Australia: No free speech about the judiciary?

Members of Malcolm Turnbull's cabinet have rushed to the defence of their ministerial colleagues over remarks about the judiciary that have landed them in court and facing possible contempt charges.

Comments from three politicians criticising Victoria's judicial system could see them face contempt of court charges.

Environment Minister Greg Hunt, Human Services Minister Alan Tudge and Assistant Treasurer Michael Sukkar have been ordered to front the Victorian Supreme Court on Friday to explain "why they should not be referred for prosecution for contempt".

It is understood the ministers will not attend the Victorian Supreme Court on Friday, but will be represented by Commonwealth Solicitor-General Stephen Donaghue, for whom taxpayers will foot the bill.

The matter relates to criticism of the Victorian judiciary made by the three men in The Australian newspaper, which were seen by the court as relating to a live Commonwealth appeal challenging the 10-year sentence of convicted terror plotter Sevdet Ramadan Besim.

Education Minister Simon Birmingham came to his colleagues' aid, insisting they had not just a right but a duty to represent their constituents' views on issues of importance to the community.

"I think when Australian people vote for their elected representatives, they expect their elected representatives to speak their mind, and they expect their elected representatives to stand up on issues that the community are concerned about, that the community might think are unfair or bad outcomes," Senator Birmingham said.

"That applies as much in relation to sentencing decisions of courts as to any other issue."

He conceded MPs needed to be "mindful of all of our different responsibilities", referring to the duty to not prejudice cases before a court.

"But our first responsibility as members of parliament is to the people who send us here, to the voters who send us here, and to stand up for their interests, for their expectations," he said. "And I'm quite confident that that is all my colleagues were doing."

Industry Minister Arthur Sinodinos said he was "surprised" to see his colleagues hauled before a judge to explain themselves, because "this is a country which prizes free speech".

"Politicians from time to time will say some pretty colourful things and I believe that politicians should have the right to do so," he told ABC Radio National on Wednesday night.

"If they say something that's obviously defamatory or libellous or whatever, that's a separate matter, but politicians have got to have a right to make commentary on matters of public interest and public policy."

Deputy Prime Minister Barnaby Joyce declined to comment other than to say: "the whole issue about contempt of court is you don't talk about court proceedings".

The ministers are believed to have the strong support of their colleagues from throughout the Coalition.

"We're all on the same page, this is outrageous," one MP said. "The judiciary is not above criticism. If they're suggesting they're above criticism that's a big problem in our democracy. I think they know this isn't contempt but I think they want to send a message."

The trio also won the backing of crossbench senator and free speech crusader David Leyonhjelm, who lambasted "unelected" judges as "dear little daffodils" who couldn't handle criticism.

"Frankly, I think contempt of the court is when you do a brown eyes," he said, referring to the practice of removing one's trousers and pointing one's posterior in someone's direction.

In a letter obtained by Fairfax Media, Judicial Registrar Ian Irving said comments by the three ministers published in The Australian, accusing the judiciary of going soft on terrorists, would appear to bring the court into disrepute.

Mr Hunt reportedly said: "The state courts should not be places for ideological experiments in the face of global and local threats from Islamic extremism that has led to such tragic losses."

Mr Sukkar was quoted as saying: "Labor's continued appointment of hard-left activist judges has come back to bite Victorians". He also said the soft attitude of judges "has eroded any trust that remained in our legal system".

Minter Ellison partner Peter Bartlett said judges were rightly subjected to public criticism from politicians and the community for their decisions.

But he said some of the ministers' comments had gone too far by suggesting the judges were ideologically motivated. "That's crossing the line. That's suggesting bias with judges," he said.

However, Mr Bartlett said it was disappointing the ministers had been required to explain their actions in the court. He believed it was unlikely they would be charged.

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