Page 492 - Week 02 - Tuesday, 10 February 2009
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He sought to comment on the guilt of men facing charges in clear contravention of convention and the law. We might speculate about what motivated this extraordinary breach. Obviously, this government is under a lot of pressure for its handling of corrections and the incident at the BRC highlights the government’s failure; so this acolyte of Jon Stanhope did all he could to deflect attention from the government.
In so doing, I contend that he committed a contempt of court. In so doing, he prejudiced these men’s right to a fair trial. All the law, and all the commentary on the law, says that the right to a fair trial is a paramount right but it seems not if Simon Corbell is the Attorney-General. In Australia, as in many other countries, we have laws relating to contempt of court which seek to set the boundary between the right to a fair, unprejudiced trial and freedom of expression.
Mr Corbell, in his actions on 3 February, clearly set out to prejudice these men’s trial. I think it is worth nothing that we have moved a serious motion about the capacity of the chief law officer, and as the subject of that motion he has left the chamber. I think that the people of the ACT need to know that this Attorney-General has acted in a way that I think the average person would consider was a cowardly way by leaving the chamber.
In Australia we have laws that set the boundaries between a right to a fair and unprejudiced trial and freedom of expression. The distinction between a fair trial and free speech was highlighted by Brennan J in R v Glennon in the High Court. His Honour said:
Free speech is not the only hallmark of a free society, and sometimes it—
that is, free speech—
must be restrained by laws designed to protect other aspects of public interest. Thus the law of contempt of court strikes a balance between the two competing public interests ... The integrity of the administration of justice in criminal proceedings is of fundamental importance to a free society.
His Honour went on to say:
Freedom of public expression with reference to circumstances touching guilt or innocence is correspondingly limited.
I repeat that Mr Brennan said:
Freedom of public expression with reference to circumstances touching guilt or innocence is correspondingly limited.
Mr Speaker, in this country we do not make public statements about the guilt or innocence of people, and people of influence do not make these statements because it is seen to prejudice the right to a fair trial.
The Law Commission of New Zealand highlighted why the right to a fair trial has a higher right than the right to express views about a case in hand. It said:
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