The removal of a judge by parliament – legislative supervision of the judiciary (aka “how to get rid of a judge”)

How can a judge be dismissed? What is the process and has it been done before? In light of the Commonwealth parliament commencing an investigation into Vice President Lawler of the Fair Work Commission, there has been renewed public interest in how a judge can be dismissed. Some of the reporting on the process has been inaccurate and misleading. This blog post summarises the statutory and common law requirements to remove a judge from office.

Four step process

While the exact procedure to dismiss a judge varies between jurisdictions and courts, the process can be distilled to four steps:

1.       Initiation of process is in the hands of the legislature itself – usually requires an inquiry by a former judge or judges

The legislature must initiate the process of dismissing a judge. Usually the first step is to instigate an inquiry into the judge’s conduct. The inquiry is initiated on motion by a House of Parliament. Inquiries are usually headed by a former judge or judges. Private individuals cannot move a court to compel the legislature to start a motion, as this interferes with the privileges of parliament. This principle was affirmed in Re Reid; Ex parte Bienstein (2001) 182 ALR 473 at 478-9 where a party in a family law matter sough to compel the President of the Senate, Margaret Reid to initiative an investigation and remove a judge of the Family Court of Australia.

NSW and the ACT are unique in that they have Judicial Commissions with functions that include examining and dealing with complaints about judges (Judicial Commissions Act 1994 (ACT) (ACT JC Act); Judicial Officers Act 1986 (NSW) (NSW JO Act). In NSW the Judicial Commission is involved from the outset in complaint management and investigations, while in the ACT the Judicial Commission is only involved for the duration of the investigation once the Legislative Assembly has passed a resolution for the examination of a complaint (s.18 ACT JC Act).

In NSW, the Judicial Commission has a Conduct Division with the function of examining and dealing with complaints referred to it under Part 6 and with formal requests referred to it under Part 6A. A complaint can be made to the Judicial Commission by any individual, and Ministers can also refer complaints (ss.15 and 16). The Judicial Commission initiates the process by making a preliminary examination and deciding whether to refer the complaint to the Conduct Division (ss.20 and 21). The Conduct Division is made up of a panel of three, with two of the panel members being judicial officers and the third being a community representative (s.22). The Conduct Division must examine complaints referred to it and can initiate an investigation into a complaint (s.23).

The ACT Judicial Commission operates differently to the NSW Judicial Commission, the main difference being that the ACT Judicial Commission does not become involved until the Legislative Assembly passes a resolution for the examination of the complaint (s.18). In such a case, the executive must appoint a judicial commission to investigate the complaint, and the investigation and findings must be provided to the Attorney-General in the time period specified. Only parliament has the power to initiate an investigation, in a similar way to other jurisdictions that do not have a judicial commission. The ACT Judicial Commission is constituted by three current or retired judges (s.7) and has no direct community representative.

2.       Judge has a common law right (statutory in the ACT under s.15 of the ACT JC Act) to be heard in their own defence

The judge is usually given this opportunity to respond to or explain allegations made against them during the conduct of the investigation, if not before hand.

3.       There are only two grounds a judge can be removed for, misbehaviour and incapacity, either one or both must be proved depending on the relevant jurisdiction and court

Section 72(ii) of the Constitution states that a “Justice of the High Court and the other courts created by Parliament... shall not be removed 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”. These two grounds of proved misbehaviour and incapacity in s.72 apply to High Court judges, Federal Court judges, Federal Circuit Court judges, Family Court judges and judges of other courts created by Parliament under Chapter III of the Constitution. The grounds for removal in other jurisdictions are similar. In jurisdictions where no grounds for removal are stated, technically the legislature could remove a judge on any grounds, but no parliament in Australia has ever proceeded on this basis. It would be unprecedented for an Australian parliament to remove a judge on a bare address without grounds of misbehaviour or incapacity first being proved.

Legislation governing the grounds for removal in other jurisdictions includes:

1.       Constitution of Queensland 2001 (Qld) s.61(2) applies to the removal of Queensland Supreme Court and District Court judges – “proved misbehaviour justifying removal from office” or “proved incapacity to perform the duties of office”.

2.       Constitution Act 1889 (WA) s.55 does not specify grounds for removal, but s.54 uses the phrase “good behaviour” indicating a judge could be dismissed where “good behaviour” is not demonstrated.

3.       Constitution Act 1902 (NSW) s.53(2) applies to the removal of a number of NSW judges including judges of the Supreme Court, District Court, and Land and Environment Court – “proved misbehaviour or incapacity”.

4.       Constitution Act 1934 (SA) s.75 applies to the removal of South Australian Supreme Court judges, does not specify grounds, but s.74 indicates grounds for dismissal could include where a judge has not demonstrated “good behaviour”.

5.       Constitution Act 1975 (Vic) s.77(1) applies to the removal of judges of the Supreme Court and County Court, and Magistrates - “removal on the ground of proved misbehaviour or incapacity”.

6.       Supreme Court Act 1978 (NT) s.40(1) applies to the removal of judges of the Supreme Court of the Northern Territory - “removal on the ground of proved misbehaviour or incapacity”.

The investigation tabled with parliament will make findings and recommendations as to whether misbehaviour or incapacity has been established.  Misbehaviour is a broad category that clearly includes serious criminal conduct but may also encompasses everything from severe conflicts of interest to corruption and bribery. Incapacity can be physical or mental. An example of what would constitute mental incapacity is the findings of the investigation conducted into Justice Vincent Bruce of the NSW Supreme Court in 1998. Numerous complaints had been made about Justice Bruce who was persistently late in writing judgments. The investigation found this behaviour was attributable to Justice Bruce suffering from severe depression. While the investigation found there was proved incapacity, NSW parliament did not proceed with the address and Justice Bruce resigned.

4.       Motion for removal must be passed by both Houses and forwarded to the Governor or Governor-General who then revokes the appointment of the judge.

Judges are rarely dismissed. In the 1800s only four Supreme Court judges were removed and in one of these cases the motion was invalidated by the Privy Council. The inquiries instigated in the 1900s include:

1.       The 1987 investigation instigated by Queensland parliament into the behaviour of Justice Angelo Vasta of the Queensland Supreme Court;

2.       The inquiry into the conduct of Justice Bruce of the NSW Supreme Court in 1998; and

3.       The inquiry commenced into the conduct of Justice Lionel Murphy of the High Court in 1981. Justice Murphy died before next steps could be taken.

It is very rare for a situation to arise where parliament would be required to pass the requisite motions to advise the Governor or Governor-General to revoke a judge’s appointment. Most judges choose to resign when the investigation is initiated or after the investigation has concluded rather than be dragged through an investigation and/or be dismissed by the Governor or Governor-General.

There is limited recourse outside this process

There is limited recourse outside for the behaviour of a judge outside the parliamentary process described above. The Chief Justice of a court can somewhat deal with performance issues through managing a judge’s work load. For example, by allocating the judge simple matters or reduce the number of matters the judge is hearing. However, even if a judge was allocated no matters, the judge would continue to be paid remuneration until dismissed by the Governor or Governor-General after a parliamentary motion has been successfully passed. While the system is not perfect, it does assist with maintaining judicial independence.