REMOVAL OF JUDGES FROM OFFICE.

• Date: 01 August 2021
• Author: Nettle, Geoffrey

CONTENTS I Introduction II History A Development of Standards in England B Development of Standards in the Australian Colonies C The Drafting of s 72(ii) 1 The 1897 Drafting Committee 2 Inclusion of the 'Misbehaviour' and 'Incapacity' Criteria 3 Deletion of a Judicial Incompatibility Clause 4 Inclusion of 'Proved' III The Text and Context of s 72(ii) A Separation of Powers B The Role of Judges Vested with Commonwealth Judicial Power C The Institutional Integrity of ch III Courts IV Previous Experience A Previous Experience in Australia B Experience Abroad 1 Canada 2 The Cayman Islands (Privy Council) 3 New Zealand 4 The Latimer House Principles V Process and Procedure of Removal A Justiciability B Sole Process C Constitutional Limits on the Power to Performance Manage Judges? VI Conclusion I INTRODUCTION

Section 72(ii) of the Constitution provides that Justices of the High Court and other courts created by the Commonwealth Parliament shall not be removed from office 'except by the Governor-General in Council, on an address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity'. The provision affords a level of protection of judicial tenure by requiring the involvement of both Houses of Parliament and, thus, in effect, preventing the executive from 'sacking the umpire'. (1) But it is not without its difficulties, most notably the lack of any definition of 'misbehaviour'. So far in this nation's history, it has not been necessary for the High Court to construe the conditions for removal prescribed by s 72(ii). It is, however, conceivable that the need to do so may one day arise, and so it is worth considering what 'proved misbehaviour' entails.

The concept of 'proved misbehaviour' is rooted in legal history, and there is little doubt that the framers of the Constitution had a developed and historical conception of it. But although their sense of the concept is capable of providing us with the central point or connotation of proved misbehaviour, more is required to identify the amplitude of its denotation. As a constitutional concept, it is of a kind that is capable of growing and evolving with the standards and experience of Australian society. (2)

The object of this paper is to attempt to identify some of the ways in which interpretation of the concept may develop, in light of legal history, the Convention Debates, the text and context of s 72(ii) of the Constitution, and the evolving norms of Australian society.

II HISTORY

The historical conception of judicial tenure and the related concept of judicial misbehaviour developed in England over several centuries, culminating in the Act of Settlement 1700, 12 & 13 Wm 3, c 2 ('Act of Settlement'), (3) and by the end of the 19th century were relatively settled. (4) Following European settlement of Australia, the same English notions of judicial misbehaviour were progressively adopted in the Australian colonies. (5) But, to begin with, the role of a judge in the Australian colonies was significantly different from the role of an English judge. (6) It was only after the emergence of systems of responsible government under the colonial constitutions, and later Federation, that the core notions of judicial independence and, relatedly, the concept of misbehaviour warranting removal from office became relevant.

A Development of Standards in England

The first English judges were agents of the monarch. (7) English common law courts began life as emanations of Curia Regis during the reign of Henry I and dramatically expanded during the reign of Henry II. (8) Thus, by at least the late 12th century, the accepted understanding of the judges' role was as delegates of the King, appointed at His Majesty's pleasure (durante beneplacito regis), (9) and vested with the King's authority to do justice in his name. (10)

Over time, English judges developed a greater degree of independence, but, so long as they were appointed at the King's pleasure, their position vis-a-vis the Crown remained precarious. That became especially apparent during the reigns of the Stuarts, (11) when judges were not infrequently removed from office for failing to adhere to the King's will. (12) The notorious removal of Sir Edward Coke by James I followed a sustained period of disagreement between the Chief Justice, the King and others, (13) as to the scope of the Crown prerogative, (14) the interaction of the Court of King's Bench with the ecclesiastical tribunals and the Court of Chancery, (15) and Coke's refusal to abide James I's command to stay a suit concerning the scope of the prerogative. (16)

Coke had been the Speaker of the House of Commons and Attorney-General during the reign of Elizabeth 1, (17) in which role he championed the royal prerogative. (18) He kept the post of Attorney-General after James I acceded to the throne in 1603. (19) He was then appointed Chief Justice of the Court of Common Pleas in 1606. (20) That was followed by a series of conflicts with the King that eventually ended Coke's judicial career. (21) The first and most famous of them concerned the jurisdictions of lay and ecclesiastical courts. (22) Before Coke was appointed Chief Justice, the Archbishop of Canterbury, Richard Bancroft, challenged the control that the common law courts exercised over the jurisdiction of the ecclesiastical courts. (23) Upon Coke's appointment, he waded into the dispute, resulting, in 1607, in Fuller's Case. (24) After determining that the King's Bench had jurisdiction to grant a writ of prohibition in respect of the detention of a person by order of the High Commission, Coke--with the 'approbation of the other judges'--contradicted Archbishop Bancroft's appeal to the King to resolve the matter personally. (25) According to Coke's account, the triumphalism of which might rightly be doubted, (26) he stated in Prohibitions del Roy ('Case of Prohibitions') that '[t]he King in his own person cannot adjudge any case, either criminal or betwixt party and party, (27) and that 'the King cannot take any cause out of any of his courts, and give judgment upon it himself'. (28) Reputedly in the face of the greatly offended King, Coke cited Bracton: '[Q]uod Rex non debet esse sub homine, sed sub Deo et lege'. (29)

Following further conflicts, the tussle between Coke and James I culminated in Coke's appearance in 1616 before the Privy Council, where he refused to concede that he would stay a suit if the King so ordered, (30) and consequently he was suspended by the Privy Council. (31) He was forbidden to go on circuit and ordered to revise the 'errors' in his reports and, on 14 November 1616, he was dismissed. (32)

Coke's dismissal led, in the short term, to judges being more disposed to make decisions in favour of the royal prerogative, (33) obviously for fear that, if they did not, they would be removed from office. As Lord Campbell recorded, at the first sitting of Sir Henry Montagu, Coke's successor, the Lord Chancellor, Ellesmere, told Montagu to '[r]emember the removing and putting down your late predecessor, and by whom', (34) to which Montagu is said to have replied, among other things: 'I will not be busy in stirring questions, especially of jurisdictions ... I will devote myself Deo, Regi, et Legi'. (35) Montagu's choice of syntax is to be contrasted with Coke's famous invocation of Bracton in 1607.

The apparent deference to the monarch damaged the Court's reputation for impartiality and led to hostility on the part of the propertied classes. The socalled ship-money cases, in which the Court of King's Bench upheld Charles I's royal prerogative to levy ship-money tax during peacetime and to extend its imposition to inland counties without parliamentary approval, were among the more significant examples. (36) They resulted in such widespread unrest that Charles I eventually relented and accepted that justices should thenceforth be appointed for as long as they were of good behaviour (quamdiu se bene gesserint). (37) But despite that development, justices were even then sometimes effectively sidelined by the device of suspending them from hearing cases without removing them from office. (38) And following the Restoration, the appointment of justices at the King's pleasure was reintroduced. (39) James II, whose four- year reign began in 1685 and ended with the Glorious Revolution of 1688-89, removed 12 justices from office, mostly for refusing to recognise his claim to dispense with statutes. (40)

The terms of settlement of the Glorious Revolution were embodied in the Bill of Rights 1688, 1 Wm & M sess 2, c 2 ('Bill of Rights 1688') and the Act of Settlement, with the latter manifesting a clear rejection of the divine right of the sovereign and an affirmation of the supremacy of Parliament. (41) By s 3, the Act of Settlement also provided that judges' commissions should once again be quamdiu se bene gesserint and, for the first time, that judges could be removed from office upon a motion passed by both Houses of Parliament. (42)

Today, the Act of Settlement stands, together with the prescriptions of the Magna Carta 1297, 25 Edw 1, c 9 ('Magna Carta') and the Bill of Rights 1688, as one of the three great 'constitutional statutes' of the United Kingdom. (43) Section 3 of the Act of Settlement--later included in s 12(1) of the Supreme Court of Judicature (Consolidation) Act 1925, 15 & 16 Geo 5, c 49 and now in s 11(3) of the Senior Courts Act 1981 (UK)--also stands as the fons et origo of both art III [section] 1 of the United States Constitution and s 72(ii) of the Australian Constitution.

B Development of Standards in the Australian Colonies

The development of judicial independence in the Australian colonies took longer. The Act of Settlement was not received into British colonies, and judges appointed to colonial courts were customarily appointed only during the monarch's pleasure. (44) The New South Wales Act...