Tim Carmody is the luckiest man in the Australian legal world this morning. Although he was appointed Queensland’s District Court Judge and Chief Magistrate by the Newman government only last September, Queensland Premier Campbell Newman announced Carmody as the Chief Justice of the state’s Supreme Court yesterday. In leapfrogging sitting judges on Queensland’s District Court and Supreme Court, as well as senior members of the bar and Queensland members of the Federal Court, Carmody’ s rise is unprecedented in recent memory in any jurisdiction in Australia.
Not only is it unprecedented -- the position of chief justice in each state and territory is generally filled by a senior advocate or a judge from the Supreme Court -- but it is a troubling appointment because it appears to reward Carmody for his controversial support of the Newman government’s draconian anti-bikie laws.
In November last year Carmody issued an edict that severely restricted the right of persons charged under the anti-bikie laws making applications for bail. Carmody’s edict meant that only two bail applications would be heard each day and in only one court in Brisbane. Bikies were being singled out for less favourable treatment when it came to access to bail. This announcement was criticised by prominent lawyers such as Bill Potts, a leading criminal lawyer in Queensland, who observed that the "public are going to perceive the courts themselves and the Chief Magistrate has become politicised".
Carmody’s edict followed up an email he sent to all magistrates that stated: “membership of a gang prone to resort to violence as a dispute resolution method can increase the risk of future dangerousness to the point of unacceptability and disqualify an applicant from bail even if there is no flight or other risk”. It was a view that apparently Attorney-General Jarrod Bliejie supported despite the fact that Carmody appeared to be telling his colleagues how to deal with cases involve members of bikie gangs.
Then in January this year Carmody told newly appointed magistrates not to "meddle in the administration of enacted laws by the executive and departments of state". He appeared to be running the line of the Newman government, which is that the courts ought to fall into line with government objectives.
Queensland’s former solicitor-general Walter Sofronoff says the consequence of Carmody’s statements and conduct “is that his impartiality as between citizen and government has been called into question. He is now seen by many reasonable people as political.”
The appointment of Carmody as Chief Justice yesterday does looks like a case of a politically sympathetic judicial officer being elevated by government. And Carmody appears to have undermined his claims of being fiercely independent by saying that one of his priorities was to ensure court decisions were more in line with reasonable community expectations. This is a phrase often used by conservatives to slate judges as being too soft on crime.
Carmody has hit back at his critics in The Courier Mail:
"'Because of the source of the criticism it couldn’t be ignored and I knew that it would be something that the community was concerned about and they would want to be able to reconcile the appointment with the criticism,' Justice Carmody said.
"'I certainly took it into account. I weighed it up and in the end I decided it was unfounded, it was wrong. I can do this job. I will do this job.
"'I shouldn’t not do this job just because somebody else says I shouldn’t.'"
The best take on Carmody’s appointment comes from the man who rid Queensland of its toxic political and legal culture, former royal commissioner Tony Fitzgerald: "People whose ambition exceeds their ability aren’t all that unusual. However, it’s deeply troubling that the megalomaniacs currently holding power in Queensland are prepared to damage even fundamental institutions like the Supreme Court and cast doubt on fundamental principles like the independence of the judiciary."
Fitzgerald is a man of courage. Unfortunately, those who represent many lawyers in Queensland the Law Society grovelled at the feet of Carmody and the Queensland government in endorsing what is clearly an appointment that to any reasonable observer casts doubt on the Newman government’s commitment to judicial independence.