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17. Chapter XVII. Organization of Courts: Judicial Tenure: the Constitution of the Federal Courts.

By section 79, the federal jurisdiction of any court may be exercised by such number of judges as The Parliament prescribes.

The Judicial Office.

The statutory provisions, which in England secure the independence of the judges of the superior Courts, have been generally reproduced in the self-governing Colonies. It may indeed be no longer necessary, that they should offer “a barrier to the despotism of the prince”; but the political power, which has passed from the throne, is not less likely to magnify itself in the hands of a Parliamentary Executive or a legislative body. Against the abuse of sovereign power no legal protection is possible, and, the Imperial Parliament being supreme, the judges in England necessarily hold office and emoluments at the will of Parliament. But the universal acknowledgment of the sovereignty of Parliament is sufficient to prevent those conflicts of authority, which in the past have been the occasion of attacks upon the bench.

In the Colonies, however, legislatures are not supreme, and “encroachments and oppressions” against the law may not be unknown. In the early days of responsible government in Australia, there were some sharp conflicts between

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the popular chamber or the Parliamentary Executive and the Courts, and even between Parliament and the Courts, in which, it must be owned, that it was not always the judges who carried away the honours of war. There was a disposition on the part of some judges, as there has been on the part of the military authorities, to regard themselves as standing outside the system of responsible government, and as entitled, in their official relations, to communicate with the Governor without the intervention of a Minister. There was in South Australia, what Sir Roundell Palmer and Sir Robert Collier described as “an unfortunate disposition manifested upon the bench to favour technical objections against the validity of Acts of the Colonial legislature.” And this “unfortunate disposition” was made by the Government and the Legislature the excuse for the perpetuation of a Court of Appeals consisting practically of the Executive Government, a tribunal the unfitness of which called for strong remonstrance from the Secretary of State. In Victoria, during the “deadlocks” of 1865 and 1867, the Courts were called on to adjudicate upon the measures taken by the Government, with the support of the Legislative Assembly, for carrying on the government of the Colony without an Appropriation Act; and in two cases decided against the validity of the Government Acts.note

It is not, therefore, an ideal arrangement, which makes the judges of the Supreme Courts removable on the address of the two Houses of the Legislature. The power of removal upon such address, in some Colonies, belongs to “Her Majesty”; in others, “to the Governor in Council.” Where the power is exerciseable by Her Majesty, it is upon the advice of the Secretary of State; and it has been established that “in dismissing a judge in compliance with addresses from a local legislature, and in conformity with that law, the Queen is not performing a mere ministerial act, but adopting a grave responsibility, which Her Majesty cannot be advised to incur without satisfactory evidence that the

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dismissal is proper.”note Where, on the other hand, the power under the local law is in the Governor, he must act as in other matters upon the advice of his Ministry, and there is no legal security that the occasion is a proper one for dismissal. It seems clear, that, in such a case, there is no power to appeal to the Queen in Council.note

The appointment, tenure, and emoluments of Justices, not of the High Court alone, but of the other Courts created by The Parliament, are defined by section 72. They

i. Shall be appointed by the Governor General in Council.

(This is in accordance with the practice which now prevails in self-governing Colonies, where the judges are appointed by the Governor by commission. Formerly, the judges received a grant of their office by Letters Patent from the Crown.)

ii. Shall not be removed except by the Governor-General in Council, on an address from both Houses of The Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity.

iii. Shall receive such remuneration as The Parliament may fix; but the remuneration shall not be diminished during their continuance in office.

These provisions go beyond those contained in any English or Colonial Act, or in the Constitution of the United States, for protecting the judiciary. As in the United States, the tenure of emoluments of judges of all federal courts are protected by the Constitution; while the Constitution supplies a defect which has been noticed in the American Constitution, it prescribes the minimum number of justices in the High Court. The English and Colonial model gives no protection against Parliament; the power to remove on an address of both Houses is in addition to the power to remove for misbehaviour. In the Commonwealth, these independent powers are interwoven—the Executive

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may remove only upon an address, which is to be based on proof of the causes stated.

Nevertheless, it is not less true of the Commonwealth than of the United States, that the judicial department does not really have an independent existence with the legislative and executive departments. That there is no legal process for compelling the Governor-General in Council to proceed to the appointment of judges, is no more than may be said of other powers and duties, notably the summoning of The Parliament. But, while there is the imperative necessity of obtaining money or authority to spend money to secure the latter, there is not the same necessity for appointing judges or preserving the existence of Commonwealth Courts. The Ministry of the day and the two Houses of The Parliament would, it cannot be doubted, be the sole judges of what constituted misbehaviour or incapacity, and when or how such misbehaviour or incapacity was “proved”; their action would not be subject to review in any court of law. Though a judge may not be removed except as provided, the legislature may abolish courts other than the High Court; and there is nothing to protect the judges from loss of office upon such an event, and nothing to secure them compensation. The legal consequences of such an abolition have been discussed in the United States on the action of Jefferson in 1802.note The remuneration of judges is not fixed or appropriated by the Constitution, and the provision for salaries is, of course, within the discretion of the Executive and The Parliament. A recent decisionnote of the Judicial Committee, however, throws light upon the constitutional provisions as to the appointment and tenure of judges. An Imperial Act, 15 and 16 Vict., c. 72, appropriated a sum of money for the salary of a Chief Justice and a puisne judge in New Zealand, and gave power to the General Assembly of New Zealand to alter these appropriations by any Act or Acts, provided that the salary of a judge should not be diminished during his continuance in office. An Act of New Zealand—

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the Supreme Court Judges Act, 1858—enacted that the Supreme Court should consist of “a Chief Justice and such other judges as His Excellency in the name and on behalf of Her Majesty shall from time to time appoint.” Under this power the Government appointed an additional judge, for whom a salary had not been provided by Parliament. Parliament refused to appoint a salary, and proceedings were taken by quo warranto against the judge. The Judicial Committee said: “It is manifest that the limitation of the legislative power of the General Assembly was designed to secure the independence of the judges. It was not to be in the power of the Colonial Parliament to affect the salary of any judge to his prejudice during his continuance in office. But if the Executive could appoint a judge without a salary, and he needed to come to Parliament every year for remuneration for his services, the proviso would be rendered practically ineffectual, and the end sought to be gained would be defeated. It may well be doubted whether this proviso does not by implication declare that no judge shall hereafter be appointed save with a salary provided by law, to which he shall be entitled during his continuance in office, and his right to which could only be affected by that action of the New Zealand legislature, which is excluded by the Imperial Act.” After such an intimation of opinion, the Executive will be practically bound to submit to Parliament a permanent appropriation of salary for a new judgeship before the office is filled, and will act rightly in refusing to make any judicial appointment without such permanent provision.

Limitations Upon Constitutional Provisions as to Judicial Power.

The general vesting of the judicial power of the Commonwealth in Courts, whose justices are protected under section 72, may raise the question whether any judicial power may be exercised, except by courts constituted as required by section 72. In the United States it is accepted, notwithstanding the general terms used, that a certain amount of

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judicial power has been commonly, and perhaps necessarily, associated with certain offices; and that this power is exerciseable under the United States by the like officers, though they are not protected under the terms of the Constitution. It has been said that the Constitution, in speaking of courts and judges, means “those who exercise all the regular and permanent duties which belong to a court in the ordinary popular signification of the terms.note The Justices of the Peace under the authority of the United States, exercising duties partly judicial and partly executive and ministerial, are not regarded as “courts” within the Constitution. There are in fact many officers who are called on, in the ordinary course of their duties, to discharge functions which blend the judicial and administrative, as masters, chief clerks, and some other officers of court. These officers will not be within the Constitutional provision. The same may be said of the Inter-State Commission and of courts martial, administering military law over persons in the defence forces of the Commonwealth. Of courts martial of the United States, Winthropnote says, that “although their legal sanction is no less than that of the federal courts, being equally with these authorized by the Constitution, they are, unlike these, not a portion of the judiciary of the United States, and are thus not included among the ‘inferior courts’ which Congress may from time to time establish.”.… Not belonging to the judicial branch of the Government, it follows that courts martial must appertain to the executive department; and they are in fact simply instrumentalities of the executive power, provided by Congress for the President as commander-in-chief, to aid him in properly commanding the army and navy and enforcing discipline therein, and utilized under his orders or those of his authorized military representatives.note