I was telling a friend about the furor over Tim Carmody’s nomination as Chief Justice of Queensland, and he wanted to know why the Governor agreed to make such a controversial appointment. The answer is that, as the Queen’s representative, the Governor must abide by the tenets of constitutional monarchy.
Although section 59 of the Queensland Constitution vests the power to make judicial appointments with the Governor in Council (i.e. the Governor acting with the advice of the Executive Council), in practice, the choice is made by the Attorney General after confidential discussions with various stakeholders. As a responsible minister, the Attorney General’s recommendation is usually binding on the Governor.
But Carmody is a controversial pick for the state’s highest judicial office. In his current post as Chief Magistrate of Queensland, he has attracted criticism for his perceived bias toward the government. He directed his fellow magistrates to refuse bail to members of biker gangs, and he made administrative changes that his critics said would make the bail process take longer (biker gangs are something of a bête noir for the Queensland government). He also made remarks that some have construed as praise for Attorney General Jarrod Bleijie and urged magistrates to keep their politics out of the courtroom. To make matters worse, the President of the Queensland Bar Association has resigned in protest, claiming that the Attorney General leaked details of their discussions regarding Carmody. There has also been a steady stream of criticism from other legal professionals, such as former state Solicitor General Walter Sofronoff QC, and former Supreme Court justice George Fryberg.
Given the controversy surrounding Carmody’s appointment, one could argue that, as the state’s ‘constitutional umpire,’ the Governor should have refused to accept the Attorney General’s advice. However, it’s important to draw a distinction between acts that are impolitic and acts that are illegal. The Queensland Constitution gives the executive wide-ranging discretion over judicial appointments (the only constitutionally mandated requirement is that the candidate has to have been a barrister or solicitor of the Supreme Court for at least five years), so Carmody’s appointment is unquestionably legal. Whether or not he is a suitable candidate for the job is another question entirely, and it’s one that the Governor should not try to answer. That is a political judgment that properly belongs to her responsible ministers, for they are the ones who must defend the appointment in Parliament and in the court of public opinion.
The firestorm over Carmody’s appointment suggests that the current procedure for making judicial appointments in Queensland is in need of a shakeup. Perhaps it’s time to take a page from the Commonwealth’s book. There, the Attorney General is assisted by an Advisory Panel that draws up a shortlist of candidates. The Attorney General’s Department also seeks input from the public and advertises the appointment criteria on its website. All in all, it’s a much more transparent process than the secretive soundings used in the Sunshine State.