Daily Archives: May 27, 2015

What would Willis do? #2

A few weeks ago I made reference to the controversy swirling around the Chief Justice in Queensland, Tim Carmody.  I’m particularly interested in this, having spent the last eight years of my life working on a judge who was dismissed from his position twice, John Walpole Willis.  Willis’ dismissal was initiated by the local governor  (rather than at the initiative of the Colonial Office) and, even though the principle of judicial independence was (and is)  tenaciously held amongst judges, none of his brother judges who actually presided alongside him lifted a finger in his defence.

Before I become too excited about parallels between Willis and Carmody, a few qualifications are in order. The Tim Carmody situation is fundamentally different to that of Willis, because the complaint is that Carmody is too close to government (or at least, the recently departed LNP government), rather than too antagonistic towards government as in Willis’ case. And we need to remember that even though judges (then and now)  might put great store on judicial independence, this sentiment was not shared by the 19th century British government and the Colonial Office, who expected judges to act as a component of colonial administration rather than hold themselves separate from it.  As a colonial judge, Willis was appointed “at pleasure” which meant that the government could dismiss him at will.  British judges, on the other hand,  were appointed  “during good behaviour” which meant that there had to be cause for the dismissal (which is the case today). However, there are similarities between the Carmody and Willis situation in that here we can witness a public discussion about judicial fitness played out through the media, and that judicial peers and the Bar are  openly critical of the Chief Justice.

So, I’m watching this with great interest, finding many parallels.

When Carmody was first appointed by the Newman government in July 2014, there was already disquiet.  After a career in the Family Court (from where he had the backing of former judge Alistair Nicholson QC) he had served as Chief Magistrate for only nine months before being appointed Chief Justice. Several current and former judges and senior lawyers criticized his inappropriate closeness to the Newman government, his inexperience and the lack of support within the legal profession for his appointment.   The Saturday Paper of  5 July 2014    notes  Carmody’s open support as Chief Magistrate for the Vicious Lawless Disestablishment Act of 1213 (i.e. the VLAD anti-bikie legislation) and his announcement that judges should not use the  “weight of their office to engage in the public debate or make comments about the comparative morality or fairness” of the government’s legislation. He was strongly supported by the local Murdoch paper and the police union.  The article is critical of his track record in the Family Court and as Chief Magistrate and raises doubts over the selection process.

Stephen Kein SC and Alex McKean (National President of the Australian Lawyers for Human Rights and defence counsel for Dr Mohamed Haneef) and Alex McKean (Past Co-convenor  of the Queensland chapter of Australian Lawyers for Human Rights, barrister and lecturer at the University of the Sunshine Coast) have written a series of blogposts on the Justinian site regarding the Carmody appointment.  They criticized his appointment from the start in A Matter of Principle written on 15 September 2014. They too discussed Carmody’s inappropriate closeness with the government, quoting the former Solicitor-General Water Sofronoff QC. They note the perceived lack of eminence amongst his peers. and  criticisms about Carmody’s frequent declarations of independence in the media.  In relation to Carmody’s insistence that judges should keep quiet about government legislation, they cite both Tony Fitzgerald QC and Geoffrey Robertson QC, who take an opposing stance.  They then go on to discuss the stance of Christopher Dore, editor of the Courier-Mail, who wrote several editorials in support of Carmody.

On 30 March 2015 they returned to the issue with  Chief Justice of Queensland-Addressing the Dilemma. They noted  Judge Margaret McMurdo also faced criticisms of lack of experience when she was elevated to the second highest judicial position in Queensland, the President of the Court of Appeal. She, however, has become widely respected.  Justice Wilson’s speech (that I wrote about here) is also discussed, and especially his accusation that Carmody had questioned  the roster system  used for allocating judges to the court of disputed returns, and then tried to influence the randomly appointed judge.  As Graham Orr explains in an article in the Brisbane Times of 28 March 2015 , this was a particularly delicate matter when it appeared that the electoral seat of Ferny Grove might be decided in the courts after the Queensland election where the LNP government was turfed out after one term.

The next day (31 March) they addressed the issue again with their blogpost Queensland CJ leaps to his own defence.  They noted criticisms that Carmody had been too often absent from the bench, they turned again to the Court of Disputed Returns, and briefly mentioned the position of the senior judge administrator, whom Carmody had sacked.

Since then, there has been controversy over contact between Carmody and Bravehearts campaigner Hetty Johnson in regard to the appeal case of the murderer of  Daniel Morcombe  discussed in the Guardian article http://www.theguardian.com/australia-news/2015/may/07/tim-carmody-recuses-himself-from-appeal-by-daniel-morecombe-killer on 7 May 2015. In late April, Hetty Johnson accused Carmody’s critics of being “petulant“.

The Chief Justice is currently on sick leave for a back condition, but on 25th May he announced to the Australian newspaper that he had offered to resign on condition that a judicial commission be established.  However, an article by Mark Bahnisch in the Guardian on 26 May asserts that Tim Carmody can’t demand reform as part of his severance package. Meanwhile, the Chief Justice will be giving the opening address at the North Queensland Law Association Conference this coming Friday 29 May where he will lay out his “vision” for the courts and, according to a Brisbane Times article, “expand on his issues with the judiciary and particular members of it”.

I’ll be very interested to read what he says.