A crisis of confidence: @BowlerBarrister on the #CarmodyCrisis #qldpol

By Ross Vernon Bowler LLB
Barrister-at-Law

The Rule of Law

Queensland is a democratic society. Within that democracy Queensland has chosen to make the rule of law a constituent part of its justice system and therefore its societal structure. In its simplest form the rule of law endeavours to ensure justice for all according to law by placing no one above the law. Adhering to such a societal structure does not always come easy and is not without its challenges. However a society without rules quickly becomes no society at all.

The rule of law underpins constitutional power in Queensland. At any given time within a community embracing the rule of law there will be debate as to what is and is not, may or may not be correct and proper for that community. So long as that debate is confined to adhering to the structure that ultimately defines the rule of law, the society can continue to function. Once a decision is taken to go outside that structure, the result can be that the system fails to operate to uphold its own foundational concept, namely the rule of law and then the system itself undermines its own existence. In that case the society finds itself without any system of rules to guide it as to its behaviour.

The Doctrine of Precedent

A constituent part of the rule of law is the doctrine of precedent. “The doctrine of precedent is a fundamental constraint on judicial decision-making in Australia. The general idea behind the doctrine of precedent is that when [judges] are deciding cases, [they] must pay proper respect to past judicial decisions. … The moral value of the doctrine of precedent is in the way it serves the political ideal of the rule of law; according to that ideal, institutions of the state, like courts, should strive to ensure that the law is developed and applied in a consistent and predictable manner, so that citizens may order their affairs with confidence as to their rights and duties.” (Matthew Harding, ‘The High Court and the Doctrine of Precedent’ on Opinions on High (18 July 2013) ).

The Process To Appoint The Chief Justice

The decision to appoint Tim Carmody QC DCJ to be the Chief Justice of the Supreme Court of Queensland was made in a democratic society acknowledging and upholding the rule of law. Prior to the appointment of Tim Carmody QC DCJ to be the Chief Justice of the Supreme Court of Queensland the established process of the appointment of the Chief Justice was one where the government of the day would consult widely, including the Bar Association of Queensland, on a confidential basis. It can be properly said that the doctrine of precedent was part of that appointment process. In that regard it is instructive to see what the President of the Bar Association of Queensland said in respect of the appointment of the Chief Justice in its letter of Wednesday 11 June 2014:

“The Bar Association supports the following principles:

  1. The integrity, reputation and standing of the Courts is paramount;
  2. The Judiciary must be independent from the other arms of Government;
  3. The Judiciary must clearly and unquestionably be seen to be independent from the other arms of Government;
  4. Any person who is appointed to lead the Supreme Court of Queensland ought to have the general respect of the legal profession and the Judges of the Supreme Court.”

As Chief Law Officer of the State it is appropriate from time to time for the Attorney-General to have conversations with the judiciary, via the Chief Justice and the President of the Court of Appeal, and the Bar Association, via its President. Those conversations must be confidential. One of the criticisms of the Attorney-General in this matter is that he has revealed contents of what were at the time understood to be confidential conversations. It is not the first time such an allegation has been made against the present Attorney-General. In March 2014 the Attorney-General publicly revealed details of a confidential conversation he had with the President of the Court of Appeal in relation to a judicial appointment.

Alerted to this apparent departure from protocol and the doctrine of precedent in March 2014, the Attorney-General seems to have repeated the behaviour in June 2014 in relation to the appointment of the Chief Justice. If the doctrine of precedent has been abandoned in the process of the appointment of the Chief Justice, the argument is enlivened that when it suits, the doctrine of precedent will no longer be utilised in Queensland Courts. Great uncertainty will then confront the Queensland justice system and Queensland jurisprudence. That applies to all manner of judicial dispute resolution, not just criminal law matters.

Appointment of Tim Carmody QC DCJ as Chief Justice

The entire community is entitled to have confidence in the process of the appointment of the Chief Justice of the Supreme Court of Queensland. The judges are entitled to have confidence in working with the Attorney-General, as is the legal profession. The Attorney-General should be able to have confidence in working with judges and the legal profession. As things presently stand that confidence does not exist.

Justice for all according to law demands that cases can be brought and presented to the court without fear or favour. Barristers and solicitors must be free to represent their clients without fear or favour. The courts must be free to find against the government, where it is appropriate to do so. Litigants who have no faith in the justice system may seek to resolve the issues or disputes in another fashion. As I said earlier that can lead to great uncertainty in the community.

The process of appointing the Chief Justice has been compromised. That is not a personal criticism of Tim Carmody QC DCJ, but it cannot help but colour his governance of the Supreme Court. He has been placed in a position where the four (4) principles outlined by the Bar Association of Queensland and mentioned earlier in this piece can no longer enjoy confidence, namely:

  1. The integrity, reputation and standing of the Courts is paramount;
  2. The Judiciary must be independent from the other arms of Government;
  3. The Judiciary must clearly and unquestionably be seen to be independent from the other arms of Government;
  4. Any person who is appointed to lead the Supreme Court of Queensland ought to have the general respect of the legal profession and the Judges of the Supreme Court.

Ross Vernon Bowler LLB
Barrister-at-Law
Sunday 15 June 2014


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Comments

  1. <

    To continue with this farago is another example of newman's lack of knowledge as to how the Westminster system of governance works.

    I appreciate Mr Vernon Bowler taking the time to write this Article and making it available on Citizen Journalism ( http://nofibs.com.au/ ).

  2. It isn’t clear from this article how the doctrine of precedent, which requires that judges deciding cases give respect to past judicial decisions, is applicable to the appointment of the Chief Justice. For one thing, his appointment was not a judicial decision. For another, there is no a past judicial decision that I am aware of where a court has determined the procedure that should be followed in appointing a Chief Justice.

    Mr Bowler may have a good point, but I genuinely can’t tell because it is not clearly expressed in this article. There are many valid reasons for concern over the appointment, but it this article does not appear to disclose a relevant one.

    I also note that Mr Bowler has not identified an avenue within the rule of law by which this ridiculous appointment could be redressed – I would be much more interested in that than in emotive bluster, lacking a firm legal premise, that will only confuse a layperson’s understanding of the issues further.

  3. Trevor Colliosn says:

    I greatly appreciate Mr Vernon Bowlers taking the time to give us the benefit of his great legal knowledge by giving this detailed view of what exactly has gone wrong in Queensland.
    As a layman my view is much simpler, and is based not on detailed knowledge of Australian, Queensland, or any other law, but on the very simple basic rules on what constitutes a successful robust democracy:-

    1) Free and fair elections to elect the Government of the day – QLD PASSES this test.

    2) The law should treat an accused as innocent until proven guilty – QLD FAILS this test (e.g. “Bikey” laws)

    3) Some additional method of “Checks and balances” on the elected Government, often a second chamber.
    In the absence of a second chamber, “ICAC” or similar has a greater importance, as it can perform some important parts of this function.

    QLD FAILS this test, as ICAC is now appointed by the Government of the day, rather than by a “consensus”.
    The “hire and fire” of ICAC is now within the power of the Government that it is supposed to check – hardly independent!

    4) Most important of all – Clear separation of powers. between:-
    a) The Elected Government, who write the laws.
    b) The Judiciary who interpret those laws.
    c) The Police who catch law breakers

    QLD FAILS the “separation of powers” test for the following reasons:-

    1) In our system, the Attorney General is part of the elected Government, and is a political appointment.
    His “arm’s length” separation from the Judiciary, via the Chief Justice is vital to the “separation of powers”.
    The current Attorney General has on several occasions attempted to interfere with the independence of the Judiciary.

    2) In our system, the Chief Justice is part of the Judiciary, not an appointment by the Government for political ends.
    His “arm’s length” separation from the Government, via the Attorney General is vital to the “separation of powers”
    The Chief Justice should primarily be “chosen” by, and be acceptable to, the judiciary.
    Any discussions with the Attorney General should be in confidence.
    This is clearly not the case now in QLD.

    3) The current Government has attempted at times to use the Police as a “private army” for its own political ends. (as did Joh!)
    So no clear separation of powers between Government and Police.

  4. A state referendum of integrity of the state government should be called, with the CMC and now the entirety of the judicial system in Queensland falling to the hands of Newman and Bleijie, it’s obvious that the constitution has failed again and we no longer are in a country of democracy, more like autocracy. Impartiality (aka a ‘fair’ go) is at an all time low. Even with things from the distant Bjelke-Peterson era still not fixed, police corruption still an obvious problem and even destroying our best asset yet, the great barrier reef, how can we as a people, as australian citizens let this happen? It’s like most of us we don’t even know what democracy really is