COMMENT

THE REMOVAL OF JUDGES FROM OFFICE IN WESTERN AUSTRALIA

The independence of the judiciary, which is widely acknowledged to be basic to the proper administration of justice, is often attributed pri- marily to the difficulty of removing a judge from office.' This article deals with the procedures by which a judge may be removed from the Supreme Court and examines the validity of judges' commissions in Western Australia.

T o discover how a Western Australian judge may be removed, the state legislation governing judicial tenure must be examined in the light of similar English provisions, taking account of problems which arise from variations in local procedure and from the rules governing Im- perial-Colonial relations. The first question in this enquiry is whether a judge may be removed only on an address from Parliament, or whether removal in some other way for a failure to be of good behaviour is pos- sible. The procedures available to effect removal for misbehaviour are then considered; the address procedure has been omitted, partly for reasons of space and partly because of the extreme vagueness at present surrounding the constitutional conventions governing its use in the ex. colonies. Finally, the Colonial Leave of Absence Act 17822 is examined, in order to ascertain whether it may still provide a procedure for the removal of Western Australian judges and in order to consider its effect, if any, on the commissions of judges presently holding office.

'ADDRESS' AND 'GOOD BEHAVIOUR' AS SEPARATE REQUIREMENTS

There seems to be no significant difference between ss. 54 and 55 of the Western Australian Constitution and s.9 of the Supreme Court Act which so far as relevant, read:

s.54 The Commissions of the present judges of the Supreme Court

LL.M., Barrister and Solicitor (W.A. ) 1 E . 5 De Smith. JudicialReview r,jAdminzstra~ir~e Action 3rd ed. (1973) 5 . 2 Hereinafter referred to as 'Burke's Act' an usage which is apparently incorrect (see

Stroud's Judicial Dl'cll'onary (1971) 349). but which is perpetuated here for the sake of brevity.

WESTERN AUSTRALIAN LAW REVIEW

and of all future judges thereof shall be, continue and remain in full force during their good behaviour . . . s.55 It shall be lawful nevertheless for Her Majesty to remove any such judge upon the address of both Houses of the Legislature of the Colony.

s.9(1) All judges of the Supreme Court shall hold their offices dur- ing good behaviour, subject to a power of removal by His Majesty upon the address of both Houses of Parliament.

As Roberts-Wary points the words 'subject to' in the latter Act will act as a qualification upon any provision preceding them in the same way as words like 'but' or 'provided always' or the even clearer 'never- theless' of the Constitution. It has been argued that the proviso relating to the address is not itself a separate limitation on judicial tenure, but merely describes the process by which breach of the condition of good behaviour is to be a~certained.~ As Hearn points out,= this interpreta- tion is unsatisfactory in principle; it also seems unsatisfactory as a matter of statutory interpretat i~n.~ By far the greater number of con- sidered writings on the subject' support the view which, simply as a result of ordinary statutory interpretation, seems to be the correct one, namely that 'good behaviour' and the address procedure are separate qualifications imposed on judicial tenure. As Isaacs and Rich J.J. said of the similar provisions in the Act of Settlement, . . .' the legal result was that the Crown could only interfere with a judge either

(1) for misbehaviour; or (2) if the House of Parliament desired it'.

MISBEHAVIOUR -DEFINITION

It is an ancient and apparently well established proposition that the grant of an office during good behaviour creates an estate for life in the office, determinable upon breach of the condition of good behav i~ur .~ : 'Misbehaviour' in this context means abuse or neglect of the officelo or a

3 Commonwealth and Colonial Law (1966) 489. 4 E.g. Chitty, Prerogatives of the Crown (1820) 82. 5 The Government of England 2nd ed . (1887) 83-84. 6 Roberts-Wray, supra n . 3, at 486.9. 7 Most are noted in Shetreet, Judges on Trial (1976) 94. 8 McCawley v . The King(1918) 26 C . L . R . 9 at 59. 9 Co Lt. 41a; 3 Bacon Abr.. 'Offices and Officers'at 733; Chitty, supra n. 4 , at 85. :

10 Earl o f Shrewsbury case (1610) 9 Co. Rep. 42a at 50a, 77 E.R. 793 at 804. Opinion o f Roundell Palmer (Attorney-General) and Sir William Atherton: Victoria, Legislative Assembly. Volesand Proceedings 1866. at 581.

COMMENT

conviction for any infamous offence which, even though unconnected with the duties of the office, is such that it renders the offender unfit to hold office.

MISBEHAVIOUR- PROCEDURES

It has been said, in relation to the U.K., that a judge's office, held during good behaviour, may only be determined by

(i) Criminal information (ii) Impeachment, or

(iii) Scire FaciasI2

All these are surrounded by difficulty and, as will be seen, it may be that none could be used to effect the removal of a judge in Western Aus- tralia. Other procedures which may be considered are:

(iv) Quo warranto (v) Declaration and

(vi) Injunction

The possible use of Burke's Act is discussed separately.

(i) Criminal Information

Criminal information is one procedure which commentators have suggested for removing a judge. Its most frequently quoted source is a suggestion made in Barrington's Case by Mr Denman, later Lord Chief Justice, in his capacity as counsel for SirJonah Barrington.13

It has been asserted that conviction for an offence will automatically repeal the judge's commission, entitling the Crown to seize the office without further proceedings.I4 A difficulty with this approach, however, is that if, as suggested in Richardson's Ca~e ,~%nly conviction for an 'in. famous offence' (if not connected with judicial duties) will constitute 'misbehaviour' in this context, there would seem to be a need for some procedure by which the 'infamy' of the offence could be established.

'Infamy' in this sense may not always be immediately apparent, as is clear from discussions in cases relating to professional discipline.I6 T o

11 R. V. Richardson 1. Burr. 539: Opinion of the Attorney.General and the Minister for Justice: Victoria, Legislative Assembly, Votes and Proceedings 1864 at 4 .

12 Usually said to be, apart from the address, the only procedures available, e .g . Barrington's case (1830) 62 LordsJournals 599 at 602.

1 3 Id. 14 5 Comyns. Digest of the Laws cgEngland 5th ed. 215: per Mr Denman in Kendricks

Case (1826) 14 Parl. Deb. 2nd ser. at 660. 15 Supra n. 1 1 . 16 E.g. with respect to legal practitioners- Atkins, New South Wales Solicilors Mattual

3rded, (1975) 65.

WESTERN AUSTRALIAN LA W RE VIEW

leave this question to the Executive would appear inconsistent with both the history of the 'good behaviour' requirement in Englandi7 and with the express terms of the legislation, which appears to allow removal only in cases of actual misbehaviour, rather than in cases which the Crown believes to constitute misbehaviour. Attempts by the Crown to remove judges for non-criminal misbehaviour without scire facias have been resisted by judges in England,18 apparently on the ground that actual misbehaviour is required, and this reasoning would appear applicable also to cases of criminal misbehaviour (although a criminal conviction may make actual misbehaviour easier to establish).

The effect of criminal proceedings on a judge's tenure is not, then, entirely clear, and in no case has seizure of an office been attempted only on the strength of a conviction. The availability of this method of removing a judge cannot, therefore, be asserted with any certainty.

(ii) Impeachment Impeachment is widely regarded in England as being ob~ole te , '~

although there are some who argue that it may still be available in ex- ceptional circ~mstances.2~ It is described by CushingZi as a proceeding in which the Commons appear solely as complainants or accusers, while the Lords perform the functions of a judicial tribunal; the purpose of the proceeding is the prosecution of 'high crimes and misdemeanours, chiefly of an official or political character, which are either beyond the reach of the law, or which no other authority is competent to prosecute'. Punishment may include deprivation of office.

The procedure has been used against judges in England, the last case occuring in 1725, and most instances appear to have been motivated by political factors, particularly by the desire of Parliaments to punish judges who sided with the Crown against Parliament.*l The probable obsolescence of the proceeding, the partisan nature of most past judicial impeachments, and the availability to Parliament of the address pro- cedure, are all reasons for suggesting that impeachment, even if it were

17 Briefly recounted in Roberts-Wray, supra n. 2 . at 484.5. 18 Foss, Biographia Juridica (1870), cases of Sir John Archer at 14-15, Chief Baron

Walter at 701. In each case the King attempted to discharge the judge who refused to surrender his office without a scire facias 'to show whether he did se bene gesere, or not'.

19 E.g. Hood Phillips, Constitutionaland Administrative Law 5th ed. (1973) 97. The last impeachment of any kind was that of Lord Melville in 1805.

20 Erskine May, Parliamentary Practice 17th ed. (1964) at 38-40. 21 Cushing, Elements of the Law and Practice of Legislalir~e Assemblies in the U . S . A .

(1874) paras 2535, 2539. 22 Shetreet, supra n. 7. at 125-128.

COMMENT 309

still available, would not be a proper procedure for an English Parlia- ment to attempt to use in order to remove a judge.

It seems probable, however, that the power of impeachment is not available to the Western Australian Parliament at all. By s.1 of the Parliamentary Privileges Act 1891 (W.A.), enacted under the power conferred by s.36 of the Western Australian Constitution, it is declared that the privileges, powers and immunities of both the Legislative Assembly and the Legislative Council 'are hereby defined to be the same as are, at the time of the passing of this Act, or shall hereafter for the time being be, held, enjoyed and exercised by the Commons House of the Parliament of Great Britain and Ireland . . .'

In relation to a similar provision in s.49 of the Commonwealth Con- stitution Odgers lists, as one of the relevant powers of the Commons, 'the right to impeach'.Z3 This is clearly correct to the extent that both Houses do possess the power of the Commons in relation to impeach- ment. For an impeachment to be carried out, however, there must also be, as noted earlier, an exercise of the historic judicial powers of the House of Lords and, as these powers are conferred on neither House of the Western Australian or Commonwealth Parliaments, the carrying to completion of an impeachment proceeding would seem to be impos- sible. It appears that unless the powers of one or the other of the Houses of the Imperial Parliament are specifically conferred, a Colonial Parlia- ment will have only those powers necessary to protect its legislative pro- cesses (e.g, to punish contempt) and so the judicial power to complete an impeachment cannot be implied.Z4

This conclusion is supported by the following observation in the judg- ment of the Chief Justice of Victoria, Sir William Foster Stawell, delivered in 1864,25 in relation to a similar Victorian provision:

The power of impeachment enables the House of Commons to act as accuser before the House of Lords, acting as judges. It is a relative, and cannot actively exist without its correlative, the judicial power. But the impossibility at present of either body [of the Victorian Legislature] actually exercising such a relative power as this, owing to the absence of its correlative, does not restrict the general words of a clause creating a power . . .. Whether some of the privileges in question must, from the inapplicability of circum- stances, at present lie dormant, is comparatively unimportant.

Either because of a lack of power in the Western Australian Parliament

23 Odgers, Auslralian Senate Pracl ic~ 5th ed. (1976) 638. 24 Bourinot, Cowtitutiona~History (JCal~ada (1901) at 130-132. 25 Murphy v . Dill, reported on appeal as Dill v. Murphy 1 Moo P.C. (N.S.) 487 at 498-9,

15 E.R. 784 at 788.

310 WESTERN AUSTRALIAN LAW REVIEW

or because of the doubtful status of the procedure, impeachment should probably not be regarded as a means of effecting the removal of a judge in this State.

(iii) Scire facias

Scire facias is 'a writ founded upon some matter of record, as judgments, recognisances and letters patent, either to enforce them or, as in the case of letters patent . . . to set them aside'.Z6 It is said that to every Crown grant, or franchise, there is annexed by the common law an implied condition that it may be repealed by the crown or, upon the fiat of the Attorney-General,Z7 by a subject grieved if the Sovereign has been deceived in, or subjects prejudiced by, the grant.z8 It appears to have been generally agreed that (apart from the exceptional cases of im- peachment or- for judges- address) where an office is granted by let- , ters patent during good behaviour or for life, scire facias is the only way , in which the grant may properly be repealed.29

It seems, however, that the appointment of a judge will not, in Western Australia, be a 'matter of record'; unlike Crown grants and charters in England, which were sealed in the Petty Bag Office (until its abolition)-on the common law side of the Court of Chancery-and became records there. There is no similar process of 'recording' an ap- pointment in a court in Western Australia and it would appear from a case dealing with the disposition of South Australian Crown land30 that i t will not suffice, to found a writ of scire facias, if the procedures followed are the closest Australian equivalent for a 'record'. If there is no formal 'record' in the technical sense, the writ cannot issue. This , would appear to preclude any use of scire facias to repeal a judicial ap- i pointment in Western Australia. As Hood-Phillips remark^,^' if scire ~ facias be unavailable, as appears to be the case in Western Australia, the question of what procedure is available to effect removal is 'obscure'. Of the existing remedies, the only ones which may be suitable appear to be (iv) the information in the nature of quo warranto, (v) the declaratory judgment and - possibly - (vi) i n j u n c t i ~ n . ~ ~

26 Halsbu~y's Encyclopaedia ($the Lpws ufEnglarrd 2nd ed. vol. 13. 'scire facias' entry by Short (at 153); Chitty's Archbold's Practice 14thed. (1885) vol. 2 , p. 1285.

27 T O which the subject appears to be entitled as of right, if the grant is to his prejudice: Robertson. Civil Proceedings by and agairlst the Crown (1908) 537.

28 Forsyth's Cases and Opinions on Constitutional Law (1969) 387; R. v. Butler 3 Lev. 220. 83 E.R. 659.

29 Comyns'Digest, supra n. 14, 'Tit Officer'. 'K.11'; Chitty. supra n. 4. at 87: 'his right appearing as of record, the same must be defeated by matter of as high a nature'.

30 R. v. Hughes(1865) 3 Moo N.S. 439, 16 E.R. 166. 31 Constitutional and Administrative Law 4th ed. (1967) 355. 32 For removal by bareexecutive action see discussion infra. at 12-14.

(iv) Quo Warranto

Quo warranto was originally a high prerogative writ available against one who claimed or usurped any office, franchise or liberty, to inquire by what authority he supported his claim.33 The writ, or the informa- tion in the nature of quo warranto, has been sought against, inter alia, judges of the County Courts, magistrates, recorders, coroners and privy counsellors.

The writ also lay in cases of non-user, abuse or neglect of a franchise, and if a defendant were judged cguilty of any of these, the court might give judgment of ouster against him.34 Nearly all discussions of the remedy, in relation to the inquiry into abuse, mention this only in rela- tion to franchises, implying perhaps that i t is thought that i t is available to deal with usurpation of an office, franchise or a liberty, but with abuse only of a franchise.35 As a misbehaving judge possibly cannot be said to have 'usurped' his office, but only to have abused or neglected i t , some doubt is raised concerning the applicability of quo warranto to this situation.

However, the writ has been used to test whether a person still holds an office when he accepts a subsequent appointment alleged to be inconsis- tent with that office36 and, while this was in one of the cases termed an '~surpa t ion ' ,3~ these caws at least illustrate the possibility of tenure of an office being challenged for behaviour subsequent to taking i t by means of quo warranto. Further, if one considers the broad definition of quo warranto set out above, there would seem to be no reason in principle why the writ should not extend to a challenge to judicial tenure; if i t is true to say of removal for misbehaviour that 'the tenure of the office is not thereby abridged; but i t is forfeited and declared vacant, for non- performance of the condition on which it was originally c ~ n f e r r e d ' , ~ ~ i t

would seem appropriate to employ a prerogative writ to inquire 'by what authority' a claim to continue in occupation of the office is sup- ported.

Supporting this deduction from principle, quo warranto was de- scribed by Lush J. 39 as 'the process by which persons who claim to exer- cise public functions of an important and substantial character . . . can

33 Short & Mellor, T h e Practice o f t h e Crow11 Office 2nd ed . (1908) 17. 34 Jowitt, D i c t i ~ ~ i a r y OfErlglish Law 2nd ed. (1977) 1490. 35 Id. at 1489. 36 R. v . Palleson: (1832) 4 B & Ad 9 . 110 E . R . 358 (office of Alderman). R . v . Parham

(1849) 13 Q.B. 858, 116 E.R. 1491 (office of County CourtJudge). 37 R . v . Parham; supra n. 36, 38 Opinion, Roundell Palmer and Sir William Atherton, supra n. 10, at 581. 39 R . v . Speyer; R . v . Cassell [I9161 1 K . B . 595 at 627.

WESTERN AUSTRALIAN LA W REVZE W

be called to account if they are not legally authorised to exercise them' (arguably the case if a judicial office were forfeited for breach of the good behaviour condition). His Honour also noted40 that 'the process is enforced for the benefit of the community, and is the only available remedy if the office is either abused or If this is correct, it should be possible (subject to the difficulties noted in the discussion of declaration) to apply this procedure to the removal of a judge. .

(v) Declaration

Declaration may be the remedy Jackson contemplated wben he said that, if scire facias is unavailable, a judge in the United Kingdom might , be removed 'by motion in the Queen's Bench Divisi~n.'~Z A 'motion' is simply an application made to a court or judge, the object of which is to obtain some order or rule;'3 it is still necessary to decide what a substance of the order or rule is to be, and it may be that a declaration would serve the purpose of removal of a judge.

The first major difficulty in seeking a declaration for this purpose lies in the possible availability of quo warranto as, although the availability of a prerogative writ will not necessarily preclude an applicant from seeking declaration, it may do SO." Declaration was refused in one action because quo warranto was available, partly on the ground that , there were special features of the quo warranto information- the en- quiry into whether there was a 'competent relator', and into the motives ~ of the plaintiff- which were particularly suitable in the case before the court.45 It is probably true to say that quo warranto is a remedy par- ticularly adopted to the removal of officers and that, if it is available, i t

might be appropriate to seek this remedy rather than declaration. How- ' ever, whether quo warranto is available or not, the court has a very wide discretion in relation to the granting of d e ~ l a r a t i o n , ~ ~ and i t will in any event be open to the court to ensure that an action which is frivolous or unnecessary is not brought. If all parties to an action consent to the

40 Id. at 628. 41 Emphasis added. 42 Jackson, The Machinery ofJustice in England 6th ed. (1972) at 368, n. 1. An otherwise

identical footnote in the 7th edition (at 461) omits the reference to procedure- possibly inadvertently, or possibly because, as noted, the comment is so vague as to be quite unhelpful.

43 Jowitt. supra n. 34. at 1206. 44 Pyx Granite Co. Ltd v. Minister of Housing and Local Government [I9061 A.C. 260 at

290; approved by GibbsJ. Forster v. Jododex (1972) 127 C.L.R. 421 at 438. 45 Everett v. Griffiths [I9241 1 K . B . 941. 46 E.g. Hanson v. Radcliffe Urban Council [I9221 Ch. 490 at 507; Ibeneweka v. Egbuna

[I9641 1 W.L.R. 219.

grant of declaration, for example, it seems that the objection that there exists another process with particular safeguards loses much of its force.47

Different considerations arise, too, where the Attorney-General is a party to the action, and it would seem that he must be a party before an application to remove a judge could be considered, as even if a private individual were a party aggrieved by the action of a judge (e.g. by judicial misconduct in relation to a case in which the individual was a party), the subsequent removal of the judge would appear to have no utility as a means of correcting whatever damage the individual might have suffered, and a declaration could be refused on the ground of in- utility.48

When, however, the Attorney-General is a party to an action brought to vindicate public rights, it would seem that it is not open to the court to refuse to hear the action,4g nor can the court question the interest of the relator, if there is one.50 Although the court may, after hearing the Attorney-General's action, decide that the case is not a proper one in which to grant declaration, it seems that the courts will be more hesitant in such a case in deciding that declaration is inappropriate than they would be were the action simply a private oness1

The question of what the substance of any declaration should be is a difficult one, because declaration is merely a statement of rights, not strictly enforceable and not strictly binding on any parties who are not formally before the c0urt.~2 It seems then, that in an action by, for example, the Attorney-General (or even the Governor) against a judge, a declaration will not of itself vacate the office as a scire facies would have done. However i t would seem possible to obtain a declaration that the situation is one in which the Governor could or should dismiss the

and this would seem to be sufficient authority for the Governor to declare the office vacant and to appoint a new judge. The res judicata effect of the declaration would prevent proceedings by the judge to reverse a dismissal.

4 7 Everett v. Griffiths supra n . 45 . at 956. 48 Zamir, The Declarato~yJudgmertt (1962) at 64-67. 1919-4. 49 London County Council v. Attorney-General [1902] A .C . 165, at 168.9. 50 Attorney-General v. Vivian (1825) 1 Russ 226 at 237 (38 E .R . 88 at 92);

Attorney.General v. Crayford Urban D .C . [I9621 Ch. 585 at 585, 590. 51 Attorney-General v. Harris [I9611 1 Q . B . 74 at 87, 92. 95. 52 Zamir, supra n . 48, at 6: Ibeneweka v. Egbuna supra. n . 46 , at 225. 53 It is apparently not necessarily an objection to a declaration that it declares the rights

of the Governor; Electrical Development Co. of Ontario v. Attorney.General for Ontario [I9191 A .C . 687.

314 WESTERN AUSTRALIAN LA W RE VIEW

(vi) Injunction

Injunction has also been suggested apparently as a means of removing judge.5+ It is true that an injunction will restrain a judge from con- nuing a sit in an office to which he has ceased to be entitled. An in- ;

junction will not of its own force vacate the office, though, and a bare injunction would appear to have the unsatisfactory result that a judge could neither sit nor be permanent.1~ repla~ed.~5

EXECUTIVE REMOVAL

So far the discussion of remedies has been based on the premise that some judicial proceeding is necessary in order to remove a judge. This may not be so in Western Australia however; it is arguable that it is given to the Crown simply to dismiss a judge, who would then be in a position of having to resort a judicial proceedings if the dismissal could be shown to be for reasons other than misbehaviour. The joint opinion of the Victorian Attorney-General and the Minister for Justice appears to support this contention; it says56 that 'in the case of official miscon- duct, the decision of the question whether there be misbehaviour, rests with the grantor, subject, of course, to any proceedings on the part of the removed officer'. It is true that the opinion immediately goes on to say that where the office is granted for life by letters patent the for- feiture 'must' be enforced by scire facias, but the authority given as the source of this proposition is ultimately traceable to Chitty's assertion that 'his right appearing as of record, the same must be defeated by matter of as high a nature'. As has been noted earlier, a judge's right in Western Australia does not 'appear as of record', and it may be there- fore that court proceedings are not necessary in order to rescind it.

The use of some sort of judicial proceeding in order to remove a judge would seem the more prudent course, however, even if it is strictly un- necessary. This is so partly because a degree of executive control over judicial tenure would be asserted by a bare dismissal that would be en- tirely contrary to the spirit of the Act of Settlernent,5' from which the West Australian legislation is derived. Further, the writings on the sub- ject, in relation to both the United Kingdom and Colonies, stress the need for some sort of judicial proceeding to enforce removal with such unanimity that it would seem doubtful whether much reliance could be

54 De Smith, Constitutional and Administrative Law 2nd ed. (1978) 373. 55 See Supreme Court Act 1935, s.7(2). 56 Victoria, Legislative Assembly, Votes and Proceedings 1864, at 41; endorsed by Todd,

Parliamentary Government in England (1869) 727. 57 Shetreet, supra n. 7, chapter I .

COMMENT 315

placed on the fact that the appointment is not strictly a 'matter of record', as it is still a solemn grant of what is usually seen as effectively a life office. 5 8

In any event, relevant precedents describing what procedures are available for removal are so few that attempted removal might well be thought to be the kind of situation contemplated in Eastern Trust Co. v. McKenzie, Mann B C O . ~ ~ where the Privy Council said that in certain situations it is the duty of the Executive to seek the Court's opinion of the legal position before taking any action. At the least, such a course would tend to minimise any political controversy which might follow from an erroneous or doubtful purported exercise of the power to dis- miss. It may also be the case that a subject aggrieved by the behaviour of a judge may ask for the Attorney-General's fiat in an action for removal, or that the Attorney-General may wish to take action for removal with as little involvement of the Sovereign as possible, and in either of those cases judicial proceedings would be required.

BURKE'S ACT

The Colonial Leave of Absence Act 1782 (U.K.) (22 Geo 3 c.75) is an important Act in two respects: Firstly, if not repealed in relation to Western Australia, it may provide an additional means of removing judges in this State; and secondly, whether repealed or not, i t is arguable that the effect of this Act is to invalidate those sections of the Western Australian Constitution and Supreme Court Act dealing with judicial tenure and possibly, at one extreme, to invalidate the commis- sions of the present judges.

(i) Means of Removal

As a means of removal of judges, Burke's Act was used on a number of occasions early in the history of the various British Colonies and, if not repealed, it would appear to be still available for this purpose. The Act provides that if any person holding office by Letters Patent shall be wilfully absent from the Colony wherein the same is or ought to be exer- cised, without a reasonable cause to be allowed by the Governor and Council of the Colony, or shall neglect the duty of such office, or other- wise misbehave therein, i t shall be lawful for the Governor and Council to remove such person from the office in question. Any person who is

58 Id. at 94-97. 152-3: Cowen & Derham 'The Independence of Judges' (1953) 26 A.L.J. at 463.

59 [1915] A.C. 750 at 758: 'It is the duty of the Crown and of every branch of the Executive to abide by and obey the law. If there is any difficulty in ascertaining i t the courts are open to the Crown to sue and it is thr duty of the Executive in cases of doubt to ascertain the law in order to obey it . . . '

WESTERN AUSTRALIAN LA W RE VIEW

aggrieved by such a decision is given a right to appeal to the Privy Coun- cil.

By the Statute Law Revision Act (U. K . ) 1964 the whole of Burke's Act is repealed. However, it is not the case that every repeal in the United Kingdom of an Act or part of an Act extending to Australia will neces- sarily operate as a repeal of the Act for Australia. Whether it operates as such a repeal or not will depend on the construction of the repealing

The Statute Law Reuision Act does not by express words repeal Burke's Act as it extends to Western Australia and it is not at present clear whether anything short of an express application to Western Aus- tralia will result in repeal of legislation in force in the State. In Bistricic v. R o k o ~ , ~ l Barwick C.J. and Mason J. were apparently of the view that ~ only express words will suffice to extend United Kingdom legislation (including repealing legislation) to an Australian State, while Jacobs and Stephen J.J. appeared to take the somewhat wider view that legisla- tion will also extend to an Australian State if one can infer from the terms of the statute an intention that it must so apply. The judgment of Murphy J. concluded that such United Kingdom legislation would have no operation in any part of Australia even if it were expressed so to extend, and when this judgment is taken in conjunction with the judgments of Barwick C.J. and Mason J. it leads to the conclusion that any implication in the Statute Law Reuision Act cannot operate to repeal Burke's Act for Western Australia. This does not necessarily mean that the Act is still in force in Western Australia however. Murphy ~ J. takes the view62 that all provisions of United Kingdom statutes directed to regulating Imperial-Colonial relations ceased to apply in the Australian States from 1901 and, if Burke's Act be such a statute, and if the Statute Law Revision Act impliedly extends to Western Australia, then the combined effect of the views of Murphy, Jacobs and Stephen J J. would be that Burke's Act is no longer in force in Western Australia.

It seems possible to infer from the Statute Law Revision Act an inten- tion that it will extend to Australian States. The usual presumption in '

relation to a United Kingdom statute is that 'it applies to the whole of the United Kingdom and to nothing outside the United Kingdom: not even to the Channel I~lands;6~ however, the terms of the Statute Law Remiion Act appear to rebut this presumption, as a number of the Acts

60 Ukley v . Ukley [I9771 V.R. 121. 61 (1976) 135 C.L.R. 552. Followed in China Ocean Shipping Co. v. South Australia in

which Gibbs J. refers to Mason J.'s Bistricic judgment as one agreed with by a majority ~ of thecourt: (1979) 27 A.L.R. 1 at 19.

62 Id. at 567. 63 Attorney-General for Alberta v . Huggard Assets Ltd 119531 A.C. 420 at 441.

COMMENT 317

repealed operated only outside the United Kingdom64 and it would ap- pear pointless to repeal such Acts in relation to the United Kingdom but not in relation to the countries to which they were directed. Further, there is a sub-heading in the Schedule of Enactments Repealed, entitled 'Commonwealth Enactments' (under which Burke's Act is found), which may indicate that the Acts listed thereunder are being repealed in their capacity of Acts extending to the British Commonwealth. If this be correct, and if Burke's Act is one 'directed to regulating Imperial- Colonial relations', then it would seem that the majority in Bistricic would regard it as being no longer in force in Western Australia.

Neither point is entirely free from doubt, however. Some doubt as to the correct inference to be drawn from the Statute Law Revision Act may be created by the long title, which is 'an Act to revise the statute law by repealing obsolete, spent, unnecessary or superseded enact- ments'. It would seem inconsistent with present constitutional usage65 for the United Kingdom Parliament to decide that an Act, in its appli- cation to the States, was 'obsolete' or 'unnecessary' without any consulta- tion with the States. While this usage is not in law binding on the United Kingdom Parliament,66 its existence gives some force to what might be an alternative interpretation of the Statute Law Revision Act- namely, that it was simply an exercise designed to tidy up the statute books of the United Kindgom by eliminating measures which no longer had any im- portance for that country, while leaving them untouched in so far as they formed part of the law of other countries. It may also be arguable that Burke's Act was not directed to regulating relations inter se be- tween the United Kingdom and colonies; on the contrary, it might be said to be cutting an imperial link by conferring considerable autonomy on the Colonies in allowing the Governor and Council to remove a judge without cumbersome address procedure (at that time definitely still sub- ject to veto by Imperial advisors) or judicial proceedings. The existence of the appeal to the Privy Council probably means that Murphy J. would find a sufficient Imperial element to render the statute inapplic- able in Australia, but the point is not absolutely clear. Because of this factor, and of the difficulty of construing the Statute Law Revision Act , the question of whether Burke's Act continues to provide a means of removing West Australian judges remains an open one.

(ii) Effect on State Legislation

The effect on Western Australian legislation and on the tenurc of

64 E . 5 The Criminal Law (India) Act 1828. 65 Ukley v. Ukley, supra n . 60. 66 Madzirnbarnutov. Lardnrr-Burkr 119691 I A . C . 420 at 441.

318 WESTERN AUSTRALIAN LA W RE VIEW

present judges is also a complex question. It may be argued that there is such an inconsistency or repugnancy between the provisions of the State Constitution or Supreme Court Act and Burke's Act that either Burke's Act or the local legislation must be inoperative. If such repugnancy exists, the relative positions of Burke's Act and of the Supreme Court Act seem clear; as the latter is a purely local Act, the provisions of s.2 of the Colonial Laws Validity Act 1865 would render the relevant provi- sions of the local Act 'absolutely void and inoperative'. Section 5 of the Colonial Laws Validity Act would not appear to alter the position, as it merely confers a full power to legislate locally with respect to the judiciary, but has nothing to say on the subject of repugnancy.

In relation to the Western Australian Constitution, the position is not quite so clear. Keith6? seems to say that an inconsistency of the required degree would result in the repeal of Burke's Act for Western Australia, presumably because the Comtitution is contained in the schedule to an imperial A ~ t . ~ 8 This does not seem to be correct, however, as all this im- perial Act did was to enable Her Majesty to assent to the Constitution, despite the fact that the latter exceeded the terms of the Australian Constitutions Act 1850: and effect the repeal of some imperial legisla- tion to which portions of the Constitution would otherwise have been repugnant. The imperial Act apparently does not itself enact the Con- stitution, despite the presence of the Constitution in the Schedule to the

It is true that as a normal principle of statutory construction a Schedule is 'part of an Act, but in this case all the principle seems to re- quire is that the Imperial Act be read as saying 'It shall be lawful for Her Majesty to assent to an Act in the following terms: [insert Constitu- tion]', when it in fact says 'It shall be lawful for Her Majesty to assent to the scheduled Bill'. I

Bare Royal assent to a colonial Act would not confer validity if the colonial Act were void by reason of repugnancy to an imperial statute.'O The inadequacy for such purpose of the statute allowing assent to be

67 Keith, Responsible Government in the Dornmions (1912) 1068-70. 68 53 & 54 Vict. c 26. Cowen & Derham, supra n. 58, seem to take this view in relation to

the similarly enacted Victorian Conslitution. Also Fajgenbaum & Hanks. Ausfralia~r Constitutional Law (1972) suggest (at 344) that the Victorian Constitution would thereby have 'acquired sufficient status' to override Burke's Act, which leaves i t unclear whether it would thereby have become 'imperial' legislation or merely ac- quired some novel 'non-colonial' status.

69 Contrast clear imperial enactment of Australian Cotulituliot~ (63 & 64 Vict. c 12) and note remark of a Victorian Attorney-General with respect to the Victorian constitu- tion: '[The Imperial Act] did not in terms enact the Constitution Act, although the latter was included in a schedule to the Imperial Act'. Voles and Prr~rt,c,di~rgs, supra, n. 10. at 575.

70 Nadan v. The King (19261 A.C. 482,493.

given to the Western Australian constitution seems to have been recognised even in the statute itself, as i t simultaneously repeals a number of imperial laws inconsistent with the State constitution, which course would have been unnecessary had the constitution of its own force repealed them.

If there is a repugnancy between the Constitutzon and Burke's Act , the repeal of the latter (if i t be repealed for Western Australia) will not affect the position, as the Colonial Laws Validity Act provides that, once a repugnancy exists, colonial legislation 'shall to the extent of such repugnancy . . . be and remain absolutely void and inoperative'. This wording, in contrast with that of s.109 of the Commonwealth Consti- tution, apparently precludes any simple dormancy of local legi~lation.~'

The question of whether there is a repugnancy between the Western Australian constitution72 and Burke's Act depends largely on the scope attributed to the concept of 'repugnancy'. Keith's argument favouring the existence of a repugnancy73 seems to rest on the comprehensiveness of legislation in each case; each statute sets up 'one definite mode of removal', and the modes are different. A similar argument seems to have been intended by the Victorian judges who in 1864 asserted74 that under Burke's Act the position of judges is basically that of members of the Civil Service while under the Constitution they occupy the same special position as judges do in England. If the view of repugnancy taken in the Union Steamship Case75 is adopted, there would seem to be a repugnancy; while i t is possible that 'if all the conditions in both . . . enactments were aggregated into one . . . they could humanly be observed . . each set or provisions arguably creates a scheme cover- ing the field or judicial tenure, one dealing with the matter from an im- perial and one from a local standpoint, and this would be enough, on Union Steamship principles, to constitute a repugnancy.

Even if a narrower view of repugnancy were to be taken, there may be at least some direct textual clash between the two statutes. As has been noted earlier, a grant of office during 'good behaviour' is effectively a grant of the office for life, subject only to removal for actual mis- behaviour by the methods previously discussed. In Burke's Act , the ability of the Governor and Council to remove a judge if he neglects his

7 1 R . v . Marais [I9061 A .C . 51. 7 2 And similarly, of course, for the Supreme Court Act. 7 3 Supra n . 67 . at 1069. 7 4 Votcs and Proceeditigs, supra n . 56, at 33. 7 5 Union Steamship C o . of New Zealand Ltd v. Commonwealth (1925) 36 C . L . R . 130. 76 Id. at 147 per Isaacs J . This seems compatible with the view of Aickin J. in the China

Ocean Shipping case, supra n . 61, but see Barwick C.J. in that case, asking only whether the two Acts can 'stand together'.

WESTERN AUSTRALIAN LA W REVIEW

office or otherwise misbehaves therein probably does not give rise to a situation substantially different from a 'good behaviour' grant (although, as noted earlier, it is questionable whether the Constitution leaves the characterisation of behaviour to Executive judgment). How- ever, under Burke's Act a judge may also be removed if he is absent from the Colony 'without a reasonable cause being allowed by the Governor and Council'. Keith says7' that this provision was aimed at holders of patent offices who might remain in England, leaving ill-paid deputies to perform their functions. Removal for such a reason would naturally be consistent with a grant of office during good behaviour.

The actual wording of the Act is somewhat broader, however. It is not clear whether the existence of a 'reasonable cause' is a matter solely for the discretion of the Governor and Council, or whether the question would be reviewable by the Privy Council. Even if i t would be review- able, with a lack of reasonable cause for absence having to be proven, a power of removal in such a case would still seem inconsistent with a grant of office during good behaviour; i t seems impossible to maintain that one single brief absence from Western Australia, for however ir- rational or absurd a reason, would constitute 'misbehaviour' of a kind which could suffice for the removal of a judge under the Constitution, yet this is behaviour which Burke's Act seems potentially to reach.

Several arguments may support the view that there is no repugnancy. One of these, taken by Roundell Palmer A.G. and Sir William Ather- ton,78 involves reading Burke's Act as saying that only an absence equivalent to 'legal and official misbehaviour and breach of duty' is con- templated as being within the scope of the statute, and that the Consti- tution, rather than attempting to replace one scheme with another, simply adds a further means of removing judges to those already in existence. This view would seem compatible with the rather narrower view of 'repugnancy' taken by Latham C.J. and Evatt J. (Dixon J , not disagreeing) in Frost v. Stevenson. 7g

Further, it has been expressly held by the Privy Council in Ex parte Robertson, In Re the Governor-General and Executive Council of N . S. W . that offices held during pleasure were not within the scope of Burke's Act , but that the statute applied only to offices held by patent and to offices held for life or for a certain term. This might be thought

77 Supra. n. 67, at 1069. 78 Votes and Proceedings, supra n. 10, at 581-2; also opinion of the Victorian

Attorney-General at 575. 79 (1937) 58 C.L .R . 528, 602 & 604. 573 respectively. 80 (1858) 11 Moo P.C. 288, 14 E.R. 704. See also Cloete v . R . (1854) Moo P.C. 484, 14

E . R . 184, where this conclusion seems to have been assumed, although the point was not specifically raised.

C O M M E N T 32 1

to imply that the terms of the Act were not inconsistent with a grant of an office for life (or during good behaviour).

There are two obstacles to interpreting Robertson in this way, how- ever. Firstly, it may be that the intention of the Act was to impose a blanket condition or modification on letters patent granting an office for life and, while this would not affect the validity of a grant simply under letters patent, the position may be different where there is a statutory grant of an office for life under a statute to which section 2 of the Colonial Laws Validity Act applies. In the case of such a statutory grant, modification by Imperial statute might so alter the statutory grant that the latter could not stand with, and would be effectively destroyed by, the former. Secondly, Robertson appears directly to con- tradict two earlier Privy Council cases,81 dealing specifically with judicial offices, in which i t was held that Burke's Act did apply to judicial offices held during pleasure. The summary of argument in Robertson indicates that these two cases were drawn to the attention of the Privy Council, but there is nothing in the judgment to indicate that their Lordships considered the earlier cases or their implications, which makes any inference drawn from Robertson less persuasive than it might otherwise be.

A final argument for a lack of repugnancy stems from the fact that Burke's Act was quite well known during the time that the Australian State Constitutions were being enacted,82 and it seems unlikely that the local legislatures would have intended to legislate repugnantly to it; had they intended to do so, they would probably have requested its repeal by the Imperial Parliament.83 If there is a direct clash between the statutes, this argument would appear not to be relevant, but if a 'covering the field' question only is involved, such an inference from circumstances would be a strong argument that there is no repugnancy.

Should it 'oe the case that the Western Australian legislation is void for repugnancy, it would effectively be the case that there is no valid law prescribing judicial tenure. This would appear to be a situation within the scope of the instruction to the Governor (1900) which provides that in the absence of any law to the contrary, 'All Commissions granted by the Governor to any persons to be judges . . . shall . . . be granted dur- ing pleasure only' (no. ix). It would seem then that the granting of

81 Willis v. Cripps (19846) 5 Moo P.C. 379, 13 E . R . 536; Montagu v. Van Dieman's Land (1848) 6 Moo P.C. 489. 13 E . R . 773.

82 E . 5 Memorandum on the removal of colonial judges. 6 Moo P.C. (N.S.) 9. 16 E.R. 827: Alpheus Todd, supra n. 56, at 832-56.

83 As a number of other Acts were repealed. e .g . by 53 & 54 Vict, c 26, which authorisrd assent to Western Australian constitution.

WESTERN AUSTRALIAN LAW REVIEW

present Commissions during good behaviour may have been contrary to the instructions, if the instruction is read as referring only to a real and - not simply a purported exercise of legislative power.

It has been argued that a Governor's breach of his instructions will not affect the validity of any act done, as the instructions are not 'law' and are non-just i~iable.~~ It seems not to have been the general practice to regard a breach of instructions as affecting validity, but there are a number of judicial pronouncements to the effect that such breach would affect the validity of the Governor's actions, ranging in authority from a decision of Boothby J. in South Australian5 to the opinion of the Privy C o ~ n c i l . ~ ~ In an article strongly favouring the view that breach of instructions will not have legal consequences, Swinfen himself notes that instructions issued 'through' a Commission or letters patent are in a dif- ferent position from other directions to the G o ~ e r n o r . ~ ~ It should be noted, therefore, that the letters patent constituting the office of Gover- nor of Western Australia (29th October 1900) specifically 'authorise' empower and command Our . . . Governor to do . . . all things that belong to his said office . . . according to such instructions as may from time to time be given to him under Our Sign Manual and Signet'. It may well be, then, that Roberts-Wray is correct in asserting that these instructions have 'the force of law'.nn

There appear to be two possible consequences of assuming that the instructions have legislative force and justiciability. One is that a court might hold the instruction that appointments are during pleasure only to be so connected with the power to appoint that an appointment on other terms would be invalid. The dramatic result which could other- wise follow from this view being taken- that past and present appoint- ments were and are invalid- is considerably mitigated by the 'de facto' doctrine. The status of 'de facto officer', which can include a judicial officer, was clearly explained by Sir Jocelyn Simons9 as existing in rela- tion to 'one who has the reputation of being the officer he assumes to be, and yet is not a good officer in point of law'. The acts of such an officer are as valid as if he had been properly appointed, unless and until the

84 Swinfen, 'The L.egal Status of Royal Instructions to Colonial Governors' (1968) Juridical Review 21.

85 McEllister v. Fenn, South Australia, House of Assembly. Par/. Papers 1862 v. 2 at 5. 86 Cameron v. Kyte (1835) 3 Knapp P.C. 332 at 343-5. 12 E.R. 678 at 682-3: see also

statements on Governor's role in Toy v. Musgrove (1888) 14 V.L.R. 349 at 429: Hill v. Bigge (1841) 3 Moo P.C. 476. 13 E.R. 189; Musgrove v. Pulido (1879) 5 App. Cas. 102.

87 Swinfen. supra n. 83. at 36. 88 Supra n. 3, at 146. 89 Adams v. Adams [I9701 3 All E.R. 572 at 589.

C O M M E N T 323

circumstances giving rise to the legal defect become 'notorious'. Where the defect, if there be any, arises from a complex combination of prin- ciples of statutory construction and of constitutional law, presumably the officer would validly continue as a de facto officer until a final determination of his status by a court.

The other possibility, if the instructions have been contravened, is that a court might see the appointments as a valid exercise of the power to fill the offices, but an exercise producing a situation similar to that which occurred in Terrell's Case.go In that case it was said that once it was established that an office was constituted to be held during Royal Pleasure, no contractual arrangement between an executive officerg1 or department of State and the holder of the office could alter this tenure (though it should be noted that in Terrell the validity of the original ap- pointment was not in issue, but only the status of a purported dismissal). This would seem to mean that existing appointments, though valid, must be regarded as being held during pleasure only.

CONCLUSIONS

Questions relating to procedures to be used for effecting the removal of a judge are surrounded by doubt, even in the United Kingdom, largely because of a dearth of authority or precedent of any kind. When complications stemming from Western Australia's previous - and, to an extent, continuing-colonial status are taken into account, the ques- tions which could be raised in this area in Western Australia are not only legally complex, but could also be potentially embarrassing both to the judges and to those who might, if an appropriate situation ever arose, seek to remove them.

90 Terrell v. Secretary of State for the Colonies [1953] 2 Q.B . 482. 91 One term which arguably includes the Governor, see supra n . 85.