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appointment of a judge to whom there was no salary payable by law. The principle of the decision, as well as the strong dictum of Lord Herschell quoted above, seem to be entirely applicable to the appointment of justices under this Constitution.

$ 294. “Shall not be Removed."

“ These words exclude all modes of removal other than the one mentioned. Ordinarily a colonial judge may be removed by the Governor and Council of the colony for misbehaviour, subject to a right of appeal to the Privy Council ; it being provided by the Imperial Statute 22 Geo. III. c. 75, that if any person holding an office by patent from the Crown shall be wilfully absent without reasonable cause, “or shall neglect the duty of such office, or otherwise misbehave therein,” the Governor and Council may remove him ; but if he thinks himself aggrieved, he may appeal to His Majesty in Council. The Judicial Committee of the Privy Council has repeatedly decided that this law applies to colonial judges. (Ex parte Robertson, re Gov. Gen. of N.S.W., 11 Moore P.C. 295 ; Todd, Parl. Gov. in Col., 46, 829, 837.) But the express words of the Constitution clearly make this statute inapplicable to Justices of the Federal Courts. Again, under the Imperial Statute 3 and 4 Will. IV. c. 41, s. 4, it is ordinarily competent for the Crown to refer to the Judicial Committee a memorial from the legislature of a colony, complaining of the judicial conduct of a judge, and thereupon the judge may be removed by Order in Council (Todd, Parl. Gov. in Col., p. 831); but this procedure also is clearly inapplicable to the Commonwealth. So also the modes of procedure by writ of scire facias to repeal the patent, or by criminal information at the suit of the Attorney. General --which are merely alternative ways of establishing misbehaviour (Todd, Parl. Gov. in England, ii. 859) --are excluded.

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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., Pud Ed., p. 835) that as the appointment of a Judge begins with the GovernorGeneral (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

* 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.

$ 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 possessivg 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.

§ 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 inust 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 nfit to exercise any otfice 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 LieutenantGovernor holds 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 GovernorGeneral 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 LieutenantGovernor 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 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

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.)

§ 298. “ The Remuneration shall not be Diminished.”

It has been held in the United States that Congress cannot, under the Constitution, levy a tax on the salary of a judicial officer of a State. (Buffington v. Day, 11 Wall. 113.) It would seem that a tax on the salary of the Justices of the Federal Courts would be equally unconstitutional, as being a diminution of their salary.

Appellate jurisdiction of High Court. 73. The High Court shall have jurisdiction299, with such exceptions and subject to such regulations 300 as the Parliament prescribes, to hear and determine appeals301 from all judgments, decrees, orders, and sentences 302__

(i.) Of any Justice or Justices exercising the original

jurisdiction of the High Court303 : (ii.) Of any other federal court, or court exercising

federal jurisdiction%; or of the Supreme Court of any State305, or of any other court of any State206 from which at the establishment of the Commonwealth an appeal lies to the

Queen in Council : (iii.) Of the Inter-State Commission, but as to

questions of law only 307 : and the judgment of the High Court in all such cases shall be final and conclusive30s.

But no exception or regulation prescribed by the Parliament shall prevent the High Court from hearing and determining any appeal from the Supreme Court of a State in any matter in which at the establishment of the Common

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