Judges' Appointment, Tenure, and Remuneration.

72. The Justices of the High Court and of the other courts created by the Parliament—

  • (i.) Shall be appointed293 by the Governor-General in Council:
  • (ii.) Shall not be removed294 except by the Governor-General in Council295, on an address from both Houses296 of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity297:
  • (iii.) Shall receive such remuneration as the Parliament may fix; but the remuneration shall not be diminished298 during their continuance in office.
UNITED STATES.—The judges, both of the Supreme and inferior courts, shall hold their offices during good behaviour; and shall, at stated times, receive for their services a compensation, which shall not be diminished during their continuance in office.—Art. III., sec. 1. CANADA.—The Judges of the Superior Courts shall hold office during good behaviour, but shall be removable by the Governor-General on Address of the Senate and House of Commons.— B.N.A. Act, sec. 99.

HISTORICAL NOTE.— The origin of this clause dates from the early constitutional struggles in England between the Crown and the people. Anciently, the judges held their commissions during the King's pleasure, and under the Stuart kings the Bench was systematically packed with partizans of the Crown. As early as Lord Coke's time, indeed, the Barons of the Exchequer were appointed during good behaviour (4 Inst. 117); and at the restoration of Charles II. the Commissions of the Common Law Judges were in this form. (Kent's Commentaries, i., 293.) But there was no statutory restriction on the Crown's pleasure until 1700, when the Act of Settlement (12 and 13 Will. III. c. 2) provided that “judges' commissions be made quamdiu se bene gesserint, and their salaries ascertained and established; but upon the address of both Houses of Parliament, it may be lawful to remove them.” In 1760, by the Act 1 George III. c. 23, it was further provided that judges' commissions should continue notwithstanding the demise of the Crown, and their salaries were secured to them during the continuance of their commissions. These enactments for securing the dignity and independence of the Bench form the basis of the constitutional provisions to a similar effect throughout the British Empire.

In Great Britain, therefore, as well as all the Australian colonies, and in the Dominion of Canada, judges hold their office “during good behaviour,” and can be removed by the Crown for misbehaviour without any address from Parliament; whilst, apart altogether from any question of technical misbehaviour, they can be removed by the Crown upon an address from both Houses. In the Commonwealth Bill of 1891 a new principle was introduced, and it was provided that the Judges should hold office during good behaviour, and that it should “not be lawful for the Governor-General to remove any Judge except upon an address from both Houses of the Parliament praying for such removal.” The intention apparently was to make the Address a necessary part of the procedure in cases of misbehaviour.

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In the first draft of the Adelaide Bill this intention was made clear. In Committee, at Mr. Kingston's suggestion, the tenure was still further secured by limiting the Parliamentary power of intervention to cases of “misbehaviour or incapacity.” It was pointed out that in a Federal Constitution, where the Courts were the “bulwarks of the Constitution” against Parliamentary encroachment, the Judges' independence of the Legislature should be specially safe-guarded. (Conv. Deb., Adel., pp. 944-962.)

In the Melbourne session the tenure was still further secured by providing that the Parliamentary addresses must pray for removal “upon the grounds of proved misbehaviour or incapacity;” thus ensuring that the Judge should be heard in defence, and that the charge against him should be alleged in the address. (Conv. Deb., Melb., pp. 308-318.) Drafting amendments were made before the first Report and after the fourth Report.