… the naval and military defence of the Commonwealth and of the several States …

Section 51 of the  Commonwealth Constitution sets out the powers of the Commonwealth. Those powers include:

the naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth;

During the week some Commonwealth ministers of the crown criticised State based judicial officers for the discrepancy in sentencing between Victoria and New South Wales.

Mr Hunt said Victorian judges made “deeply concerning” comments during an appeal hearing for a convicted terrorist on Friday and accused the court of becoming a forum for “ideological experiments”.

The comments made by senior Supreme Court judges concerned apparent differences between the NSW and Victorian judiciaries when imposing sentences for terror offences.

Mr Hunt told The Australian the judges were “endorsing and embracing shorter sentences” and urged Victorian Premier Daniel Andrews to immediately reject their statements.

Okay – so one branch of the Commonwealth government had a spat with a branch of the Victorian State government.

To be clear – I have no problem with people making general criticisms of government, including the judiciary. I have few problems with people making specific criticisms of government, including the judiciary. What isn’t clear to me is whether this is an attempt to influence the outcome of a specific case. That is not appropriate – but, on the other hand, if members of parliament think that judges’ sentencing is too lax they should impose higher penalties via  legislation. Furthermore, the commonwealth parliament already has the power to legislate anti-terrorism laws.

So what has happened?

THREE Victorian Turnbull government ministers will be forced to explain to the Supreme Court why they should not be charged with contempt after accusing the state’s judiciary of being soft on terror sentencing.

It’s understood the Supreme Court has ordered Health Minister Greg Hunt, Human Services Minister Alan Tudge and Assistant Minister to the Treasurer, Michael Sukkar, to appear on Friday to justify why they should not “be referred for prosecution for contempt”.

Now I imagine the ministers will make a legal argument about crown prerogative blah, blah, blah. The Liberals, however, should make a political argument about elites being soft on crime. Prosecute it hard and take no prisoners. Suggest a constitutional amendment that restricts judicial powers relating to sentencing and to ensure passage suggest reform of judicial salaries and superannuation.

This entry was posted in National Security, Terrorism, Tough on Crime, tough on criminals. Bookmark the permalink.

39 Responses to … the naval and military defence of the Commonwealth and of the several States …

  1. Habib

    And term limits, and dismissal for malfeasance. They can try both themselves as well.

  2. Gab

    The Liberals, however, should make a political argument about elites being soft on crime. Prosecute it hard and take no prisoners. Suggest a constitutional amendment that restricts judicial powers relating to sentencing and to ensure passage suggest reform of judicial salaries and superannuation.

    I suspect the “Liberals” will roll over like fat little puppies waiting for their leftarded masters to scratch them on their collective fat bellies.

  3. .

    This after Brandis QC had to defend the parole decision he was responsible for?

    Smoke and mirrors. Who appoints judges?

    All of the VIC judges couldn’t have been appointed by the ALP.

  4. Bruce of Newcastle

    I’d really really love for the lefty justices in Victoriastan to indict Australian Federal Government MPs and ministers.

    What a wonderful way to discredit themselves!

    The unaccountable activist judiciary is due for a fall.

  5. Rob MW

    During the week some Commonwealth ministers of the crown criticised State based judicial officers for the discrepancy in sentencing between Victoria and New South Wales.

    Obviously the cases & sentences had already been finalized otherwise how would the commonwealth ministers know that there are discrepancies. The Commonwealth ministers should just tell the precious Vic judges to fuck off because sub judicial contempt has passed.

  6. jupes

    The Liberals, however, should make a political argument about elites being soft on crime. Prosecute it hard and take no prisoners.

    The Liberals should do a lot of things.

  7. Sinclair Davidson

    This after Brandis QC had to defend the parole decision he was responsible for?

    I don’t know – I think this is a beat up. The guy spent 12 years out of a 14 year sentence.

  8. LGS

    .
    #2412752, posted on June 14, 2017 at 8:58 pm
    This after Brandis QC had to defend the parole decision he was responsible for?
    Smoke and mirrors. Who appoints judges?
    All of the VIC judges couldn’t have been appointed by the ALP.

    Maybe not all, but former Victorian Labor Attorney General Rob Hulls gained a well earned reputation for stacking the judiciary with left wingers.

    If judges and magistrates want to be political activists, then they can’t complain on the other hand when politicians in return make general criticisms of some of their decisions.

  9. Infidel Tiger

    Look, it’s a show trial but if Hunt, Tudge and Sukkar are jailed it’s a good result for all.

  10. Piett

    Just thinking out aloud, but … couldn’t this almost be a Constitutional crisis in the making? I forget the exact details, but I’m pretty sure that an MP can’t keep their seat if convicted of anything but the most trivial misdemeanour. Having to hold three by-elections would probably mean the demise of the government (not that many people here would be shedding tears).

    State Supreme Courts don’t screw around: they wouldn’t have made this order unless they were sure the Ministers’ words were clearly within the boundaries of contempt.

    Interesting times ahead …

  11. .

    Ho Lee Shit.

    (A distant relative of Skan Kee Ho).

    This might actually be the night of the long gavels.

  12. Luke

    Actually the action by the judiciary is contempt of parliament. The government need to go in hard on this.

    Make no mistake this is a power play by the judiciary.

    There is no point raising maximum penalties if the judiciary won’t enforce them. We have done it in Queensland a few times. Technically we look like we have some of the highest penalties…but only based on the legislated maximum penalty not the real sentence imposed.

  13. Luke

    BTW ‘laws of the Commonwealth’ are not the same as ‘laws of any of the States’.

  14. Cato the Elder

    “State Supreme Courts don’t screw around”

    On yes, they do.

    The quality of all State Supreme Court benches has declined markedly over the last couple of decades and the intellectual grasp of some of them is quite limited. There has been a steady decline since it became fashionable to have judges appointed for their diversity points rather than their abilities.

    Our superior court judges are, mostly, a disgrace to our common law heritage and should, almost without exception, not be where they are.

  15. Piett

    People should be careful in advocating for strict legislative rules on sentencing. It may be appropriate for terrorism offences, but it’s not a good idea in general.

    Example: there was a report today on the ABC on a guy who cultivated marijuana plants to extract oil for the benefit of his very sick child. He was caught and prosecuted. Before the magistrate, medicos testified as to the benefits of the oil, but the magistrate had to find him guilty. But thankfully, no conviction was recorded and no penalty imposed. Strict legislative sentencing rules would probably have seen the poor bugger incarcerated.

  16. .

    Actually the action by the judiciary is contempt of parliament.

    Really?

    Conduct (including the use of words) does not constitute an offence against a House unless it amounts, or is intended or likely to amount, to an improper interference with the free exercise by a House or committee of its authority or functions, or with the free performance by a member of the member’s duties as a member.

    This can be appealed to a Federal Court. Hmmmm….

  17. .

    Good point Piett. Mandatory sentencing would see some real absurdities. Hard cases make bad law.

  18. .

    Cato – common law is a disgrace. It is a noble and romantic idea but doesn’t live up to the idyll.

  19. Tim Neilson

    The Ministers should just do a Hank Reardon. Turn up, say “I said what I said and have nothing to add” and see what the court does.

  20. jupes

    Good point Piett. Mandatory sentencing would see some real absurdities.

    Not as bad as letting terrorists out of jail having served less than ten years.

    Hard cases make bad law.

    Judges simply cannot be trusted to administer justice to terrorists or criminals. Minimum sentences are just the first and most obvious step to counter their incompetence.

  21. jupes

    I don’t know – I think this is a beat up. The guy spent 12 years out of a 14 year sentence.

    So what? He is a fucking terrorist.

    In a sane world he would have been executed and his body fed to pigs.

  22. Mark A

    Piett
    #2412826, posted on June 14, 2017 at 9:59 pm

    People should be careful in advocating for strict legislative rules on sentencing. It may be appropriate for terrorism offences, but it’s not a good idea in general.

    Example: there was a report today on the ABC on a guy who cultivated marijuana plants to extract oil for the benefit of his very sick child. He was caught and prosecuted. Before the magistrate, medicos testified as to the benefits of the oil, but the magistrate had to find him guilty. But thankfully, no conviction was recorded and no penalty imposed. Strict legislative sentencing rules would probably have seen the poor bugger incarcerated.

    I disagree, there some laws on the books that should never have been enacted.
    Making a comparison on a bad law is wrong.

  23. .

    Politicians make bad laws and appoint bad judges, but we can trust them to do mandatory sentencing right?

    A judge could really just unreasonably dismiss evidence, find contrary to the facts or misdirect a jury.

    The appeal court is the upper echelon of the state supreme court.

    A solution to this probably won’t exist in my lifetime. It requires a change in how judges are appointed or dismissed.

  24. Awake

    Shouldn’t “terrorism” act because it can destabilised a country as compared to ordinary crimes be tried in a federal court?

    I am surprised that each state try their own terrorism cases. I thought one of the definitions of terrorism is that it is a threat to national security.

    Like immigration, national security is a function of the federal government. So therefore, I think anti- terrorism law should be under federal laws.

  25. .

    Even if it was solely a Federal law, it would still be tried in State Supreme Courts. The Federal Court has little original and appellate criminal jurisdiction.

  26. Piett

    Cato – common law is a disgrace. It is a noble and romantic idea but doesn’t live up to the idyll.

    Wow, dot, you’ve become disillusioned pretty quickly! Still doing an LLB? I have a lot of reservations about the common law myself — it’s one reason why I gave the law away — but be careful about expressing such doubts to your prospective employers!

  27. .

    Almost all the way through. There needs to be some fall back but for the most part, codification would be just and provide better rules to operate by. The common law forgot some of the roman precepts the normans used. Nulla poena sine lege being a notable one.

  28. Jeremy

    Here is a small part of the Victorian Constitution. If you want to know what is wrong with our state, read our constitution! Incidentally it is changed by Act of Parliament not by vote of the people.

    (b) of any person who was formerly a Judge of
    the Court and entitled to a pension under
    subsection (1), (1A), (1B), (1C) or (1D)—
    the partner of the Judge or former Judge is
    entitled, until death or marriage or until the
    partner becomes the domestic partner of another
    person, to a pension payable fortnightly at the rate
    of three-eighths of the annual salary for the time
    being payable under section 82 in respect of the
    office held by the Judge at the date of death or by
    the former Judge at the date of resignation or
    retirement, as the case requires.
    (2A) Where there are eligible children of a deceased
    judge and no pension is otherwise payable under
    subsection (1) or (2) to or in respect of that judge
    there shall be paid to such person or persons as the
    Attorney-General directs a pension in respect of
    each eligible child at the rate of pension
    applicable to the child under subsection (2B).
    (2B) The pension applicable to each child shall be the
    amount of the pension that would be payable to
    the partner of the judge if the partner was entitled
    to a pension under this Part divided by four or the
    number of eligible children (whichever is the
    greater).

    The majority of our constitution is devoted to the pay and superannuation rights of judges and their dependents.
    We need a proper constitution that is enacted by the people of Victoria.

  29. .

    Incidentally it is changed by Act of Parliament not by vote of the people.

    Like the rest of them.

    We need a proper constitution that is enacted by the people of Victoria.

    You probably still insist we’d need to be tied to the British monarchy though. Which is thoroughly bizzare.

  30. Suburban Boy

    Piett has spotted a potentially critical point in this affair.

    Each of Hunt, Tudge and Sukkar is exposed to possible conviction for criminal contempt of court, an offence “punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer” (one of the heads of disqualification of MPs under section 44 of the Constitution, as Rod Culleton has good reason to know).

    Consequently, any conviction – even without custodial penalty – will be sufficient to disqualify the convicted person from the Parliament (possibly only briefly, but the person will lose his seat), depriving the Government of a majority until the seat is filled at a by-election (assuming that the Government retains the seat). Presumably Turnbull would not schedule sittings of the Parliament during that period.

    The Supreme Court could avoid that if it makes a finding of guilt but refuses to enter a conviction. No conviction, no disqualification. But it is unlikely to be that sparing unless the accused grovel before the bench. And if they are defiant, gaol time looms as a real possibility, and with it an extended crisis in the Parliament.

  31. Up The Workers!

    Tit-for-tat?

    It would be interesting now to see Federal Parliament haul some of Rob Hulls’ dodgy, bleeding heart political “little maaates” subpoenaed to appear before the House of Representatives to answer for THEIR behaviour.

    Lesson 101 in “Elementary Bullying” is: “Always look upwards to see whether the toes you are about to trod on, belong to somebody far bigger and more frightening than you are!”

    A.L.P. – ALWAYS Lenient to Perpetrators!

  32. Driftforge

    The court seems very sensitive to being held in contempt. But surely it is a conflict of interest for a court to be able to decide on matters regarding to contempt for that court?

    What if the court deserves to be held in contempt because it has done contemptible things?

    Is there a process by which a court can be sanctioned for contemptible action?

  33. stackja

    Could a jury over-rule the judges?

  34. Pity this site does not have direct replies. Agree with infidel Tiger. It would be good for Hunt to be jailed. He along with Turnbull with to a large extent been responsible for rising electricity prices and bowing to socialist inspired rubbish about climate. I suggest it would be good to also jail Turnbull, Julie Bishop and all the Labor shadow cabinet. The country would be a better place.

  35. [email protected]
    It strikes me that a finding of guilty whether by admission, a jury or a judge and not recording a conviction on any matter that the parliament (the people) has determined a crime is a contempt of the people. The judiciary and the legal fraternity itself bring calls for mandatory sentencing when the sentencing does not meet community (the people once again) expectations.

    I must concede that in many contentious cases, the calls are based on media reporting, which is less than satisfactory and few reporters or public read the actual sentencing remarks that better describe the reasoning but there are just as many where the public are left scratching their heads in bewilderment.

    Perhaps, given the technology and capability available it is time to reconsider broadcasting trials so that the Courts procedures and process are transparent for the people rather than mandatory sentencing calls that arise after every head scratcher.

  36. iain russell

    The entire ‘police and judicial’ system in Victoria needs a Royal Commission now.

  37. anker

    So the tl;dr; version is this…

    A few federal politicians criticised Victorian judges for being too lenient on terrorists.
    Victorian judges are having a sook about it and want to charge the politicians for contempt of court.

    What a bunch of pussies.

  38. Robbo

    Their criticism of the judiciary in Victoria is valid. If you remove the word “terror” from what they said then it is even more valid. The judiciary in Victoria and those who run the parole system are a disgrace and are constantly putting the safety of the general community a bad last on their priority list.

  39. Tator

    I reckon the Liberals should be making a huge political statement about this and how voting for the ALP precipitates such issues as they are now so predisposed to stacking the judiciary with like and feeble minded fools like themselves who are so out of touch with reality. Here in SA after 35 out of the last 47 years of ALP government, the march through the institutions is basically complete with so called progressives totally throughout all public institutions and departments. This is a major point of difference that can be made between the two parties and with many of these cases where crooks on bail or parole are reoffending and killing people via acts of criminality and getting flogged with a wet lettuce leaf by the lily livered judiciary who care more about the offender than what happened to the victim and their families.

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