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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