The Courier-Mail

In­de­pen­dent com­mis­sion would boost public per­cep­tion of courts

- BILL POTTS AND RE­BECCA FOGERTY

AF­TER months of con­sul­ta­tion, the Queens­land Gov­ern­ment will soon an­nounce the ap­point­ment of the most se­nior judge in the state, the Chief Jus­tice of the Supreme Court. And it is in­ter­est­ing to note that, de­spite La­bor’s as­sur­ances, there re­mains no trans­par­ent pro­to­col for the ap­point­ment of judges.

Although the new Chief Jus­tice will un­doubt­edly be a less con­tro­ver­sial choice than was Jus­tice Tim Car­mody, the sys­tem will re­main vul­ner­a­ble to up­heaval and dis­ar­ray un­less and un­til we es­tab­lish a proper sys­tem for deal­ing with ap­point­ments and also with con­cerns about the ju­di­ciary.

The saga of Jus­tice Car­mody’s ap­point­ment and sub­se­quent res­ig­na­tion as Chief Jus­tice was hugely di­vi­sive. For some, his con­duct while he was Chief Jus­tice (in­clud­ing his work rate, de­te­ri­o­rat­ing re­la­tion­ships with other judges, and his with­drawal from the Brett Cowan ap­peal case) sug­gested he was not the best choice for the job. Oth­ers, in­clud­ing mem­bers of the public, felt he was shame­fully hounded out of the job by his de­trac­tors.

What these dis­parate view­points share is the ac­knowl­edg­ment that the process was chaotic and uned­i­fy­ing. Be­cause there were no for­mal chan­nels of deal­ing with com­plaints, Jus­tice Car­mody’s crit­ics took to the media. Sim­i­larly, Jus­tice Car­mody and his sup­port­ers had no al­ter­na­tive means of ad­dress­ing the crit­i­cisms. The re­sult was an al­most daily “trial by media” that brought the court in to dis­re­pute.

Queens­land law does have some blunt mech­a­nisms to deal with mis­con­duct by judges. The Crime and Cor­rup­tion Com­mis­sion may in­ves­ti­gate, in con­sul­ta­tion

with the Chief Jus­tice, “con­duct that could lead to re­moval from of­fice” – an ex­tremely high thresh­old.

The Queens­land Par­lia­ment may also dis­miss a Supreme or Dis­trict Court judge for “proved mis­con­duct”. This re­quires an in­ves­ti­ga­tion and writ­ten re­port by a spe­cial, ad hoc tri­bunal. Dis­missal of judges, thank­fully, is ex­ceed­ingly rare. The last judge to be sacked at the bar of Par­lia­ment was An­gelo Vasta in 1989, who gave false ev­i­dence in defama­tion pro­ceed­ings.

That leaves a wide va­ri­ety of be­hav­iours that may not re­quire re­moval from of­fice, but nonethe­less re­main un­sat­is­fac­tory, in­clud­ing eth­i­cal breaches, bias, dis­crim­i­na­tion, ig­no­rance of the law, sub­stance abuse, and bul­ly­ing.

Com­plaints about these mat­ters are dealt with in­ter­nally and away from the public eye.

For in­stance, com­plaints about a mag­is­trate are taken to the Chief Mag­is­trate, and so on. If one has a com­plaint about the Chief Jus­tice of the Supreme Court, that is­sue is han­dled by … the Chief Jus­tice of the Supreme Court.

Of course, the sys­tem has been his­tor­i­cally sel­f­reg­u­lat­ing for a very good rea­son: to pro­tect the in­de­pen­dence of the courts. Ju­di­cial in­de­pen­dence is a core and cru­cial prin­ci­ple of our con­sti­tu­tional sys­tem and the rule of law. Its im­por­tance can­not be over­stated.

Jus­tice must be ad­min­is­tered im­par­tially, free from bias, prej­u­dice and pa­tron­age.

Judges and mag­is­trates are not public ser­vice em­ploy­ees within a gov­ern­ment depart­ment or work­ers sub­ject to a con­tract like most of us – and nor should they be.

Mea­sures such as ten­ure, de­cent salaries and im­mu­nity from be­ing sued are nec­es­sary to en­sure an in­de­pen­dent ju­di­ciary and, it fol­lows, jus­tice for all.

If han­dled poorly, any ef­fort to ex­pose the courts to ex­ter­nal reg­u­la­tion poses a po­ten­tial threat to ju­di­cial in­de­pen­dence.

Our present un­ac­count­able process of ju­di­cial ap­point­ments makes it pos­si­ble for any in­com­ing gov­ern­ment to make nakedly po­lit­i­cal ju­di­cial ap­point­ments at their whim.

But imag­ine the chaos if an in­com­ing gov­ern­ment could also sack the ex­ist­ing judges that they dis­ap­proved of. It is crit­i­cal that judges can do their job with­out fear of ex­ter­nal in­ter­fer­ence and reprisals.

How­ever, in­de­pen­dence with­out ac­count­abil­ity poses its own threat to the in­tegrity of the courts.

It seems that there is a grow­ing public per­cep­tion of judges as elit­ist, out of touch, and out of con­trol. These crit­i­cisms are un­fair and un­founded, but to quote a tired phrase: “Not only must jus­tice be done; it must also be seen to be done.”

It is pos­si­ble to bring greater ac­count­abil­ity to the ju­di­ciary with­out com­pro­mis­ing its in­de­pen­dence. In re­cent months, many have called for the es­tab­lish­ment of an in­de­pen­dent com­mis­sion to su­per­vise Queens­land’s ju­di­cial ap­point­ments.

This body would be well placed also to re­view con­cerns, both in­ter­nally and from the public, about un­pro­fes­sional ju­di­cial con­duct. An in­de­pen­dent, trans­par­ent com­plaints process would im­prove public faith in our court sys­tem and, in do­ing so, strengthen the in­de­pen­dence of the courts.

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