§ 297. “On the Ground of Proved Misbehaviour or Incapacity.”

MISBEHAVIOUR OR INCAPACITY.—Misbehaviour means misbehaviour in the grantee's official capacity. “Quamdiu se bene gesserit must be intended in matters concerning his office, and is no more than the law would have implied, if the office had been granted for life.” (Coke, 4 Inst. 117.) “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.)

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“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. (See notes, § 294, supra; and Todd, Parl. Gov. in Eng., ii. 857.) 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.

RESPONSIBILITY OF MINISTERS.—The question then arises whether the Address from both Houses practically determines the removal, or whether the Governor-General in Council must exercise a constitutional discretion and incur the final responsibility of action. In England, it is said that an address from the two Houses of the Imperial Parliament ought to recapitulate the acts of misconduct which have occasioned the adoption thereof, “in order to enable the sovereign to exercise a constitutional discretion in acting upon the advice of Parliament.” (Todd, Parl. Gov. in Col., 2nd ed., p. 613). That discretion would, of course, be exercised, like every other executive act, upon the advice of responsible Ministers; so that in England it seems to be recognized that the Executive, notwithstanding the Address, is not relieved of the responsibility of satisfying itself in the matter.

Under this Constitution, however, the procedure differs in two respects. In the first place, the power of removal, upon address, is given, not to the Governor-General, but to the Governor-General in Council; and in the second place, the Address itself can only be passed on the ground of a proved breach of the legal tenure of the office.

The words “in Council,” so far from establishing any difference between the English and Australian systems, seem rather to establish an identity. They indicate that the Governor-General acts in this regard, not as the servant of the Queen, but as the constitutional ruler of Australia; and that the responsibility of his action rests upon the shoulders of his advisers. The real question, therefore, is whether the Executive Council must bear the responsibility themselves, or whether they can rely solely upon the address as the justification of their executive act, and thus leave the whole responsibility with the Houses of Parliament—the body to whom the Constitution entrusts the judicial duty of establishing the proof of misbehaviour or incapacity.

The Letellier case, in Canada, throws some light on this question. M. Letellier was Lieutenant-Governor of the Province of Quebec, and his action in dismissing his Ministers in 1878 led to resolutions in both Houses of the Dominion Parliament condemning his action. By sec. 59 of the British North America Act, a Lieutenant-Governorholds office during the pleasure of the Governor-General, but is not removable within five years after his appointment, except for cause assigned. The Dominion Ministry advised the Governor-General to remove M. Letellier; and on the Governor-General demurring to this policy, the Premier informed him “that it was not at all necessary, in order to justify their advice, to go behind the vote of Parliament; even if their opinion had been adverse to that arrived at by Parliament, it seems clear that they are bound to respect that decision, and to act upon it, as they have done, by advising the removal.” Ultimately the Governor-General, on the suggestion of the Secretary for State, asked the Ministers to review their action, and to satisfy themselves whether it was “necessary for the advantage, good government, or contentment of the Province that so serious a step should be taken as the removal of the Lieutenant-Governor from office.” After “anxious consideration,” they adhered to their advice, and M. Letellier was removed.

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With respect to the contention of Ministers in that case that it was unnecessary to go behind the vote of Parliament, Todd observes:—

“This statement involves a complete abnegation of ministerial responsibility, and a surrender of the safeguards over individual rights which ministerial responsibility is intended to afford. We have elsewhere shown that ‘any direct interference by resolution of parliament in the details of government is inconsistent with and subversive of the kingly authority, and is a departure from the fundamental principle of the British Constitution which vests all executive authority in the sovereign, while it ensures complete responsibility for the exercise of every act of sovereignty.’ And that ‘no resolution of either house of parliament which attempts to adjudicate in any case that is within the province of the government to determine has of itself any force or effect.’ Even where parliament has been invested by statute with the direct right of initiating a criminatory proceeding for the removal of a high public functionary, as where a judge is declared to be removable upon an address from the two houses of the Imperial Parliament, constitutional practice requires that, in any such address, ‘the acts of misconduct which have occasioned the adoption thereof ought to be recapitulated, in order to enable the sovereign to exercise a constitutional discretion in acting upon the advice of parliament.’ ” (Todd, Parl. Gov. in Col., 2nd ed., pp. 612-3.)

M. Letellier's case illustrates the general principles of Ministerial responsibility; and, on the authority of Todd, that principle extends to the removal of a Judge after the semi-judicial procedure by Address under the Act of Settlement. This Constitution, however, goes much further than the Act of Settlement by making the decision of the two Houses substantially a judicial one; and it is certainly open to argument that this circumstance goes far to transfer the real responsibility from the Executive Council to the Houses of Parliament.

At the same time, it cannot be ignored that the act of removal is an executive one, and is entrusted by the Constitution to the Executive department—that is, to the Governor-General in Council. It is hard to conceive of a case in which an Address passed by both Houses in the same session, alleging that misbehaviour or incapacity was proved, would not be concurred in by the Executive Council; but if such a case should arise, the members of the Executive Council are the keepers of their own consciences, and the advice which they give to the Governor-General cannot be dictated to them by the Houses of Parliament. For whatever action they take or refuse to take they will be responsible in the ordinary way both to the Parliament and to the people.

SUSPENSION.—The Constitution makes no mention of any power to suspend Justices. It may be argued that the power of amotion carries with it the lesser power of suspension, and that a Justice may be suspended by the same procedure by which he may be removed. (See Todd, Parl. Gov. in Eng., ii. 890-898.) But a more serious question is whether the Governor-General in Council, without a joint address from both Houses alleging “proved misbehaviour or incapacity,” may in any case suspend a Justice of a Federal Court. On the one hand, the Constitution does not expressly prohibit suspension, and “at common law the grantor of an office has the power to suspend the grantee from his duties, though not to affect his salary or emoluments.” (See opinion of Att. Gen. of Vic., cited Todd, Parl. Gov. in Eng., ii. 893; Slingsby's case, 3 Swanston 178.) On the other hand, the English Crown law officers, in the Queensland case cited in Todd, Parl. Gov. in Eng., ii. 896, deny the right of a Governor (even where he possesses power of amotion under 22 Geo. III. c. 75) to suspend a Judge holding office during good behaviour. It would seem that suspension is a temporary removal, and that as the Governor-General in Council has no power of his own motion to remove, he has no power to suspend. Certainly such a power would be open to dangerous abuses, and might endanger the independence of the Bench as a constitutional bulwark against Parliamentary encroachment.

REASONS FOR SECURITY OF JUDICIAL TENURE.—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

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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.” (Todd, Parl. Gov. in Eng., i. 574.)