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Written by Peter Carter

February 15, 2014

How should Queenslanders judge the state’s judiciary in the face of the confrontation with the Premier and Ministers over recent months?
Some would say that for a body that has no public face, no PR or advertising machine, is meagrely resourced and does not even publish media statements, it has acquitted itself remarkably well. Others – including a dissenter among their own ranks – think the jury is still out on the judges’ push back against Ministerial direction as to the punishments they should hand out.

Chief magistrate, Tim Carmody, for example,  used the recent occasion of the swearing-in of new members of his magistracy at the end of January, to beseech his brethren not to be swayed by their inner prejudices. Among other things, Carmody – who holds the office of District Court judge – implored justices to eschew their biases when deciding whether or not to throw someone into solitary confinement under Queensland’s VLAD laws.

They must not make decisions influenced by “loyalties to a political party that appointed them” or by “religious beliefs”, a motherhood statement in itself, but as a proposition that Queensland judges act under such biases, it comes as an entirely original contribution to the debate.

He counselled they must enforce Parliament’s will, as it is “supreme”, an echo of the controversial remarks made by the Premier in October that resulted in a Supreme Court standoff for several weeks. No mention made of the strength or weakness of evidence; whether an accused had renounced membership before arrest; or the consequences to the families of accused of those “associating” being jailed pending trial, these all being factors court are bound to consider to apply Parliament’s law.

“Separation of powers is a two way street”. To gain respect, they must give respect. Get along, before you go along. Attorney General and Minister for Justice, Jarrod Bleijie was there present in his audience. Parliament may well be supreme, but Carmody would do well to remember the traffic on his metaphorical “street” is far more animated than the two directional flow he alludes to.

It is often un-remembered in Australia that, as in every common law jurisdiction worldwide, our state and federal government is comprised by three separate organs, not two. Because the Premier and Ministers of the crown have a dual role – one of which is as an ordinary MP – what they have to say in their capacity as ministers, is sometimes assumed to be the words of Parliament itself.

But it is important to understand that when the Attorney General or the Premier make ministerial or other statements, they talk as members of the Executive, not Parliament. Parliament can only act as a single body, after a vote of members. A statement by a Minister inside Parliament is not a statement on its behalf, but “merely” a statement on behalf of the Executive or, less frequently as the member representing an electorate.

Discourse appropriate for the Executive, could never come out of the mouth of Parliament because it is only capable of written “group-talk” in the form of painstakingly drafted legislation.

Courts don’t make decisions based on the “vibe” of Parliament’s laws or what the morning newspaper has to say. But the former is exactly what Carmody was urging them to do. Ministers should not be surprised that the creation of new offences with jail time penalties will always attract vigorous argument, novel defences, and meticulous judicial consideration – for the very reason that a citizen’s liberty is at stake.

More so if the law to be applied is new, with scant prior judicial interpretation. That’s what we would all expect if our liberty were at risk.

Let me just add some gratuitous comments of my own.

For cases to actually get to court, we need a healthy legal profession: a body of people skilled in recognising such issues and unafraid to stand up in the event of disparagement.

Lawyers can empower ordinary citizens to the same level as a Minister of the Crown or the most powerful corporation. Inevitably, this builds resentment from those they oppose which as stated, is more often than not, government or a government body.

So lawyers and judicial officers must let criticisms wash off their backs but never waver in their determination to be the last line of defence for the people. It’s important in principle and in practice.

The majority party in Parliament also controls the Executive, so aren’t they effectively the same thing?
No. And that very thing – compounded by the absence of an upper house in our particular Parliament – makes it essential that the distinction is never blurred.Why?
The Executive exercising many powers that are not scrutinised by the Parliamentary process. Un-moderated Executive power is dangerous. It has potential for administrative abuse, disparity in application and even corruption.

Who moderates the power of the Executive?
Excellent question. In most cases, the courts when instances come before them in litigation involving private citizens.

Does this frequently occur?
Cases by citizens opposing decisions of the Executive, in defence of claims made by the Executive, or in prosecution of a citizen’s right against the Executive, represent by far, the greatest single proportion of all matters that come before our courts. Much more than half the courts’ time is devoted to these matters, civil, criminal and administrative.

Does the Executive have an interest in undermining the power of the courts?
Yes. Without moderation by the courts, the Executive would get its own way all the time. Every minister of the Crown could act arbitrarily. Citizens would be defenceless. History is full of examples, with tragic consequences.

Does this happen here?
For the most part, no: we have a finely balanced system that works well. But the inclination – without our in-built checks and balances – is irresistible.

So what is your point?
Our forebears decided centuries ago that a separate judiciary be empowered to interpret Parliament’s laws as the best way to preserve fairness, personal liberty and prevent “tyranny” of the Executive. Judges must follow the law – what Parliament has, as a body, enacted. What the Premier or any other functionary of the Executive says about the subject has no more weight than what you or I say.

Categories: Opinonian , Litigation & Law Practice , Solicitors

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