Section 72 and other provisions
The provisions in section 72 for the removal of federal judges are quite different from the equivalent provisions in other relevant jurisdictions, although the interpretation of those other provisions throws some light on the interpretation of section 72.
In the United Kingdom the Act of Settlement of 1701 provides for judges to hold office during good behaviour, but for their removal upon an address by both Houses of the Parliament. This provision has been the subject of differing interpretations. It has been contended that the provision for the removal of judges upon the address of both Houses abolished earlier methods of removal, including termination of appointment on the application of the Crown for misbehaviour. The generally accepted view, however, is that the Act preserved the earlier methods of removal while adding the new mechanism of address by both Houses, which mechanism is not limited to any specific ground such as misbehaviour. In other words, judges may be removed for misbehaviour but may also be removed on any other ground upon the address of both Houses.
In the United States the constitution provides that federal judges hold office during good behaviour and may be removed by means of impeachment by the House of Representatives and trial and conviction by the Senate, the stated grounds of removal being "Treason, Bribery or other high Crimes and Misdemeanours".
In providing in section 72 of the Constitution that federal judges could be removed only upon an address by both Houses on the ground of proved misbehaviour or incapacity, the Australian constitution-makers deliberately sought to depart from the Act of Settlement and to provide greater security of tenure for the judges, by restricting the method and ground of removal. This is made clear by proceedings in the constitutional conventions.
The meaning of misbehaviour
The most important question arising under section 72 is the scope of the word misbehaviour, and this is also the question which has been most discussed. Five opinions have been given: of the Commonwealth Solicitor-General, 24 February 1984, of the counsel to the Senate Select Committee on the Conduct of a Judge, and of each of the three Commissioners of the Parliamentary Commission of Inquiry appointed under the Act of 1986 establishing that Commission, those three opinions having been presented to each House of the Parliament on 21 August 1986.
There is a line of authoritative statements indicating that, under the common law, misbehaviour in respect of an office held during good behaviour meant misbehaviour in relation to the performance of the duties of that office, such as neglect or refusal to perform those duties, and conviction for infamous offences not connected with the duties of the office. The authorities for this definition are extremely old: they consist of the 17th century treatise by Sir Edward Coke, Institutes of the Laws of England (1628-44), the case of the Earl of Shrewsbury (1610), and the judgment in R v Richardson, (1758) 97 ER 426. The two cases were not concerned with judges. Relying principally on these authorities, the Solicitor-General in 1984 concluded that the scope of misbehaviour within the meaning of section 72 is similarly restricted.
All of the other opinions conclude that misbehaviour under section 72 has no such restricted meaning, but extends to any behaviour indicating unfitness for judicial office.
In the United Kingdom it has been assumed that, whatever the technical legal situation, the provision for the removal of judges upon the address of both Houses made obsolete other methods of removal, that that mechanism is, as a matter of practice, the only available method for removal of a judge, and that, as a matter of practice, the British Parliament would not make an address for the removal of a judge except on the ground of misbehaviour. If these assumptions are correct, then it is clear that in Britain misbehaviour is not thought to be confined as indicated by the old authorities. The established grounds for an address have been stated to include misconduct involving moral turpitude, partisanship and partiality, and misconduct in private life. These grounds have been taken to be no more than different forms of misbehaviour.
Article III, section 1 of the constitution of the United States provides that federal judges "hold their offices during good Behaviour". Article II, section 4 provides that "all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery or other high Crimes and Misdemeanours". It was explicitly stated by the framers of the constitution that the latter section applies to judges.
These provisions have been interpreted as meaning that:
- the judicial tenure provision implies a power to remove judges for breach of good behaviour, either by some implied procedure or by a procedure provided by Congress by legislation;
- judges may be impeached for misbehaviour.
Both of these interpretations hold that judges are removable for breach of the condition of good behaviour. Statements by American authorities on the question of what constitutes misbehaviour are therefore relevant to Australia despite the different method by which US federal judges may be removed. The American authorities are very well aware of the old English law as to what constitutes breach of the condition of good behaviour, but none of them have concluded that the English law exhaustively defines the categories of misbehaviour as postulated by the Australian Solicitor-General.
And whatever the correct interpretation of the US constitution, in the various cases in which US federal judges have been impeached, the Congress has assumed that it has the power to impeach them for misbehaviour, that impeachment is not restricted to high crimes and misdemeanours, and that misbehaviour extends to any conduct indicating unfitness for office.
In 1980 the US Congress passed the Judicial Councils Reform and Judicial Conduct and Disability Act. This empowers federal judicial councils, which consist of certain judges, to investigate complaints that any federal judge or magistrate "has engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts". The councils may not remove a judge, but may send to a coordinating body called the Judicial Conference, which may forward to the House of Representatives, any information indicating that a judge has engaged in conduct which might constitute ground for impeachment. The judicial councils may impose sanctions short of removal; a challenge to their power to do so was rejected by the Supreme Court. A report in 2006 of a review of this system, commissioned by the Supreme Court, found that it had worked well.
Thus the American law supports the majority of the Australian opinions in viewing the concept of judicial misbehaviour as extending to any conduct indicating unfitness for office.
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.
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.
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.
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 United States 508 US 927 (1993) the US Supreme Court held that the removal of a judge by impeachment is not judicially reviewable.
Discretion of the Governor-General
It is also not settled whether the Governor-General in Council would be bound to act in accordance with an address by both Houses. It is generally thought that, because the Australian Houses act on proved grounds, their address should be binding.
One of the Parliamentary Commissioners, however, took the view that section 72 preserves the Crown's discretion to act upon an address.
The question is somewhat academic, because for the House of Representatives to agree to an address the agreement of the ministry would be required, that House generally being controlled by the ministry, and therefore the Governor-General, advised by the ministry, would probably accept an address on ministerial advice.
As in relation to many other matters, therefore, the power would in practice be possessed by the ministry alone, but for the Senate.
Advice on misbehaviour
If it is for the two Houses to determine whether particular conduct amounts to misbehaviour, the question arises whether it is proper for the Houses to ask some other body to advise them on that question.
The Houses have assumed that such a course is open to them. Each of the two Senate committees appointed in 1984 and the statutory Parliamentary Commission of Inquiry appointed in 1986 to inquire into the conduct of a High Court justice were asked to advise whether particular conduct constituted misbehaviour, as well as finding facts.
It would appear to be legitimate for the Houses to seek advice in this way, provided that they do not delegate the actual determination of the question of whether misbehaviour has occurred.
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. 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.
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.
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. 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. 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.
The rights of the accused judge
The first Senate committee was not restrained from summoning Mr Justice Murphy, but did not do so. Instead it invited him to give evidence and received a written statement in response. The second Senate committee was explicitly denied the power to compel the judge to give evidence, but was required to invite him to do so after all other evidence had been heard. This invitation was issued and declined, and a statement of reasons for his not giving evidence was offered. The Parliamentary Commission of Inquiry was empowered to require the judge to give evidence, but only where it formed the opinion that it had before it evidence of misbehaviour within the meaning of section 72 sufficient to require an answer. Presumably all of these bodies could have summoned other judges if that had been necessary.
Mr Justice Murphy, in submissions made on his behalf to the first Senate committee, claimed that in any inquiry and hearing of evidence under section 72 the judge in question should be given all the rights of an accused person in a criminal trial, particularly the right not to be compelled to give evidence. This claim was virtually acceded to by the Senate in establishing the second select committee. Before that committee the judge was treated as an accused in a criminal trial, with one significant exception, namely, that if he chose to give evidence he could be cross-examined by counsel representing other witnesses in relation to matters affecting the interests of those witnesses as well as by counsel assisting the committee, who performed the task imposed upon a prosecutor in a trial. Mr Justice Murphy objected to this feature of the committee, but it was deliberately provided by the Senate for the protection of witnesses before the committee. Apart from this, the proceedings of the committee closely followed those of a court in a criminal trial.
It may be argued that a judge accused of misbehaviour should not enjoy all the rights of an accused in a criminal matter. The rights to have specific charges or allegations formulated, to be present at the hearing of evidence and to cross-examine witnesses may not be disputed, and were granted in respect of the second Senate committee and the Parliamentary Commission of Inquiry. The right not to be compelled to give evidence and to make an unsworn non-examinable statement, which Mr Justice Murphy, in effect, exercised before the second Senate committee, is more controversial and has been questioned even in relation to persons accused of offences. It may well be contended that, as a holder of high office in whom the public must have confidence, a judge should be obliged to answer any case reasonably made against him. This view seems to have been taken by the government in drafting the Parliamentary Commission of Inquiry Act and inserting the provision concerning the giving of evidence by the judge, to which reference has already been made.
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.
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:
- (a) the removal of judges is a high national responsibility appropriate to the elected and politically responsible national legislature;
- (b) the requirement for the two Houses of the legislature to act separately is an important safeguard;
- (c) 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);
- (d) judges are not normally entrusted with the fact-finding function of a jury; and
- (e) 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.