime.

Civil Liberties Council Vice-President said that the first relates calls for Mr Fardon’s whereabouts to be made public. These calls have been made by child safety advocates and the Morcombes.  The second is what actual financial assistance will be given to Mr Fardon to live in the community once released.

Mr O’Gorman said that if Mr Fardon’s whereabouts on release are made public, there will be a repeat of the Dennis Ferguson vigilante fiasco when Ferguson was released from jail and was then hounded from one town and one address to another.

“At the time in 2005, then Premier Beattie said the media was to blame for inflaming a vigilante attitude wherever Ferguson appeared”, Mr O’Gorman said.

“In light of the media hype over the last two days surrounding the imminent release of Fardon, the Attorney‑General and the Corrective Services Minister must not give in to demands that if released next month Fardon’s address should be made public”, Mr O’Gorman said.

Mr O’Gorman also called on the Corrective Services Minister, Mark Ryan, to provide financial housing and counselling support for Fardon on his release.

“Justice Jackson’s judgment earlier this week notes that as a pensioner, Mr Fardon cannot voluntarily continue the psychological counselling which he has had in detention for a number of years”, Mr O’Gorman said.

“It is incumbent on the Corrective Services Minister to provide financial assistance to Mr Fardon on his release both for continued counselling and suitable accommodation in order to make good in practice the psychiatric opinion on which Justice Jackson acted earlier this week, namely that Fardon poses a low risk of reoffending”, Mr O’Gorman said.

Mr O’Gorman said that experience shows that a prisoner of Fardon’s background who is released into the community without ongoing support from Corrective Services increases his risk of reoffending.

Mr O’Gorman said that rather than heating vigilante calls for Fardon’s release address to be made public, the Corrective Services Minister should be immediately concentrating on providing assistance to Fardon on release so he can maintain the psychiatric opinion of being a low risk of offending.

 

Mr O’Gorman can be contacted during business hours on 07 3034 0000 or after hours on 0418 787182


MEDIA RELEASE BY TERRY O’GORMAN VICE-PRESIDENT, QUEENSLAND COUNCIL FOR CIVIL LIBERTIES

The Civil Liberties Council has called on the Premier Annastacia Palaszczuk to immediately reverse her decision to strip Katter’s Australia Party of its three parliamentary staff and two extra electorate officers following KAP Senator Fraser Anning’s contentious maiden speech in the Federal Parliament.

Civil Liberties Vice President Terry O’Gorman said the Premier’s stance was completely contrary to one of the major pillars of the Fitzgerald Inquiry report delivered to the Queensland Parliament in July 1989.

Mr O’Gorman said that Tony Fitzgerald QC looked at then Labour Opposition complaints that the Bjelke-Petersen Government throughout the 70’s and 80’s had vindictively cut Labour’s parliamentary staff as a means of stifling Labour’s criticism of Government excesses.

In the chapter of Fitzgerald’s report dealing with The Role of Parliament Fitzgerald said:

  • In order to be an effective forum, Parliament must have sufficient resources to enable it properly to research topics and evaluate Government proposals. Parliament can easily be prevented from properly performing its role by being denied time and resources. Any Government may use its dominance in the Parliament and its control of public resources to stifle and neuter effective criticism by the Opposition.
  • Non-government party members must be provided with appropriate resources and detailed information to enable them to supervise and criticise, just as Governments naturally are well equipped and staffed.
  • Without information about Government activities and research staff to properly assess it, the opposition party or parties have no basis on which to review or criticise the activities. (Emphasis added)[1]

“For the Premier to cut KAP’s State Parliament resources because a Federal KAP Senator in the Federal Parliament made an appalling maiden speech referencing the ‘final solution’ in his criticismof Muslim immigration is illogical and fails to heed the lessons of the Fitzgerald Inquiry.” Mr O’Gorman said.

Mr O’Gorman said that the Premier was not a Member of Parliament at the time of the delivery of the landmark Fitzgerald Report and perhaps is unaware of the history of the Bjelke-Petersen Government preventing the then Labour Opposition from doing its job by stripping it of Parliamentary resources.

“But there must be older members of the Labour Party organisational wing and Branches who remember that era who should speak out against the Premier’s fundamentally wrong and anti- democratic measure in stripping KAP of necessarily Parliamentary resources” Mr O’Gorman said.

Mr O’Gorman said that the Premier’s own justification for the move is inherently contradictory while supposedly supporting free speech and then punishing State KAP for the actions of its Federal body in exercising free speech.

The fact that the Premier has stripped State KAP of Parliamentary resources after pressure from the LNP with Deputy Opposition Leader Tim Mander saying the LNP had ‘shamed’ the Government into taking this action suggests petty politics and a desire to diminish KAPs public profile is behind the move, Mr O’Gorman said.

While the Civil Liberties Council was ‘awfully appalled’ by Senator Anning’s speech and equally critical of Federal KAP Leader Bob Katter’s support for Senator Anning, the protection of free speech means having to cop the drivel in Anning’s maiden speech.

 

Mr O’Gorman can be contacted during business hours on 07 3034 0000or after hours on 0418 787182

 

 

[1] See Report of a Commission of Inquiry (Fitzgerald Report) 3 July 1989 at page 123 – 124.


Criticism of Judges

Ex High Court of Australia Judge Dyson (Dyson Heydon) in a speech in London in February 2018 examined the issue of contempt of Court in the context of political criticism of Judges[1]

Mr Heydon concentrated his speech on the approach of the Victorian Court of Appeal in dealing with criticism of that Court when it was hearing a terrorist sentence appeal in June 2016

Three Federal Ministers criticised the Court of Appeal during legal argument on the sentence appeal calling them hard-left activist Judges, ideological experiments and Judges divorced from reality

Mr Heydon argued that those who attacked the Minister’s comments “were either leading members of the party opposing the Ministers’ party or professional organisations of lawyers, including the Judges’ Trade Union, the Judicial Conference of Australia. This reaction tends to weaken the idea that Judges are not adequately defended and hence should be immune from criticism”.  (See JD Heydon “Does Political Criticism of Judges Damage Judicial Independence – A Policy Exchange Judicial Power Project Paper February 2018 at page 6.)

The reference to the Judicial Conference of Australia as being the Judge’s Trade Union says something about Mr Heydon’s personal political views.

Mr Heydon mounted an interesting argument to the effect that the Court of Appeal made findings of contempt against the Ministers without a formal hearing being conducted as to whether the Minister’s comments were in fact contempt at law.

Mr Heydon raised the question of why can’t politicians criticise Judges.

Mr Heydon makes some interesting observations about Australian Judges. He said:

  • “There are many admirable Australian Judges, with respect. But Australian Courts have several faults. Some Judges lack the capacity to have merited appointment. A few are unjustifiably rude. A few are bullies. Some are appallingly slow through inefficiency or laziness or indecisiveness. Some are insensitive. Some are ignorant. Some are undignified. As a result, some judicial work is poor. The whole system is rotten with excessive delay, some of which, but certainly not all of which, Judges are responsible for. It is in the public interest for these failings, whether they are widespread or not, to be exposed with a view to their eradication.”

Mr Heydon also observed that it is one thing for Courts to dislike a stream of criticism from the media and from politicians – well informed or not, weighty or not. It is another thing to seek to dam this stream by threatening or actually initiating contempt proceedings.

Mr Heydon cited with approval the former British Prime Minister David Cameron who told the House of Commons on 18 April 2012 that there are “occasions where Judges make critical remarks about politicians and there are times when politicians make critical remarks about Judges. To me, this is part of life in a modern democracy. We should try to keep these things as far as possible out of the Courts”.

In concluding his speech Mr Heydon asks a rhetorical questions: “where Judges seek to preserve judicial independence in response to political criticism by threatening use of the contempt power, do they actually strengthen the hands of those who oppose judicial independence.” [2]

Mr Heydon’s UK speech is an interesting perspective on the role of criticism of Judges in Australia. What is notably absent from his speech, though, is the problem caused by the convention when Judges are attacked they are not permitted to publicly respond to the attack.

Perhaps it is time for Heads of Court in every jurisdiction in Australia, including Queensland, to become much more proactive in responding to criticism of Judges in the media.

The fact that Heads of Jurisdiction rarely defend attacks on individual judicial officers has the effect of lowering respect for the judiciary simply because there is no judicial response to criticism of an individual Judge or Magistrate, no matter how unfair or unjustified such criticisms may be.

By Terry O’Gorman

23 April 2018

[1] See JD Heydon “Does Political Criticism of Judges Damage Judicial Independence – A Policy Exchange Judicial Power Project Paper February 2018 at page 6.)

[2] Page 17