Markan v Bar Association of Queensland

Appointment as a judge carries with it many responsibilities. One of those responsibilities is a duty to exercise the judicial function when the jurisdiction is regularly invoked and the case comes before the judge in accordance with the usual practice that prevails in that Court. As the High Court said in Ebner, judges "do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges".

There now are many occasions, of course, when a judge might prefer not to hear a case but that is not the test that the judge must apply. If there is some doubt, as the High Court said in Ebner at [20], "it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification. However, if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench." That, as the High Court said, would be intolerable.

The other judge with whom I am sitting in this applications jurisdiction was formerly a President of the Bar Association and it would be inappropriate for me to refer this case to him. There is no practical possibility of arranging for another judge to hear this case and, in any event, as I have already said, I have a duty to exercise my judicial function when my jurisdiction is regularly invoked. The only reason why I would not exercise that function were if I should be disqualified because of the apprehension of bias or actual bias.

Mr Markan has filed an application that I be disqualified and that the Supreme Court management (sic) choose a truly neutral independent and impartial arbiter. The facts on which Mr Markan makes this application are set out in his application. I note that he refers to me therein as Ms Atkinson and I take it from that he does not mean any disrespect. That is not my title as a judge.

He made oral submissions refining those matters dealt with in the written application. The first matter which it is said that I should disqualify myself is that I was a barrister from 1987 to 1998 and over that period I was a member of the Bar Association. That is true. I was a member of the Bar Association while I was a barrister in private practice during that period. I resigned my membership of the Bar Association when I became a judge in September 1998. Notwithstanding the capacity for judges to be judicial members of the Bar Association I have not taken up that membership. I am not a member of the Bar Association and have not been since September 1998.

The second matter that he raises in his oral submissions is that I may return to being a barrister at some future time after I retire from the Court. In the written submissions that is said to be "in a case of ending her judicial career there is very high likelihood of her going back to that organisation". I have no present intention of returning to being a barrister but I agree that it is possible. I may return to being a barrister at some future time after I retire from being a judge.

The second point he makes in his written application is that "professionally and likely socially she has been associated with BAQ people for over 20 years". No further oral submissions were made about that. It is certainly true that professionally I see barristers, solicitors and lay people appearing in Court. That is my job as a judge.

The fourth point made in the written application is "this is a court case against people called 'barristers' and she remains to be 'barrister' therefore she is a party in those proceedings and in reality she would be a judge in her own case". I do not presently act as a barrister. I am a judge. I have no right of appearance in Court and I do not seek to exercise it. I do not regard myself as a barrister. I am, as I said, a judge. So there is nothing on that point.

The next written point seems to follow from that, that there is a theoretical possibility, he says of "rather adverse judgment against BAQ and she has personal interest in the outcome". I have no personal interest in any outcome of any litigation against the Bar Association of Queensland.

The next point was further expanded in oral submissions. It is:

"- her prejudicial performance in various organisations puts doubt in her commitment to the protection of human rights, which is one of the core issues in this case;

she is a barrister who, to protect interests and hegemony of BAQ in legal industry, infiltrated and paralysed workings of following organisations:

Human Rights and Equal Opportunities Commission (1994-1997)

Queensland Anti-Discrimination Tribunal - Member (1992-1994) and President (1994-1997)

Queensland Law Reform Commission - Commissioner (1990-1994) and Deputy Chair, (1994-1996).

- during her tenure in those organisations (7 years), clearly being in position of influence and ability to initiate positive change - she choose to maintain or increase the level or corruption, rottenness and cronyism.

- that indicates extremely strong possibility of her bias in favour of BAQ, apart from the conflict of interest."

It is correct that I was a hearing Commissioner with the Human Rights and Equal Opportunities Commission, I presume for the dates mentioned, although I have not personally checked that. I was the first Member and then first President of the Queensland Anti-Discrimination Tribunal, again, for approximately that period, although I have not checked the precise dates.

It is true that I was a Commissioner and later Deputy Chair of the Queensland Law Reform Commission and I should add, for the sake of completeness, that I am currently the Chair of the Queensland Law Reform Commission. Of course, I reject any suggestion that I chose to maintain or increase the level of corruption, rottenness and cronyism. He presents no evidence to that effect.

I should explain, for Mr Markan's benefit, the role of those various organisations. As a hearing Commissioner with the Human Rights and Equal Opportunity Commission it was my obligation to hear the cases assigned to me and to give a decision in those matters. As the Member and President of the Queensland Anti-Discrimination Tribunal it was my obligation to hear and determine those matters referred to the Tribunal by the Queensland Anti-Discrimination Commission.

As Member, Deputy Chair and, indeed, Chair of the Queensland Law Reform Commission it is my role to be a member of that Commission. That Commission acts, as did the other bodies I mentioned, under legislation. Under the relevant Queensland Act the Law Reform Commission receives references from the Attorney-General. It reports and makes recommendations on the specific areas of law referred to it by the Queensland Attorney-General. None of those bodies have legislative duties or rights. It is the Queensland Parliament which makes the legislation for the State and the Federal Parliament which passes the legislation for the nation.

Mr Markan makes reference to the International Covenant on Civil and Political Rights, in particular, article 14, and I have read and have had regard to that.

There is nothing in my history or my present situation which would disqualify me from hearing this case. The test which must be applied is that set out in Ebner v Official Trustee in Bankruptcy, indeed, the relevant passage has been quoted by Mr Markan in his submissions as referred to in a number of other cases there referred to. And using his quote, that is, "whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide."

In my view, no fair-minded lay observer could reasonably have that apprehension. This case has been brought in the ordinary applications jurisdiction. It is my duty to hear it unless there is apprehended or actual bias on my part. In my view, there is not and so I dismiss the application for me to disqualify myself.