The Australian Bar Association (ABA) has warned the executive of the Government of Queensland and others involved in a controversial Chief Justice appointment to give careful considerations to principles well-established across all Australian jurisdictions.
After consultation with all of the independent Bars of Australia, ABA president Mark Livesey QC has expressed serious concern surrounding the announcement that Tim Carmody QC DCJ will be Queensland’s next Chief Justice.
The appointment has spurred outcry and dissent by several senior judicial figures – a level of which Livesey told Australasian Lawyer
is “almost unprecedented”.
Those who are speaking publicly, including former corruption inquiry chief Tony Fitzgerald QC and retired justice George Fryberg, have raised serious concerns about the suitability of Carmody, his perceived too-close-for-comfort relationship with politics, and issues with confidentiality within the selection process.
The announcement of his appointment was made last Thursday evening by the Attorney General and Minister for Justice Jarrod Bleijie, and came despite public figures, including Queensland’s former Solicitor-General Walter Sofronoff, warning against it.
The next day and in response to the appointment, the president of the Bar Association of Queensland, Peter Davis QC, announced his resignation.
He claimed that confidential conversations he had with Bleijie and a senior staff member during consultation in regards to the appointment the week prior had been leaked to the public.
“Some of that information could only have come from a participant in the meeting,” he said in his letter of resignation. “Some of the information was a distortion of what has been said.”
As well as the glaring issue with confidentiality, Davis questioned the Government’s consultation process; one he said should have considered recommendations from the Bar Association and others.
“My sense though is that there was little, if any, support for the appointment within the legal profession and little, or none, within the ranks of sitting Supreme Court judges. Senior figures have warned against the appointment and some have spoken out against it since its announcement.”
Livesey of the ABA agrees and says that the integrity and reputation of the court as well as the independence of the judiciary may now be threatened in the eyes of the Queensland community.
“The level of dissention in this case demonstrates how important the process is and how damaging it is when it’s not followed, because it’s a ripple effect – through the judiciary, the legal profession, and into the wider community.”
The State’s government must now address the issue publicly to repair the breakdown in trust, he says.
“I think the Queensland Government – from what I’ve read and heard – has embarked on a strategy of trying to stifle debate about the judicial process. I don’t think that’s an effective way of dealing with something as important as judicial appointments,” he says. “It’s only appropriate that there should be a public discussion about how that process is working, and if it’s not – why not.”
Thankfully, Livesey says that this controversy seems to be an isolated issue and that generally speaking the judiciary appointment process in Australia works well because Attorney Generals have consulted widely and kept the consultations confidential.
He says one of the most concerning features of the Queensland example is Davis’ assertion that his private consultation wasn’t kept confidential. The well accepted practice is that consultation before any appointment is confidential and kept that way because it ensures that those consulted can speak freely.
“The present position is untenable. The Attorney General of Queensland must consider whether the breakdown in trust can be repaired – if confidentiality in the judicial process cannot be assured he must reconsider whether he can continue his position,” Livesey says.
The Law Council of Australia
is another significant national legal body to wade into the issue.
President Michael Colbran QC says that while appointment to judicial office is always ultimately a matter for the executive government, it’s widely recognised that the interests of the community require that the risk of a perception of political bias in any appointment is avoided.
For this reason there are well established principles and processes which ensure that appointments are made by governments on a fully informed basis, he says.
“One of these basic steps is to consult on a confidential basis with relevant stakeholders. Confidentiality is essential to the frankness and therefore the utility of those consultations.”
The events which seem to have surrounded the announcement are regrettable and must be satisfactorily explained by the Queensland Government, Colbran concluded.
If it fails to do so, the safeguards which exist to protect the community’s interest in public respect for the judiciary will be under threat.