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.    

The Senate Address and the Governor-General - What is a Senate Address? Does the Governor-General have the power to dismiss Royal Commissioner Dyson Heydon?

Labor Senators moved a motion called an “address” on 8 September 2015, asking the Governor-General Peter Cosgrove to dismiss Dyson Heydon from the Royal Commission into Trade Union Corruption (TURC). While the motion was unsuccessful, it raises broader questions about the nature of a Senate Address and whether the Governor-General has the power to dismiss a Royal Commissioner.

Who can dismiss Dyson Heydon from TURC? 

To answer this question we must first examine who has the power to appoint a Royal Commissioner. Section 1A of the Royal Commissions Act 1902 (Cth) gives the Governor-General the power to create Royal Commissions and appoint Commissioners to the Royal Commission by Letters Patent. It is important to note that s.1A of the Royal Commissions Act 1902 (Cth) is prefaced by the words “without in any way prejudicing, limiting, or derogating from the power of the King, or of the Governor-General, to make or authorise any inquiry, or to issue any commission to make any inquiry”. Letters Patent are legal instruments in the form of a published written order issued by the Governor-General or the Queen. The Letters Patent outlines the terms of appointment, and usually a Commissioner end their tenure as a Commissioner when the Royal Commission concludes. One principle of responsible government is that the Governor-General will act on the advice of Government Ministers, unless the Governor-General is exercising a reserve power. While the Constitution creates a Federal Executive Council to advise the Governor-General (s.62 Commonwealth Constitution), it is the principle of responsible government that the Governor-General will act in accordance with the advice of Ministers. In practice, under s.1A of the Royal Commissions Act the Prime Minister will advise the Governor-General to create a Royal Commission and will advise the Governor-General which Commissioner(s) to appoint.  

Section 7 of the Royal Commissions Act 1902 (Cth) provides that each Commissioner has the “same protection and immunity as a Justice of the High Court”. This means does not mean that a Commissioner can only be dismissed in the same way that a High Court judge can be dismissed. Essentially s.7 provides Royal Commissioners with immunity from civil claims. 

While the removal of Commissioners is not explicitly dealt with in the Royal Commissions Act 1902 (Cth) the removal can be made by the Governor-General on advice through Letters Patent. 

The question remains whether the Governor-General could act unilaterally to remove a Commissioner. This question is discussed below.

What is a Senate Address?

The Senate Address is a formal mechanism by which one branch of government (the legislature via the Senate) can express a view to the executive arm of government. It is simply a way for the Senate to express their views about a particular topic to the Governor-General or the Queen. Historically, most Senate Addresses to the King or Queen have been addresses of congratulations or sympathy. The Senate also produced addresses-in-reply in 1954, 1974 and 1977 when the Queen opened sessions of parliament in person. There have been several Senate Addresses to the Governor-General, with the Annotated Standing Orders of the Australian Senate listing the following addresses as being particularly important:
Ø  “1904 – requesting recognition of the constitutional fact that the provision of revenue and grant of supply is a joint act of both Houses;

Ø  1914 – two addresses, one requesting publication of the communications between the government and the Governor-General concerning the proposed simultaneous dissolution of both Houses under s.57 of the Constitution, and the second asking the Governor-General to submit to the electors six constitution alteration proposals passed by the Senate in accordance with s.128 of the Constitution but not passed by the House of Representatives;

Ø  1931 – urging that the Governor-General refuse to approve regulations in the current session that were the same in substance as regulations already disallowed by the Senate.”

The Senate Address in 1931 was particularly serious. The Scullin Labor Government had repeatedly introduced regulations that were struck down by the Senate. The Senate grew tired of the attempts and passed a motion addressing the Governor-General asking him to prohibit the government from making the regulations. The Governor-General did not take any action. The Governor-General’s power to exercise such a power is uncertain.

What is the significance of a Senate Address?

The Senate address has no legal effect. The Governor-General is not bound to follow the recommendation in the request. What the Governor-General does with this information is his own decision.

Does the Governor-General have the power to dismiss a Royal Commissioner?

As discussed above, the Governor-General’s express powers in the Constitution are exercised on Ministerial advice in line with the principles of responsible government. However, the Governor-General also has another set of powers which can be exercised unilaterally without advice, at the Governor-General’s own discretion or contrary to advice in certain circumstances. These powers are known as the reserve powers. The scope of the reserve powers is uncertain, as the reserve powers are a series of conventions developed from British conceptions of responsible government.

There are a few established reserve powers:

1.       The power to appoint a Prime Minister if an election results in a hung Parliament;

2.       The power to dismiss a Prime Minister in circumstances where the House of Representatives has passed a 'No Confidence' motion against the Prime Minister; and

3.       The power to refuse to dissolve the House of Representatives contrary to Ministerial advice. This is the most commonly used reserve power.

The following reserve powers are more doubtful, but arguably are held by the Governor-General:

1.       The power to refuse a double dissolution. A double dissolution has been requested six times by Parliament, and each time the Governor-General has dissolved parliament as requested. There is the possibility the Governor-General retains the power to refuse a double dissolution.

2.       The power to withhold assent to Bills that have passed both House of Parliament.

3.       The power to select a new Prime Minister where the outgoing Prime Minister resigns after a defeat in the House of Representatives. Some scholars argue the Governor-General is obliged to appoint the replacement proposed by the outgoing Prime Minister.

4.       The power to dismiss a Prime Minister where the Government cannot obtain supply and the Prime Minister refuses to resign or to call an election.

A power to unilaterally dismiss a Royal Commissioner on the basis of misconduct does not come in any of the above categories. This does not necessarily mean the reserve power to dismiss a Royal Commissioner does not exist, rather that it is uncertain.

Conclusion  

While a Labor-led Senate may be able to pass a Senate Address and formally indicate their view that Justice Heydon should be removed as Royal Commissioner, the Governor-General is unlikely to act on his own initiative to dismiss the Royal Commissioner, as the existence of such a reserve power is uncertain. The issues discussed raise broader points about the nature of reserve powers. Reserve powers are unable to be tethered by legislation and are widely believed to be unjusticiable. If concepts of responsible government were implied into the Constitution, as scholars such as Winterton have suggested in academic work, it is believed the reserve powers could become justiciable, potentially giving Governor-General’s more guidance and confidence to exercise their reserve powers.