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§ 296. “On an Address from Both Houses.”

The provision as to the address differs from those of the Act of Settlement, the British North America Act, and the Australian Constitutions, by the requirement that the Address must pray for removal “on the grounds of proved misbehaviour or incapacity.” As to the English power, Todd says (Parl. Gov. in Eng., ii., 860):—“This power is not, in a strict sense, judicial; it 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. The liability to this kind of removal is in fact a qualification of, or exception from, the words creating a tenure during good behaviour, and not an incident or legal consequence thereof. In entering upon an investigation of this kind, Parliament is limited by no restraints, except such as may be self-imposed.” These words are quite inapplicable to the provisions of this Constitution. Parliament is “limited by restraints” which require the proof of definite charges; the liability to removal is not “a qualification of, or exception from, the words creating a tenure,” but only arises when the conditions of the tenure are broken; and though the procedure and mode of proof are left entirely to the Parliament, it would seem that, inasmuch as proof is expressly required, the duty of Parliament is practically indistinguishable from a strictly judicial duty. The importance of this distinction is, however, much diminished by the fact that it is recognised that the procedure under the Act of Settlement ought to be conducted on strictly judicial lines. The matter is discussed, and the proper procedure indicated, by Todd (Parl. Gov. in Eng., ii., 860-875), where it is laid down that “no address for the removal of a Judge ought to be adopted by either House of Parliament, except after the fullest and fairest enquiry into the matter of complaint, by the whole House, or a Committee of the whole House, at the Bar; notwithstanding that the same may have already undergone a thorough investigation before other tribunals”—such as a Royal Commission or a Select Committee.

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.

FROM BOTH HOUSES.—Todd (Parl. Gov. in Eng., ii. 872) lays it down as “evident” that while it is equally competent for either House to receive complaints and even to institute enquiries as to the conduct of Judges, yet “a joint address under the statute (i.e. the Act of Settlement) ought properly to originate in the House of Commons, as being peculiarly the impeaching body, and pre-eminently ‘the grand inquest of the High Court of Parliament.’ ” The Parliament of the Commonwealth, however, is neither a High Court nor a body possessing power of impeachment; and however desirable it may be that the House of Representatives should take the initiative, if the unfortunate necessity for a joint address under this section should ever arise, the reasons given by Todd have no application.

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