Immigration law and policy and has been a contentious issue in Australia, with newspapers and politicians often infuriated by interpretations of that law by judges and tribunals “failing to keep Australia white”, perhaps for the sake of sales and votes in “this great country”, but without much rational thinking in support, or at least little displayed.
It was in the 1930s that Australian immigration law sought to prevent whomever was then considered to be undesirable from entering the country, by way of colour, or politics, and probably more. When a Czech journalist was required to undergo an entry test under the then law, by way of reading Scottish Gaelic, which test he, understandably, failed, a challenge was brought to the validity of that law. The High Court considered that Scottish Gaelic was not a valid language on which to test would be immigrants and held the law invalid.
The immigration minister was not pleased, his evidence being that his decision to deny entry was based on “information received from the Government of the United Kingdom through official channels”. But on being informed he would need to be cross-examined, the Minister promptly withdrew.
There then followed two lines of protest, one from the Scots who were outraged that Scottish Gaelic was not considered a proper language, the other from those who considered the High Court judges to be obtuse in failing to uphold the sanctity of the Australian population, the Sun newspaper saying that the Czech was not “entitled to breathe the pure air of the Commonwealth”, otherwise referred to as “this great country”.
That article in the Sun caused the paper and its editor to be fined for contempt. Reading the article in full may be sufficient to explain why, but these extracts should suffice:
- the High Court was putting into a state of “suspended animation … the law which was relied upon to keep Australia white.”
- the “keen legal intelligences” of the High Court had made a decision “to the horror of everybody except the Little Brothers of the Soviet and kindred intelligentsia”.
- perhaps there should be another opportunity to see whether a new Act “pleases the High Court any better than the old, or whether the ingenuity of five bewigged heads cannot discover another flaw”.
- “if the High Court were given some real work to do the Bench would not have time to argue for days on the exact length of the split in the hair, and the precise difference between Tweedledum and Tweedledee”.
The Sun made a kingly plea “for some gallant champion to rid them of this pestilent Court”: R v Dunbabin  HCA 34; (1935) 53 CLR 434.
The purpose of the law of contempt
The purpose of the law of contempt is explained in the decision of Rich J in that case, being to “prevent interferences with the course of justice”.
One such interference may arise from publications which are calculated to embarrass a court in arriving at its decisions.
“Any matter is a contempt which has a tendency to deflect the Court from a strict and unhesitating application of the letter of the law or, in questions of fact, from determining them exclusively by reference to the evidence”.
Another such interference may arise from
“publications which tend to detract from the authority and influence of judicial determinations, publications calculated to impair the confidence of the people in the Court’s judgments because the matter published aims at lowering the authority of the Court as a whole or that of its Judges and excites misgivings as to the integrity, propriety and impartiality brought to the exercise of the judicial office”.
As Mr Justice Rich explained,
“the jurisdiction is not given for the purpose of protecting the Judges personally from imputations to which they may be exposed as individuals, or for the purpose of restricting honest criticism based on rational grounds of the manner in which the Court performs its functions. The law permits in respect of Courts, as of other institutions, the fullest discussions of their doings so long as that discussion is fairly conducted and is honestly directed to some definite public purpose. The jurisdiction exists in order that the authority of the law as administered in the Courts may be established and maintained”.
The contempt has to be assessed according to the person who speaks it
But the contempt and its reasonable potential for harm has to be assessed depending on its source.
The Daily Telegraph’s recent 2018 reference to tribunal immigration decisions
“saving murderers, rapists and paedophiles from deportation”,
and the Sun’s 1930s reference to the High Court’s
“keen, microscopic vision for splits in hairs which is the admiration of all laymen”
only need to be seen as the kiddies’ name-calling that they are.
Egon Kisch and Albert Piddington
The full story of the Czech journalist, a real one, Egon Kisch, and the barrister who defended him, Albert Piddington, is found here.