Queensland Premier Joh Bjelke-Petersen had no clue what the separation of powers meant. Steve Bishop examines a new erosion of the doctrine in the state.
QUEENSLAND'S HEADS of jurisdiction, which include the chief justice, have declined to comment on a suggestion that they invited the Queensland Government to have the chance of helping to select new judges.
The suggestion was made in a statement from the office of the Queensland Attorney-General to Independent Australia that changes had been made to the protocol for judicial selection following consultation with – and calls from – Heads of Jurisdiction.
The 2016 ‘Protocol for Judicial Appointments in Queensland’, which did not include any government representation on the selection panel, has been changed by the Crisafulli Liberal National Government to specifically allow a government representative to sit on the panel.
Wording of the statement from Attorney-General Deb Frecklington's office suggests the heads of jurisdiction made more than one call for changes to be made.
The protocol says:
‘The purpose of the Panel is to select... a shortlist of persons whom the Panel... considers suitable for appointment.’
The Crisafulli Government has followed its controversial appointment of John Sosso to help reshape Queensland's electorates by assigning him to the panel choosing new judges.
Shadow Attorney-General Meaghan Scanlon told Parliament:
“John Sosso will have influence over who creates the laws and who enforces those laws. It means John Sosso can influence the judiciary, the Parliament and the executive, making a complete mockery of the Westminster system.”
Sosso has been closely involved with Liberal and National Party governments for 50 years and was Director-General of Queensland's Justice Department when magistrate Tim Carmody was fast-tracked to being chief justice in 2014.
A rebellion by fellow judges led to Carmody's demise after less than a year in the role.
The fiasco prompted the Palaszczuk Labor Government in 2015 to develop a protocol to ensure the independence of judicial appointments.
It was this protocol which, on 28 February this year, as Cyclone Alfred hogged the headlines, was changed without a media release being issued.
Panels can now include ‘a current or former Executive in the Justice portfolio...’.
Sosso is eligible as a former executive in the justice portfolio during the Carmody imbroglio.
But Sosso has nothing to do with legal matters now, having been appointed Director-General of Deputy Premier Jarrod Bleijie's Department of State Development, reportedly with no merit process.
Perhaps one reason is that Sosso does have experience of being at the heart of judicial appointments by National and Liberal governments in the past.
According to political historian Professor Roger Scott, Emeritus Professor at Queensland University's School of Political Science, in the '90s, Sosso was “in a position of significant influence with the Borbidge Government coming into power...”.
Sosso was Deputy Director-General of National Premier Rob Borbidge's Department in 1996 when former Liberal MP Peter Connolly was appointed as one of two former judges to investigate the Criminal Justice Commission (CJC).
Corruption buster Tony Fitzgerald AC KC has commented:
‘The Connolly-Ryan Inquiry was soon set up to discredit the reforms which had been introduced on my recommendation so that they could be dismantled with minimum community disquiet, but that exercise failed when the Supreme Court stopped the farce because of Connolly's manifest bias.’
The barrister who had been appointed to assist the biased Connolly inquiry was Tim Carmody.
In 1998, the Borbidge Government, in its dying days, removed the CJC’s organised crime function and gave it to a new quango, the Queensland Crime Commission, to which it appointed Carmody as Commissioner.
Sosso was not retained by the incoming Beattie Government just weeks later.
When Liberal Campbell Newman formed government in 2012, Sosso became Director-General of the Department of Justice and the Carmody farce soon followed.
Carmody was said by Fitzgerald to be supportive of the Government when he was appointed in what one legal expert said was the most controversial judicial appointment in the nation’s history.
Fitzgerald said in 2014:
“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.”
Chief Justice Carmody became embroiled in another controversy, which illustrates how judicial appointments could have far-reaching consequences in governance.
The result of a Queensland General Election on 31 January 2015 hung in the balance, with victory appearing as though it could depend on whether the LNP or Labor won the seat of Ferny Grove.
The Electoral Commission of Queensland said on 4 February 2015 that it was considering issuing a challenge to Labor's apparent victory in Ferny Grove in the Court of Disputed Returns.
Twenty years earlier, a disputed election had resulted in a judge ordering a new election for Mundingburra, which resulted in the LNP being able to oust the Goss Labor Government in February 1996.
In 2015, according to The Guardian, a judge had already been allocated to determine disputed election results.
But Carmody issued a media statement that “the constitution of the court of disputed returns is a matter for the chief justice under the Electoral Act”.
It appeared that Carmody might well have set himself up to determine the result of the Ferny Grove result — and with it, which party might form government.
However, on 13 February, the Electoral Commission decided not to refer the Ferny Grove result.
Associate Professor Rebecca Ananian-Welsh, chief editor of the University of Queensland Law Journal, says of Sosso's role:
‘This appointment could signal a desire to return to the kind of judicial appointment approach which saw Carmody appointed — that approach focused not on legal acumen or support from the profession, but on judges being more representative and seemingly more in alignment with the government’s policy initiatives.’
Steve Bishop is a journalist and author. You can read more from Steve at stevebishop.net.
This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Australia License
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