Judgment Delivery - Transcript of Video
North Australian Aboriginal Legal Aid Service Inc v Bradley  FCA 908
24 JULY 2001
[Justice Wilcox sitting at bench and Associate standing in front of him at Associate’s table]
Associate: North Australian Aboriginal Legal Aid Service against Hugh Burton Bradley and the Northern Territory of Australia.
[Justice Wilcox at bench]
Justice Wilcox: The judgment about to be delivered concerns a charge of contempt made by North Australian Aboriginal Legal Aid Service (NAALAS) against Mr Dennis Burke MLA, Chief Minister and Attorney General of the Northern Territory.
The charge arises out of a press conference given by Mr Burke hear in Darwin on 7 June 2001, when he made comments about a pending court proceeding in which NAALAS challenges the validity of the appointment of as Chief Magistrate of Mr H B Bradley. However, it is important to note that the question whether Mr Burke is guilty of contempt is an entirely different question to the validity of Mr Bradley’s appointment. The latter question will be considered by another judge of the Federal Court, at a trial scheduled to commence on 20 August. I offer no opinion about it.
As this case has attracted considerable media interest, I propose to offer a brief explanation before making the Court’s formal orders. The explanation is not a full exposition of my reasons and findings that is set out in my reasons for judgment which I will publish in a moment.
The principles concerning contempt of court have been developed not for the benefit of the courts or judges, but for the benefit of the community. They are designed to enable courts to carry out their fundamental task of providing justice according to law. The principles concerning contempt of court cover several matters. One of these is the protection of litigants from improper pressure to abandon or discontinue claims or defences. I emphasise the word ‘improper’. The law does not frown on attempts to negotiate amicable settlements of cases. On the contrary, this is always to be encouraged. But the law does not countenance intimidation of litigants or their being subjected to public obloquy or abuse for seeking to vindicate or defend their rights. The charge in the present case is that statements made by Mr Burke at his press conference of 7 June subjected NAALAS to public obloquy for proceeding with its challenge to Mr Bradley’s appointment, and had a clear tendency to deter NAALAS from proceeding with the case and to effect potential witnesses.
As is common ground between the parties, the charge has to be considered against the background or earlier comments by various people including Mr Burke. These comments include observations in July 2000, when Mr Burke described NAALAS’ case as a disgraceful waste of tax payers’ money, and advocated the closing down of Aboriginal legal aid services. Those comments were intimidatory. NAALAS is a voluntary organisation formed under and subject to Northern Territory law. Mr Burke was the leader of the Northern Territory government and of the party that controlled the Northern Territory parliament. Moreover NAALAS is apparently dependent on public funding and the support of its Aboriginal constituency. Comments calculated to cause concern amongst the general community, dissent within NAALAS itself or loss of confidence of its leaders had a clear tendency to cause those leaders to abandon the proceeding, not because they thought it lacked merit or utility but in order to save NAALAS from destruction, disintegration or being rendered ineffective by lack of funds or loss of Aboriginal support.
On 7 June 2001 in purported response to unrelated questions, Mr Burke told the assembled journalists:
1. There had been disturbing cooperation between some sections of the legal community to provide information;
2. In support of a case that represented a waste of taxpayers’ money and was being undertaken by NAALAS in betrayal of its duty to its Aboriginal constituents;
3. Which case was a nonsense in its intent and entirely without merit as demonstrated by its having been thrown out by one judge without mentioning the three appeal judges that overruled that judge’s decision;
4. But which case was being prosecuted for extraneous and improper reasons to destroy the reputations of the Chief Magistrate and the Chief Justice and to rip apart the whole of the judicial system.
Although on 7 June 2001 Mr Burke did not repeat his observation about closing down Aboriginal legal aid organisations, his repeated statements about NAALAS wasting taxpayers’ funds and particularly his comment about NAALAS using money on the case that should be directed towards Aboriginal constituents, must have triggered recollection of his July 2000 comments, especially amongst the officers and members of NAALAS. It is difficult to see any reason, other than a desire to put pressure on those people, for Mr Burke’s comments about wasted funds. I think the comments made on 7 June 2001 had a clear tendency to put improper pressure on NAALAS to abandon the case.
The second way in which there was a tendency to interfere with the course of justice was pressure on witnesses. This pressure was more subtle. Mr Burke only complained of cooperation with the legal community. But I think he meant to convey disapproval of lawyers providing information in support of the case, especially as he was Attorney General. It seems to me not fanciful or merely theoretical to think this statement had a tendency to deter persons from supplying information to NAALAS, or from willingly giving evidence on its behalf. I am not prepared to say it had a tendency to influence the content of the evidence of any witness who was called. The evidence does not suggest that Mr Burke’s comments have had the effect of interfering with the conduct of the case. NAALAS continues to prosecute the case and there is no evidence of any effect on the attitude of any potential witness.
However, effect is immaterial. I wish to emphasise that I do not hold a person commits a contempt of court merely by commenting upon a pending court case, or by impugning the motives of a litigant. More than this is required. One example of a something more is when the comment is of such a nature and is made in such circumstances that it has a clear tendency to deter a litigant from continuing to prosecute or defend the case, or to dissuade potential witnesses from giving evidence. In my opinion, the comments of Mr Burke went that far, that is why I find the charge proved.
There was debate at the hearing about penalty if the contempt charge was found proved. Counsel for NAALAS suggested a term of imprisonment. Counsel for Mr Burke and the Northern Territory government submitted no penalty at all should be imposed. I am not prepared to adopt either of those positions. On this occasion it would not be appropriate to order imprisonment, but a penalty is necessary in order to affirm the importance of the rule that people however eminent are not permitted to interfere with the due administration of justice, and to deter others from engaging from such conduct.
The orders I make are as follows:
1. It be adjudged and declared that Denis Burke, Chief Minister and Attorney-General of the Northern Territory of Australia, is guilty of contempt of court in relation to statements made by him during the course of a press conference held on 7 June 2001 at Darwin.
2. Within one month from the date of this order, the said Denis Burke pay to the Registrar of the Court the sum of ten thousand dollars ($10,000) by way of penalty for the said contempt.
3. The said Denis Burke pay to the applicant, North Australian Aboriginal Legal Aid Service Inc, the costs incurred by the said applicant in relation to the notice of motion dated 12 June 2001 alleging contempt of court, except for costs incurred in connection with the adjourned hearing on 15 June 2001.
4. The said applicant pay to the said Denis Burke the costs incurred by him in relation to the adjourned hearing on 15 June 2001.
5. The costs payable under orders 3 and 4 be assessed or taxed on the basis that they are to include all costs incurred by the party entitled except insofar as they are of an unreasonable amount or were unreasonably incurred so that, subject to such exceptions, the party entitled will be completely indemnified for his or its costs by the party bound by the order.
I publish my reasons making those orders. Copies of these reasons will be immediately available on the Court’s website as judgment no. 2001 FCA 908.
The Court will now adjourn.
[Justice Wilcox rises from seat]
Court Officer: All stand please. This honourable court of the Federal Court of Australia stands adjourned.
[Justice Wilcox bows and walks away from bench].