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House of Representatives                                Ch 1                                                 p 20

The meaning of ‘misbehaviour’ and ‘incapacity’

Prior to the matters arising in 1984-86, little had been written about the meaning of section 72. Quick and Garran had stated:

Misbehaviour includes, firstly, the improper exercise of judicial functions; secondly, wilful neglect of duty, or non-attendance; and thirdly, a conviction for any infamous offence, by which, although it be not connected with the duties of his office, the offender is rendered unfit to exercise any office or public franchise. (Todd, Parl. Gov. in Eng., ii. 857, and authorities cited.)

‘Incapacity’ extends to incapacity from mental or bodily infirmity, which has always been held to justify the termination of an office held during good behaviour . . . The addition of the word does not therefore alter the nature of the tenure of good behaviour, but merely defines it more accurately.

No mode is prescribed for the proof of misbehaviour or incapacity, and the Parliament is therefore free to prescribe its own procedure. Seeing, however, that proof of definite legal breaches of the conditions of tenure is required, and that the enquiry is therefore in its nature more strictly judicial than in England, it is conceived that the procedure ought to partake as far as possible of the formal nature of a criminal trial; that the charges should be definitely formulated, the accused allowed full opportunities of defence, and the proof established by evidence taken at the Bar of each House. ¹

In an opinion published with the report of the Senate Select Committee on the Conduct of a Judge, the Commonwealth Solicitor-General stated, inter alia:

Misbehaviour is limited in meaning in section 72 of the Constitution to matters pertaining to—

(1) judicial office, including non-attendance, neglect of or refusal to perform duties; and

(2) the commission of an offence against the general law of such a quality as to indicate that the incumbent is unfit to exercise the office.

Misbehaviour is defined as breach of condition to hold office during good behaviour. It is not limited to conviction in a court of law. A matter pertaining to office or a breach of the general law of the requisite seriousness in a matter not pertaining to office may be found by proof, in appropriate manner, to the Parliament in proceedings where the offender has been given proper notice and opportunity to defend himself. ²

Mr C. W. Pincus QC, in an opinion also published by the committee, stated on the other hand:

As a matter of law, I differ from the view which has previously been expressed as to the meaning of section 72. I think it is for Parliament to decide whether any conduct alleged against a judge constitutes misbehaviour sufficient to justify removal from office. There is no ‘technical’ relevant meaning of misbehaviour and in particular it is not necessary, in order for the jurisdiction under section 72 to be enlivened, that an offence be proved. ³

The Presiding Officers presented a special report from the Parliamentary Commission of Inquiry containing reasons for a ruling on the meaning of ‘misbehaviour’ for the purposes of section 72. ⁴ Sir George Lush stated, inter alia,

. . . my opinion is that the word ‘misbehaviour’ in section 72 is used in its ordinary meaning, and not in the restricted sense of ‘misconduct in office’. It is not confined, either, to conduct of a criminal matter.

and later

The view of the meaning of misbehaviour which I have expressed leads to the result that it is for Parliament to decide what is misbehaviour, a decision which will fall to be made in the light of contemporary values. The decision will involve a concept of what, again in the light of contemporary values, are the standards to be expected of the judges of the High Court and other courts created under the Constitution. The present state of Australian jurisprudence suggests that if a matter were raised in addresses against a judge which was not on any view capable of being misbehaviour calling for removal, the High Court would have power to intervene if asked to do so. ⁵

Sir Richard Blackburn stated:

All the foregoing discussion relates to the question whether ‘proved misbehaviour’ in section 72 of the Constitution must, as a matter of construction, be limited as contended for by counsel. In my opinion the reverse is correct. The material available for solving this problem of construction suggests that ‘proved misbehaviour’ means such misconduct, whether criminal or not, and whether or not displayed in the actual exercise of judicial functions, as, being morally wrong, demonstrates the unfitness for office of the judge in question. If it be a legitimate observation to make, I find it difficult to believe that the Constitution of the Commonwealth of Australia should be construed so as to limit the power of the Parliament to address for the removal of a judge, to grounds expressed in terms which in one eighteenth-century case were said to apply to corporations and their officers and corporators, and which have not in or since that case been applied to any judge. ⁶

Mr Wells stated:

. . . the word ‘misbehaviour’ must be held to extend to conduct of the judge in or beyond the execution of his judicial office, that represents so serious a departure from standards of proper behaviour by such a judge that it must be found to have destroyed public confidence that he will continue to do his duty under and pursuant to the Constitution.

. . . Section 72 requires misbehaviour to be ‘proved’. In my opinion, that word naturally means proved to the satisfaction of the Houses of Parliament whose duty it is to consider whatever material is produced to substantiate the central allegations in the motion before them. The Houses of Parliament may act upon proof of a crime, or other unlawful conduct, represented by a conviction, or other formal conclusion, recorded by a court of competent jurisdiction; but, in my opinion, they are not obliged to do so, nor are they confined to proof of that kind. Their duty, I apprehend, is to evaluate all material advanced; to give to it, as proof, the weight it may reasonably bear; and to act accordingly.

According to entrenched principle, there should, in my opinion, be read into section 72 the requirement that natural justice will be administered to a judge accused of misbehaviour . . . ⁷

Quick and Garran , pp. 731-2.

Senate Select Committee on the Conduct of a Judge, Report, PP 168 (1984) 58.

ibid., p. 27.

Parliamentary Commission of Inquiry, Special report dealing with the meaning of ‘misbehaviour’ for the purposes of section 72 of the Constitution, 19 August 1986, PP 443 (1986).

ibid., pp. 18-19.

ibid., p. 32.

ibid., p. 45.