Senator Conroy criticises ongoing iiNet defence, breaches separation of powers

Senator Stephen Conroy, Minister for Broadband, Communications and the Digital Economy, has issued a stinging attack on iiNet’s position in Roadshow Films Pty Ltd & Ors v iiNet Ltd. Speaking at the CommsDay summit in Sydney yesterday, Senator Conroy described iiNet’s defence as something which ‘belongs in a Yes Minister episode’ — ironic, given that Conroy is himself the spitting image of Jim Hacker MP (case exemplar: ‘but Tony, publishing the blacklist would defeat the purpose of having a blacklist!’). Conroy opined:

‘I saw iiNet’s defence in court under oath … they have no idea if their customers are downloading illegally music or movies … Stunning defence, stunning defence … I thought a defence in terms of “we had no idea” … belongs in a Yes Minister episode … The capacity to ignore what the customers are doing and claim no responsibility is being tested in court right now. It could be a ground-breaking case.’

Shadow Communications Minister Nick Minchin made the obvious riposte: ‘I have to say his handling of his promise [the National Broadband Network] is much more typical of what you would see on Yes Minister’.

From a Member of Parliament and Minister for Broadband, Communications and the Digital Economy, these comments show a stunning lack of tact and restraint. The Minister’s comments border on sub judice (before a judge) contempt, a doctrine developed to prevent the publication of material that has a real and substantial tendency to prejudice or embarrass ongoing judicial proceedings, or is calculated to do so (John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351). While the doctrine typically applies to material relating to criminal proceedings, it can apply to prejudicial comments made in civil trials in some circumstances. The risk of prejudice is determined objectively from the nature of the material:

‘If the publication is of a character which might have an effect upon the proceedings, it will have the necessary tendency, unless the possibility of interference is so remote or theoretical that the de minimus principle should be applied’: Attorney-General (NSW) v John Fairfax & Sons Ltd [1980] 1 NSWLR 362, 368.

Conroy’s comments are here highly prejudicial. The Minister is chiefly responsible for the portfolio under consideration in the iiNet Case. The case is at an interlocutory stage and complete argument has not been heard. The comments were made in a very public forum and widely reported. iiNet was afforded no right of reply. The comments missed the essential point of iiNet’s defence (that, as a mere conduit, iiNet cannot be taken to authorise the conduct of its users simply from providing the network facilities on which the conduct occurs, regardless of knowledge). The case raises new issues that are not the subject of precedent. Senator Conroy has given his blithe assessment of the defence’s prospects in an ongoing trial of the greatest public significance. Were this a criminal trial, there would surely be grounds for a mistrial.

Regardless of whether this amounts to sub judice contempt, Senator Conroy’s comments show great disrespect for the separation of powers. It is not the province of a Member of Parliament or a cabinet Minister to comment on ongoing proceedings under consideration by officers of the judicial branch. To violate this principle risks intruding upon the independence of our courts and undermining public onfidence in the judicial system.

Even more troubling is that, according to some speculators, Senator Conroy is just taking revenge upon iiNet for its recent abandonment of the government’s ill-conceived internet filtering trial.