Compellability of judges as witnesses
A significant question, going beyond procedural requirements, is whether it is proper, or within the power, of the Houses to compel a judge to give evidence, either in the course of an inquiry or in the course of a hearing of evidence.
As to the question of power, it may be asked whether the Houses possess any power to require a judge to give evidence in any circumstances.
Among the undoubted powers of the Australian Houses is the power to order the attendance of witnesses and the production of documents. Witnesses may be summoned, or may be ordered to be taken into custody and brought before either House for the purpose of examination. (See Chapter 2, Parliamentary Privilege.) This power applies to all persons within the jurisdiction. The only definite exception to this is that if a House wishes to secure the attendance of a member of the other House, it requests that House to order the attendance of that member. This restriction follows from the power of each House to order the attendance of its own members: the only way in which the attendance of a member may be enforced is by the agreement of the member’s House. (See also Chapter 2, Parliamentary Privilege, under Power to conduct inquiries.) It is also well established that the power to summon witnesses may be delegated by the Houses to their committees. The refusal by witnesses to answer the summonses of committees or to cooperate with committees in their inquiries is another well established category of contempt, for which the Houses may commit the persons concerned. Committees, of course, have no power to punish or coerce recalcitrant witnesses.
There are no precedents of the Australian Houses or their committees summoning judges to appear before them. There are several precedents, however, which indicate that the power of the House of Commons, which is conferred upon the Australian Houses by section 49 of the Constitution, extends to judges. Judges have been summoned by the House of Commons, both before and after the enactment of the Act of Settlement of 1701, which allowed judges to be removed upon an address by both Houses, and judges have appeared before the House in answer to its summonses. That these precedents are old no doubt reflects the fact that there have been relatively few inquiries into the conduct of judges since the enactment of the Act of Settlement, and no inquiries in contemporary times, due to the great integrity of the judiciary. The House of Commons has not only summoned judges but has committed judges of superior courts.
An argument may be developed that the constitutional situation in Australia is different from that in the United Kingdom, and that this constitutional situation imposes an implied limitation on the use in relation to judges of the powers of the Houses. It might be urged that because of the constitutional separation of the legislative and judicial powers in Australia, the Australian Houses do not or should not have the power to summon a judge.
This argument might gain plausibility from the fact that the British Parliament long regarded itself as a court, and the House of Lords exercised a judicial function. It is to be noted, however, that the British precedents referred to relate to inquiries apparently unconnected with this conception of Parliament as a court, and the post‑1701 precedents may be safely accepted as arising under the power contained in the Act of Settlement. The precedents were also not dependent upon the power of impeachment, a power which the Australian Houses do not possess.
Even if the separation of powers argument had general validity, it probably could have no application to inquiries into the conduct of judges and hearings of evidence for the purposes of determining whether action is warranted under section 72. Such inquiries and hearings may be effective only if the Houses have the power to compel witnesses, including judges. If this were not so, a judge could prevent a proper inquiry and hearing preceding an address by refusing to appear. Even if the accused judge is not to be a compellable witness, a matter which will be further mentioned below, other judges may be essential witnesses, especially in the case of alleged misbehaviour on the bench.
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