affiliated to the International Association of Constitutional Law
It has never been a universal requirement that a candidate for senior judicial office is either well respected or even well liked, by the public at large or by his or her judicial colleagues. For example, Lord Hewart was a political appointee who had no judicial experience upon becoming Lord Chief Justice. He has been described more than once as “Britain’s worst Chief Justice ever, or at least since the seventeenth century”; indeed, his portrait graces the cover of Graeme Williams’ A Short Book of Bad Judges. He was neither a talented jurist nor a courteous presence in court. Political overtones to an appointment can often lead to disquiet within the judiciary. The appointments of young Labour Party loyalists, Dr H.V. Evatt (who later led the Party to three elections) and Edward McTiernan, to the High Court of Australia in 1930 led to ructions that lasted for decades. Later, the Whitlam Labor government’s appointment of its Attorney General, Lionel Murphy, to the High Court in 1975 led to a thoroughly poisonous relationship between Murphy and the Chief Justice, Sir Garfield Barwick (who had himself been the Liberal party’s Attorney General prior to his judicial appointment).
Other judges have attracted disrespect on the basis that, possessing courtesy, they lacked competence, or vice versa. Sir Charles Powers is the only person ever appointed to the High Court of Australia to have practised almost exclusively as a solicitor. His name has long been a byword for a judge out of his depth. Australia’s foremost judge, Sir Owen Dixon, is credited with the remark: “It was not until I heard Powers deliver a judgment that I fully understood the meaning of the phrase ultra vires”. More recently, in a speech shortly after his retirement, a former High Court judge began a sentence: “Now, even if you think that I was the worst judge since Sir Charles Powers, …”, seemingly confirming that even time and Powers’ reputed courtesy has not rehabilitated his reputation within the High Court. Another Australian High Court judge, Sir Hayden Starke, possessed a fine legal intellect and was a technically competent judge. However, his legendary rudeness and uncompromising, combative nature led Keith Mason to say that Starke makes it “easily into any list of Australia’s top 10 worst appellate judges of the 20th century”.
This introduction has several points. One is that unfortunate judicial appointments are neither new nor novel. Another is that a judge can attract the disrespect of his or her judicial colleagues, amongst other ways, through incompetence, discourtesy or by being a blatantly political appointment. Sadly, it is the type of introduction which now inevitably precedes mention of Chief Justice Tim Carmody of Queensland. The details of his appointment have been covered in detail by my colleague, Professor Andrew Lynch. The salient points are that Carmody CJ was widely considered to be incompetent and his appointment so blatantly political that it would compromise confidence in the judiciary.
Carmody CJ was Queensland’s Chief Magistrate between 2013 and his appointment as Chief Justice in July 2014, before which he had briefly served on the Family Court. This quantity of judicial experience does not differentiate him greatly from Lord Hewart, whose appointment Graeme Williams thought would be “inconceivable today”. Indeed, complaints about Carmody’s alleged lack of competence are not entirely a comment on his lack of judicial experience. Lord Reid and, more recently, Lord Sumption were appointed to high judicial office directly from the Bar. In Australia, the same is true of Callinan and Gageler JJ. While some of those appointments (in particular, Lord Sumption and Callinan J) were in some respects controversial, all four judges are considered much more than merely competent. The objections to Carmody CJ are on a more substantial basis. The legal profession in Queensland, including many former judges, made much of Carmody’s modest professional attainments to implore the government to re-think his appointment. However, Premier Campbell Newman’s conservative government proceeded with it, one presumes primarily because, as Chief Magistrate, Carmody had boldly and somewhat flamboyantly supported the government’s highly controversial ‘anti-bikie’ legislation, the Vicious Lawless Association Disestablishment Act 2013 (which was aimed at criminalising the conduct of motorcycle gangs). The Newman government has since returned to opposition but Carmody CJ remains.
While the opposition to Carmody’s appointment from the legal profession was almost without precedent, the reaction from the Queensland judiciary was stunning. Carmody CJ was sworn in privately in July 2014. His public welcoming ceremony almost a month later was attended by only one Supreme Court judge, who was himself being sworn in that day. This snub was not wholly unexpected, since Queensland’s Attorney General had earlier taken the extraordinary step of revealing the content of his private discussions about Carmody’s appointment with Margaret McMurdo, President of the Court of Appeal. Carmody had also spoken about being “surprised and hurt” that “not one of the Supreme Court judges has congratulated me … yet” on the eve of his swearing in ceremony. What is remarkable is that, many months later, the tempest has by no means abated.
The most recent event, unlikely to be the last, came this week at the ceremonial sitting to mark the retirement of Justice Alan Wilson. His Honour’s remarks on that occasion were as impassioned as they were unusual, and have accordingly attracted much greater attention than such remarks usually do. This was not only because they were sensational, but also because, while the “Chief Justice has made many public pronouncements and given many interviews about his appointment, and his actions,” the judges of the Supreme Court so far “have said nothing” since Carmody CJ’s appointment. The points raised by Wilson J reflect the history summarised above of judges denied their colleagues’ respect.
First, Wilson J stated that, for any Chief Justice to be an effective leader of a court, s/he must “attract some respect for their legal ability”. However, he noted, “the current experiment, involving a Chief Justice who frankly admits he lacks that ability, and has signally failed to manifest those skills, is not working – and there is no reason to think that it ever will”. Carmody had claimed shortly before his appointment that “I’ve often said and I’m sure nobody would argue that I may not be the smartest lawyer in the room, and if you were in a room with me and I was the smartest lawyer it would be a good time to leave it” – surely an unprecedented lowering of expectations by the prospective appointee to such a prominent office.
Carmody CJ has a low work-rate for a Chief Justice, or indeed any judicial officer, which may support the view that he is not up to the job he holds. Additionally, two of his few reasoned trial judgments have been overturned on appeal. It was already known that Carmody CJ was either a poor or, more generously, excessively accident prone trial judge from his time on the Family Court, when he once cut and pasted large sections of reasons from an earlier judgment into reasons for judgment in a subsequent matter dealing with quite different facts. The latter judgment was set aside.
Wilson J noted that Carmody CJ has now removed himself “from all trial division sittings in Brisbane, and [advised] that he will only sit very occasionally in the Court of Appeal. Traditionally, what judges do is sit in courts and hear and decide cases. The Chief Justice has not sat in an actual hearing since 15 February this year. He has withdrawn himself from all published court calendars, so nobody knows when or whether he intends sitting again”. Instead, Wilson J indicated that the Chief Justice’s diary is filled with “social and professional engagements” and that the Chief Justice now fills “some kind of full-time public relations role”.
Wilson J also raised issues which had been known only to those within the Court, such as the Chief Justice’s unsuccessful attempts to dismiss the Senior Judge Administrator and interfere with the traditional operation of the Court of Disputed Returns. Given Carmody CJ and the Newman government were already suspected to be too close to each other – and that the Chief Justice had publicly espoused the view that, in jobs like his, “you’ve got to be close to government, and have a good working relationship with them” – the latter anecdote is particularly troubling.
Finally, Wilson J recounted that he and his judicial colleagues were distressed by the double standard inherent in “the Chief Justice, in his public remarks last Christmas, urg[ing] the judges to maintain civility and courtesy; but he has on different occasions referred to us collectively as ‘snakes’, and ‘scum’”. Wilson J noted that “both the remarks, and this kind of hypocrisy, have a devastating effect on morale”.
Carmody CJ rejected Wilson J’s remarks. The new Attorney General, however, spoke in Parliament about Wilson J’s “years of service, deserving reputation for fairness, decency and intelligence” and noted that he “is widely respected and highly regarded in the legal profession, judiciary and government”. Indeed, I know Justice Alan Wilson to be one of nature’s gentlemen and my students and I have benefitted on several occasions from his generosity and kindness. His remarks cannot be dismissed merely as an effort to make trouble and sow discord. Nor are they wholly unprecedented: Muir JA made similarly extraordinary remarks immediately prior to Carmody CJ’s appointment.
I do not propose to suggest a solution to the unhappiness that has descended upon Queensland’s Supreme Court and which I assume to be one of the few aspects of common ground between distressed judges and their beleaguered yet impressively resolute Chief Justice. As the Attorney General has pointed out in recent days, there is no current basis upon which Carmody CJ can be dismissed from office. He may yet be Chief Justice of Queensland for many years and may perhaps even become a respectable figure. My point is rather that appointing judges is simultaneously a very important and extremely delicate business. Judges cannot do the work required of them without the respect of the public or, crucially, the respect of their judicial colleagues. To secure either, they must be competent and, if at all possible, not tainted by a suspicion of political partisanship. It may be that the “crisis” in the Queensland judiciary will not be an entirely unhappy episode if it leads to a broader re-evaluation of how judges are appointed in Australia.
Greg Weeks is a Lecturer in the Faculty of Law, University of New South Wales and the United Kingdom Constitutional Law Blog’s Australia Correspondent.
(Suggested citation: G. Weeks, ‘Comment on Australia: A history of judicial disrespect and the current “crisis” in the Queensland judiciary’ U.K. Const. L. Blog (9th Apr 2015) (available at http://ukconstitutionallaw.org))