Law disorder in Campbell Newman's Queensland


Chief Justice Paul de Jersey, Judge Tim Carmody, Premier Campbell Newman, and Attorney-General Jarrod Bleijie at the press conference in the Queen Elizabeth Courts Building, BrisbaneAll is not well in the Sunshine State. Campbell Newman's government is running a strong 'law and order' line, and there's nothing new in that. Governments often find political advantage in being tough on crime.

In the process, they sometimes think something is to be gained by having a go at the judges for being out of touch and for being soft on crime, and by taking practical steps to toughen them up. Judges are well used to this sort of commentary and political bravado, getting on with their job of sentencing offenders, ensuring that the sentence matches the crime and the circumstances of the criminal.

Fortunately, we Australians live under constitutional arrangements which guarantee, more or less, that executive government is popularly elected, with the ministry being drawn from the party or parties enjoying a majority in the lower house of parliament (or in Queensland, the only house of parliament). Our judges are not elected and they enjoy independence from the executive government once appointed, in that they can be dismissed only by vote of the parliament determining proven misbehaviour.

The risky part is the judicial appointment process.

The appointment of High Court judges sometimes excites strong political interest because those seven constitutional luminaries have the final say interpreting the division of powers between the Commonwealth and the states. The appointment of state judges rarely excites strong political interest, though often accompanied by lots of speculation and interest from within the legal profession. Even the appointment of a state chief justice is usually a matter of only passing interest for the public.

When Jim Spigelman decided to retire as chief justice of New South Wales in 2011, a routine set of consultations with the legal profession took place, with the state Attorney-General Greg Smith then issuing a mundane press release announcing the appointment of Tom Bathurst and appending a matter-of-fact CV of the appointee's legal expertise and experience.

In February, Newman made the long awaited announcement that Paul de Jersey, the long serving chief justice of Queensland, would be the next governor of the state. Newman said he would take time to appoint a new chief justice, in line with a promise to be more consultative: 'We will be consulting with senior members of the legal profession in Queensland. Obviously I will also be asking his honour for his opinion and we'll make an announcement when we've undertaken that process. But we're going to listen and we're going to consult.'

Last Thursday, with great fanfare, Newman appeared at the Supreme Court flanked by Chief Justice de Jersey and his Attorney-General Jarrod Bleijie to announce the appointment of Tim Carmody as Queensland's new chief justice. There is no rule to say that one should just do these things in an understated way by media release as they did in Sydney with the appointment of the eminently qualified and suitable Bathurst. Usually an appointment should just speak for itself.

The appearance of the premier, the future governor and the proposed chief justice together at the Supreme Court was novel, providing a picture in stark contrast to the usual separation of powers.

Carmody spoke and affirmed that he would be independent as a chief justice: 'I am fiercely independent. If my views happen to coincide with the Government's that is pure coincidence.' By this stage alarm bells were ringing. This was the equivalent of a new archbishop holding a press conference in the cathedral with the papal nuncio and proclaiming his faith in Jesus Christ. True, but why the need to say it?

Over the next 24 hours, things started to unravel.

Unlike Bathurst, Carmody is not your usual prospective appointee as chief justice. Except for his close relationship with the Attorney-General and his expressed coincidence of viewpoint with government about law and order issues, there is no way that he would be in the mix for consideration.

Despite some of the more shrill observations by his critics (and he has many in the legal profession), this closeness and coincidence of views would not necessarily rule him out of consideration if he had the requisite prudence, experience and learning in the law. But he does not.

He took to the airwaves to defend himself and his appointment. This is unheard of in the Australian system. But worse, he revealed on air that not one of the 26 serving Supreme Court judges had congratulated him, and that he would have to knock on the door of each of them to determine if they were friend or foe.

Imagine a new chairman of a major corporation like BHP Billiton announcing to the public that he had not been congratulated by any serving board member and that he would now have to take soundings, presumably building alliances and dividing his board into camps. The shareholders would demand he walk, doubting his prudence and that of those who nominated him.

As for Newman's promised consultation, we will never know if he consulted de Jersey and what was said, and neither should we. This is what made de Jersey's presence at the press conference in his own court building so problematic, given that Newman and Carmody used the press conference to make such self-serving remarks.

Peter Davis, the President of the Bar representing the barristers of the State, was devastated that either the Attorney-General or one of his staff had leaked details of their confidential discussions to others including Carmody even before the decision had been made to appoint him. Davis wrote to all the barristers saying, 'The Bar Association ought to be involved in the process of appointment of judges. That is done through the President. As I have no faith in the integrity of the process, I cannot engage further in it.

'I have concluded, with great regret and sadness, that I ought not continue to hold the office of President.'

It turned out that a junior barrister, Ryan Haddrick, who was close to both Carmody and the Attorney-General (having been his chief of staff) had expressed displeasure at the Bar Council's view on who should or should not be appointed as Chief Justice.

Haddrick thought the Bar needed to accept the fait accompli that Carmody would be appointed, and arrogantly and high-handedly wrote to a member of the Bar Council saying, 'Common sense needs to prevail. There are two more Supreme Court appointments, three District appointments and about five Magistrates to go this term. I want some of them to be barristers!! and not solicitors!!!'.

The president of the Law Society wrote to all the solicitors saying:

The matters raised by Peter Davis QC are of singular concern as they go to the process of judicial appointment which, if tainted, runs the very great risk of undermining the confidence of the profession and the community in individual appointments which then flows onto the larger institution of the courts. Such an outcome cannot be contemplated. The issues raised must be addressed if we are to preserve confidence in our system of justice.

Queensland is in for a very hard time with the community's confidence in the courts being tested while politicians beat the 'law and order' drum, unless of course the Attorney-General has the good sense to resign and Carmody the wisdom to decline appointment before his scheduled swearing-in next month.

Bathurst in October last year observed:

Because the judiciary has neither 'the might of the sword or of the purse', as the old saying goes, the institutional strength of the courts necessary for judicial independence itself largely relies on community confidence. It is, at least in part, the community's confidence and support for the judiciary that serves to protect the courts from incursions by other arms of government. In other words, community confidence in the judiciary is both a goal, and an important element in maintaining, the separation of powers.

Newman and his Attorney have trashed this community confidence for dubious short-term political gain.

When opening the new Supreme Court building in Brisbane two years ago, de Jersey rightly praised the splendid architecture of the building which reflected the transparency and openness of the judicial process. His vision has turned to ashes as he departs for Government House.

Frank BrennanFrank Brennan SJ AO is professor of law at the Australian Catholic University and adjunct professor at the College of Law and the National Centre for Indigenous Studies, Australian National University.

Pictured: Chief Justice Paul de Jersey, Judge Tim Carmody, Premier Campbell Newman, and Attorney-General Jarrod Bleijie at the press conference in the Queen Elizabeth Courts Building, Brisbane.

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Existing comments

Little blokes often like to make a lot of noise - that's the only way they get noticed !
john frawley | 18 June 2014

Perhaps Newman and Bleijie are drawing their inspiration from the current administration of government and justice in Egypt!
Paul | 18 June 2014

Excellent article, as usual from this source. But terribly sad to read of yet another institution critical to sound governance and good public administration being weakened by so called conservatives who should know better. I suspect that propensity of some in power to staff institutions with committed fellow travellers rather than the meritorious stems more from low self esteem than from ideology. In Australia and the USA, the most confident and well equipped leaders have avoided over-partisan appointments to high public office; the exceptions have generally been the more feeble-witted or precarious executive/political heads.
Paul Munro | 18 June 2014

I have always looked at government in Queensland with curiosity, given they are NOT bicameral but have only ONE chamber of Parliament. So thank you, Frank Brennan. you have painted the picture and fleshed out two arms of the Westminster system of constitutional monarchy as it is manifest in Queensland, a system of which the Queensland Premier has previously displayed no knowledge. In bygone years, Tony Fitzgerald presided over a Royal Commission into corruption in the Queensland police force - the third branch of the Westminster system of government. Now, Tony Fitzgerald is ALSO drawing attention to this issue. Methinks, Father Frank, that you have fleshed out the details of a stinking carcase that needs airing.
Bob | 18 June 2014

Justice Muir of the Queensland Court of Appeal has delivered an address in Queensland this evening concluding: "I would hope that because of the unfortunate way in which this saga has unfolded, the obvious lack of support for the Chief Magistrate’s elevation to the office of Chief Justice of Queensland and the matters discussed earlier, the Chief Magistrate will see that the only appropriate course is for him to withdraw. To take this course will require courage, but I do not apprehend that this is a quality that the Chief Magistrate lacks."
Frank Brennan SJ | 18 June 2014

From time to time we are told that Australia is over-governed, that we should do away with the states, that the Senate must submit to the will of the government, that the courts must cooperate with the executive, that the will of the people is expressed in the composition of the lower house, and so forth. It's actions like this current one by the Queensland executive that reminds us of the need to limit the concentration of power in any one branch of government, and of the importance of federalism, bi-cameral legislatures, proportional representation, and a strict separation of powers between executive, legislature, and judiciary in achieving that goal. Imagine, if you will, where we would be with a Newman style PM presiding over a uni-cameral unitary national government in a uni-cameral national parliament.
Ginger Meggs | 19 June 2014

An appointment that would have been astonishing even under Jo Bjelke-Petersen. Rarely has such contempt for the rule of law, the dignity of the justice system and the judges of a Supreme Court been shown by a government in Australia. So disappointing. By all means appoint a conservative judge -- who could honestly complain if that person was of the high calibre require to maintain or even elevate the prestige of the Supreme Court? It is possible to imagine Carmody commanding the respect of his colleagues on the court, in other courts, at the Council of Chief Justices, or of the legal profession, much less the general public? Carmody should have the good grace to resign (and seek another sinecure from his mates in the National Party) before further damage is done to the Supreme Court and the justice system generally. And what is his future as CJ? Contempt and isolation in his chambers, derision from the profession and the distrust of litigants afraid that he lacks the basic competencies this high office requires. Is he so lacking in insight that he desires a form of prestige that will be a curse for him? It's like Richard Rich and More...
Hugh Dillon | 19 June 2014

Justice de Jersey said in a statement today he would now comment on the matter as the appointment has been approved by the Governor" "I have not previously commented on this matter for two reasons. First, the selection of my successor is in the end up to the executive government, and second, it is basically inappropriate for a current Chief Justice to comment publicly on particular persons as mooted successors. It is also the fact that while I am the serving Chief Justice, I am also the appointed next Governor. But it is the above reasons which have impelled me to stand outside the public discourse. The position changed yesterday - the appointment of the next Chief Justice was then made by the Governor-in-Council. With the position established, it became incumbent on all of us who are involved in the legal process to support its current expression. The stability of the legal system is integral to our democratic system and must be maintained."
Frank Brennan SJ | 20 June 2014

Surely the integrity of the legal system is just as 'integral to our democratic system' as its stability. Newman has trashed the integrity of the system. The resultant lack of integrity undermines the stability.
Ginger Meggs | 20 June 2014

The Council of the Bar Association of Queensland has issued this statement today respectfully asking Tim Carmody to reconsider whether to take up the appointment as Chief Justice: “It is, of course, within the power of the Executive Government (the Government), and solely its responsibility, to select appointments for judicial office including the most important judicial position of Chief Justice of Queensland. With that power comes the responsibility to make appointments that serve to maintain the public confidence essential to the proper functioning of the courts. Importantly neither the appointment itself nor the manner in which it is promoted or defended should allow the judicial office to appear to have become politicised. That is especially so for the leadership position of Chief Justice. The Office of the Chief Justice of Queensland, the highest judicial office of the State, commands and is to be afforded the highest respect by all, especially by lawyers. The Bar Association has always given that office that respect and will continue to do so into the future, despite the Association’s concerns as expressed below. The recent announcements of the Government’s selection of Judge Carmody as the next Chief Justice of the Supreme Court of Queensland, and the manner in which that decision has been promoted and defended, has resulted in widely held concerns about the appointment which are serving to damage the Supreme Court of Queensland and the public confidence in it. The Government’s decision, the processes employed and the manner in which it was promoted, did not have the support of the Bar Association, then or now. Many people now have questioned the Government’s decision and some have publicly invited Judge Carmody to refuse the high office for which the Government has selected him. The Bar Association also respectfully asks that he reconsider whether to take up the position of Chief Justice.”
Frank Brennan SJ | 23 June 2014

Following his government's disastrous showing in the Stafford by-election, Campbell Newman said the Government wanted to improve its relationship with the judiciary and the wider legal profession: "We acknowledge there has been some bad blood there in recent times. I'll be therefore seeking a meeting with the senior members of the leadership team, the Attorney-General and the heads of the legal profession and the judiciary to sit down and really mend some fences. To actually sit down and very much recognise that we must work together for the good of all the people of this state, we must respect one another. I want to repair those relationships." At least the ballot box counts for something.
Frank Brennan SJ | 23 July 2014


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