WHO would make the best chief justice of the Supreme Court of Queensland? Judging from the unseemly row over the appointment of Tim Carmody, not a knockabout barrister appointed by a boy Attorney-General.
Tim “I don’t claim to be the smartest lawyer in the room” Carmody is presently the Chief Magistrate of Queensland. Thick as a brick? Hardly. Carmody was appointed Senior Counsel in 1999, served as the Queensland crime commissioner from 1998 to 2002, as a judge of the Family Court of Australia from 2003 to 2008, and as commissioner for the Queensland Child Protection Commission of Inquiry, which reported last year.
There is no rule book to determine the criteria for choosing a judge, only a process. The responsibility for the appointment rests with the Queensland cabinet, on the recommendation of the Attorney-General.
It is a tough contest because it is a big prize. But, it is a public prize, not the profession’s. Unfortunately, the candidate spoke of policy matters to the press, the A-G failed to keep a confidence, and senior counsel attacked the candidate publicly, after the appointment. The consequence is loss of confidence in the Supreme Court.
Why did the recently resigned Solicitor General Walter Sofronoff QC bag unmercifully, and Peter Davis QC, president of the Bar Association, resign in protest, the Carmody appointment?
Sofronoff said that “Carmody is somebody who has by his own actions identified himself too closely with the government. Judge Carmody is a person who has none of the necessary qualities of a chief justice of a Supreme Court.”
Sofronoff defined necessary qualities as those who run the big cases. Call this the “top gun” criteria.
The trouble is that “top gun” barristers do not always make good judges. Indeed, some are disgracefully rude in court — to the detriment of justice.
Many do not wish to be a judge. Some leave the bench to return to the bar, Tony Fitzgerald QC is such a person. Others, Tony Morris QC springs to mind in the Patel inquiry, display such “ostensible bias” that they have to be removed from judgelike roles as commissioners.
Sofronoff was on safer ground when he argued that Carmody was too close to the government. Sofronoff used the proof that Carmody felt the need, on the day that his appointment was announced, to say that he was independent: “When judges’ appointments are announced, they don’t announce that they are independent.”
Carmody has been too vocal, but what does it mean to be too close to the government? Will he decide any case differently because of the alleged closeness?
Sofronoff’s “top gun” attempt to intimidate him out of the job after the appointment was extremely foolish. Davis’s concern was with the appointment process.
Davis disclosed that he had met Attorney-General Jarrod Bleijie and one of his senior staff to discuss the appointment. The meeting was said to be confidential. The possible appointment of Judge Carmody was discussed.
Details of what Davis had discussed with the Attorney-General leaked. Davis concluded that “some of that information could only have come from a participant in the meeting” and that “some of the information was a distortion” of what had been said.
Davis wrote to Bleijie to, among other things, reiterate that the bar “did not urge the appointment of Judge Carmody”. Davis telephoned Carmody prior to the appointment and “it was evident that the judge had been told the substance of the confidential conversations I had had with the Attorney-General concerning him.”
The government has said it consulted widely on the appointment. Davis’s sense was “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”.
There are some solutions to avoid a repeat of this unseemly episode. Mature and discreet, legally trained attorneys-general are in short supply. If one is not available, choose a mature and discreet non-lawyer.
After all, it is not necessary for the treasurer to be an economist, the health minister a doctor, nor the education minister a teacher.
Judges should speak through their judgments and otherwise be silent on all matters of public policy, except those that directly impinge on the administration of their court.
Anything more and they should resign their commission.
Senior barristers should fight hard behind closed doors, but remain silent after the whistle has blown full time.
The Bar Association did not get its top gun, but it does not own the appointment.