Chapter 20 - Relations with the judiciary

Appointment and removal of judges

The Constitution, section 71, vests the judicial power of the Commonwealth in the High Court, which is established by the provisions of the Constitution, such other federal courts as the Parliament by legislation creates, and such other courts as the Parliament vests with federal jurisdiction.

Section 72 of the Constitution provides:

The Justices of the High Court and of the other courts created by the Parliament —

  1. Shall be appointed by the Governor-General in Council:

  2. Shall not be removed except by the Governor-General in Council, on an address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity:

  3. Shall receive such remuneration as the Parliament may fix; but the remuneration shall not be diminished during their continuance in office.

The appointment of a Justice of the High Court shall be for a term expiring upon his attaining the age of seventy years, and a person shall not be appointed as a Justice of the High Court if he has attained that age.

The appointment of a Justice of a court created by the Parliament shall be for a term expiring upon his attaining the age that is, at the time of his appointment, the maximum age for Justices of that court and a person shall not be appointed as a Justice of such a court if he has attained the age that is for the time being the maximum age for Justices of that court.

The appointment of federal judges is therefore a matter for the executive government alone. There is no provision, as there is in the United States of America and some other countries, for appointment or approval of appointment by the Houses of the legislature. In this the Constitution follows the British pattern of appointment of judges by the Crown.

Once appointed, however, judges are completely independent in that they may not be removed from office except by the special procedure set out in section 72.

As this procedure involves the two Houses of the Parliament, as well as the executive government, in the constitutionally highly significant process of removing a judge, this chapter considers some questions arising in the interpretation of section 72. The dearth of precedent for action under section 72 may make this consideration more useful. (For a more detailed treatment of the interpretation of section 72, with citations of authorities, see ‘Parliament and the Judges: the removal of federal judges under section 72 of the Constitution’, by Harry Evans, Legislative Studies, Spring 1987. This chapter draws upon that article.) The chapter then proceeds to an examination of the only case in which the Houses have investigated the conduct of a judge to determine whether action should be taken under section 72, the case of Mr Justice Murphy of the High Court in 1984-86, in the course of which two Senate select committees and a statutory parliamentary commission of inquiry were appointed.

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