Like Oliver Twist, the public wants more, please ... Stephen Keim SC and Alex McKean examine Tim Carmody's time allocated to exercising his judicial functions ... Then there are the tantalising unanswered questions caught-up in the Court of Disputed Returns
Carmody CJ: keeping an eye on the future
IN letters to the presidents of the Queensland Bar Association and Law Society, sent on Sunday, March 29, Chief Justice Carmody addressed two of the three criticisms which had been raised in a farewell speech by retiring Justice Alan Wilson, the previous Thursday.
Those letters stated that the chief justice preferred that the issues raised by Justice Wilson should be resolved internally, within the judiciary and the profession. That time is past. The events of the last week indicate that it is only by providing full information to the public about the matters in dispute can the issues be understood and addressed.
Judicial work
The chief justice uses the phrase: "It is a matter of public record and well known to registry staff ..." in talking about the judicial work he has performed, this year.
Justice Wilson's criticism was mainly about the future, but he did say that the chief justice had not sat in an actual hearing since February 15.
The chief justice's letter said he had sat for five weeks, three in crime and two in the Court of Appeal since the beginning of the year.
That is, five weeks out of nine, if the vacation at the beginning of the year is not included. The chief justice does not appear to question Justice Wilson's statement about not sitting in an actual hearing since February 15. That is five weeks and four days up to the day of Justice Wilson's statement.
The chief justice's engagement calendar shows His Honour presiding in the Court of Appeal during the whole of the week from February 16 to 20. If His Honour actually sat, any day that week, Justice Wilson's allegation would be shown to be in error on that point of detail. The CJ's letter, however, says nothing about whether he did sit, that week.
This does provide an example of how the detail of competing allegations of this kind is important.
The balance of the engagement calendar, from February 22 to April 4, is coloured in all green or blue (official CJ duties and acting governor duties, respectively), except for a morning in court on Monday, March 16, admitting new practitioners to the profession.
The absence of red colouring, which means "court", for those six weeks, suggests a significant period away from the coalface.
The chief justice also speaks of the future, stating that he is scheduled to sit for 10 weeks out of the next eight months in the Court of Appeal and two weeks in the Queensland Consumer and Civil Tribunal.
He indicates that, according to his advice to the registry staff, he is scheduled to six separate weeks in six regional centres.
This is a total of 18 weeks in court, a little over half of the eight month period to November.
Justice Wilson's criticism as to the future was that the chief justice had withdrawn himself from all published calendars; advised that he would only sit, occasionally, in the Court of Appeal; and that nobody knew when the CJ intended to sit in court again.
It is not clear from the chief justice's letter, but it would seem that apart from some members of the "registry staff", his letter to the profession is his first public advice as to his intentions in this regard.
The letter fills an information gap that Justice Wilson had identified.
The protocol and the Court of Disputed Returns
Another criticism by Justice Wilson was that the chief justice sought to overturn an existing protocol concerning which judge would constitute the Court of Disputed Returns in a particular year.
Chief Justice Carmody identified, as has Justinian, that the Electoral Act formally vests the power of appointing the judge to constitute the court in the chief justice.
His Honour also confirms the existence of a protocol as having been in place since a judges' meeting in 1995 to appoint two judges, 12 months in advance, in order of seniority. The protocol and its effect were referred to by Justice Wilson.
The Chief Justice then says:
"This practice is convenient in most situations in most years but is subordinate to the Act's requirements and must yield to the circumstances of the day."
That statement gives the impression that, as chief justice, he feels free to depart from the protocol when he sees fit. He acknowledges that a primary purpose of the protocol is to ensure the appearance of neutrality. However, a protocol that is free to be departed from is hardly a protocol, at all.
The CJ states that he exercised his judgment to ensure that there was no impediment to the appointment of a judge to hear any disputed return.
It would appear that, whatever this action involved, it was being done at the very time that the results of the election hung in the balance and when a dispute was anticipated in the seat of Ferny Grove because of the ineligibility through bankruptcy of the Palmer United Party candidate.
The chief justice said he made the appointment in accord with the protocol on February 13, 2015.
By February 13, it was clear that the Labor candidate in Ferny Grove would have an ultimate winning margin of more than the unallocated preferences of the disqualified Palmer United Party candidate.
That was the day the Electoral Commission announced that it would not be asking for a Court of Disputed Returns hearing.
The chief justice does not appear to address a related criticism that he sought to speak privately to the next judge to be appointed according to the protocol about "unresolved concerns".
As with the question of the chief justice's court hearing load, the information provided in the letters leaves many answers unanswered.
As was said previously, the matters raised by Justice Wilson require detailed responses. The difference between an inquiry about a protocol and an evinced intention to abandon it depends on exactly what was done and said and in what circumstances.
The public is troubled by having two interpretations of the events traversed and insufficient information to decide which interpretation is correct.
The unaddressed position of the SJA
There was a third criticism. Justice Wilson said that the chief justice "sacked" the senior judge administrator, Justice Byrne.
The chief justice has not discussed that allegation, not even to point out it is the governor-in-council, not the chief justice, who appoints the senior judge administrator to that role.
By, selectively, not responding to this criticism, the chief justice can only have added to the public's concern.
The way ahead
A controversy involving the chief justice is an unwelcome phenomenon in any justice system. There is a temptation to frame the present controversy as a school yard conflict. Both sides are urged to stop being silly and get on with it.
Another tempting framing is that one respects the office of chief justice and ignores any concerns about the holder of the office.
There comes a point, however, when ignoring the issues does more harm to the office of chief justice, the justice system as a whole, and to the persons involved than is done by facing the issues - even if it means bringing them into the public gaze.
That point, if not before, was passed when Justice Wilson spoke, last Thursday.
Stephen Keim and Alex McKean
See: The Bluto files
See: Snakes and scum