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Tuesday, 4 September 1984
Page: 403


Senator GARETH EVANS (Attorney-General) —by leave-I wish to make a statement on the Government's response to the report of the Senate Select Committee on the Conduct of a Judge. The issues confronting the Government and the Senate arising out of the report of the Senate Select Committee on the Conduct of a Judge are about as serious as could possibly be imagined. An allegation has been made against a very senior Federal judge that, if substantiated, would amount to the commission by that judge of the criminal offence of attempting to pervert the course of justice. The evidence in support of that allegation has failed to convince the Senate Committee as a whole that there is a prima facie case against the judge, but equally it has failed to convince all members of the Committee that there is not.

The decisions that are taken on this report will have major consequences for the independence and the integrity of the Federal judiciary and the whole balance of power between the courts, the Executive Government, and each House of Parliament. Also, they obviously will have the most important consequences for the Federal judge concerned, Mr Justice Lionel Murphy, who has served on the High Court since 1975. He is now the most senior judge on the High Court, after the Chief Justice and Sir Anthony Mason, and, as occasion requires, presides over that court.

The matters to be dealt with must therefore not be approached lightly or dismissively, or in any partisan spirit. It is particularly important that the decisions we make in this matter-either on the part of Government or on the part of the Senate-not be a hothouse reaction to passing pressures that ignore the deeper issues and values that are involved. What we do now transcends the particular case. It will set the pattern for how our institutions respond in future to grave allegations of judicial misconduct without jeopardising the independence and integrity of the judiciary.

Proper Approach to Section 72

The decisions we take need to be taken in the light of the proper procedure and criteria to be applied when a House of Parliament addresses a question of misbehaviour under section 72 of the Constitution. Section 72 provides that a Federal judge:

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 the removal on the ground of proved misbehaviour or incapacity.

Address for removal is the only action that Parliament can take.

The Government's position on the criteria and procedures that are available under section 72 has been clear from the outset. On 28 February, I tabled the opinion of the Solicitor-General, which I believed-and still believe now-to be the sound and the correct interpretation on this matter. It pays due regard to the role of the Houses of Parliament, and at the same time addresses the basic issues of the independence of the judiciary and the separation of powers. The Government does not accept the view of section 72 contained in the opinion of counsel to the Senate Committee, Mr Pincus, QC, insofar as it supports giving each House of Parliament more or less unfettered freedom to say what private misconduct constitutes misbehaviour. In this connection, Mr President, I now table a supplementary opinion by the Solicitor-General, which confirms his earlier opinion and explains in full the reasons why he, as does the Government, rejects Mr Pincus's approach. The Government's view, based on the authorities fully cited by the Solicitor- General--


Senator Chipp —Do you table that or incorporate it?


Senator GARETH EVANS —I am happy to incorporate it in Hansard, if I have leave to do so, at the conclusion of the statement.


Senator Chipp —That would be valuable, if the Attorney-General would not mind doing so.


The PRESIDENT —Will the Attorney-General seek leave to have the document incorporated in Hansard at the end of the statement?


Senator GARETH EVANS —I will, Mr President. The Government's view, based on the authorities fully cited by the Solicitor-General, is that the concept of 'proved misbehaviour' in section 72 has only two possible areas of application. The first area is misbehaviour in the exercise of judicial functions, including neglect or non-attendance. In the absence of any question of criminal or civil liability of a kind appropriately proved in the courts, 'proof' here would have to be to the satisfaction of each House of the Parliament, following procedures established by Parliament.

The second area is misbehaviour involving a breach of the general law of such a quality as to indicate unfitness for office. Parliament would normally rely for 'proof' here on the outcome of ordinary court proceedings, but Parliament could also, should it choose to do so, prove the matter to its own satisfaction by properly established parliamentary procedures.

Counsel for the judge, Mr David Bennett, QC, has expressed the view that a conviction in court is necessary to establish 'proved misbehaviour', at least in relation to conduct not immediately pertaining to the duties of judicial office. The Government's view, as I have previously indicated to the Parliament, is not so limited. The traditional authorities, in particular Quick and Garran, in their Annotated Constitution of the Commonwealth of Australia, acknowledge a proper determining role for Parliament itself, although emphasising the very judicial way in which Parliament would need to act in such matters. Thus Quick and Garran say:

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.

The reference is to the 1901 edition, at page 732. While acknowledging a proper role for Parliament itself, as well as the courts, in establishing 'proved misbehaviour' for the purposes of section 72, the Government does not, however, accept that it would be constitutionally capable for the actual proof of misbehaviour to be vested in any other kind of body-for example, a royal commission, or a parliamentary commissioner or parliamentary commission purporting to exercise power delegated by one or both Houses. This follows, in our view, from the necessarily judicial character of the 'proving' process; it is a very long established principle in Australian constitutional law that Federal judicial power can be exercised only by courts either created or vested with jurisdiction under chapter III of the Constitution, and there could be few more sensitive tasks of a judicial character than determining proof of misbehaviour against a High Court judge. The only exception, as we see it, to the rule requiring judicial proof or court proof is that which enables proof to the satisfaction of Parliament itself, and that power is in turn vested in the Parliament by virtue of section 72 (ii)-itself part of chapter III of the Constitution which gives the legislature a central role in the removal process.

The most fundamental difficulty with Mr Pincus's interpretation of section 72- insofar as it would allow Parliament to range more or less at will in determining what constitutes 'proved misbehaviour' rather than being confined to the two categories I have identified above-is that it takes no account of the object or purpose of security of tenure given to judges by section 72. The Solicitor-General's original opinion points out that section 72 was intended to give 'conscious effect to the principle that the judiciary in our Federal system should be secure in their independence from the legislature and the executive'. The Pincus opinion just does not address the issues of judicial independence and separation of powers, and the consequences-for removal procedures under the Constitution-that flow from the emphasis given in the Constitution to those principles. Quick and Garran put the point very well at page 733 of their book quoting the relevant part of Todd's Parliamentary Government in England:

The peculiar stringency of the provisions for safeguarding the independence of the Federal Justices is a consequence of the federal nature of the Constitution, and the necessity for protecting those who interpret it from the danger of political interference. The Federal Executive has a certain amount of control over the Federal Courts by its power of appointing Justices; the Federal Executive and Parliament jointly have a further amount of control by their power of removing such Justices for specified causes; but otherwise the independence of the Judiciary from interference by the other departments of the Government is complete. And both the Executive and the Parliament, in the exercise of their constitutional powers, are bound to respect the spirit of the Constitution, and to avoid any wanton interference with the independence of the Judiciary. Complaints to Parliament in respect to the conduct of the judiciary, or the decisions of courts of justice, should not be lightly entertained . . . Parliament should abstain from all interference with the judiciary, except in cases of such gross perversion of the law, either by intention, corruption, or incapacity, as make it necessary for the House to exercise the power vested in it of advising the Crown for the removal of the Judge.

Some classes of 'misbehaviour' may not be subsumed by the approach of Quick and Garran-for example, partisan political activity or notorious private behaviour not directly related to, or affecting, the conduct of judicial office. So be it. What may be a cause for admonition by the Chief Justice of the court in question , peer group pressure and like forces, should not necessarily be regarded as grounds for dismissal. The separation of powers principle demands that the power of Parliament to remove a judge not extend to undefined residual areas of behaviour which are neither clearly illegal nor clearly related to the performance of judicial duties.

The 'Age' Tapes and the Briese Allegation

It is well to recall that the Senate Committee was established to inquire into and report upon the conduct of the judge as revealed by the Age tapes and transcripts. The Committee's findings on this question could not be more clear- cut. They were, first, that it was unable to conclude that these materials relating to the conduct of a judge were authentic or genuine except to the limited extent that limited acknowledgements had been made. Secondly, as to the tape recordings, there is nothing contained therein which could amount to or provide evidence of misbehaviour of the judge, whatever interpretation of section 72 of the Constitution is accepted. As to the transcripts, the Committee reported that no facts had been established in respect of conduct revealed by them which constituted misbehaviour under section 72, whatever interpretation of misbehaviour is accepted. Well may David Solomon say in the Australian Financial Review of 28 August that the Age 'did not come out covered in glory from the Senate investigation' and that:

. . . it is quite extraordinary that a paper which is generally concerned about proprieties should have carried such a thin report of the Committee's conclusions about material which the Age itself had published so prominently.

I say no more on that aspect.

The nub of the Committee's report clearly concerns the allegation made to it in the course of its inquiry by Mr Clarrie Briese, Chief Stipendiary Magistrate of New South Wales. The criminal nature of the allegation appears to have been downgraded by some commentators, but I point out that the Committee agreed, in paragraph 79 of its report, that the allegation of Mr Briese, if sustained by the evidence, was that Mr Justice Murphy had engaged in conduct which constituted the offence of attempting to pervert the course of justice. The Committee specifically referred to the offence to that effect created by section 43 of the Commonwealth Crimes Act. That is a very grave charge. The Committee did not seek to rule as a court on this charge but specifically limited itself to considering whether the evidence by Mr Briese could constitute the offence of attempting to pervert the course of justice. There was a difference of views on the Committee, as we all know. Senators Tate, Crowley and Bolkus did not believe that the evidence of Mr Briese was of sufficient strength to establish a prima facie case of misbehaviour by the judge. Senator Durack and Senator Lewis, without finding that the judge had been guilty of misbehaviour, concluded that there was a prima facie case against the judge. Senator Chipp, for reasons he carefully explained in his dissenting report and in his statement to the Senate on 24 August, felt unable to express a conclusion on this matter.

The seriousness of this offence and the clear division of opinion in the Committee have led the Government to conclude that further action of some kind needs to be taken to clear the air, and to remove the cloud hanging over the judge and the High Court. The question is what. So far as misbehaviour occurring otherwise than in the exercise of judicial functions is concerned, there are simply no precedents to bind or guide us, except that during the term of my immediate predecessor, Senator Durack, a serious criminal charge involving conduct not pertaining to judicial office was brought against a member of the Family Court of Australia and the judge was acquitted. Apparently that was regarded as the end of the matter. On that occasion, certainly, the matter was not raised in the Senate by Senator Durack or, so far as I am aware, by any other senator. Certainly, the situation in relation to investigations by Senate committees on matters of routine legislative inquiry provides no precedent as to the course that the present Committee should have followed, or that we in the Senate should now follow or authorise, in relation to the interrogation of the judge in the context of the possible application of section 72 of the Constitution.

Possible Approaches for Resolution of the Matter

The Government has therefore given most serious consideration as to how this situation should be dealt with. One approach would be to consider the institution of criminal proceedings, having regard to the essentially criminal nature of the allegation that has been made. A second approach would be to confine further consideration of the matter to the Parliament, in particular by reconstituting the Senate Committee and directing it to conduct on this occasion a judicial examination of the issues relating to Mr Briese's allegation. A third general approach that has been carefully considered is whether the resolution of these matters might most appropriately be achieved by a person or body, other than a criminal court, outside the political and parliamentary arena.

Approach I-Criminal Proceedings

In the Government's view, the proper course to adopt at this stage is to exhaust the criminal prosecution option before considering any other approach. This is justified by:

the nature and seriousness of the allegation, which has been made on oath and tested by parliamentary committee examination;

the belief by two Committee members that a prima facie case has been made out, with a third member not persuaded to the contrary; and

the likely inability of non-court and non-parliamentary procedures, including a royal commission or parliamentary commissioner, so called, to satisfy the technical 'proved misbehaviour' requirement in section 72 of the Constitution.

If it can be established that Mr Justice Murphy used the words 'and what about my little mate?', and did so with the intention of influencing the course of the committal proceedings involving Morgan Ryan, then the character of this conduct is criminal. If he did not use those words, or used them without that intent, then the conduct is innocuous. There is no middle ground in relation to that conduct. At this stage there is no evidence at all available to the Government to enable it to form a view on this question. All the Government has is the Senate Select Committee's summary of what Mr Briese has said in sworn evidence to the Committee. That, of course, is classic hearsay.

Since the tabling of the report in Parliament on 24 August 1984 Mr Briese has indicated to the Australian Federal Police, on an approach initiated by me, that :

(a) he did not propose to be interviewed at this stage;

(b) he did not intend to make a formal complaint; and

(c) he will decide his future conduct in the light of the decisions, if any, taken by the Parliament.

According to the Committee summary, Mr Briese gave evidence of a conversation which occurred when the judge telephoned Mr Briese and said he had discussed the question of the independence of the magistracy in New South Wales with the New South Wales Attorney-General and the Government was going ahead with legislation to give effect to it. Mr Briese states that the judge then said to him: 'And now what about my little mate?'. The Senate Select Committee report then makes the following observations on this evidence:

In evidence Mr Briese was unsure of the exact opening words of the inquiry (' and' or 'now' or 'and now') but was adamant that the question was asked with such emphasis as to suggest a link between the inquiry and the preceeding conversation

The Judge's recollection is that he did not use the expression 'my little mate' .

The description I have just given of the relevant events is based upon Appendix 5 of the Committee's report. Essentially what emerges is two materially different versions of the events-Mr Briese's version and the judge's version.

Assuming the judge did make the statement 'and now what about my little mate?' with the intention of influencing the course of the Morgan Ryan committal proceedings, there are three provisions of Commonwealth criminal law which may be relevant:

(a) section 33 of the Crimes Act 1914, which deals with official corruption and provides for an indictable offence with a maximum penalty of 10 years imprisonment;

(b) section 43 of the Crimes Act 1914, which deals with attempting to pervert justice with a maximum penalty of 2 years imprisonment; and

(c) section 7A of the Crimes Act 1914, which deals with inciting to or urging the commission of offences with a penalty of $2,000 or imprisonment for 12 months.

The 'Prosecution Policy of the Commonwealth,' tabled in the Parliament on behalf of the then Attorney-General, Senator Durack, in December 1982, lays down three principles which must be satisfied before prosecutions should be brought-

(a) the evidence must establish a prima facie case against the defendant;

(b) a prosecution should not normally proceed unless there is a reasonable prospect of conviction. It should be rather more likely than not that the prosecution will result in conviction-the so-called 51 per cent rule;

(c) whether in the light of provable facts and the whole of the surrounding circumstances, the public interest requires the institution of the prosecution.

(a) Prima facie case. The purpose of this rule is to ensure that the evidence in support of the prosecution is sufficient to establish the commission of the offence on the criminal standard of beyond a reasonable doubt. This principle must be satisfied by the application of objective professional judgment. Failure to apply this standard would be contrary to processes of the law and may expose an initiator of the prosecution to action for malicious prosecution.

(b) The 51 per cent rule. There are precedents to support the proposition that in cases of this kind a prosecution should be brought to clear the air, notwithstanding that the available evidence may not satisfy the 51 per cent rule . Sir Thomas Hetherington, the English Director of Public Prosecutions, has recently said that the 51 per cent chance of conviction rule will not be applied in the case of allegations against police officers, whose public position requires the ventilation in court of allegations which amount to prima facie evidence of crimes.

(c) Public interest considerations. It is axiomatic that prosecutions should not be brought otherwise than in the public interest. The question which arises is whether, in the light of provable facts and the whole of the surrounding circumstances, the public interest requires that a prosecution be brought. Among the many considerations that may be relevant in this respect is the desirability , even in circumstances of a relatively weak prima facie case, of bringing a prosecution to clear the air. One New South Wales precedent comes to mind: In 1964 a member of the typing pool at Parliament House made allegations of criminal misconduct against the then Chief Secretary. The Solicitor-General, although unconvinced of the likelihood of a prosecution succeeding, deemed it in the public interest to lay charges, and to instruct the President of the New South Wales Bar Council, then John Kerr QC, to prosecute. After hearing evidence , the magistrate declined to commit.

There are three persons who could make a decision to prosecute: (a) Mr Briese- or for that matter any private persons; (b) the Attorney-General; or (c) the Director of Public Prosecutions.

Mr Briese may be put aside at the outset. Although this course is open to him at law, he has made it clear that he does not intend either bringing proceedings , or making a complaint at this stage.

The Attorney-General could take the initiative in the matter. Notwithstanding the existence of the DPP it would be open to me to consider criminal proceedings , and institute them if I saw fit. I refer to section 10 of the Director of Public Prosecutions Act 1983. However, I have decided not to do so in this case. In reaching this decision I have had regard to the following matters:

(a) The Government has recently established the office of DPP to revitalise, and bring greater independence to, the prosecution of offences against the laws of the Commonwealth. I do not consider that I should bypass the proper function of the DPP in this matter. I envisage doing so only in the most exceptional circumstances.

(b) Much of the debate in this matter has been in the political arena. Should I decide not to prosecute or should I decide to prosecute and the prosecution fails, the criticism may well be made that these processes lacked independence. The DPP has been established to provide the degree of independence which is required.

This leaves only the DPP, and the Government has decided that he is the appropriate person to make any decision whether or not to prosecute. I accordingly foreshadow that I shall be moving at the appropriate time in the following terms:

That the Senate-

(1) refer-

(a) all evidence given before the Senate Select Committee on the Conduct of a Judge; and

(b) all documentary or other material furnished to the Committee,

relevant to the Briese allegation, to the Director of Public Prosecutions for consideration by him whether a prosecution should be brought against the judge, and

(2) request the Director of Public Prosecutions, should he conclude that a prosecution not be brought, to furnish a report to it on the reasons for reaching that conclusion.

If criminal proceedings are brought and determined only two consequences can follow: If the judge is convicted-presumably of attempt to pervert the course of justice under section 43 of the Crimes Act-the precondition of 'proved misbehaviour' under section 72 would appear to be clearly established, and an address could proceed without further Committee deliberation; if the judge is acquitted there would be no apparent remaining basis, so far as the particular Briese allegation was concerned, for any suggestion of some lesser form of section 72 misbehaviour.

Approach II-Further Parliamentary Procedures

Further consideration by the Parliament of the issues involved in an option which is certainly technically available on the views expressed on section 72 of the Constitution by the Solicitor-General and by me. However, the Government's view is that further consideration by Parliament should only proceed after exhaustion of the criminal prosecution option, as already outlined. There are a number of reasons why a further parliamentary procedure is not appropriate or desirable at this stage, but should only be a matter-if at all-of last resort.

First, given that the Committee was evenly divided on the question as to whether it should proceed from its initial investigative phase to a more formal 'judicial' phase, there would seem to be a strong case for an independent expert assessment of the question of whether there is a prima facie case, such as to justify a full scale 'judicial' proceeding, before that course is embarked upon. Secondly, while there may not always be any alternative procedure available for the resolution of particular kinds of section 72 misbehaviour questions that may arise, when as here the allegation is of criminal conduct, the Senate should be very slow to proceed to try the issue itself rather than resorting to the ordinary criminal processes.

Thirdly, allegations of criminal conduct demand compliance with rigorous procedures, and the careful application of appropriate standards of proof, by persons who are both expert and detached. I imply no criticism of the Senate Committee or any of its members, but the fact remains-as they would readily concede-that its members are less well-equipped to resolve these questions than the established procedures and institutions of the criminal law. Fourthly, the fact that a High Court judge is involved here means, consistently with separation of powers principles, that Parliament should involve itself in the process when, and only when, it is necessary for it to do so. It is not necessary for it to do so now since 'proof' of misbehaviour may be sought by other means, namely the ordinary criminal processes, and that again would appear the proper avenue for resolving the matter in the first instance.

None of these considerations weigh conclusively against any further consideration of this matter by a properly constituted-or reconstituted- parliamentary committee. I simply emphasise the desirability of matters of this kind, and gravity, being dealt with by ordinary criminal processes so far as is possible. In the event, however, that the DPP should advise that on the material presently available there is no basis on which a prosecution could or should proceed, it may be that the Parliament-the Senate-would wish to reconsider the question of some further Committee proceeding. Certainly, for reasons I shall shortly set out, there would appear to be no other appropriate machinery on which Parliament could properly rely for such further consideration.

If the Senate were to take the course of constituting or reconstituting a committee to conduct a further so-called 'judicial phase' inquiry, the appropriate course would appear to be to follow the general lines of the submission made by Mr Hughes, QC, on behalf of the judge-and endorsed in the report of Senators Durack and Lewis-by applying the principles of natural justice as follows:

(a) Taking any necessary evidence or further evidence in the presence of the judge and his counsel;

(b) permitting cross-examination of witnesses; and

(c) allowing the judge to then determine whether or not he would give sworn evidence and be subject to questioning by the Committee.

Approach III-Extra-parliamentary determination of issues (otherwise than through institution of criminal proceedings)

The Government has also considered other options for the determination of issues arising in this matter, in particular the following three possibilities which have each received a degree of public attention:

(a) An application by the Government, or possibly by the Senate through its President, to the High Court to resolve the questions both of law and fact that are raised by the Briese allegation;

(b) A royal commission specifically inquiring into the Briese evidence in relation to Mr Justice Murphy;

(c) A parliamentary commissioner or multi-member commission exercising delegated power from the Senate to determine the facts.

The Government has concluded, for reasons I shall now set out, that the problems with each of these courses are such as to warrant their exclusion from further consideration.

(a) APPLICATION BY GOVERNMENT OR THE SENATE TO THE HIGH COURT TO RESOLVE THE QUESTIONS OF BOTH FACT AND LAW

Although this approach would be a move to take the matter out of the political arena and to have all issues authoritatively decided, there is no obvious way of initiating proceedings in the High Court which the High Court would accept as both within its jurisdiction and within its duty to determine. I am not satisfied, in the absence of the kind of advisory opinions, jurisdiction that would have been available had a referendum proposal been put and passed on this occasion, that the High Court would have jurisdiction, and the Solicitor-General agrees. Moreover, it may be necessary for either the Senate or the Government to act as complainant and allege misbehaviour on the part of the judge in order to have standing to bring the matter before the Court. On the information available to it, the Government would not be prepared to take that course.

(b) ROYAL COMMISSION SPECIFICALLY INQUIRING INTO ALLEGATION OF MR BRIESE

The purpose of such a royal commission would be to establish a non-political impartial investigation by a body with coercive powers. However, there is an important question of principle whether that would be an appropriate step for the Executive Government to take, having regard to the independence of the judiciary.

Also, there must be a real doubt whether the Executive Government can, through a royal commission appointed by it, compel a Justice of the High Court to attend and answer questions relating to his possible removal. Clearly, there would be the possibility of a constitutional challenge.

The royal commission's report would not legally conclude anything. Its findings could not bind the Senate. In the final result, if the commissioner reported that the judge was guilty of the conduct complained of, parliamentary or criminal proceedings would need to be taken and the whole matter reheard. It is also relevant to mention here that evidence given by the judge before the commission would not be admissible against him in legal proceedings. Similar considerations apply in relation to a possible reference of the matter not to a royal commission but to the National Crime Authority; the only significant procedural difference between the Authority and a royal commission for present purposes being that while the evidence of the judge would be usable in subsequent proceedings, the excuse of self-incrimination would be available.

(c) PARLIAMENTARY COMMISSIONER OR COMMISSIONER EXERCISING DELEGATED POWERS FROM SENATE

There is no clear precedent for what has been proposed in relation to the appointment of a parliamentary commissioner with compulsive powers to conduct a hearing to determine the facts. Such nineteenth century English precedents as have been referred to appear to fall short of what is involved in the present case. It is not clear to what extent power was claimed and exercised to compel witnesses to appear before the persons appointed in those cases to gather information or examine documents or accounts on behalf of the parliamentary committees in question.

The Senate in 1982, on a motion by me, directed Senators Chaney and Guilfoyle to deliver to Sir John Minogue, QC, a retired judge, papers relating to tax avoidance and evasion. This was done so that Sir John Minogue could be given the function of editing 'bottom of the harbour' legal opinions held by the then Government with a view to the documents in their edited form being tabled in the Senate. This too falls far short of what would be involved in setting up a parliamentary commissioner with powers to conduct a hearing and to make findings of fact.

It follows that there must be a doubt about the power of the Senate to compel the attendance of witnesses before a parliamentary commissioner. Legislation could be considered to deal with this deficiency. However, the enactment of legislation purporting to delegate the 'misbehaviour-proving' function to a commissioner, while removing one possible area of legal uncertainty, would nonetheless still not put beyond doubt the possibility of a constitutional challenge arguing that such 'proving' had to be, if not by a court, then by Parliament itself, or at least by a parliamentary committee.

As well as the uncertainty in relation to the power to compel testimony before the parliamentary commissioner, there would also be uncertainty as to the protection available to the commissioner and witnesses in relation to things said in the course of the hearing. Obviously a question would arise whether the proceedings before the commissioner could be regarded as 'proceedings in Parliament' within the meaning of the protection afforded by the freedom of speech and debate clause contained in Article 9 of the Bill of Rights as applied to the Senate by section 49 of the Constitution. It would be important for those taking part in the proceedings before the commissioner, and for the commissioner himself, or the commission members themselves that the same privileges and immunities be available as if the proceedings were before a committee of the Senate, and firm assurances on this matter could not be given in the absence of express legislation.

This leads to a further problem with this course, and that is the question of whether it would be possible to find a suitable person or persons who would have the necessary qualities for the most serious and unprecedented role he, she or they would be asked to undertake, and who would be available and willing to undertake that role.

Finally I point out, in case there may be some misunderstanding on the point, that even if the Senate were to appoint a parliamentary commissioner he or she could not actually determine the question of misbehaviour. His or her findings could not constitutionally bind any member of the Senate. It would still be a matter for the Senate to decide whether the conduct amounted to 'misbehaviour' and a trial at the Bar of the Senate may, in the absence of a conviction by a court, be necessary for this purpose.

Conclusion

The course which the Government proposes is, in summary, that there be a reference of the matter in the first instance to the Director of Public Prosecutions in order that the criminal prosecution option may be fully considered, with any necessary further consideration-other than by the criminal courts-being by way of parliamentary rather than any extra-parliamentary process . The Government firmly believes that not only is this approach likely in the long run to prove the most expeditious, but that it is the only appropriate, responsible and constitutionally sound means of resolving such concerns as may continue to be felt following the tabling of the Senate Committee report.

What is abundantly clear is that the longer this matter lingers, the greater will be the damage caused to the reputation and prestige of the High Court and to the respect afforded to the institution of the judiciary generally. There is an enormous burden resting upon the Senate, and it is important that we discharge it quickly, conscientiously and honourably. I seek leave to incorporate in Hansard the text of the Solicitor-General's opinion.

Leave granted.

The opinion read as follows-

In the matter of Section 72 of the Constitution

SUPPLEMENTAL OPINION

1. In this matter, the conclusions of my opinion of 24th February 1984 were-

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. An Opinion dated 14th May 1984 of C. W. Pincus Q.C., counsel assisting the Senate Select Committee on the Conduct of a Judge, is Appendix 4 to the Committee's Report tabled in the Senate on the 24th August 1984. (As the paragraphs of the Pincus Opinion are un-numbered, I refer to it by its pagination in the published Committee Report).

The Pincus Opinion [at 13] extracts parts of paragraphs 19 and 21 of my opinion . I correct the following errors of transcription of these parts-

Paragraph 19-

line 1. 'function' not 'jurisdiction'

line 2. 'discretion' not 'jurisdiction'

line 4. 'of a' not 'for'

line 8. 'related' not 'relating'

Paragraph 21-

line 5. 'incumbent' not 'encumbent'

line 8. add 'or' after 'moral'

line 10. delete 'is'

The Pincus Opinion then states- Since, as will appear, I do not agree with the Solicitor General, it will be necessary to examine in detail the authorities on which he relies.

The conclusion of the Pincus Opinion [at 27], under the heading 'SUMMARY OF OPINION', is- As a matter of law, I differ from the view which has previously been expressed as to the meaning of s.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 s.72 to be enlivened, that an offence be proved.

I am asked to reconsider my opinion in the light of the Pincus Opinion.

3. I find it difficult to respond to the Pincus Opinion in any structured way. The Opinion does not acknowledge the distinction, shortly stated by Quick and Garran at 731 (set out in paragraph 5 below), that the tenure of British judges is determinable upon two conditions, namely for misbehaviour or by address from both Houses. The essential matter is that, with the English position in mind, the draftsmen of section 72 consciously departed from it. The relevant exercise in determining the meaning of the section is to identify these points of departure and to establish the consequences. The Pincus Opinion omits squarely to address these issues of construction arising from the terms of the section itself. Although the Pincus Opinion engages that it will examine in detail the authorities upon which I relied in my opinion, the course of its discussion is fixed more by reference to its own English and colonial precedents. For that reason, it is necessary separately to consider the force and relevance of the authorities drawn upon by the Opinion, and the manner in which they are put as advancing contrary argument.

4. It is necessary first to identify the matters of disagreement. The Pincus Opinion does not dissent from my conclusion that misbehaviour may be determined by Parliament. Unfortunately, it does not separately discuss the position in respect of misbehaviour pertaining to office. Misbehaviour of this sort, namely the improper exercise of judicial functions or wilful neglect of duty or non- attendance, was accepted by me as a matter to be found by proof in appropriate manner to Parliament. By inference, the Pincus Opinion does not demur from my conclusion that matters of these sorts are not predicated upon proof of any contravention of the law. Hence the difference between the opinions is limited to conduct not pertaining to office. My view is that a Parliamentary inquiry is limited to whether there is a contravention of law of the requisite seriousness. The conclusion of the Pincus Opinion [at 27] is that contravention of the law is not a relevant inquiry, it being for Parliament to decide whether 'any conduct alleged against a judge constitutes misbehaviour sufficient to justify removal from office'.

5. In paragraph 15 of my opinion I accepted the analysis of Quick and Garran ( at 731)- The substantial distinction between the ordinary tenure of British Judges and the tenure established by this Constitution is that the ordinary tenure is determinable on two conditions; either (1) misbehaviour, or (2) an address from both Houses; whilst under this Constitution the tenure is only determinable on one condition-that of misbehaviour or incapacity-and the address from both Houses is prescribed as the only method by which forfeiture for breach of the condition may be ascertained.

Quick and Garran (at 733-4), explain the reason for this difference (set out in full in my paragraph 9), namely, that- The peculiar stringency of the provisions for safeguarding the independence of the Federal Justices is a consequence of the federal nature of the Constitution, and the necessity for protecting those who interpret it from the danger of political interference.

For the reasons stated, I found that it was only misbehaviour falling within the first condition referred to by Quick and Garran which was embraced within the meaning of 'misbehaviour' in section 72. I also accepted that misbehaviour in this sense meant misbehaviour as a breach of condition of office held during good behaviour. Further, as noted above, I expressed the view that the improper exercise of judicial functions, and wilful neglect of duty or non-attendance, were matters which, if established, would constitute misbehaviour, and that for the purposes of section 72 such misbehaviour was not predicated upon proof of any contravention of the law. It was, and remains, my opinion that in matters of misbehaviour not pertaining to office, it is necessary for there to be proved a contravention of the law of the requisite seriousness.

6. As it does not address itself to the dichotomy between conduct pertaining to office and other conduct, much of the Pincus Opinion is directed to a false issue, namely, to establish that the word 'misbehaviour' in section 72 is not limited to 'proof of an offence'. The true differences seem to be first, that I regard 'misbehaviour' in section 72 as having a meaning limited to behaviour constituting a breach of condition of office held on good behaviour and, secondly, that in respect of misbehaviour not pertaining to office, my opinion is that such misbehaviour may be constituted only by a contravention of the law of the requisite seriousness. The relevant conclusion of the Pincus Opinion seems to be that for all categories of misbehaviour contravention of the law is not a relevant enquiry, and [at 27] that it is for Parliament to decide whether 'any conduct alleged against a judge constitutes misbehaviour sufficient to justify removal from office'. Apparently Parliament is to be guided in the task of enquiry as to whether 'proved misbehaviour' is established by reference to expressions of the sort to be garnered from the Opinion. Including references in authorities cited with approval in the Opinion, these expressions include formulations such as 'notoriously improper', 'misbehave . . . scandalously'), ' get into debt', 'any sort of misbehaviour', 'gross personal immorality or misconduct', 'corruption', 'irregularity in pecuniary transactions', 'moral misbehaviour', 'immorality', 'misconduct', or, as more widely expressed, 'a variety of reprehensible action or inaction, including mere immorality, or commercial misconduct not amounting to the commission of an offence at all' and 'outrageous public behaviour, outside the duties of their office'.

7. I confirm in paragraph 5 above my acceptance of the analysis of Quick and Garran which identifies the differences, and the principal reason for the differences, between the tenure of British judges and of Federal judges under the Australian Constitution. My conclusion was that section 72 applies to exclude all modes of removal other than for misbehaviour as a breach of condition of office. Only Parliament may initiate removal by way of address upon the specified ground, namely 'proved misbehaviour'. My argument was not based upon the broad application of the English authorities, either ancient or contemporary. It was based upon the proper construction of the terms of the section itself, aided by what was put as permissible references to both legislative history and to the clear departure of its terms from the then recognised position in respect of the tenure of office of British judges. Hence in a very real sense the matters discussed in the Pincus Opinion under its various headings stand outside the course of the argument which they are intended to attack. In particular, the Opinion neither recognises nor discusses the distinction in British constitutional law between the power to remove for misbehaviour as a breach of condition of office held on good behaviour, and the open-textured ground for removal upon address of both Houses of Parliament. For this reason, it is bordering upon irrelevant to engage in a detailed rebuttal of many of the points sought to be made in the Opinion. However some criticisms and observations usefully may be made. I follow the order of the sub-headings of the Pincus Opinion.

8. UNITED STATES [13-16]. I do not read the Pincus Opinion as itself drawing strength from American law. As I neither referred to nor relied upon American doctrine, it is curious that the Opinion first discusses the United States Constitution, particularly as this leads to the conclusion [at 16] that 'it gives no support to the view expressed by the Solicitor General'. Neither does it support the Pincus Opinion.

9. The Opinion contrasts the phrase 'Treason, Bribery and other High Crimes and Misdemeanours' in Article II, section 4 of the United States Constitution with the word 'misbehaviour' in section 72, to suggest that this 'simple word' was intended to be used without technical meaning. In its context, this comment is impermissable. It is clear that the word 'misbehaviour' as used in section 72 is derived from English constitutional law, and that it is not used in contrast with the terms of the American Constitution dealing with impeachment. Rather it is framed in conscious contrast with the law of judicial tenure in Britain. Secondly, and somewhat inconsistently with the first point, the Pincus Opinion also relies upon the alleged circumstance that the particular phrase in Article II has been read with a wider meaning than its terms suggest. If the Opinion here seeks to infer that if an equivalent to the American expression, such as ' treason, bribery, and other felonies and misdemeanours', appeared in section 72 it would be held to have a meaning wider than the commission of an offence, such a suggestion must be rejected out of hand. I comment also that the decision of Ritter v. U.S. referred to [at 15] has no relevance: the note at 300 U.S. 668 merely says that a petition for a writ of certiorari was denied, without reasons , and the report of the Court of Claims below, (1936) 84 Ct. Cls. 293, deals with the quite different point of whether proceedings in the Senate could be the subject of judicial review.

10. We are concerned with the meaning of 'proved misbehaviour' in section 72 of our Constitution. American constitutional law furnishes no relevant learning. This is more obviously so in respect of the construction of section 72 than in respect of other parts of the Constitution where there is less divergence, both in word and context, between the two Constitutions: see generally Attorney- General (Cth); Ex rel. McKinlay v. Commonwealth (1975) 135 C.L.R. 1, 24, 47; Australian Conservation Foundation v. Commonwealth (1978-1980) 146 C.L.R. 493, 530 and Attorney-General (Vict.); Ex. rel. Black v. Commonwealth (1981) 146 C.L. R. 559, 578-9, 598-9, 603, 609 and 652. Hence I put the American authorities on one side. They are of no assistance.

11. ENGLAND [16-19]. As has already been said, the failure of the Pincus Opinion to recognise the distinction between removal in cases of breach of condition of office held during good behaviour and the power of Parliament to address upon grounds not necessarily arising from a breach of such condition destroys the relevance of the discussion of English law which leads to the general conclusion that no offence need be proved to establish misbehaviour. The cases of Judge Kenrick, [discussed at 16], concerned a judge facing charges of misconduct in the House of Commons. The two cases are not reported in the Law Reports, but in (1825) 13 Parl. Deb., 2nd Ser. and (1826) 14 Parl. Deb., 2nd Ser . The allegations clearly involved criminal offences, but as the matter was before Parliament a breach of the law was not required to be established. For this reason, the quotation from Shetreet, Judges on Trial (1976), 143, [at 16], which deals with whether misconduct of a judge in his private life justified the address for removal, is unexceptionable.

12. The Pincus Opinion [at 17] goes on to make one of its several references to the supposed intention of the founding fathers or the draftsmen of the section: 'If the draftsmen of our Constitution knew of the practice of the English Parliament with respect to removal of judges, and intended to depart from it so significantly, it is remarkable that they made that intention so unclear'. In other parts of his Opinion Pincus also seeks to draw strength from negative surmise of intention; for example, at 14, 18-19, 22, 25 and 26. With respect, it must be said that such references do not advance argument; they more stand in substitution for it. In this particular aspect, I comment that in drawing section 72 the draftsmen made intention abundantly clear. When the conditions for tenure in England, as they were understood by the founding fathers, are contrasted with the terms of section 72 the intention of the draftsmen is made quite clear by the specific departures from English law. First, the section excludes all modes of removal other than that for misbehaviour as a breach of condition of office and, secondly, it makes Parliament the sole repository of the power to address upon the ground of such misbehaviour. As a further limitation, the misbehaviour is required to be 'proved'. This is the distinction recognised and stated by Quick and Garran, (set out in paragraph 5 above). In this aspect, it is difficult to suggest that the terms of section 72 could be framed in a manner more directly to distance the Australian provision from the English position.

13. As I merely made passing reference in paragraph 14 of my opinion to R. v. Richardson, when discussing the meaning of the expression 'infamous offence', the Pincus Opinion [at 17-18 and 21] also addresses a false issue by seeking to establish that this case does not bear upon the removal of English judges. (My discussion of what is 'infamous offence' is taken up in paragraphs 19 and 20 to lead to my conclusion that the relevant quality of contravention of the general law in respect of misbehaviour not pertaining to office is whether it is 'of such a nature as to warrant the conclusion that the incumbent is unfit to exercise the office'. Discussion of Richardson in the Pincus Opinion does not touch upon this conclusion).

14. For the reason stated in paragraph 12 above, I agree with the Pincus Opinion [at 19] in its comment that when they framed section 72 what the founding fathers had in mind as to the law about the removal of judges was English practice in the 19th century. Where we differ is in our statement of the relevant law in respect of judicial tenure in England, and in our recognition of the effect of the clear departures from the English position which are embraced by the terms of the section.

15. The Privy Council-Colonial Judges [19-22]. Although the issue of the Privy Council and colonial judges is separately discussed by Pincus, there is little reason to suppose that the draftsmen of our Constitution had any particular regard to the position of colonial judges up to the mid-nineteenth century. The tenure of colonial judges, including the judges of the Australian colonies before responsible Government, was much less secure than for English judges. For this reason I doubt very much the relevance of the Opinion's consideration of the peculiar position of colonial judges before the 1850's.

16. Even if relevant, the discussion under this heading does not take the argument of the Pincus Opinion any distance; indeed to the contrary. The authorities referred to very much support the distinctions made in my opinion. Willis v. Gipps [at 19-20] is concerned with the requirement that a judge be given an opportunity to be heard before removal. Although the facts are not set out in Moore's Reports, the conduct of Willis as a judge in the District of Port Phillip are matters of common historical knowledge: see, for example, B. A. Keon -Cohen, John Walpole Willis: First Resident Judge in Victoria (1972) 8 M.U.L.R. 703 and A. C. Castles, An Australian Legal History (1982), 239-243. The allegations against Willis were very much in respect of conduct pertaining to office, and hence misbehaviour within the meaning of section 2 of Burke's Act. Upon this statutory ground, no contravention of the general law was required to be established. The interjection of Parke B. [referred to at 20] is not relevant to the issue of whether misbehaviour not pertaining to office is predicated upon breach of the law.

17. The 1849 case of Montagu [discussed at 20-21] does not take matters any further. There always are dangers in seeking to establish a decision's authority by reference to successful counsel's argument. I contrast the comment of Deane J . in Hammond v. Commonwealth (1982) 42 A.L.R. 327, 341. What next follows after the quotation from Thesiger Q.C. [referred to by Pincus at 20] is a submission which makes it clear that his submission was that the case was one of misbehaviour pertaining to office- The Appellant having first put his lawful creditor in a situation which compelled him to sue for his debt in a Court of Justice, avails himself of his judicial station in that Court, being the only Court in which the action could be brought, to prevent the recovery of the debt, which he admitted to be due; this is an act impeding the administration, and thereby defeating the ends of justice, and was such a gross act of misbehaviour in his office, as amply to justify his removal. Secondly, it appears, from the evidence, that the various pecuniary embarrassments of the Appellant, while sitting as a Judge, in a Court composed of only two Judges, and necessarily requiring the presence of both, for the determination of all cases brought before it, were such as to be wholly inconsistent with the due and unsuspected administration of justice in that Court, and tended to bring into distrust and disrepute the judicial office in the Colony.

Hence each of the two grounds embraced by the quotation set out in the Pincus Opinion fairly is characterised as misbehaviour pertaining to office. On the underlying issue of misbehaviour, the decision was, in the judgment of Lord Brougham (at 499), that on 'the facts appearing before the Governor and Executive Council, as established before their Lordships, in that case, there were sufficient grounds for the motion of Mr. Montagu'. These facts are not set out in length in the report, but, as has been said, the submissions of Thesiger make it clear that they went to establish misbehaviour pertaining to office. As such, it did not, of course, require contravention of the law to constitute misbehaviour within section 2 of the Act.

18. The Memorandum of the Lords of the Council on the Removal of Colonial Judges, [constituting an appendix to 6 Moore N.S. and relied upon at 21-22] in no way supports the view that gross personal immorality is sufficient to justify removal as misbehaviour within the meaning of section 2 of the Act. What is clearly recognised in this Memorandum is the distinction between 'amotion' pursuant to the Act, upon which there was an appeal to the Queen in Council, and the separate and prerogative process whereby (whether with or without an order for suspension by the Colonial Governor), the issue of removal may be referred, upon Petition to the Queen, to the Privy Council for determination. This latter procedure was the colonial equivalent to the Parliamentary power to address for removal. In the Memorandum it is regarded as an exercise of a species of original jurisdiction, contrasted with the separate jurisdiction to hear appeals against actual removal pursuant to section 2 of Burke's Act. Of course the power of the Privy Council to act in its original jurisdiction was not limited to any narrow grounds of misbehaviour constituting breach of condition of good behaviour, and, for that reason, in cases not pertaining to office it was not tied to alleged contravention of the law.

19. There is a similar mixture of discussion in Lord Chelmsford's observations [referred to at 21-22]. The short statement of Lord Chelmsford merely adds some general comments to the Memorandum. It deals with both the appellate jurisdiction of the Privy Council under the Act and the original jurisdiction outside it. Lord Chelmsford accepts that a judge may be suspended pending the exercise of the original jurisdiction. The sentence after next to that quoted [ at 22] is- Such serious cases ought to be brought before the Privy Council, either by appeal on the part of the removed or suspended Judge, or upon the recommendation of the Secretary of State.

Hence the remarks are apt to cover both conduct constituting a breach of condition of office and other conduct which may justify petition to the Privy Council (either with or without suspension), analogous to the English Parliamentary power to address. Moreover, Dr. Lushington, who gave an opinion immediately after Lord Chelmsford, stated that the procedure of suspension and reference to the Privy Council in its original jurisdiction is appropriate in cases of the sort discussed.

20. In the result the Memorandum has little relevance to the proper construction of section 72. If it is an authority for anything, it supports the distinctions made in my opinion.

21. Convention debates [22-24]. As has been said, the meaning of section 72 is to be derived from the construction of its terms, standing within Chapter III and the Constitution as a whole, and having regard to the extent to which it provides that judicial tenure under the Constitution differs from tenure of British judges under English constitutional law. As is picked up in paragraphs 10 and 11 of my opinion, legislative history casts permissible light upon meaning. This does not mean that too much is to be constructed from selective quotation of the Convention Debates. The references made in paragraphs 12 and 17 of my opinion were for the limited (and, as was suggested, also permissible) purpose of ascertaining the mischief to be remedied. The identified mischief was the perceived necessity adequately to safeguard the independence of the judiciary as an essential feature of the Federation established by the Constitution. It does not further the task of construction to speculate [as does the Pincus Opinion at 22] that there may have been a silent majority of delegates in disagreement with those who spoke.

22. Clearly it was the primary concern of Mr Isaacs, both at the Adelaide Convention (20th April 1897) and at Melbourne (31st January 1898) to ensure that a decision of Parliament to address for removal should not be challengeable. It was at the Melbourne Convention that Isaacs accepted the amendment to add 'upon the ground of misbehaviour or incapacity'. Isaacs then accepted (Conv. Deb. at 313) that 'to remove any misconception, these words should be added, so that the Houses may show that they are not attempting to remove a Judge for anything but misbehaviour or incapacity'. His concern (also at 313) was to ensure that in the exercise of the power so limited, Parliament's decision should not be amenable to review- I want to lay it down distinctly that a Judge shall not be removed under any circumstances, except for misbehaviour or incapacity; but I want the verdict of Parliament-the verdict of the States House by itself, the verdict of the people's House by itself, the conjoint, independent and separate verdicts of these two Houses to be final and unchallengeable.

Of course the speeches and the opinions of Isaacs, and any other delegate, are not determinative of meaning. Reference to them merely is confirmatory of what is comprehended upon construction of the terms of section 72 itself, namely that it is for Parliament alone to address for removal, but upon the limited ground of proved misbehaviour or incapacity.

23. The Pincus Opinion [at 23] asserts that what is referred to as a critical sentence of Todd (set out in my opinion, paragraph 5) commencing 'Misbehaviour includes . . .' is hardly suggestive of an exhaustive definition. In its context , I disagree. Todd was there seeking to define misbehaviour constituting breach of condition of office granted during good behaviour which would support the exercise of the power of removal without address of Parliament. In other words, he sought to define the content of the first condition of office referred to by Quick and Garran (set out in paragraph 5 above). As he was seeking to mark out the limits of the amenability of a judge to removal by the Crown without address from Parliament, there is no reason to suppose that his statement was intended to be anything else but exhaustive. This particularly must be so in the circumstance that conduct not constituting breach of condition of office was nonetheless subject to address by Parliament on grounds which were required neither to pertain to office nor to arise from any alleged contravention of the law. It was this power of Parliament which Todd [at 860, quoted in my paragraph 6 and by Pincus (quoting Isaacs) at 23] described as one which 'may be invoked upon occasions when the misbehaviour complained of would not constitute a legal breach of the conditions on which the office is held'. Having acknowledged that the power to address for removal was not dependent upon misbehaviour pertaining to office or contravention of the law, it cannot be supposed that in the context of discussion of the power to remove for breach of condition of office, Todd contemplated the existence of an unspecified fourth or wider category of misbehaviour in addition to the three categories stated in his definition. There simply is no basis for inference that Todd embraced the possibility of any wider meaning of misbehaviour as part of the Crown's power to remove for breach of condition.

24. For the reasons stated, I also disagree with the comment in the Pincus Opinion [at 24] that it is a misapprehension to say that at the end of the 19th century the notion of judicial misbehaviour justifying removal from office had some received technical meaning. Misbehaviour, as a breach of what Quick and Garren refer to as the first condition of office, did have a technical meaning. In England, and in the Australian States, the Parliamentary discretion to address for removal remained at large. As has been seen, both British judges and colonial judges were amenable to removal for misbehaviour as a breach of condition of office; they were also liable to removal for some wider ground (not necessarily related to breach of the law) which would not constitute breach of the term for office held during good behaviour. The Pincus Opinion [at 24] does not take this matter any further by reference to what Mr. Wise said at the Adelaide debates. The comment in the Opinion is based upon a misconception. In any event, at 945, Mr. Wise makes it clear that here he was referring to the power of removing on address from both Houses, where, of course, to use the expression of the Pincus Opinion, 'no criminal conduct was necessary'.

25. GENERAL [24-27]. Contrary to what the Pincus Opinion states [at 24], it is not the case that a conclusion has been drawn 'too readily' that the use of the word 'misbehaviour' was intended to incorporate the law as to the removal of judges in England prior to the Act of Settlement of 1700, whether by reference to Coke or otherwise. My opinion draws no such conclusion by reference to the law of removal prior to 1700. As has been seen, what is contrasted with the terms of section 72 is the law in respect of the tenure of British judges, as it was seen when section 72 was drafted, and the obvious points of departure of section 72 from this law.

26. The Pincus Opinion [at 25] invites what is described as the 'safer course', namely, 'to come to the Constitution unaided by any authority, in the first place, and see if there is an ambiguity'. I readily accept that the words of section 72 should be construed within their context in Chapter III and the Constitution as a whole. The terms of section 72 do not stand alone. As the Pincus Opinion [at 25] points out for a contrary purpose, one is assisted in construing section 72 by the fact that it is the Justices of the High Court, and of other Federal Courts, who are being spoken of. To paraphrase the expression of the Opinion 'when one keeps the subject matter in mind' the limiting operation of section 72 becomes clear. Its interpretation is to be built upon the foundation of its context within the Constitution, as a whole, and recognition of the section's obvious and deliberate departure from the terms of judicial tenure under the British Constitution. Those differences are confirmed by the history of the section. As has been said, the reasons for section 72 being drawn to enhance the security of judicial tenure are sufficiently summarised by Quick and Garran, at 733-4 (referred to in paragraph 5 above). In essence, the Pincus Opinion concludes that Parliament may address for removal upon a ground defined upon its whim. The existence of such power would be destructive of the status and independence of the High Court as the independent interpreters of the Constitution and the Federation established by it. The example of the Pincus Opinion of a Judge becoming involved in political activities is inapposite. The relevant enquiry is whether the conduct complained of either constitutes misconduct pertaining to office or a contravention of the law of the requisite seriousness.

27. On the only occasion [at 26] where it refers to the principle, the Pincus opinion seems to accept that for breach of condition of good behaviour conduct outside official duties requires proof of conviction. The Opinion gives three grounds to support the view that this doctrine does not govern the use of the word 'misbehaviour' in section 72. In my view, none of these reasons sustains the load which Pincus seeks it to bear.

(1) Pincus asserts that both in England and the colonies before 1900 it is clear that the power to remove for judicial misconduct was not so confined. The answer to this is that in England before 1900 breach of condition of good behaviour was so confined; the quite separate power of Parliament to address always was unrelated to the issue of breach of condition of good behaviour. The position of the colonies is not particularly relevant on this aspect; although, as has been seen, the application of Burke's Act leads to the same result.

(2) The Opinion asserts that the language of section 72 makes it clear that conviction is not necessary in respect of conduct outside office. This assertion highlights the fact that the Pincus Opinion nowhere acknowledges that the requirement of section 72 is for 'proved' misbehaviour. The Opinion does not concede that there is any work to be done by this word to enhance the operation of the section. It is section 72 itself which requires an address of Parliament upon the ground of 'proved' misbehaviour. It must be that what is to be proved is to have some content. My view is that this requires the finding of grounds which constitute misbehaviour as a breach of condition of office held during good behaviour. It is difficult to comprehend that the proper meaning of the requirement for 'proved misbehaviour' is to be fixed by reference to undefined conduct left subjectively at large. The requirement for 'proved misbehaviour' does not rest easily with assertions that matters such as 'immorality', 'moral misbehaviour', 'a variety of reprehensible action or inaction, including mere immorality, or commercial misconduct not a mounting to the commission of an offence at all', or 'outrageous public behaviour, outside the duties of their office' are amenable to proof as misbehaviour.

(3) The Pincus Opinion suggests that it 'would have been foolish to leave Parliament powerless to remove a judge guilty of misbehaviour outside his duties , as long as an offence could not be proved'. (This is a variation of what is stated [at 25] with respect to 'outrageous public behaviour'). The Opinion asserts that this remark 'applies particularly to the High Court, which was to occupy a position at the pinnacle of the Australian Court system, and to exercise a delicate function in supervising compliance with the requirements of the Constitution on the part of the legislatures'.

Apart from begging the question as to what is misbehaviour, this comment ignores the obvious operation of section 72 to give direct effect to the principle that the judiciary should be secure in their independence from control by the legislature and the executive. Far from being a proper assumption that it was intended that a Justice of the High Court should be amenable to removal for undefined reasons relating to behaviour 'outside his duties', it is the position of the High Court in the Australian Constitutional structure which both explains and confirms the limitations which seem to be clearly enough embraced by the terms of section 72 itself. It is the antithesis of the recognition of the High Court as the arbiters of the Constitution to concede that there is a general power to control the composition of the Court by the application of an undefined power in Parliament to address for removal.

28. As to this aspect of the argument, I do not understand the relevance of the dialogue between Messrs. Isaacs and Barton (with the delegates playing chorus) extracted [at 27] for the stated purpose of 'casting doubt on the theory that there was an intention to limit the plain words of s.72 by ancient technical rules'. Far from modifying the words of section 72 by reference to ancient technical rules, it is the plain words of section 72 which alter the terms of judicial tenure existing in English law. Be that as it may, the dialogue itself is relevant only to the result which (as is noted in paragraph 22 above) Isaacs was anxious to ensure, namely, that it was for Parliament alone to determine the issue of misbehaviour. The dialogue says nothing relevant to the proper meaning of 'proved misbehaviour'.

29. Hence in as much as the argument of Pincus is intended there to be drawn together [at 26-27], it is suggested that the maters relied upon are destructive of the conclusion that the requirement for 'proved misbehaviour' in section 72 is not limited to that which would constitute breach of condition of office held during good behaviour.

30. The Pincus Opinion does not demonstrate error. This is not surprising for, as has been noted, it turns away from discussion of the mtters which I found determinative of the proper construction of section 72. My reconsideration of these matters goes to confirm my earlier opinion that, for proved misbehaviour in matters not pertaining to office, section 72 requires proof of contravention of the law of the requisite seriousness.

GAVIN GRIFFITH

Solicitor-General

3rd September 1984


Senator GARETH EVANS —I seek leave to give notice of motion.

Leave granted.


Senator GARETH EVANS —I give notice that, on the next day of sitting, I shall move:

That the Senate-

(a) refer-

(i) all evidence given before the Senate Select Committee on the Conduct of a Judge, and

(ii) all documentary or other material furnished to the Committee,

relevant to the Briese allegation, to the Director of Public Prosecutions for consideration by him whether a prosecution should be brought against the Judge; and

(b) request the Director of Public Prosecutions, should he conclude that a prosecution not be brought, to furnish a report to it on the reasons for reaching that conclusion.

Finally, I formally table my ministerial statement and move:

That the Senate take note of the statement.