Should Judges be Chosen by Politicians?

In the latest development in a long-running dispute between members of the Queensland judiciary and Chief Justice Tim Carmody, a retiring Supreme Court justice this week has slammed Carmody’s actions and approach since being appointed to the bench in June last year.

Outgoing Supreme Court Justice Alan Wilson chose to vent his frustration during a speech delivered at his own farewell ceremony on Thursday. He made a string of negative comments about the current Chief Justice, stating that most other justices ‘now lack all respect’ for him.

Wilson criticised statements made by Carmody that members of the judiciary were ‘snakes’ and ‘scum,’ saying that these types of comments had alienated the Chief Justice from his colleagues. He also drew attention to Carmody’s lack of competence and criticised his prioritisation of non-judicial work over his obligations as a judge.

Controversial Carmody

Carmody made headlines after he reportedly made the decision not to conduct any trial work in Brisbane – and to only occasionally hear appeals – despite these tasks comprising the bulk of a judge’s workload.

For example, former Chief NSW District Court Judge Reg Blanch was highly-respected throughout the legal profession and the community for his humility and dedication towards his position; regularly conducting the ‘short matters list’ in Downing Centre District Court which comprises a large volume of mentions and appeals; work that some judges might see as repetitive and tedious.

Carmody, in contrast, has consistently removed himself from court calendars, making it difficult for his colleagues to contact him or know where he is.

Wilson has said that Carmody’s decisions have resulted in a loss of morale within the fraternity, and voiced concerns that many judges are considering resignation in light of Carmody’s approach.

It is extraordinarily rare for members of the judiciary to level criticism at each other – and even rarer still for a judge of less seniority to criticise the Chief Justice.

However, many have maintained that Wilson’s comments reflect the current sentiment in the profession, with some media organisations reporting that the sense of discord and dysfunction shows that ‘Queensland’s judiciary is in crisis.’

Carmody made news headlines last year when all 25 Supreme Court justices chose to boycott his swearing in ceremony.

Their lack of support for the appointment came about following numerous suggestions that his independence was undermined by his close relationship with the Liberal Newman government and his support of controversial “anti-bikie” laws, which had been criticised by members of the judiciary.

Senior members of the legal profession also slammed the appointment on the basis that he lacked the necessary experience.

Carmody had previously served as Queensland’s Chief Magistrate – and his appointment to the role of Chief Justice represented the first time in history that a Chief Magistrate had been promoted directly to the esteemed position.

Traditionally, members of the judiciary are appointed in order of their seniority – meaning that it was expected that the most senior Supreme Court Justice would have taken over the role.

And since his appointment, Carmody has done little to quell the sense of disquiet which has plagued the judiciary; instead making a number of controversial decisions which have attracted criticism from his peers.

For instance, Carmody has been accused of attempting to exert influence over the election outcome in the seat of Ferny Grove. The seat was won by Labor candidate Mark Furner, however the election outcome became the subject of a heated dispute after it emerged that the Palmer United Party candidate Mark Taverner was ineligible to run as he was an undeclared bankrupt.

The matter was due to be heard in the Court of Disputed Returns, which is generally presided over by two judges. However, Carmody attempted to contest the protocol by expressing concerns about the judge who was due to hear it.

Many members of the judiciary saw this as an unprecedented attempt to intervene in the outcome of a politically-centred decision, and his actions added a further layer of uncertainty concerning his independence.

Carmody was also responsible for sacking Senior Judge Administrator Justice John Byrne, who is well-respected by his peers. That was described as ‘shocking and unpublicised,’ and Byrne was later reinstated after members of the judiciary expressed their anger.

But while these actions have resulted in a number of calls for Carmody’s resignation, he seems undeterred. He later hit back at the comments made by Alan Wilson, saying that ‘I reject outright his attack on my integrity and performance as chief justice.’

Independent Judicial Commission

Ironically, Carmody also suggested that ‘[Wilson’s] behaviour was the best argument yet for an independent judicial commission.’

An independent judicial commission would be a body comprised of members or the community that are not judges or politicians that have the responsibility of appointing judges to the bench. This would differ greatly to current protocols whereby Chief Justices of Supreme Courts, and even High Court Justices, are effectively chosen by the political of the day.

However, despite the calls for Justice Carmody to resign, it seems that he is here to stay – under section 61 of the Constitution of Queensland, judges cannot be removed from office other than for misbehaviour or incapacity – and they can only be removed by the Governor in Council.