The Poet and the Beast … Incendiary speech from well-respected retiring Queensland Supreme Court judge … Banana Benders in a legal lather … Chief Justice tried to meddle in appointment to Court of Disputed Returns while the government hung in the balance … Former bar president accuses BAQ of failure to stand-up for the judges … Where will it all end?
IT has been a momentous few days for lawyers and the law in Queensland.
On Wednesday night (March 25) former bar president Peter Davis QC was brutally critical of the BAQ and the way it had been played for mugs during the Carmody CJ appointment crisis. He was speaking at an event where he was ordained as a life member of the organisation he once led.
At 9.15 the following morning (Thursday) Justice Alan Wilson spoke at his passing out parade in the Banco court where he unloaded on Tim Carmody, saying he is a failure as chief justice, who lacked the respect of his fellow judges and has damaged the court’s morale.
It’s difficult to overstate the significance of these two events. They have flushed into the open simmering discontent within the judiciary and the bar – a legacy of the destructive politics inflicted on the state by former premier Campbell Newman and his wretched boy attorney general, Jiving Jarrod Bleijie.
First of all here’s Davis in full flight, explaining why he resigned in 2014 after only eight months as bar president :
“From the moment an inexperienced and under-educated and, in my view, incompetent, attorney general was appointed in 2012, the bar was faced with huge trials …
Lawyers who dared to challenge laws introduced by the Newman government were besmirched as part of the ‘criminal gang machine‘. Judges whose decisions did not accord with the government’s view were publicly disparaged …
One result of this failure was that the association was shamed, to a degree which I found almost unbearable, of having some of our judicial members including a former president, resign from the association in protest against our lack of action …
I realised too late that confidentiality meant nothing to that attorney general. I realised that speaking with him achieved little more than allowing him to clothe his decisions with the false claim of proper consultation when, in reality, there had been none. I realised that dealing with him was therefore inappropriate. For those reasons, I resigned.”
Davis added that he was “very disappointed” in the bar association’s actions in the wake of his resignation.
“Surely this was a time for strong public opposition to the government, not submission to it …
I don’t know why the association appeared at all at the chief justice’s welcoming ceremony. Once it was known, as it was, well before the ceremony, that the judges themselves were refusing to participate in a ceremony to welcome a man whose appointment we opposed, why were our officers there?
Why where we literally standing up for the one man whose appointment we had actively opposed, rather than supporting the 25 judges who had refused to attend as a matter of principle?”
Paul (Just Call Me Your Excellency) de Jersey attended the life membership presentation to Davis and looked decidedly uncomfortable listening to this blast directed at his former patrons.
The current bar president, Shane Doyle, appeared as though he’d fallen into an autistic swoon, rocking backwards and forwards and silently grinding his teeth.
Roger (No Waves) Traves was heard to mutter, “Lies, all lies”.
Davis pressed on:
“Contrary to what appears to still be the official view of the bar association, this crisis in the composition of the Supreme Court is not behind us and will not be for a long time.”
Indeed, the crisis got a huge leg-up the following morning as 18 judges trooped into the Banco court to farewell Alan Wilson, the well-liked and respected resident poet of the Qld Supremes.
If the bar had not been brave, Wilson was. He could have retired with bouquets ringing in his ears and telling everyone how much he loved his wife. Instead, he said something revelatory.
Justice John Byrne presided because Wilson didn’t want a valedictory ceremony conducted by Carmody of Errors.
The CJ made himself scarce by conveniently finding an excuse to attend a banquet in Papua New Guinea (long pig?). He also missed the opening of parliament on Wednesday.
Just about everyone else was at the Banco court, including Susan Kiefel and Pat Keane, judges from the Federal and Family courts, the Dizzo, the magistrates bench, Peter (Dunners) Dunning SG, the bar’s top brass, etc, etc.
Amazingly, after the judges had trooped out at the conclusion of the formalities, the crowd in the court burst into applause. Hardened silks had tears in their eyes (well almost).
Wilson started off with the usual appreciations, amusements and self-deprecations, but was soon into his lapidary indictment of Carmody.
“Sadly the current experiment, involving a chief justice who frankly admits he lacks [legal] ability, and has signally failed to manifest those skills, is not working – and there is no reason to think that it ever will …
It is the tension between what the chief justice has said and the things he has done, known only the judges, which to my perception at least partly explains a serious loss of morale in the court. I hear judges at all levels of seniority, including quite young ones, speaking seriously of resignation. The problem is bad and, in my view, getting worse. That is why I am driven to say something.”
And say something he did. He gave four instances where Carmody had either demonstrated he was not up to it and/or had crossed the line with his colleagues.
The CJ has removed himself from active duty in the trial division sittings in Brisbane and the advice is that he will sit only occasionally in the Court of Appeal.
Here’s the trial division calendar – with no mention of Carmody and here’s his recent engagements calendar.
His “duties” entirely comprise social and ceremonial functions. Wilson said:
“Traditionally, what judges do is sit in courts and hear and decide cases …
The notion that there is scope for some kind of full-time public relations role for a head of jurisdiction, and little more, is surprising.”
The third incident cited by Wilson is the most worrying. Carmody tried to ensure that Justice David Boddice did not sit as the Court of Disputed Returns.
This was “in the teeth” of a possible contest about the outcome of the Queensland state election in the seat of Ferny Grove.
There is a protocol whereby each year judges are appointed to the CDR in order of seniority. This seeks to ensure there can be no suggestion of political influence or motive in the appointment.
Not only did the CJ try to remove Boddice he tried to speak to the next nominated judge about what he called “unresolved concerns”.
Again, Carmody was forced to back down and appointed Boddice under the protocol.
This is the chief justice who as chief magistrate gave public support to the AG who appointed him. The AG also promoted Carmody’s wife as an acting magistrate and saw to the appointment of Carmody as chief justice.
And here’s the CJ trying to meddle with the integrity of the appointment to the Court of Disputed Returns in a challenge that could deliver the election to the people who had supported, promoted and appointed him.
By this point in Wilson’s speech a stunned hush descended on the Banco court.
Finally, the departing trial judge said there was a disparity between Carmody’s public utterances and his private performance.
He has conducted a PR campaign in the Murdoch press with interviews in The Australian and The Courier-Mail. Last Christmas he urged the judges to maintain civility and courtesy, but on other occasions he has referred to his colleagues on the bench collectively as “snakes and scum”. Wilson continued:
“Both the remarks, and this kind of hypocrisy, have a devastating effect on morale.
These things (and others, like his failure to take any role in the administration of the court by, for example, attending and effectively chairing judges’ meetings) have distracted the judges from their work, which is busy and constant. To see press interviews being given telling only one side of the story when all other members of the judiciary are working hard while maintaining a proper and dignified silence is having a very dispiriting effect upon them …
The natural feelings of discouragement created by things like these, and being publicly represented by a chief justice for whom most now lack all respect, is beginning to tell.”
It’s all in the open now and difficult to see how Carmody can cling on. In fact, last week he was reported as saying:
“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.”
Maybe it was not a good idea for him to give that interview because now he’s really got no decent choice.
The public support for Carmody is coming principally from The Bowen Hills Bugle.
This week it has published three editorials – telling the judges to leave Carmody alone and that he was doing a good job and should “stay the course”.
Today’s effort (Friday, March 27) kept up its editorial support without addressing the substantive parts of Wilson’s remarks. According to the readers’ comments, many citizens are amazed thatr a CJ is exempt from doing judicial work.
The editorial writers look like buffoons because Wilson’s speech has put the lie to what a splendid job Carmody is doing.
Nor did Carmody rebut Wilson’s detailed allegations. He simply said the speech was “unfortunate”.
“I am disappointed that he would use such an occasion to embroil the court in more controversy. I reject outright his attack on my integrity and performance as chief justice.
His behaviour is the best argument yet for an independent judicial commission.”
The bar association also manage to distinguish itself by not distributing Wilson’s speech to members, instead emailing copies of vice-prez Geoff Diehm’s pedestrian remarks at the valedictory ceremony, made in the absence of president Doyle.
The newly minted life member Peter Davis asked on Wednesday night:
“Is the [bar association’s] purpose to vindicate the rule of law and, as part of that, to support the courts and the judges?
Or is the association just another professional union which exists mainly to advance the interests of its members – to make money and have a quiet life?”
In a mealy-mouthed response this morning (March 27), prez Doyle put out a statement saying:
“The bar association publically and unequivocally supports the Supreme Court of Queensland in the continuing proper discharge of its important public function.”
You can’t get bolder than that.