A secret recording made in 2015 of Tim Carmody, then the controversial chief justice of Queensland, in conversation with fellow judges will remain a secret after a Queensland court ruled against its public release.
Carmody, who was controversially appointed as chief justice in 2014 during Liberal National premier Campbell Newman's one term in office, had been fighting against the release of the secret recording for three years.
Carmody's appointment was criticised by sections of the legal community due to his relative inexperience in the Queensland Supreme Court, and he stood down after just one year in the job.
Carmody once reportedly referred to the judiciary as "snakes and scum".
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Newman said in his memoir that picking Carmody for the job was his biggest regret as Queensland premier.
In February 2015, Justice John Byrne used his phone to record an allegedly expletive-laden conversation held in the chambers between himself, Carmody, and another judge, without the knowledge of Carmody or the other judge.
In March that year, the Courier Mail filed a right to know request to obtain the recording, but it was rejected on the grounds that it was against the public interest, and the contents of the recording could potentially breach the privacy of the judges, and undermine public confidence in the judiciary.
This ruling was overturned on appeal, with the Office of the Information Commissioner (OIC) ruling that it was in the public interest. Upon consulting a wide range of active and former judges at the time, the OIC found the only people who objected to the release of the recording were the judges in the recording itself.
But then Carmody appealed to the Queensland Civil and Administrative Tribunal (QCAT), which last week ruled that the recording would remain secret.
QCAT Justice Cliff Hoeben found that under Queensland law it would have been an offence to publish the recording under normal circumstances, due to the secretive way it was recorded. Even so, he disagreed with the information commissioner's decision that the recording was in the public interest, because the judges discussed matters of public dispute on the recording.
"If disclosure is supported because 'major topics of dispute' have been
discussed publicly, that is bound to inhibit the future freedom of communications between judges," he said. "It is precisely the reason why judges are entitled to confidentiality in their communications."
Hoeben found that it would breach the privacy of those involved in the recording to release it publicly, and said to release the "rancorous" recording now would serve "no educative function".
"Without being specific, it is difficult to accept that anything other than harm would be caused by allowing into the public domain what could only be described as rancorous exchanges between the then chief justice and other judges of the Supreme Court," he said.
"No educative function would be achieved. Such disclosure would
do nothing other than satisfy a prurient interest in what was an unfortunate
period in the Supreme Court’s history."
He also found that the recording from Byrne's phone was not in the possession of the Queensland Department of Justice and Attorney-General at the time the Courier Mail filed the request, and that QCAT had no entitlement to compel Byrne to hand over the recording if he had not done so voluntarily.
The judgment comes as Carmody remains a judge in the Supreme Court of Queensland. He was a supplemental member of QCAT until mid 2016.
