Chapter 20 - Relations with the judiciary

Review of removals on address

It is not settled whether the removal of a judge upon an address would be subject to judicial review.

The constitutional provision strongly indicates that the two Houses are the only judges of misbehaviour and that their address and the action of the Governor‑General upon it would not be reviewable by the High Court. This appears to have been the clear intention of the constitution‑makers, as expressed in the convention debates. The convention delegates who most strongly favoured a provision similar to the Act of Settlement accepted the more restrictive provision on the basis that the Houses of the Parliament would be the only judges of proved misbehaviour or incapacity. (National Australasian Convention, Debates, Adelaide, 1897, pp 952‑3; 959. Australasian Federal Convention, Debates, Melbourne, 1898, p. 318; see the exchange between Mr Isaacs and Mr Barton, Debates, Adelaide, p. 952.)

The earliest commentators on the Constitution were in no doubt:

It will be noted that proved misbehaviour or incapacity is laid down as the ground of removal, but it is clear that it would still have rested on the Parliament to decide what proof it would ask of such incapacity or misbehaviour. Accordingly the direction amounted to no more than that the Parliament should satisfy itself before passing addresses that the incapacity or misbehaviour clearly existed. (A B Keith, Responsible Government in the Dominions, 1912, vol. III, pp 1339-40.)

The Ministry of the day and the two Houses of The Parliament would, it cannot be doubted, be the sole judges of what constituted misbehaviour or incapacity, and when or how such misbehaviour or incapacity was ‘proved’; their action would not be subject to review in any court of law. (W Harrison Moore, The Constitution of the Commonwealth of Australia, 1902, p. 279.)

Two of the Parliamentary Commissioners, however, in the opinions referred to above, expressed the view that the High Court could review a removal and quash it where the evidence did not disclose matters which could amount to misbehaviour.

In Nixon v US 1993 508 US 927 the US Supreme Court held that the removal of a judge by impeachment is not judicially reviewable.

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