Chapter 20 - Relations with the judiciary
Appointment and removal of judges
The Constitution, section 71, vests the judicial
power of the Commonwealth in the High Court, which is established by the
provisions of the Constitution, such other federal courts as the Parliament by
legislation creates, and such other courts as the Parliament vests with federal
jurisdiction.
Section 72 of the
Constitution provides:
The Justices of the High Court and of the
other courts created by the Parliament —
-
Shall be appointed by the
Governor-General in Council:
-
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:
-
Shall receive such
remuneration as the Parliament may fix; but the remuneration shall not be
diminished during their continuance in office.
The appointment of a Justice of the
High Court shall be for a term expiring upon his attaining the age of seventy
years, and a person shall not be appointed as a Justice of the High Court if he
has attained that age.
The appointment of a Justice of a
court created by the Parliament shall be for a term expiring upon his attaining
the age that is, at the time of his appointment, the maximum age for Justices
of that court and a person shall not be appointed as a Justice of such a court
if he has attained the age that is for the time being the maximum age for
Justices of that court.
The appointment of federal judges is therefore a matter for the executive
government alone. There is no provision, as there is in the United States of
America
and some other countries, for appointment or approval of appointment by the
Houses of the legislature. In this the Constitution follows the British pattern
of appointment of judges by the Crown.
Once appointed, however, judges are completely independent in that they
may not be removed from office except by the special procedure set out in
section 72.
As this procedure involves the two Houses of the Parliament, as well as
the executive government, in the constitutionally highly significant process of
removing a judge, this chapter considers some questions arising in the
interpretation of section 72. The dearth of precedent for action under section
72 may make this consideration more useful. (For a more detailed treatment of
the interpretation of section 72, with citations of authorities, see ‘Parliament
and the Judges: the removal of federal judges under section 72 of the
Constitution’, by Harry Evans, Legislative Studies, Spring 1987. This chapter draws
upon that article.) The chapter then proceeds to an examination of the only
case in which the Houses have investigated the conduct of a judge to determine
whether action should be taken under section 72, the case of Mr Justice Murphy
of the High Court in 1984-86, in the course of which two Senate select
committees and a statutory parliamentary commission of inquiry were appointed.
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