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§ 294. “Shall not be Removed.”

These words exclude all modes of removal other than the one mentioned. Ordinarily a colonial judge may be removed by the Governor and Council of the colony for misbehaviour, subject to a right of appeal to the Privy Council; it being provided by the Imperial Statute 22 Geo. III. c. 75, that if any person holding an office by patent from the Crown shall be wilfully absent without reasonable cause, “or shall neglect the duty of such office, or otherwise misbehave therein,” the Governor and Council may remove him; but if he thinks himself aggrieved, he may appeal to His Majesty in Council. The Judicial Committee of the Privy Council has repeatedly decided that this law applies to colonial judges. (Ex parte Robertson, re Gov. Gen. of N.S.W., 11 Moore P.C. 295; Todd, Parl. Gov. in Col., 46, 829, 837.) But the express words of the Constitution clearly make this statute inapplicable to Justices of the Federal Courts. Again, under the Imperial Statute 3 and 4 Will. IV. c. 41, s. 4, it is ordinarily competent for the Crown to refer to the Judicial Committee a memorial from the legislature of a colony, complaining of the judicial conduct of a judge, and thereupon the judge may be removed by Order in Council (Todd, Parl. Gov. in Col., p. 831); but this procedure also is clearly inapplicable to the Commonwealth. So also the modes of procedure by writ of scire facias to repeal the patent, or by criminal information at the suit of the Attorney. General—which are merely alternative ways of establishing misbehaviour (Todd, Parl. Gov. in England, ii. 859)—are excluded.

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