During the various debates leading up to the establishment of the first and second Senate committees, senators expressed views, favourable and unfavourable, about Mr Justice Murphy’s conduct. The question arises whether, in subsequent proceedings for an address, those senators should have disqualified themselves from participating or voting. This question was raised by counsel for Mr Justice Murphy before the second Senate committee, when an unsuccessful attempt was made to have those members of the committee who had also served on the first committee disqualify themselves.
The possibility of members of the legislature having formed views on matters which may subsequently come before them in proceedings under section 72 would appear to be inherent in the use of the legislature as the tribunal of removal. If all of those who had expressed views favourable or unfavourable of Mr Justice Murphy had subsequently been unable to take part in proceedings for an address, the principal members of all parties in both Houses would have had to absent themselves. This would have been highly anomalous, because they would have left behind all those members and senators who had listened to the debates and could have been unduly influenced thereby even if they did not express any views.
Any action under section 72, such as the establishment of an inquiry or a decision to hear evidence, must start with a motion in either House, and such a motion must be open to debate. It is difficult to see how any debate about whether such action is warranted could take place without all members present running the risk of disqualifying themselves, if members were to be regarded as being subject to the same rules as jurors.
There is also the problem of members and senators being acquainted with the judge under inquiry. Disregarding the fact that Mr Justice Murphy was a former senator and minister and well known to many senators, there is still the problem that federal judges tend to be known to federal legislators, before or after assuming the bench.
The same questions arise in relation to impeachments in the United States, and senators known and even related to the accused have sat in impeachment trials.
It would appear that, so long as the Houses have the responsibility for removing judges, reliance must be placed on the members being enjoined to act properly and make findings in accordance with the evidence before them. Under the United States constitution (article I, section 3) the senators make an oath or affirmation before sitting as a court of impeachment, and perhaps this could be introduced as a procedural matter for the Australian Houses.
This raises the question of whether some other method of removing federal judges should be adopted.
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