A Court In Undisputed Crisis

A Crisis of Confidence

In my article, A Crisis of Confidence, I said the process of appointing Tim Carmody QC DCJ to be the Chief Justice of the Supreme Court of Queensland had been compromised and his governance of the Supreme Court had been coloured because the following four (4) important principles no longer enjoyed confidence:

1. The integrity, reputation and standing of the Courts is paramount;
2. The Judiciary must be independent from the other arms of Government;
3. The Judiciary must clearly and unquestionably be seen to be independent from the other arms of Government;
4. Any person who is appointed to lead the Supreme Court of Queensland ought to have the general respect of the legal profession and the Judges of the Supreme Court.”

The Rule of Law

I said in my A Crisis of Confidence article, “Queensland is a democratic society. Within that democracy Queensland has chosen to make the rule of law a constituent part of its justice system and therefore its societal structure. In its simplest form the rule of law endeavours to ensure justice for all according to law by placing no one above the law. Adhering to such a societal structure does not always come easy and is not without its challenges. However a society without rules quickly becomes no society at all.

“The rule of law underpins constitutional power in Queensland. At any given time within a community embracing the rule of law there will be debate as to what is and is not, may or may not be correct and proper for that community. So long as that debate is confined to adhering to the structure that ultimately defines the rule of law, the society can continue to function. Once a decision is taken to go outside that structure, the result can be that the system fails to operate to uphold its own foundational concept, namely the rule of law, and then the system itself undermines its own existence. In that case the society finds itself without any system of rules to guide it as to its behaviour.”

The Independence and Impartiality of the Courts, the Judiciary and the Judicial Process
In relation to the issue of the independence and impartiality of the Courts, the judiciary and the judicial process, Dr Gabrielle Appleby, Senior Lecturer, Adelaide Law School at the University of Adelaide said:

• “the High Court has found that state courts must still maintain a number of characteristics of independence and impartiality to continue to fit the constitutional description of courts.”
• Laws that compromise “the independence and impartiality of the state judiciary or the judicial process” can be found to be unconstitutional.

A compromised process of appointing judicial officers compromises the judicial appointment and erodes faith in the judicial process.

That was the position before the most recent revelation.

The Court of Disputed Returns

On Thursday 26 March 2015, in his Valedictory Speech, retiring Justice Alan Wilson, relevantly, said the following:

“The third concerns the Court of Disputed Returns. The Supreme Court has for many years had a very sensible protocol which annually appoints judges to that court in strict order of seniority, to ensure there can never be any suggestion of political influence or motive in the appointment.

In the teeth of a possible contest about the outcome of the election in Ferny Grove, the Chief Justice’s initial attempt to contest the automatic operation of that protocol and, then, his attempts to speak privately with the next nominated judge to that position about what he described in a memorandum as ‘unresolved concerns’ was rightly resisted by the judge, and unanimously condemned by the judges. The Chief Justice did, eventually, appoint the judge nominated under the protocol. It was the preceding events which caused the judges so much worry.”

It would seem that in a similar fashion to the way the protocol (Doctrine of Precedent) of appointing judges was not followed when Carmody CJ was appointed, His Honour sought to not follow the protocol (Doctrine of Precedent) in appointing a Judge to the Court of Disputed Returns. A possibility I postulated in general terms in my A Crisis of Confidence article.

“If the doctrine of precedent has been abandoned in the process of the appointment of the Chief Justice, the argument is enlivened that when it suits, the doctrine of precedent will no longer be utilised in Queensland Courts. Great uncertainty will then confront the Queensland justice system and Queensland jurisprudence. That applies to all manner of judicial dispute resolution, not just criminal law matters.”

It would seem the integrity of the other judges to adhere to the Doctrine of Precedent and the Rule of Law remained and any actual appointment controversy was averted by their actions. However the attempt to interfere in the appointment process is disturbing and it is not something that engenders confidence in the integrity, reputation and standing of the Chief Justice.

This latest controversy also invites the following questions:

• What other decisions are being made by the Chief Justice where the Rule of Law and the Doctrine of Precedent are arbitrarily usurped?
• Do the other judges have to monitor the work of the Chief Justice to ensure other similar decisions are not made?

Removal From Office

A judge must retire on reaching 70 years of age (s21(1) Supreme Court of Queensland Act 1991 (Qld)). Under section 61 of the Constitution of Queensland 2001 the process of removing a judge from office is set out.

61 Removal From Office for Misbehaviour or Incapacity
(1) A judge may not be removed from an office other than under this section.

(2) A judge may be removed from an office by the Governor in Council, on an address of the Legislative Assembly, for—

(a) proved misbehaviour justifying removal from the office; or
(b) proved incapacity to perform the duties of the office.

(3) A judge’s misbehaviour justifying removal from an office is proved only if the Legislative Assembly accepts a finding of a tribunal, stated in a report of the tribunal, that, on the balance of probabilities, the judge has misbehaved in a way that justifies removal from the office.

(4) A judge’s incapacity to perform the duties of an office is proved only if the Legislative Assembly accepts a finding of a tribunal, stated in a report of the tribunal, that, on the balance of probabilities, the judge is incapable of performing the duties of the office.

(5) The tribunal is to be established under an Act.

(6) The tribunal has the functions, powers, protection and immunity given under an Act.

(7) The tribunal must consist of at least 3 members.

(8) The members are to be appointed by resolution of the Legislative Assembly.

(9) A person is eligible for appointment as a member only if the person is a former judge or justice of a State or Federal superior court in Australia.

(10) However, a person is not eligible for appointment as a member if the person and the judge who may be removed were judges of the same court at the same time.

Conclusion

Only one judge has been removed from office in that fashion, Justice Angelo Vasta on 8 June 1989. We have not reached that stage yet. But there have been calls for the resignation of Carmody CJ. After this latest revelation, those calls are unlikely to get any softer.

The revelations of Justice Wilson, in particular about the Court of Disputed Returns, further colour the governance of the Supreme Court by Chief Justice Carmody.

It is incumbent upon Chief Justice Carmody to ensure that the integrity, reputation and standing of the office of Chief Justice is returned to its respected position and that the integrity, reputation and standing of the Courts of Queensland remain paramount.