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Article by Walter Sofronoff QC, Former Solicitor General for Queensland

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Article by Walter Sofronoff QC, Former Solicitor General for Queensland Article by Walter Sofronoff QC, former Solicitor General for Queensland June 9, 2014 ! It is one of the great virtues of this country that we can usually take for granted the great principles upon which our State and Commonwealth governments stand. The separation of powers and the rule of law usually need not be discussed very much, except among lawyers, and that is a good thing for, when that is so, it means the system is working. ! Under our system of responsible, representative constitutional government, the judiciary is one arm of government together with the executive and the legislature. Its integrity, independence and continued existence is guaranteed by the Australian Constitution itself. That the judges are appointed by the Executive is a historical fact but it cannot alter the fundamental proposition that the Supreme Court cannot, must never, be the tool of the Executive or must not even be suspected of being so. ! That is why the choice of leader of the Supreme Court is so important. The Chief Justice of Queensland is the leader of one of the three branches of government: the branch which keeps a check upon the legislature and the executive, which may have to decide controversies between a citizen and the executive government. ! There can, in the nature of things, only be less than a handful of truly qualified candidates for the position of leader of one of the three arms of government. In living memory in Queensland there has not been such a controversy about the appointment of a new Chief Justice of Queensland as there has been recently. In the past, the choice of a replacement for a retiring Chief Justice has always been swiftly announced. ! The delay in appointment has had a number of regrettable consequences. One of them is that it is believed among the profession that some persons have been lobbying very hard to get !1 the job. Whether or not that is true, the circulation of such rumours demeans the Court and its members and infects the process of appointment. It could have been avoided by a prompt announcement. ! During the delay in appointment, there has also been the opportunity for those so inclined, in media articles and perhaps elsewhere, to advance as a candidate for appointment a person who is not qualified and who, by his recent actions, has very much disqualified himself. ! Beginning with a small article in the Australian in May, the tipping of Chief Magistrate Tim Carmody as the next Chief Justice of Queensland has continued until the lead article in Monday's Courier Mail proposing him as the leading candidate. ! This is very disturbing for two reasons. ! The first reason is this. Some judges, including heads of jurisdiction, can spend a whole career without having their words printed in the media. Not so Judge Carmody. In October 2013, the Attorney General had just sponsored a new law which made it an offence for members of any association which the Attorney General had "declared" to be a "criminal organisation" to be together in public. Within a month of his appointment, Judge Carmody emailed his fellow magistrates to inform them that "[m]embership of a gang prone to resort to violence as a dispute resolution method can increase the risk of future dangerousness to the point of unacceptability and disqualify an applicant from bail even if there is no flight or other risk." The Courier Mail reported that the Attorney General "strongly supported" this email. Within a month of publishing that direction, Judge Carmody issued another direction, this time ensuring that bail applications by all persons charged with offences when it is alleged (not proven) that the defendant "is or has any time been a participant in criminal organisation" must be heard in Brisbane. Although the direction was said to have as its object the need to ensure that the hearing is "ready to proceed as fairly as possible without needless delay", it meant that bail !2 applications from around the State had to be heard in a particular courtroom in Brisbane, the one in which Judge Carmody normally presided. It was therefore widely reported that the direction meant that all such applications would only be heard by Judge Carmody or a magistrate of whom he approved although the statute, that is the law itself, conferred jurisdiction upon every single magistrate to hear bail applications. The Bar Association, understandably, condemned this direction. ! Then, in the course of hearing certain bail applications concerning alleged members of a bikie gang, Judge Carmody observed that "it seems there is a new sheriff in town with a low or zero tolerance for criminals and their activities". This, most unfortunately, if unintentionally, echoed the headline of a story in the Courier Mail two days earlier entitled "No excuses, it's straight to jail if Sheriff Bleijie gets his way with judges". It may well have seemed then, to a reasonable observer, that Sheriff Bleijie "got his way" with at least one judge. ! If this was not bad enough, in January 2014, on the occasion of the swearing in of two new magistrates, Judge Carmody took the opportunity to lecture other judges not to "meddle in the administration of enacted laws by the executive and departments of state". This, one would think, was actually the central function of a court, the duty of which is to inquire into the legality of government action when required by a litigant so to do. ! Finally, during the controversy surrounding the Attorney General's breach of confidence concerning discussions he had had with the President of the Court of Appeal, Judge Carmody, alone of the more than a hundred judges and magistrates in the State, "released a statement" to the media to support the politician who had appointed him, Mr Bleijie, to whom he now gave his unqualified and public support – the support of a sitting judge for a politician involved in a political squabble. The conduct of Judge Carmody in these respects has been viewed with dismay by many members of the profession and, to my knowledge, by several judges. Whatever motives Judge Carmody !3 might have had for saying these things, the consequence is that his impartiality as between citizen and government has been called into question irreversibly. He is now seen by many reasonable people as political. Yet one vital hallmark of a Supreme Court judge, of any judge, is impartiality and this requires an absolute abstention from politics. ! Moreover, the position of Chief Justice requires a lawyer of long experience at the peak of the profession, who commands the general respect of his or her peers and of the wider profession and, very importantly, who has the respect of the judges of the Supreme Court itself. Very few men or women could claim to have any of these qualities let alone all of them. By way of current example, Chief Justice Paul de Jersey, was one of the most talented junior barristers of his day, rightly took silk early and, at the date of his appointment as Chief Justice, had had the benefit of a large practice at the Bar and many, many years as a judge. ! Judge Carmody can claim very limited experience to fit him for the role of leadership of the Supreme Court. He became a barrister in 1982. He was appointed to the public service position of Queensland's Crime Commissioner in 1998. He became a senior counsel after 17 years as a junior barrister and while still Crime Commissioner in 1999. When that position was abolished, he became a judge of the Family Court in 2003. He did not stay on that Court for long. He left that court, just short of five years after his appointment, in 2008 and returned to private practice. ! In July, 2012, three months after the election in 2012, Mr Carmody was appointed to chair a commission of inquiry into child protection and presented his report to the government a year later on 1 July 2013. Two and a half months later, Mr Carmody was appointed and sworn in as a District Court Judge and as Chief Magistrate of Queensland. He has never sat as a District Court judge but began his new role as a magistrate. ! He is, therefore, a barrister who spent about 16 years as a junior. He was a Crime Commissioner for a very few years and a Family !4 Court Judge for a very few years. He practised as a silk for only a few years. He has never held a position of leadership at the Bar. And he has been a magistrate, albeit the Chief Magistrate, for less than one year. ! Opinions among lawyers and judges will always differ about the relative merits of particular candidates for this office. But two things are always clear when such candidates are discussed. A truly suitable Chief Justice must have long experience and successful experience in practice. And he or she must have the confidence of the Court and the profession. There are serving judges of the Supreme Court who satisfy these requirements. But Judge Carmody does not. ! Tim Carmody is a very personable and likeable man. I first met him in the late 70's when he would brief me in Public Defence work. We enjoyed our work together, at least, I did. He has many friends at the Bar. The role of Chief Magistrate is an important one and it was one which Judge Carmody was qualified to undertake. There was no criticism or dissension within the profession concerning his appointment when it was made. ! But neither that appointment nor his earlier experience qualifies him for the role of Chief Justice of the Supreme Court of Queensland.
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