The question of the procedural requirements imposed upon the Houses by the presence of the word “proved” in the relevant part of section 72 has not been much examined.
It has been assumed that the procedures adopted must, because of the terms of section 72, be judicial in character, with a definite formulation of charges and a full inquiry with the opportunity for the accused judge to be heard by the Houses themselves and to answer the charges.
It is also generally assumed that the process would begin with an inquiry by way of evidence‑ and fact‑finding and finding whether there is a prima facie case of misbehaviour, followed by a formal hearing of evidence. It is presumed that a matter may not be proved except by such a hearing of evidence broadly following the procedures of a trial before the courts. The Houses might adopt some other procedures, perhaps in an inquisitorial mode. It is likely, however, that they would use a hearing of evidence at least partly following the form of a trial, for reasons of familiarity.
It may be questioned whether a hearing of evidence is necessary at all if facts have already been proved outside of the consideration by the Houses, for example, by some other inquiry or by conviction for an offence in a court. The Houses might then confine themselves to determining whether the proved facts constitute misbehaviour.
It is generally assumed that when allegations of misbehaviour on the part of a judge come to the attention of a House, it would use the device of a select committee to commence an investigation. This was done on both occasions on which it was suggested that a House of the Parliament inquire whether there were grounds for some action under section 72. On 29 April 1980 a joint select committee was proposed in the Senate to inquire into the business transactions of the Chief Justice of the High Court (J.1291‑3). Two successive Senate select committees were appointed in 1984 to inquire into the conduct of Mr Justice Murphy of the High Court. In the first case the proposal was for a joint committee of both Houses, but it remained nothing more than a proposal. In the case of the inquiry into the conduct of Mr Justice Murphy, select committees were appointed.
These committees were committees of the Senate only, and the reason for this was political: the ministry in control of the House of Representatives did not wish to have any inquiry. It may be thought that an inquiry on behalf of both Houses would have something to commend it, but a strong argument could be made out that any inquiry should always be initiated and followed up by one House, and that the other House should not become involved at all until it receives a message requesting its concurrence in an address. The two Houses proceeding separately in this way would give the judge who was the subject of the inquiry the safeguard of two hearings, which is probably what the framers of section 72 intended. Any joint action by the two Houses may remove this safeguard.
At first sight it is not clear why it should be thought necessary to have a select committee to conduct the initial inquiry. A House could appoint counsel or expert investigators to gather evidence and take statements from potential witnesses, and to advise the House whether to proceed further. In fact, a select committee is unsuited to this task; select committees are designed to hear evidence rather than to gather evidence.
A select committee, however, has one significant advantage over other vehicles for an initial inquiry: it can be given the power to compel evidence, that is, to summon witnesses and to require the production of documents, with the Senate having the power to punish as a contempt any failure to comply. It may be thought that, for an effective initial inquiry, this power should always be conferred.
A select committee may be the only available vehicle where a House wishes the initial inquiring body to have the power to compel evidence. It is doubtful whether a House acting alone may lawfully confer that power on persons other than its own members, in spite of certain precedents suggesting that the House of Commons has not regarded itself as restricted to its own members in delegating its powers of inquiry, and has thought itself able to make such delegation to other persons.
A body which is merely gathering evidence probably does not require any elaborate procedures or safeguards. A body which has the power to compel evidence, however, should have some restraints imposed upon it. Where it is also formally to hear evidence and come to a judgment on it, procedures and safeguards are essential.
It is suggested that it may be best to separate the functions of locating and hearing evidence. Then for the initial inquiry some investigative body other than a select committee may be properly considered, and the questions of the power to compel evidence and of safeguards may be more readily considered at the later stage.
It would appear that insufficient consideration was given to any of the foregoing questions when the Act of the Parliament was passed in 1986 to establish the Parliamentary Commission of Inquiry (see the account of this case below). That body also combined the functions of locating evidence, conducting a formal hearing of evidence and advising the Houses on the judgment of the evidence. It was given power to compel evidence. It was, in effect, a joint body, reporting to both Houses. It was also virtually required to meet in closed session, which may be appropriate for an initial inquiry but is inappropriate for the hearing of evidence. Because the Commission met in private and did not complete its task, it is not possible to assess how well it performed all those roles, but if similar circumstances arise again it is to be expected that greater thought will be given to whether all these features should be combined in one body.
It has generally been assumed that a formal hearing of evidence, following the procedures of a trial, would take place before a House agreed to an address under section 72. As with the initial inquiry, the major question which arises in relation to the hearing of evidence is whether the Houses may delegate this task to some other body.
In the past it was presumed that it would be necessary to have a hearing of evidence actually in the presence of the Houses, presumably with each House hearing the evidence separately. This procedure has been followed in impeachment trials before the House of Lords and, until recently, the US Senate.
In the one instance of the removal of a British judge under the Act of Settlement, in 1830, the House of Commons relied on a report of a select committee, but the House of Lords heard evidence before agreeing to the address.
In 1986 the US Senate adopted the practice, in the impeachment of a federal judge, of delegating the hearing of evidence to a committee. This procedure was unsuccessfully challenged before the Supreme Court (Nixon v US 1993 508 US 927).
The Australian Houses, in making provisions already referred to, have assumed that they can delegate the hearing of evidence. The second Senate committee, the Select Committee on Allegations Concerning a Judge, was appointed explicitly to hold a formal hearing of evidence and to report findings to the Senate. The Parliamentary Commission of Inquiry established by statute also was to undertake the task of hearing the evidence and, even more remarkably, was virtually directed to hear that evidence in private session and not to report all of it to the Houses. As the Senate refrained from taking any action following the report of the committee when the judge was prosecuted on the basis of the evidence heard by the committee, and the Parliamentary Commission of Inquiry did not complete its work, it is not known how the Houses would have acted on the reports of those two bodies or whether rehearings of the evidence would have taken place.
It is therefore an unresolved question whether the Houses can act on a hearing of evidence conducted elsewhere. It may still be argued that, even where the evidence has been formally heard elsewhere, it is necessary for the Houses to rehear the evidence, and separately, in which case the removal of a judge under section 72 would be a protracted and difficult process. It is more likely, however, that the Houses would accept evidence heard in a committee.
As to the standard of proof required for the Houses to reach a finding of misbehaviour against a judge, presumably this is a matter for the Houses themselves to determine. It may depend on what interpretation is adopted of the meaning of misbehaviour. The restricted interpretation adopted by the Solicitor‑General in 1984 would seem virtually to entail the criminal standard, proof beyond reasonable doubt. Apart from this, it may be argued that the removal of a judge is such a grave step that the most stringent standard of proof should be required.
It is possible, however, to make out a strong argument that the civil standard, proof on the balance of probabilities, is more appropriate. It may be thought to be irresponsible for the Houses to leave a judge on the bench when it is probable that the judge has engaged in acts constituting grave misbehaviour simply because proof beyond reasonable doubt is lacking. Moreover, removal under section 72 may be seen as a remedy to protect the state rather than a penalty imposed upon the judge. This is the view which is taken of impeachment proceedings in the United States, where the penalty is constitutionally limited to removal from and disqualification for office. The importance of keeping separate removal from office and any subsequent criminal proceedings was urged in relation to impeachment proceedings by the framers of the American constitution. Indeed, it may be argued that the civil standard of proof for removal is an essential safeguard for the accused judge. Misbehaviour which consists of acts which may constitute offences may well be the subject of criminal charges after removal from office. It would be highly prejudicial to have a judge on trial for acts which had already been found beyond reasonable doubt by the Houses to have been committed. Different standards of proof in the removal proceedings and the criminal proceedings may be seen as favourable to the judge. If the trial precedes the parliamentary action, an acquittal may unduly inhibit the Houses in acting even where the evidence discloses misbehaviour but not proof sufficient for conviction.
The second Senate committee was required by the Senate to make findings by both standards of proof, as well as on both interpretations of the meaning of misbehaviour. This was because the Senate had not made up its mind on those questions. The Parliamentary Commission of Inquiry was not statutorily directed to adopt either standard of proof.
It is also an open question whether the Houses should make findings under section 72 only in accordance with evidence admissible under the rules of evidence.
The first Senate committee was not bound by the rules of evidence, and accepted as evidence a written statement from the judge which was subsequently regarded as inadmissible by the second Senate committee. The latter heard only evidence admissible under the rules of evidence, though some matters otherwise not admissible were brought out at its hearings as a result of cross‑examination. The Parliamentary Commission of Inquiry similarly was enjoined to hear only evidence admissible in court proceedings.
The rules of evidence are not necessarily followed by royal commissions and other forms of inquiry which may result in findings highly damaging to individuals, and presumably those rules have been regarded as unduly restrictive of the diligent pursuit of the truth, notwithstanding that the findings may lead to criminal charges.
It may well be argued that the public would be outraged by a judge remaining on the bench simply because what would otherwise be regarded as significant adverse evidence is technically inadmissible. In this context also it may be contended that removal from office is a protection for the state and not a penalty, and that the adoption of rules of evidence for removal less technical than those of any subsequent criminal proceedings is appropriate.
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