Should section 72 be changed?
It may be thought that the framers of section 72 took too optimistic a view of the capabilities of the Parliament, or a view which may have been justified by Parliament as it was then, but which sits ill with the party‑bound Parliament of today. It may therefore be thought that section 72 should be changed to impose the primary responsibility for the removal of judges on some other body.
If the Houses and the executive government are regarded as unfit to exercise the power of removal, only the judiciary itself remains to be the repository of the power.
The Constitutional Commission of 1988 recommended that the Constitution be amended to provide that the Houses of Parliament would be empowered to remove a judge only on the recommendation of a tribunal consisting of senior chief justices. The main rationale of this proposal was that it would prevent the removal of a judge by the Houses for political reasons. It is presumed in this argument that political reasons are improper reasons. It may be thought that political considerations, in the best sense of those words, the sense of considerations relating to the health of the polity, may legitimately be taken into account in assessing what constitutes misbehaviour.
Such a proposal as suggested by the Commission would mean that the judiciary would be given the responsibility for removing judges, because the Houses could not act without a report from the proposed tribunal and probably would not feel able to refrain from acting in accordance with a recommendation of the tribunal. It is one thing to have judges or former judges advising the Houses, but quite another to give them the effective power of determination.
There is no historical basis for the assertion that the Parliament might remove a judge for (improper) political reasons. There is no Australian example of such a thing occurring, no such example in Britain since the Houses were given the power to remove judges by the Act of Settlement in 1701, and no such example in the United States, where several judges have been removed. There is no basis for an assumption that the Houses would exercise their powers under section 72 of the Constitution in anything other than a responsible manner. It is simply an assumption that the elected Houses are incapable.
The other stated rationale for the proposal is that it would maintain the separation of powers principle. In reality, the proposal would involve the clearest and most fundamental violation of the principle of the separation of powers, which is the main rationale of giving to the Parliament the sole power to remove judges. To have judges sitting in judgment on their fellow judges would be the clearest instance of a body, the judiciary, being a judge in its own cause. The proposal ignores the obvious fact that members of the judiciary have an interest in maintaining the current highly favourable public perception of judges. This interest may lead to bias towards undue leniency or undue harshness. The proposal also ignores the likelihood of personal friendships or animosities between persons performing the same work as members of a relatively small functional group, and the greater danger of a small body, such as three judges as proposed, making improper or erroneous decisions than a more numerous body of persons such as the two Houses.
The American constitution‑makers gave careful consideration to the question of which method for the removal of judges would be most consistent with constitutional principles, and, in particular, to the proposal that the judiciary itself should be responsible for administering sanctions against incapable or corrupt judges. They determined that the removal of judges by action in the Congress was the only appropriate method. Their reasons may be summarised as follows:
the removal of judges is a high national responsibility appropriate to the elected and politically responsible national legislature;
the requirement for the two Houses of the legislature to act separately is an important safeguard;
being numerous in membership, the legislature is fit to perform a function analogous to that of a jury (a two‑thirds majority of the Senate is required for an impeachment to succeed);
judges are not normally entrusted with the fact‑finding function of a jury; and
the removed judge may subsequently have to stand trial, and it would be undesirable to have the courts performing both functions.
These kinds of arguments rest upon a conception of the legislature as a body of elected representatives with a high degree of independence from the other branches of the government, a devotion to constitutional principles and a willingness to perform their constitutional duties without allowing their activities to be distorted by partisan considerations. The recommendations of the Constitutional Commission of 1988 are based upon a presumption that the intense party discipline and extreme partisanship of an Australian Parliament would effectively prevent the proper exercise of the high constitutional responsibility imposed by section 72.
The debilitating effect of party discipline and partisanship upon the Australian Parliament is not, however, a sound reason for transferring the power contained in section 72 to the judiciary. Party discipline and partisanship may be destructive of every organ of the Constitution and of every constitutional principle, and it may prevent the judiciary from operating in a proper constitutional manner just as effectively as it may hinder the Parliament. Partisanship will bear upon the operation of section 72 only if judges are seen as partisans. If partisan appointments are made to the bench the judiciary will be destroyed regardless of any action under section 72, and will be just as incapable as the Parliament is supposed to be of properly exercising the function of removing judges. The answer to party control, therefore, is to seek to lessen its stranglehold over the Parliament rather than to write off the Parliament as an institution because of it. One of the ways of mitigating its influence is to ensure that the Parliament retains its high constitutional responsibilities and is reminded of the need to exercise them properly.
Apart from these considerations, the proposal of the Constitutional Commission in any case may involve a significant inroad upon the independence of the judiciary, the very principle which it is supposed it would uphold, by making judges in effect regularly accountable for their performance of their duties to a permanent tribunal of higher judges.
It is clear that the framers of section 72 aimed to achieve a high degree of independence of the judiciary from the other branches of government, and they had the task of achieving this aim while providing a mechanism for the removal of unfit judges. It may well be concluded that they succeeded in reconciling these two goals and that, as the American constitution-makers claimed, they provided the only mechanism consistent with judicial independence. They provided that the removal of judges must involve a deliberate decision on the part of all parts of the other two branches of government, the two Houses of the Parliament and the Crown represented by the Governor‑General in Council. They thereby involved all the other high authorities of the state. The fact that the Houses are politically responsible bodies which deliberate in public may be regarded as additional safeguards for the proper exercise of the power. The removal of a judge under section 72 probably would be a protracted and difficult process, which would make great impositions upon the operations of the legislature and the executive government. The likely difficulty and length of any proceedings may well be regarded as the best safeguard for the proper use of the power.
In August 1993 a National Commission on Judicial Discipline and Removal, which was formed after a series of troublesome impeachments of judges, reported on the procedures for the removal of judges under the constitution of the United States. The Commission, consisting of members of both Houses of Congress, judges, academics and lawyers, recommended that the existing mechanism of impeachment by the House of Representatives and trial by the Senate be retained as the sole appropriate means for the removal of judges. The Commission concluded that the constitutional standard for impeachment, as interpreted over the years, had been adequate to its purpose and should not be changed.
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