Chapter 20 - Relations with the judiciary

Constitutional Questions

Section 72 and other provisions

The provisions in section 72 for the removal of federal judges are quite different from the equivalent provisions in other relevant jurisdictions, although the interpretation of those other provisions throws some light on the interpretation of section 72.

In the United Kingdom the Act of Settlement of 1701 provides for judges to hold office during good behaviour, but for their removal upon an address by both Houses of the Parliament. This provision has been the subject of differing interpretations. It has been contended that the provision for the removal of judges upon the address of both Houses abolished earlier methods of removal, including termination of appointment on the application of the Crown for misbehaviour. The generally accepted view, however, is that the Act preserved the earlier methods of removal while adding the new mechanism of address by both Houses, which mechanism is not limited to any specific ground such as misbehaviour. In other words, judges may be removed for misbehaviour but may also be removed on any other ground upon the address of both Houses.

In the United States the constitution provides that federal judges hold office during good behaviour and may be removed by means of impeachment by the House of Representatives and trial and conviction by the Senate, the stated grounds of removal being “Treason, Bribery or other high Crimes and Misdemeanours”.

In providing in section 72 of the Constitution that federal judges could be removed only upon an address by both Houses on the ground of proved misbehaviour or incapacity, the Australian constitution‑makers deliberately sought to depart from the Act of Settlement and to provide greater security of tenure for the judges, by restricting the method and ground of removal. This is made clear by proceedings in the constitutional conventions. (National Australasian Convention, Debates, Adelaide, 1897, pp 946ff.)

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