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Chapter 20 - Relations with the judiciary
The meaning of misbehaviour
The most important question arising
under section 72 is the scope of the word misbehaviour, and this is also the
question which has been most discussed. Five opinions have been given: of the
Commonwealth Solicitor‑General, 24 February 1984, of the counsel to the
Senate Select Committee on the Conduct of a Judge (both reproduced in the
report of that committee: PP 168/1984), and of each of the three
Commissioners of the Parliamentary Commission of Inquiry appointed under the
Act of 1986 establishing that Commission, those three opinions having been
presented to each House of the Parliament on 21 August 1986 (PP 443/1986).
There is a line of authoritative statements indicating that under the
common law misbehaviour in respect of an office held during good behaviour
meant misbehaviour in relation to the performance of the duties of that office,
such as neglect or refusal to perform those duties, and conviction for infamous
offences not connected with the duties of the office. The authorities for this
definition are extremely old: they consist of the 17th century treatise by Sir Edward Coke, Institutes of
the Laws of England, the case of the Earl of Shrewsbury, 1610, and the
judgment in R. v Richardson, 1758 97 ER 426. The
two cases were not concerned with judges. Relying principally on these
authorities, the Solicitor‑General in 1984 concluded that the scope of
misbehaviour within the meaning of section 72 is similarly restricted.
All of the other opinions conclude that misbehaviour under section 72
has no such restricted meaning, but extends to any behaviour indicating
unfitness for judicial office.
In the United Kingdom it has been assumed that, whatever the technical
legal situation, the provision for the removal of judges upon the address of
both Houses made obsolete other methods of removal, that that mechanism is, as
a matter of practice, the only available method for removal of a judge, and
that, as a matter of practice, the British Parliament would not make an address
for the removal of a judge except on the ground of misbehaviour. If these
assumptions are correct, then it is clear that in Britain misbehaviour is
not thought to be confined as indicated by the old authorities. The established
grounds for an address have been stated to include misconduct involving moral
turpitude, partisanship and partiality, and misconduct in private life. These
grounds have been taken to be no more than different forms of misbehaviour.
Article III, section 1 of the constitution of the United States provides that
federal judges “hold their offices during good Behaviour”. Article II, section
4 provides that “all civil Officers of the United States, shall be removed
from Office on Impeachment for, and Conviction of, Treason, Bribery or other
high Crimes and Misdemeanours”. It was explicitly stated by the framers of the
constitution that the latter section applies to judges.
These provisions have been interpreted as meaning that:
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the
judicial tenure provision implies a power to remove judges for breach of good
behaviour, either by some implied procedure or by a procedure provided by
Congress by legislation
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judges
may be impeached for misbehaviour.
Both of these interpretations hold that judges are removable for breach
of the condition of good behaviour. Statements by American authorities on the
question of what constitutes misbehaviour are therefore relevant to Australia despite the
different method by which US federal judges may be removed. The American
authorities are very well aware of the old English law as to what constitutes
breach of the condition of good behaviour, but none of them have concluded that
the English law exhaustively defines the categories of misbehaviour as
postulated by the Australian Solicitor‑General.
And whatever the correct interpretation of the US constitution, in
the various cases in which US federal judges have been impeached, the Congress has
assumed that it has the power to impeach them for misbehaviour, that
impeachment is not restricted to high crimes and misdemeanours, and that
misbehaviour extends to any conduct indicating unfitness for office.
In 1980 the US Congress passed the Judicial Councils Reform and
Judicial Conduct and Disability Act (Public Law 96‑458). This empowers
federal judicial councils, which consist of certain judges, to investigate
complaints that any federal judge or magistrate “has engaged in conduct
prejudicial to the effective and expeditious administration of the business of
the courts”. The councils may not remove a judge, but may send to a
coordinating body called the Judicial Conference, which may forward to the
House of Representatives, any information indicating that a judge has engaged
in conduct which might constitute ground for impeachment. The judicial councils may impose
sanctions short of removal; a challenge to their power to do so was rejected by
the Supreme Court (McBryde v Committee to Review Circuit Council Conduct and
Disability Orders of the Judicial Conference, US Court of Appeals, 2001 264 F 3d 52;
Supreme Court declined to hear appeal, 7/10/2002). A report in 2006 of a review of this system, commissioned by
the Supreme Court, found that it had worked well.
Thus the American law supports the majority of the Australian opinions
in viewing the concept of judicial misbehaviour as extending to any conduct
indicating unfitness for office.
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