Australians have a god-given faith in the enduring strength and reliability of our institutions: parliaments, the public service, agencies of the state, the courts, the ABC news, banks, regulators, the Queen, Vegemite, etc.
Nothing has broken down in any serious sense, so the whole show shuffles on in a seamless parade of apparent functionality. When something awful does happen there is a hiatus, as functionaries flap about trying to work out what to do.
The courts and the judiciary are particularly vulnerable because their credibility and authority depend on a mystical belief in the virtue of the rule of law. Journalist and legal historian Evan Whitton calls it “voodoo”. 18th century English jurist Justice Wilmot said it was important for “courts to keep a blaze of glory around them, and to deter people from attempting to render them contemptible in the eyes of the public”.
Hence the laws relating to “scandalising” the courts, and rules whereby judges were never supposed to speak publicly beyond the sublime reasoning of their judgments - lest the public tumble to the realisation that they were all too human.
Respect for the office and competence in discharging it are factors that keep judges from being strung-up to the nearest tree by lynch mobs.
What we’ve seen for the better part of nine months in Queensland is the progressive diminution of the blaze of glory, and thereby the public’s faith in the judicial machinery.
The judges and the Queensland legal profession have been seismically split over the appointment by the Newman government of supreme court chief justice Tim Carmody. At least, the new CJ got the seal of approval from the Queensland police union.
From chief magistrate to chief justice in one fell swoop would have been all right if Carmody packed an intellectual punch. As far as some of Queensland’s senior legal opinion is concerned, that was not the case. Instead, his main appeal to his sponsors was that he had made noises in support of the then government’s ramped-up law and order rhetoric and its laws designed to put bikie gangs out of business.
Jarrod Bleijie, the former attorney general, made the appointment. At the time he was considered by some to be monumentally inadequate for the job, a dedicated monarchist who took the symbols of the law hurtling backwards by reintroducing the QC badge of honour for barristers and naming the new court building after Queen Elizabeth II, as though it was a refurbished maternity ward.
Peter Davis QC, the then president of the Bar Association of Queensland, resigned his post in protest over Carmody’s appointment. The CJ had to be sworn-in at a private ceremony, such was the level of hostility and concern that swathes of judges and lawyers would boycott the event.
Lawyers of the utmost fame, such as Tony Fitzgerald and former solicitor general Walter Sofronoff, pointed to the damage that Carmody’s appointment would do to the chief justiceship and the court.
The new bar president, Shane Doyle, tried to patch things up and said that his association would support the new CJ. Then it emerged that Carmody’s engagements calendar was largely devoid of him actually doing much judicial work.
It appeared as though he was spending a disproportionate amount of time attending official events, being acting governor, giving speeches and granting interviews to hacks at the local supportive newspaper, The Courier-Mail. Anything, but the dry slog of judicial work. On the occasions that the CJ had delivered judgments, some of his reasoning was legally questionable. (For example, here and here.)
The cat was belled late last month at the passing out parade for well-respected Supreme Court judge Alan Wilson. Word swept around judicial circles days in advance that Wilson would be dropping a nuclear bomb in his valedictory speech.
Crowds asssembled in the Banco Court, but Carmody made himself scarce, disappearing to Papua New Guinea for an important banquet.
It’s not often the great unwashed can get a glimpse at judicial dirty linen, such is the code of Omertà that usually commits judges to silence. But in his speech, Wilson opened a vein:
It is the tension between what the chief justice has said and the things he has done, known only to the judges, which to my perception at least partly explains the serious loss of morale in the court.
He also claimed that Carmody was squibbing the judicial workload:
Traditionally, what judges do is sit in courts and hear and decide cases ... The notion that there is scope for some kind of full-time public relations role for a head of jurisdiction, and little more, is surprising.
He went onto assert that the CJ had tried to remove the senior judge administrator, Justice John Byrne, whose position is appointed by the governor. According to Wilson, it was only when other judges made firm protests privately that Carmody relented and Byrne held onto his job.
However, the most serious accusation concerned the chief justice’s attempt to meddle with a well-established protocol by which judges are appointed to sit as the court of disputed returns.
For some unexplained reason he questioned Justice David Boddice’s selection to sit and hear disputed election outcomes and tried to speak to the next nominated judge about what he called “unresolved issues”.
Alan Wilson pointed out this these manouvres were taking place “in the teeth” of a possible contest about the outcome of the Queensland state election in the seat of Ferny Grove.
Again, this was apparently “unanimously condemned by the judges” and Carmody was forced to drop his objection to Boddice.
To cap off this unhappy scene, Carmody is said to have referred to his colleagues on the bench as “snakes” and “scum”. By this stage a stunned silence had fallen over the assembled wigs in the Banco court. Wilson concluded:
The natural feelings of discouragement created by things like these, and being publicly represented by a chief justice for whom most now lack all respect, is beginning to tell.
There’s more. The evening before this coruscating display of judicial whistle-blowing, the former president of the Queensland Bar, Peter Davis, made a speech at a ceremony at which he was ordained as a life member of the barristers’ association.
He used the occasion to flay the people who were awarding him the honour, saying that the bar should have stood firm with the judges who opposed Carmody’s appointment:
Contrary to what appears to be the official view of the bar association, this crisis in the composition of the Supreme Court is not behind us and will not be for a long time.
On 29 March Carmody wrote a letter to the presidents of the local bar association and law society, saying (surprise, surprise) that these complaints should be “discussed and resolved internally”.
Carmody also wrote that “an organised and co-ordinated campaign” was afoot to “destabilise [his] discharge of the office of chief justice”.
However, his explanation for the accusations made against him – that he sought to sack the senior judge administrator and meddle with the protocol under which judges are allocated to the court of disputed returns in a neutral, unbiased, selection process – left a bit to the imagination.
Just over a week before his letter to the profession Carmody told The Courier-Mail that he would resign if he was seen to be causing damage to the “brand” of chief justice. Now he was furiously back-peddling: “I have absolutely no intention of breaking my oath and vacating the office of chief justice.”
The Queensland Council of Civil Liberties wrote to the CJ asking him to properly explain his actions and to release emails relating to these matters.
For its part, the bar association issued a mystifying media release saying that it is “attempting to fully understand the circumstances which give rise to the present issues ...”
In the meantime, Queensland barristers Stephen Keim SC and Alex McKean have calculated that in the eight months up to November the chief justice is only scheduled to spend 18 weeks in court – a little over half the time that could be allocated to judicial duties.
Doubtless, the wounded court will stagger on, until the next crisis. The lesson is clear: a questionable appointment by a pretty nasty government has ongoing consequences for a system whose facade of strength actually belies its fragility. So much for the “blaze of glory”.
