Chapter 20 - Relations with the judiciary
Review of removals on address
It is not settled whether the removal of a judge upon an address would
be subject to judicial review.
The constitutional provision strongly indicates that the two Houses are
the only judges of misbehaviour and that their address and the action of the
Governor‑General upon it would not be reviewable by the High Court. This
appears to have been the clear intention of the constitution‑makers, as
expressed in the convention debates. The convention delegates who most strongly
favoured a provision similar to the Act of Settlement accepted the more
restrictive provision on the basis that the Houses of the Parliament would be
the only judges of proved misbehaviour or incapacity. (National Australasian
Convention, Debates, Adelaide, 1897, pp 952‑3; 959. Australasian Federal
Convention, Debates, Melbourne, 1898, p. 318; see the exchange between
Mr Isaacs and Mr Barton, Debates, Adelaide, p. 952.)
The earliest commentators on the Constitution were in no doubt:
It will be noted that proved
misbehaviour or incapacity is laid down as the ground of removal, but it is
clear that it would still have rested on the Parliament to decide what proof it
would ask of such incapacity or misbehaviour. Accordingly the direction
amounted to no more than that the Parliament should satisfy itself before
passing addresses that the incapacity or misbehaviour clearly existed. (A B
Keith, Responsible Government in the Dominions, 1912, vol. III,
pp 1339-40.)
The Ministry of the day and the two
Houses of The Parliament would, it cannot be doubted, be the sole judges of
what constituted misbehaviour or incapacity, and when or how such misbehaviour
or incapacity was ‘proved’; their action would not be subject to review in any
court of law. (W Harrison Moore, The Constitution of the Commonwealth of
Australia, 1902, p. 279.)
Two of the Parliamentary Commissioners, however, in the opinions
referred to above, expressed the view that the High Court could review a
removal and quash it where the evidence did not disclose matters which could
amount to misbehaviour.
In Nixon v US 1993 508 US 927 the
US Supreme Court held that the removal of a judge by impeachment is not
judicially reviewable.
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