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§ 295. “Except by the Governor-General in Council.”

The Constitutions of the Australian colonies provide for removal by “Her Majesty;” but this Constitution follows the B.N.A. Act, which provides (sec. 99) for removal “by the Governor-General.” It is argued in Canada (see Todd, Parl. Gov. in Col., 2nd Ed., p. 835) that as the appointment of a Judge begins with the Governor-General (not with the sovereign) it also ends with the Governor-General, and that a right of appeal to the Crown in Council is excluded. This contention seems greatly strengthened, under this Constitution, by the use of the words “Governor-General in Council,” which make the decision that of the Federal Executive. There is, however, no authority directly in point. The cases in which the orders of amotion made by Governors have been referred to the Privy Council were under the Act 22 Geo. III. c. 75, which makes special provision for appeal. By the Constitutions of the Australian colonies, which provide that the Houses of Parliament of the colony may pass an address to “Her Majesty” for the removal of a Judge, the Governor and Executive of the colony give no decision at all. The decision in such a case is entrusted to the Queen, acting on the advice of her Imperial Ministers, and it seems that the dismissal of a Judge is not regarded as a mere ministerial act, but as one involving a grave responsibility, which Her Majesty will not be advised to incur without satisfactory evidence that the dismissal is proper. (Todd, Parl. Gov. in Col., p. 613.) There is then no appeal to the Queen in Council; though the Queen may (as in the case of Judge Boothby, of South Australia) seek the advice of the Judicial Committee before deciding. (Todd, Parl. Gov. in Eng., ii., 899, 906.) Here, however, the responsibility is thrown on the Federal Executive, and in the absence of any provision for an appeal, it would appear that its decision is final. The case in fact appears to be closely analogous to the removal of a British Judge by the Crown on addresses from the Imperial Parliament.

As to the question whether the Governor-General in Council, to whom the power of amotion on address is given, is entrusted with any constitutional discretion as to the exercise of that power, see note on Responsibility of Ministers, § 297, infra.




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