The meaning of misbehaviour
The most important question arising under section 72 is the scope of the word misbehaviour, and this is also the question which has been most discussed. Five opinions have been given: of the Commonwealth Solicitor‑General, 24 February 1984, of the counsel to the Senate Select Committee on the Conduct of a Judge (both reproduced in the report of that committee: PP 168/1984), and of each of the three Commissioners of the Parliamentary Commission of Inquiry appointed under the Act of 1986 establishing that Commission, those three opinions having been presented to each House of the Parliament on 21 August 1986 (PP 443/1986).
There is a line of authoritative statements indicating that under the common law misbehaviour in respect of an office held during good behaviour meant misbehaviour in relation to the performance of the duties of that office, such as neglect or refusal to perform those duties, and conviction for infamous offences not connected with the duties of the office. The authorities for this definition are extremely old: they consist of the 17th century treatise by Sir Edward Coke, Institutes of the Laws of England, the case of the Earl of Shrewsbury, 1610, and the judgment in R. v Richardson, 1758 97 ER 426. The two cases were not concerned with judges. Relying principally on these authorities, the Solicitor‑General in 1984 concluded that the scope of misbehaviour within the meaning of section 72 is similarly restricted.
All of the other opinions conclude that misbehaviour under section 72 has no such restricted meaning, but extends to any behaviour indicating unfitness for judicial office.
In the United Kingdom it has been assumed that, whatever the technical legal situation, the provision for the removal of judges upon the address of both Houses made obsolete other methods of removal, that that mechanism is, as a matter of practice, the only available method for removal of a judge, and that, as a matter of practice, the British Parliament would not make an address for the removal of a judge except on the ground of misbehaviour. If these assumptions are correct, then it is clear that in Britain misbehaviour is not thought to be confined as indicated by the old authorities. The established grounds for an address have been stated to include misconduct involving moral turpitude, partisanship and partiality, and misconduct in private life. These grounds have been taken to be no more than different forms of misbehaviour.
Article III, section 1 of the constitution of the United States provides that federal judges “hold their offices during good Behaviour”. Article II, section 4 provides that “all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery or other high Crimes and Misdemeanours”. It was explicitly stated by the framers of the constitution that the latter section applies to judges.
These provisions have been interpreted as meaning that:
the judicial tenure provision implies a power to remove judges for breach of good behaviour, either by some implied procedure or by a procedure provided by Congress by legislation
judges may be impeached for misbehaviour.
Both of these interpretations hold that judges are removable for breach of the condition of good behaviour. Statements by American authorities on the question of what constitutes misbehaviour are therefore relevant to Australia despite the different method by which US federal judges may be removed. The American authorities are very well aware of the old English law as to what constitutes breach of the condition of good behaviour, but none of them have concluded that the English law exhaustively defines the categories of misbehaviour as postulated by the Australian Solicitor‑General.
And whatever the correct interpretation of the US constitution, in the various cases in which US federal judges have been impeached, the Congress has assumed that it has the power to impeach them for misbehaviour, that impeachment is not restricted to high crimes and misdemeanours, and that misbehaviour extends to any conduct indicating unfitness for office.
In 1980 the US Congress passed the Judicial Councils Reform and Judicial Conduct and Disability Act (Public Law 96‑458). This empowers federal judicial councils, which consist of certain judges, to investigate complaints that any federal judge or magistrate “has engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts”. The councils may not remove a judge, but may send to a coordinating body called the Judicial Conference, which may forward to the House of Representatives, any information indicating that a judge has engaged in conduct which might constitute ground for impeachment. The judicial councils may impose sanctions short of removal; a challenge to their power to do so was rejected by the Supreme Court (McBryde v Committee to Review Circuit Council Conduct and Disability Orders of the Judicial Conference, US Court of Appeals, 2001 264 F 3d 52; Supreme Court declined to hear appeal, 7/10/2002). A report in 2006 of a review of this system, commissioned by the Supreme Court, found that it had worked well.
Thus the American law supports the majority of the Australian opinions in viewing the concept of judicial misbehaviour as extending to any conduct indicating unfitness for office.
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