Chapter 20 - Relations with the judiciary
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:
-
the
removal of judges is a high national responsibility appropriate to the elected
and politically responsible national legislature;
-
the
requirement for the two Houses of the legislature to act separately is an
important safeguard;
-
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);
-
judges
are not normally entrusted with the fact‑finding function of a jury; and
-
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.
Previous page | Contents | Next page
Website feedback: web.senate@aph.gov.au
Last reviewed 2 February 2010 by the Senate Web Administrator
© Commonwealth of Australia
Parliament of Australia Web Site Privacy Statement
Images courtesy of AUSPIC
|
