Chief Justice of Qld - addressing the dilemma

Criticism of senior judicial appointments in Queensland is not new, as Stephen Keim and Alex McKean remind us ... Serious allegations raised against the CJ, but few details ... Alan Wilson's concerns must be fully addressed 

Margaret McMurdo: criticised by the bar at the time of her appointment - now widely respected

IN The Courier-Mail of March 20, the Chief Justice of Queensland made comments that indicated he felt concerns about his position. 

"If I felt that the office was being damaged, the brand was being damaged because of who was at the helm, and that person was me, I would leave." 

Notwithstanding Chief Justice Carmody's focus on the present, he is not the first person whose appointment to judicial office provoked a storm of criticism. For a time, in Queensland, being a female appointee seemed enough, in itself, to provoke hurricanes of protest.

In August 1998, Judge Margaret McMurdo of the District Court was promoted by an activist attorney general, Matthew Foley, to Queensland's second highest judicial position, the President of the Court of Appeal.

Legal circles were astonished and many were critical of the AG's boldness.

The nature of the criticism may be seen from the remarks of the Queensland Bar Association. Its president at the time, Bob Gotterson, now Justice Gotterson, said Judge McMurdo had only limited experience in the court's civil jurisdiction and that she faced a challenge in demonstrating that she had skill in handling this testing and necessary aspect of the court's work. 

 Later that same year president Gotterson said that Foley was seeking to introduce a "representative judiciary" and was not seeking "to maintain a bench of the highest calibre" (quoted in "Passion plays second act," Courier-Mail, November 10, 1998).  

President McMurdo might have been forgiven for feeling the same kind of melancholy detected in chief justice Carmody's words. If she did, she never expressed it.

The stories from that time and since indicate that Margaret McMurdo displayed graciousness whenever her appointment was questioned and critics soon became among her firmest supporters. 

Justice McMurdo's other attributes have been humility, hard work, and courtesy. She kept her head down and let her many carefully thought through judgments speak on her behalf. 

Over time, doubters have been won over and President McMurdo is widely respected.

The lesson from that earlier time is: don't worry about comments you or others have made on your brilliance of mind or lack of it. Use your undoubted charm to turn back any unkindnesses that comes your way. Treat everybody with courtesy and respect.

Most of all, work hard. Just be the best judge you can be. And time will cure any regrets that surrounded your appointment.   

The here and now

Amazing scenes at the QE11 Cauldron

Alan Wilson is one of the kindest people we know. He does not have the DNA of a Cassius.

In a speech upon his retirement last week from the Supreme Court, Justice Wilson made three central criticisms of Tim Carmody.

First, the chief justice is doing, virtually, no judicial work. He has removed himself from sitting on any trials heard in the court and would sit only occasionally to hear appeals. The chief justice had not sat in an actual hearing since February 15, 2015. 

This was not a new allegation. As careful journalists have documented, this has been a matter of public record for weeks.

Secondly, the chief justice, recently sacked the senior judge administrator, Justice John Byrne, from that position, an event which the other judges of the court opposed strongly and, ultimately, managed to have reversed. 

The Supreme Court Act 1991 (Qld) provides for the senior judge administrator to be appointed by the governor-in-council not the chief justice. However, any removal of a senior judge administrator, contemplated or otherwise, should be dealt with publicly. 

What, exactly, Alan Wilson was referring to should now be placed on the public record by the public servants, judicial officers, ministers of state or others who were involved in the process. 

The third criticism was that the chief justice sought to set aside an established convention inside the court for the determination of which judge would, in any particular case, constitute the Court of Disputed Returns. 

Again, the CJ's actions were opposed actively by the other judges with the result that the convention was retained. 

However, subsequently, according to Alan Wilson, the chief justice sought to discuss in writing matters concerning the disputed returns jurisdiction with the judge who, according to the convention, was to constitute the court on the next occasion.

This criticism is potentially the most serious of those made by Justice Wilson. This is a matter of propriety not of legal authority. Section 137 of the Electoral Act 1992 (Qld) authorises the chief justice either to constitute the court, himself, or to appoint the judge who will constitute the CDR on a particular occasion.

Nonetheless, the task of deciding whether a member of parliament was lawfully elected or not is one of great importance and sensitivity. 

As Professor Graeme Orr explains, it is to avoid any suggestion of impropriety in such sensitive matters that a protocol or convention is put in place. 

Any suggestion to change the existing arrangement should only be made at a time when the change could not be seen to favour any participant in the electoral process. Such a proposal would need to be justified by transparent and carefully argued reasoning.  

Because they form a small part of a speech mostly devoted to acknowledgements and farewells, Wilson's criticisms do not provide the detailed information that would be required to fully understand what happened or the context in which it occurred.

The criticism also places the chief justice in a very difficult situation. He is entitled to the presumption of innocence that comes with any serious allegation. If the criticism were made in any formal forensic context, he would be entitled to sit back and wait until the case against him was spelled out in great detail and clarity before any obligation arose for him to say anything in his defence.

Justice Wilson will, no doubt, have been fully conscious of those factors. It may be inferred from this and Justice Wilson's long established reputation for kindness and decency that a deep concern for what is happening to the administration of justice in Queensland led him to speak as he did.

It is the justice system which must now take primacy. It will continue to suffer damage if the public concern which has been raised by Alan Wilson is not addressed.

The chief justice must give a full and detailed explanation as to what, if any, events of the kind described by Justice Wilson took place. The explanation must be thorough and convincing. A partial explanation will only deepen the existing concern.

President McMurdo's lesson from the past: that hard work and courtesy to others cure many ills, may yet serve chief justice Carmody well.

In the meantime, however, he must address the deeper issues raised by last week's farewell speech in the Banco court.

Stephen Keim and Alex McKean