AG — judicial strain needs resolving

Associate Professor Janet Ransley

By Janet Ransley, Head of the School of Criminology and Criminal Justice

The dispute between Attorney-General Jarrod Bleijie and senior members of Queensland’s legal establishment raises at least three important issues for public debate.

First, as Tony Morris QC pointed out in the Courier Mail (25/3/2014), the current spat is not particularly new. But while Mr Morris focused on precedents from over 50 years ago, he ignored more recent and relevant events. Twenty-five years ago, Tony Fitzgerald’s report revealed widespread governmental misconduct and corruption.

The Fitzgerald Report specifically addressed the role of the Attorney-General, saying ‘The Attorney-General also has primary responsibility for legal advice in relation to matters of public administration and government. The proper performance of such functions is dependent upon independence and impartiality and freedom from party political influences’ (p138). Fitzgerald found that unqualified and politicised Attorneys-General during the previous three decades had contributed to the failures he found in Queensland’s political and criminal justice systems during that period.

In other words, an impartial and competent Attorney-General is critical to ensuring not just the quality of law and criminal justice in this state, but also the integrity of government. This is not a matter to be dismissed lightly as a mere spat. It raises real questions about the ability of the chief law officer of the Crown to continue to work with senior judicial and legal officers. The sudden resignation of Walter Sofronoff QC as the State’s Solicitor-General has already raised doubts about this.

The second important issue is whether the President of the Court of Appeal is entitled to raise issues of public debate. Clearly judicial officers should refrain from party political debates. In a Westminster system no judge should endorse a party or its platform.

But this has never meant an outright gag on public speech. Indeed a moment’s web browsing will find dozens of public speeches delivered by eminent Australian jurists every year, on issues ranging from individual rights to Indigenous over-representation in the criminal justice system. The judge’s role is not to advocate for a political party, but to raise important issues that they become aware of during their public role. From reports in this newspaper this would appear to be exactly what Justice McMurdo did, raising the significant and longstanding issue of gender bias in the law.

The possibility of such a bias in judicial appointments in Queensland is the third important issue in the current debate. Neither the Attorney-General nor the Premier in their public comments to date has actually addressed the issue of why 16 of 17 of their appointments to judicial office have been men, as reported by Justice McMurdo. Is this correct? If so, why? If there are really no qualified women for these roles in this state, what is the Government’s plan to address this systemic problem?

These are the questions that merit a response, rather than the revelation of private conversations about one particular appointment.