This week embattled Chief Justice Tim Carmody will take on the role of Acting Governor whilst Governor Paul de Jersey is out of the state on business. For this period Carmody is simultaneously the leader of the state's courts and its executive government.

As Acting Governor Carmody may grant Royal Assent to bills and act as the Queen's representative at ceremonial functions. He could even be called upon to appoint or dismiss judges, or to exercise reserve powers such as dismissing the Premier.

Governor Paul de Jersey. Credit:Michelle Smith

The fact that one man can hold both of these roles may come as a surprise. After all, we live in a democracy founded on the separation of powers. The independence of the courts from the executive government is a fundamentally important aspect of that system. That independence upholds the rule of law and preserves our faith in the impartial administration of justice.

The appointment of a serving judge as Acting Governor risks judicial independence in a number of ways. It creates a perception that the judge is, albeit temporarily, the figurehead of the executive and bound by the whim of the government. Of even greater concern, it risks embroiling the judge in political controversy should a conflict of interest arise, or if circumstances should require the exercise of a reserve power. Carmody would encounter considerable controversy if, as Acting Governor, he was called upon to decide whether to dismiss the Premier. This is unlikely to happen but politics is unpredictable and the risk does exist.