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Odgers' Australian Senate Practice Thirteenth Edition

Chapter 20 - Relations with the judiciary

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Inquiries into conduct of a judge

As was mentioned above, apart from an unsuccessful motion in the Senate in 1980 to establish a joint select committee to examine certain business interests of the Chief Justice of the High Court, the only precedent for the Houses contemplating action under section 72 of the Constitution is provided by two Senate select committees in 1984 and a statutory parliamentary commission of inquiry established in 1986 to inquire into the conduct of Mr Justice Murphy of the High Court.

The first Senate committee

Late in 1983 and early in 1984 two newspapers published what they claimed were transcripts of tape recordings of telephone conversations which had been illegally intercepted and recorded by members of the New South Wales Police Force. The newspapers claimed that the transcripts revealed the activities of persons associated with organised crime. Most of the parties to the conversations were not identified by name, but one of them was referred to as "a senior judge". Included in the published transcripts were conversations between the judge and "a Sydney solicitor" who was alleged to be associated with leaders of organised crime. The judge was subsequently identified as Mr Justice Murphy, a justice of the High Court, former senator, Leader of the Labor Party in the Senate and Attorney-General in the Labor Government of Mr Whitlam.

Demands for an inquiry into the matters revealed in the alleged transcripts were immediately made by the Opposition. The Labor Government took the view that no inquiry was necessary, on the basis that the transcripts had not been authenticated and the conduct of the judge revealed by the transcripts could not amount to misbehaviour within the restricted meaning expounded by the Solicitor-General and adhered to by the government (see above). The Opposition Liberal-National parties and the Australian Democrats, who together held a majority in the Senate, took the view that an inquiry should be held into the conduct of the judge. Their preference was for a royal commission or other nonpartisan quasi-judicial tribunal to conduct the inquiry, but the government refused to appoint such a body, and it is very doubtful whether it could constitutionally do so except by statute. Against the wishes of the government, the Senate therefore appointed on 28 March 1984 a select committee, which was called the Select Committee on the Conduct of a Judge.

The committee was required to report upon the authenticity of the alleged transcripts which, together with some tape recordings, had been provided by one of the newspapers to the Attorney-General, and upon whether the conduct of the judge as revealed in the materials constituted misbehaviour which could amount to sufficient grounds for his removal.

The resolution appointing the committee contained a number of unusual features. The committee was enjoined to take care to protect the privacy, rights and reputations of individuals, and to protect from disclosure the operational methods and investigations of law enforcement agencies (there were police investigations on foot into the tapes and transcripts). Witnesses before the committee were to be given notice of the matters proposed to be dealt with during their appearance and an opportunity to make submission in writing before appearing, and were entitled to be assisted by counsel.

The committee determined for itself guidelines for proceedings, which elaborated upon and supplemented the matters contained in the resolution of appointment. These guidelines contained the following major provisions.

  1. (1) The committee was to meet in private unless it made a determination that it was necessary to meet in public, and evidence given in private session and material submitted to the committee were not to be published except to persons associated with the inquiry.
  2. (2) Witnesses were to be notified of their rights under the Senate resolution, and were to be informed in writing of the nature of any allegations made against them and of particulars of the matters on which they were to be heard.
  3. (3) Witnesses were to be allowed to consult counsel during their appearance and counsel could make submissions to the committee.
  4. (4) The committee would accede to any request by a witness for evidence to be heard in private, unless it made a definite determination that it was necessary to hear the evidence in public.
  5. (5) Witnesses were given the right and the opportunity to object to any questions, on grounds including irrelevance and self-incrimination, and procedures were laid down for the committee to consider and determine such objections.

The committee appointed, with the approval of the President of the Senate, counsel to assist it. The committee's counsel advised the committee, participated in its deliberations and attended during the questioning of some witnesses, but did not put questions to witnesses. All of the hearings of the committee were held in private session.

When it had taken evidence in relation to the tapes and transcripts and matters purportedly recorded in them, the committee indicated to Mr Justice Murphy that it wished to hear evidence from him on a number of matters, and invited him to appear before it. He was not summoned. The question of whether the Senate or its committees could summon a High Court or any judge (see above) had been the subject of some discussion, without any conclusion being reached on the matter.

The judge's response to the invitation raised the major procedural difficulty of the committee's inquiry. The judge claimed all of the rights of an accused person in a criminal trial, including the right to be notified of a specific charge, the right not to give evidence if he so chose, and the right, before making that decision, to have all the evidence heard in the presence of his counsel and to have his counsel cross-examine witnesses. It was not within the power of the committee to allow the cross-examination of witnesses by the judge's counsel, or, indeed, to allow the examination of witnesses by any counsel. The standing orders of the Senate provide that witnesses before Senate committees are to be examined by the members of the committee; witnesses could not be examined by counsel except with the explicit authorisation of the Senate, and the Senate had not given that authorisation in the resolution appointing the committee. Had the committee wished to accede to the judge's demands, it would have had to go back to the Senate for an enlargement of its powers.

As it turned out, this was not necessary. The committee took the view that it was engaged in an investigatory inquiry, analogous to the inquiries undertaken by a prosecuting authority to determine whether a prosecution will be commenced. The committee considered that only if it determined that the evidence so warranted should it recommend to the Senate that there be a formal hearing of the evidence, with the rights of an accused person extended to the judge.

The judge declined to give evidence, but gave the committee a written statement on the evidence which it had received. His counsel made submissions to the committee on its evidence and on matters of law.

Report of the first committee

In its report[15] the committee concluded that it could not be satisfied of the authenticity of the tapes and transcripts, and that therefore no facts had been established which amounted to proved misbehaviour, whatever view of misbehaviour was accepted. The committee was divided, however, on another matter which did not relate to the conduct of the judge as revealed by the tapes and transcripts, but which arose from the evidence taken by the committee in its attempts to determine the authenticity of the materials.

One of the persons mentioned in the conversations purportedly recorded in the transcripts was Mr C R Briese, the Chairman of the Bench of Stipendiary Magistrates of New South Wales. Mr Briese was invited to appear before the committee to see if he could throw some light on the matters referred to in the conversations. In the course of his appearance he gave evidence of conversations he had had with Mr Justice Murphy which could be interpreted as an attempt on the part of the judge to influence committal proceedings in the Magistrates Court. Those proceedings related to charges laid against Mr Morgan Ryan, the "Sydney solicitor" whose conversations with the judge were purportedly recorded in the transcripts. This raised the possibility that the judge had been guilty of the criminal offence of attempting to pervert the course of justice, which would amount to misbehaviour whatever view of the meaning of misbehaviour was accepted.

The three government senators on the committee, who held the majority with the chairman's casting vote, did not consider that the evidence of Mr Briese established a prima facie case against the judge of attempting to pervert the course of justice, and therefore did not recommend any further action. The two Oppositions senators, in a dissenting report, found that the evidence of Mr Briese did establish a prima facie case, and the one Australian Democrat senator considered that the evidence ought to be examined in a formal hearing.

The second Senate committee

With the Opposition and the Democrats holding the majority in the Senate, and able to make their views prevail there, it was inevitable that a further inquiry would take place.

It was expected that the second inquiry would be conducted as a formal hearing of the evidence relating to the matter raised by Mr Briese. The idea that there should be some nonpartisan and independent body to conduct the inquiry was again mooted. The government was adamant that it would not appoint a royal commission, but proposed that the Director of Public Prosecutions consider the evidence. Attention was directed to the possibility of the Senate appointing some nonpolitical person, such as a former judge, or a panel of former judges, to conduct the inquiry. The term "parliamentary commission" came into use to describe such a tribunal. There was a discussion on the question of whether the Senate had the power to appoint someone other than a committee of its own members to conduct an inquiry on its behalf, the crucial component of this question being the ability to confer upon someone other than a committee the power to compel evidence.[16] There are virtually no precedents or authorities on this matter, and the debate largely rested on reasoning from first principle. It was argued that there was nothing to prevent the Senate from delegating its powers to someone other than its own members, but if the powers of the proposed tribunal were challenged before the High Court noone could be certain of the result. For this reason another idea came to the fore, that of a nonpolitical tribunal operating under the "umbrella" of a Senate committee. In other words, the Senate would delegate its powers to a committee, but the committee would have attached to it independent commissioners, who would make their own findings on the evidence and communicate those findings to the Senate through the committee. This concept originated in a paper on the question of the appointment of commissioners by the Senate, and was the one which was eventually adopted.

The Senate therefore established on 6 September 1984 a second select committee, again on an Opposition motion and against the wishes of the government.

The Senate also agreed, by the Democrats voting with the Government, to the suggestion of the Government that the evidence be referred to the Director of Public Prosecutions. That independent statutory officer, however, declined to consider the matter until the second committee had reported. The Senate therefore was compelled to rescind the resolution referring the evidence to him.

The second committee was to inquire only into the matters raised by Mr Briese. It was called the Select Committee on Allegations Concerning a Judge, and it was designed to conduct a formal hearing of the evidence relating to that matter. The resolution appointing the committee was complex, amounting to some 23 substantial paragraphs. The most interesting features of the resolution were as follows.

  1. (1) The committee was to make findings of fact upon the allegations of Mr Briese, but was also to report on whether Mr Justice Murphy engaged in conduct which could justify his removal. Initially it was suggested that the committee should simply pass on the findings of the commissioners without comment, but this was thought to be unnecessarily risky of challenge in the courts, so the committee was empowered to make its own report.
  2. (2) The committee was to report whether there was misbehaviour in accordance with the two different interpretations of misbehaviour, and whether the misbehaviour was proved in accordance with the two different standards of proof.
  3. (3) Two commissioners were to be appointed by the Senate to assist the committee. Two retired Supreme Court judges were appointed by subsequent resolution. The commissioners had the right to participate in the committee's deliberations, to examine witnesses and to recommend to the committee that particular witnesses be summoned. The commissioners were to provide the committee with their written advices on the matters upon which the committee was to report, and the committee was required to include the commissioners' advices in its report to the Senate.
  4. (4) The committee was required to appoint counsel to assist it.
  5. (5) Witnesses before the committee were to be examined by counsel assisting the committee, counsel for Mr Justice Murphy and counsel for other witnesses.
  6. (6) Hearings of the committee were to be held in public unless the committee by absolute majority determined otherwise.
  7. (7) The committee was to determine rules and procedures for the examination of witnesses before it, having regard to those followed by the courts.
  8. (8) Mr Justice Murphy was given the rights of an accused person in a criminal trial, with one modification. All evidence was to be taken in the presence of his counsel, and he was not to be summoned to give evidence but was to be invited to do so when all the other evidence had been heard. If he chose to give evidence, however, he was to be subject to examination by counsel for the committee and counsel for other witnesses. This raised the possibility of his being cross-examined by more than one party if he gave evidence, and his counsel objected to this. The committee, while in the process of determining its procedures for the examination of witnesses, asked the Senate to abandon this rule, but the Senate declined to do so. It was clear that Mr Briese and any other witnesses would be subjected to rigorous examination by the judge's counsel, and it was intended that those witnesses should have the additional protection afforded by their counsel being able to cross-examine the judge if he gave evidence.
  9. (9) The committee, commissioners and counsel appearing before the committee were given access to the documents and evidence of the previous committee, and were at liberty to refer to those documents and evidence in the public proceedings. The committee subsequently persuaded the Senate to restrict this right of access to counsel for the judge and counsel for Mr Briese, and submissions made by the judge's counsel to the first committee were excluded from the right of access, so that witnesses would not be forewarned of the line of cross-examination on behalf of the judge.

In determining its rules and procedures for the examination of witnesses, the committee made the important determinations that it would formulate a statement of the allegation against the judge, that it would follow judicial proceedings as closely as possible, that it would observe the rules of evidence and would hear only evidence admissible in court proceedings. These decisions led to one significant development. Part of Mr Briese's evidence before the first committee was inadmissible. Mr Briese had stated his belief that Mr Justice Murphy, Mr Ryan and Mr Briese's predecessor as chief magistrate, Mr M. F. Farquhar, were parties to a criminal conspiracy apparently having as one of its aims the improper influencing of cases before the Magistrates Court of New South Wales. This allegation did not appear in Mr Briese's evidence in chief before the second committee, but counsel for Mr Justice Murphy, in accordance with the provision in the resolution already mentioned, chose to make it a basis of his crossexamination, and it was thereby made public. The committee reserved the right to hear inadmissible evidence, but did not in fact do so except where such evidence emerged as a result of crossexamination.

At one stage the committee made an order prohibiting the publication of the names of certain persons mentioned in Mr Briese's evidence, including Mr Farquhar against whom criminal proceedings were then in train, but was forced to rescind the order, largely because of speculation as to the identity of the unnamed persons.

The proceedings of the committee departed from parliamentary norms in many other ways. Counsel assisting the committee made recommendations to the commissioners as to witnesses to be brought before the committee, on the basis of preliminary statements taken from those witnesses. The commissioners then advised the committee and their advice was invariably accepted. The members refrained from looking at the preliminary statements by witnesses, and the members and the commissioners refrained from exercising their right of access to the documents and evidence of the previous committee, except as necessary in the course of the examination of witnesses.

Witnesses were taken through their evidence in chief by counsel assisting and were then crossexamined by counsel for Mr Justice Murphy and counsel for witnesses. The committee limited crossexamination by counsel for witnesses to matters relevant to the interests of those witnesses. Counsel also made submissions on law and on the evidence. When questions of law or procedure were raised in the hearings, the commissioners publicly advised the committee, which invariably accepted the advice.

When the committee was established it was thought that the only evidence to be heard would be that of Mr Briese. It happened, however, that there were several witnesses able to give evidence relevant to the judge's intention in his conversations with Mr Briese, and ten witnesses were heard. Of particular significance was the evidence of a judge of the District Court of New South Wales, Judge P. Flannery, who had tried Mr Ryan. This evidence was crucial in the assessment of Mr Justice Murphy's intention. Under cross-examination by counsel for Mr Justice Murphy, Judge Flannery stated that he believed that conversations he had had with Mr Justice Murphy represented an attempt by Mr Justice Murphy improperly to influence the trial.

Mr Briese was subject to hostile examination from two quarters. His statement to the first committee provided Mr Farquhar's counsel with grounds for extensive examination. The former chief magistrate was then heard and was subject to cross-examination by counsel for Mr Briese. The witnesses heard included two other judges of New South Wales courts and Mr Ryan.

Mr Justice Murphy again declined to give evidence when invited to do so. His counsel made a statement before the committee of his reasons for this decision, the principal reason being that a general election was about to be held and the Senate as then constituted could not and should not take any further action in relation to him.

During the hearings of the committee the then Premier of New South Wales, Mr Wran, made comments on the evidence of Mr Briese which could have been interpreted as threats to him, as his reappointment to the Magistrates Bench was then under consideration following a restructuring of the court. These comments caused the Senate to pass the following resolution:

That the Senate -

  1. (a) reaffirms the long-established principle that it is a serious contempt for any person to attempt to deter or hinder any witness from giving evidence before the Senate or a Senate committee, or to improperly influence a witness in respect of such evidence; and
  2. (b) warns all persons against taking any action which might amount to attempting to improperly influence a witness in respect of such evidence.[17]

This resolution was adopted by the committee for itself. The committee also felt constrained to correct a federal minister, who was later the Attorney-General, and who made comments critical of the committee's proceedings.

Report of the second committee

The commissioners made separate reports to the committee, and these were included in the committee's report. The committee adopted the procedure of having each of its members report findings and conclusions to it, and these reports were also included in the committee's report to the Senate.[18]

Both commissioners found that the actions of Mr Justice Murphy had a tendency to pervert the course of justice. One commissioner was satisfied beyond reasonable doubt that the judge had the intention to do so, and that therefore his conduct could amount to misbehaviour under both interpretations of that term. The other commissioner confessed to some wavering on the matter but was not satisfied beyond reasonable doubt that Mr Justice Murphy intended to pervert the course of justice. He was of the view that there was conduct which could amount to misbehaviour under the broad interpretation of that term. Two members of the committee, one Labor senator and the Australian Democrat senator, were not satisfied beyond reasonable doubt that Mr Justice Murphy intended to pervert the course of justice, but found on the balance of probabilities that he did so intend. One member, the Opposition senator, was satisfied beyond reasonable doubt that the judge had attempted to pervert the course of justice. Those three senators therefore found that there was conduct which could amount to misbehaviour in accordance with both interpretations of the term. The other Labor Party senator did not find on either standard of proof that the judge had attempted to pervert the course of justice.

The committee's report was published while the Senate was not sitting, as authorised by a Senate resolution, the House of Representatives having been dissolved for a general election and the Senate having adjourned. Before the Senate met again, in February 1985, the Director of Public Prosecutions had examined the evidence and decided that Mr Justice Murphy should be prosecuted on two charges of attempting to pervert the course of justice (the prosecution, of course, could not make direct use of the committee's evidence). When the Senate met and received the report, senators of all parties agreed that they would refrain from any further consideration of the matter until the criminal proceedings against the judge were concluded.

Criminal proceedings against the judge

The criminal proceedings against Mr Justice Murphy, which took place in 1985 and 1986, gave rise to a disagreement between the Senate and the Supreme Court of New South Wales about the use which could be made in the court proceedings of the evidence given before the two Senate committees. This disagreement led to the passage of the Parliamentary Privileges Act 1987.[19]

In accordance with the law of New South Wales the prosecution of the judge began with committal hearings before a magistrate, who heard the evidence to decide whether the accused should be sent for trial by jury in the District Court or the Supreme Court of the State. After committal proceedings, Mr Justice Murphy was committed for trial in the Supreme Court. He unsuccessfully attempted to have the Federal Court review the magistrate's decision to commit him.[20]

The justice, who gave evidence and was cross-examined in the trial, was convicted by a jury in the Supreme Court in July 1985 on one charge of attempting to pervert the course of justice, the charge relating to his alleged approaches to Mr Briese. He was acquitted of the charge relating to his alleged approaches to Judge Flannery. He was then sentenced to eighteen months imprisonment and released pending the hearing of an appeal.

As a result of that appeal, the conviction was quashed because of legal and procedural deficiencies in the original trial, and a new trial in the Supreme Court was ordered.

The second trial on one charge of attempting to pervert the course of justice, in April 1986, was restricted to matters relevant to that charge. The prosecution could not refer to the judge's alleged approaches to Judge Flannery of the District Court in relation to the trial of the solicitor, Morgan Ryan, which were the subject of the other charge of which the judge had been acquitted. Other evidence which had been admitted at the first trial was excluded. In the second trial the judge chose not to give evidence but exercised the right, afforded to accused persons under the law of New South Wales, to make an unsworn statement to the jury upon which he could not be cross-examined. There was, therefore, no opportunity for the prosecution to cross-examine the judge on the statement which he made to one of the Senate committees, as had occurred in the first trial. The main prosecution witness, however, was again cross-examined on the basis of his evidence to the committees.

The result of the trial was that the judge was acquitted of the one remaining charge, but that was far from the end of the allegations against him. It was revealed that, on the basis of other evidence which had come to light during the trial, the prosecuting counsel had recommended that the judge be prosecuted on charges of bribery and conspiracy, again relating to alleged attempts to influence the outcome of criminal inquiries and proceedings. The Director of Public Prosecutions declined to act on this recommendation for reasons which were not disclosed, but there were demands that the matter be cleared up, in conjunction with outstanding allegations arising from the transcripts and tapes of telephone conversations which were the beginning of the whole affair.

In May 1986 a royal commission, the Royal Commission into Alleged Telephone Interceptions, which had been given the task of examining those transcripts and tapes, reported. It concluded that the materials were what they purported to be: tapes and transcripts of telephone conversations which had been illegally intercepted by New South Wales police officers. The Commission concluded:

The interceptions were put in place and maintained by otherwise honest, able and effective members of an elite division of the New South Wales Police force engaged not in the pursuit of some private purpose but in the very difficult and often frustrating fight against deeply entrenched organised crime. Indeed, it has been suggested in evidence that it was out of a sense of frustration that this unlawful method of gathering information was adopted.[21]

This report put an entirely new light on the whole affair. Hitherto those who had defended the judge and resisted an inquiry into his conduct as purportedly revealed by the tapes and transcripts had done so largely on the basis of the unauthenticated nature of the materials. The first Senate committee had been unable to draw any conclusions from those materials because it was not able to authenticate them.

There was also the question of whether the judge's conduct in his dealings with the New South Wales chief magistrate and Judge Flannery had amounted to misbehaviour as distinct from the criminal offence of attempting to pervert the course of justice, of which the second jury had acquitted him.

Mr Justice Murphy expressed his intention to resume his seat on the High Court, but it was reported that there was some disquiet on the part of the other justices of the Court about his resuming his seat with the new and the old allegations unresolved. There were apparently discussions between the justices and Mr Justice Murphy and the Chief Justice and the government, but the exact nature of those discussions is not known and were the subject of some disputation.

The government then decided that a new inquiry should be established to deal with all outstanding allegations against the judge and to determine whether he had engaged in any conduct amounting to misbehaviour within the terms of the Constitution and warranting his removal from the bench.

The parliamentary commission of inquiry

The new inquiry took the form of a parliamentary commission, that is, a commission operating similarly to a royal commission but established by statute and reporting to the two Houses of the Parliament. As was noted above, the expression "parliamentary commission" came into use when the Senate was moving towards its first inquiry and there was some contemplation of appointing commissioners to conduct the inquiry on behalf of the Senate. The bill to establish the Commission was brought in and speedily passed by both Houses. The legislation was drafted to make it clear that the Commission was a body established by Parliament for the purpose of advising Parliament in the exercise of its constitutional responsibility. The Commission was to consider all outstanding allegations against the judge, to formulate those it considered worthy of investigation in precise terms and conduct a hearing of the evidence in closed session. The Commission was then to report to each House its findings of fact and its advice as to whether the judge had been guilty of misbehaviour within the meaning of the Constitution. Three distinguished former Supreme Court judges were appointed as the Commissioners.

The Act precluded the Commission from examining the issues dealt with in the trials of the judge except for the purpose of examining other issues. Unlike the second Senate committee, it was empowered to compel the judge to give evidence if it came to the conclusion that there were matters which he should answer. It was to admit only evidence admissible in court, and it was given access to the documents of the two Senate committees and to certain material held by the National Crime Authority. It was to hear evidence in private, and to report to the Houses only such evidence as it thought necessary to support its findings and conclusions.

Questions about the constitutionality of the Houses appointing a Commission to advise them in this way were again raised. Mr Justice Murphy's reaction to the establishment of the Commission was to bring an action before his fellow judges of the High Court to have the Commission stopped. The High Court, however, unanimously rejected the application for an injunction to restrain the Commission, and deferred hearing arguments on the question of the validity of the legislation establishing it.[22] Mr Justice Murphy subsequently abandoned the attempt to have the Commission declared unconstitutional.

The establishment of the Commission once again took the matter out of the hands of the Houses of the Parliament, and it was expected that the report of the Commission would finally resolve the question of whether Mr Justice Murphy had engaged in any conduct warranting his removal.

In early August 1986, when the Commission had concluded its initial inquiries and was about to start taking evidence on a number of specific allegations, it was revealed that Mr Justice Murphy was suffering from terminal cancer and had only a short time to live. He announced that he did not intend to cooperate with the Commission any further, and the Government indicated that it would introduce legislation to wind up the inquiry. The Parliamentary Commissioners presented a special report to the Houses indicating that they had intended to hear evidence on a number of specific matters, that this process would take a considerable time, and that, in view of the judge's condition it would probably not be possible to conclude the inquiry consistent with the requirements of natural justice, which dictated that the judge be present during the hearing of evidence.

A bill to repeal the Act establishing the Commission, and to provide for the disposal of the large volume of material which the Commission had collected, was the subject of some disputation. As originally drafted it would have provided for the perpetual suppression of all material before the Commission and for heavy penalties for any person who revealed any matters placed before the Commission. It was amended in the Senate, however, to provide for the release of material after thirty years and for penalties only for persons associated with the Commission who revealed its deliberations or documents. Even so the bill was criticised as being unduly restrictive. The Presiding Officers were given the custody of the documents of the Commission, which were placed in the archives under conditions of high security.

Before it ceased to exist, the Commission presented another report to the Houses on 21 August 1986.[23] This consisted of the findings of the Commissioners on the question of what constitutes misbehaviour within the meaning of the Constitution. In detailed and closely argued findings, all of the Commissioners rejected the view of the Solicitor-General that misbehaviour could be constituted only by misbehaviour in the performance of judicial duties or conviction for a criminal offence. All of the Commissioners supported the opinion of the counsel to the first Senate committee, that misbehaviour consisted of conduct which, in the judgment of the Houses, indicated unfitness of a judge to continue in office. It is expected that these findings will carry great weight in any future deliberations relating to section 72 of the Constitution.

The last attempt to investigate the judge's behaviour thus ended. The prognostications of the judge's physicians, which had been presented to the Commission and to the two Houses, proved only too accurate, and in October 1986 the judge died, leaving the questions as to his conduct unresolved. Early in 1999 there were press reports claiming that relevant evidence had been withheld from the Senate committees and the Commission, but no further investigatory action was taken.

(SEE SUPPLEMENT)

If a case arises in the future which causes the Houses to consider action under section 72 of the Constitution, it is likely that the Parliamentary Commission of Inquiry of 1986 will be looked to as a precedent. As this chapter has suggested, that body, apart from the question of its constitutionality, had serious defects, particularly the provisions for hearing evidence in private and for withholding evidence from the Houses. Those features of the Commission should not be followed in any future cases.[24]

Queensland precedent

The relevant provisions of the Constitution of Queensland replicated the Act of Settlement: judges had tenure of office during good behaviour but could be removed by the Governor on the address of the Legislative Assembly. Misbehaviour was not stated to be the ground of removal.

In the case of the removal of a justice of the Supreme Court of the State in 1989, the body appointed to advise the Legislative Assembly, the Assembly in its address to the Governor and the Governor in his response to the address were all careful not to say that misbehaviour was the ground of removal. The case, however, is a significant precedent for a consideration of conduct which may be regarded as constituting misbehaviour under the federal constitutional provision, if the restricted interpretation of that provision by the Solicitor-General is not accepted and the interpretation of the parliamentary commissioners and the other authorities referred to above is followed.

After certain evidence was given before a commission of inquiry concerning the conduct of a justice of the Supreme Court, Justice Angelo Vasta, a statutory commission, called the Parliamentary Judges Commission of Inquiry, was established in 1988 to inquire into the conduct of the justice. The Commission consisted of three retired superior court justices, including a former Chief Justice of the High Court. The Commission was enjoined to advise the Legislative Assembly whether any behaviour of the justice following his appointment to the Court warranted his removal from office. The Commission was to present to the Legislative Assembly only so much of its evidence as it thought necessary to support its findings of fact and conclusions. The Commission clearly was modelled on the 1986 federal Parliamentary Commission of Inquiry.

The Commission reported that the following behaviour by the judge warranted his removal from office:

  1. (a) giving false evidence at a defamation hearing
  2. (b) making and maintaining allegations that the Chief Justice, the Attorney-General and the inquiry commissioner had conspired to injure him
  3. (c) making a false statement to an accountant who prepared income tax returns
  4. (d) arranging sham transactions to gain income tax advantages
  5. (e) making false claims for taxation deductions.

None of the grounds of removal related to the judge's conduct as a judge, and the Commission did not advert to the question of whether any of the judge's actions could constitute criminal offences.

The Legislative Assembly allowed the judge to address the Assembly to show cause why he should not be removed from office. Having heard the judge's address, the Assembly on 7 June 1989 concurred with the conclusions of the Commission and resolved to address the Governor requesting the removal of the judge on the grounds specified by the Commission. On the presentation of the address, the Governor removed the judge from office.

New South Wales precedents

The New South Wales constitution and relevant legislation provide that judicial officers may be removed upon address by both Houses of the Parliament on ground of proved misbehaviour or incapacity, but only after a report by the Conduct Division of the Judicial Commission, a panel of judges and barristers which considers complaints about such officers, indicating that matters may justify parliamentary consideration of removal.

In 1998 the Conduct Division found that incapacity had been proved in respect of a justice of the state Supreme Court, Justice Vincent Bruce, as evidenced by unreasonable delay in delivering judgments. A challenge by the justice to the validity of the Conduct Division's report failed in the Court of Appeal.[25]

The Legislative Council, however, on 25 June 1998, rejected a government motion to remove the justice, although the motion was supported by major party leaders. The Council heard the justice before considering the motion. In February 1999, after further criticism of delays in his cases, the judge resigned.

In 2011, the Conduct Division reported on two cases, one of proved misbehaviour and incapacity and one of proved incapacity that could justify parliamentary consideration of the removal of the judicial officers concerned. The reports and responses by their subjects were tabled in the NSW Parliament. Magistrate Jennifer Betts was called on to address the Legislative Council on 15 June 2011 to show cause why she should not be removed from office. A motion for an Address to the Governor for the removal of Magistrate Betts on grounds of incapacity was moved the following day by the Leader of the Government and negatived after a free vote.

Magistrate Brian Maloney was similarly called to address the Council on 21 June 2011, his challenge to the validity of the Conduct Division's report having been dismissed by the Supreme Court in May 2011.[26] Again, a motion was moved the following day by the Leader of the Government for an Address to the Governor for Magistrate Maloney's removal on grounds of incapacity. The debate was adjourned after correspondence was tabled seeking advice in relation to further complaints against the magistrate. Debate resumed on 13 October following the receipt of further material and the motion was negatived, again, after a free vote.

Other office-holders

Various statutes passed by the Parliament provide for independent and quasi-judicial office-holders other than judges to be removed on address of both Houses, including the Auditor-General, members of the Administrative Appeals Tribunal, the Commonwealth Ombudsman and the Parliamentary Budget Officer. The stated grounds for removal vary, but generally refer to misbehaviour and incapacity. There are no precedents of these provisions being activated, but many of the considerations analysed in this chapter may be applicable to them.


15. PP 168/1984.
16. See Chapter 2, Parliamentary Privilege, under Power to conduct inquiries.
17. 13/9/1984, J.1129.
18. PP 271/1984.
19. For an account of the disagreement and the provisions of the Act, see Chapter 2, Parliamentary Privilege.
20. Murphy v Director of Public Prosecutions (1985) 7 FCR 55.
21. PP 155/1986, p. 337.
22. Murphy v Lush (1986) 65 ALR 651.
23. PP 443/1986.
24. Several private members' and senators' bills proposing the establishment of a standing body to assess the conduct of judges and report to both Houses have since been introduced but none have been passed. In 2012, a bill to provide for the appointment of parliamentary commissions to inquire into allegations of judicial misbehaviour or incapacity and to provide information to the Houses was introduced by the government.
25. Bruce v Cole (1998) 45 NSWLR 163.
26. Maloney v The Honourable Michael Campbell QC [2011] NSWSC 470 (Unreported, 24 May 2011).