We have previously written about what it takes to become a magistrate or judge, and the high standards of ethics that are expected from those who serve as judicial officers.
But under what circumstances can their positions be termination?
The short answer is that only rare and exceptional circumstances will ever allow for judges or magistrates to be dismissed. This is largely to protect the independence of the judiciary – ensuring that members are not tempted to compromise or be swayed by politics or public opinion.
This is because if their jobs were dependent on staying popular with the right people, this could seriously affect the independence of the courts – so by making the process of removing judges fairly difficult, there is no temptation for judicial officers to cave in to external pressures such as those from politicians or the media in order to keep their jobs.
On the other hand, having absolutely no mechanism for the removal of judicial officers could be equally dangerous, and may allow the wrong people to stay in the job, perpetuating injustice. Because of this, there are limited situations, both at federal and state level, whereby judges and magistrates can be removed from office.
Procedure for removal at the federal level
The position of Justices of Commonwealth Courts such as the Family Court, Federal Court and High Court of Australia is protected by no less than the Australian Constitution.
Their time on the bench expires when they reach 70 years of age, but other than this, there are only two grounds under which they may be removed from office: which are “proved misbehaviour” and “incapacity”.
The mechanism for removal is contained in Section 72 of the Constitution, which mandates the removal of Justices in the said circumstances by the Governor-General in Council on an address from both houses of Parliament in the same session.
New South Wales
The procedure for removing judges and magistrates in NSW is based upon the federal model.
Accordingly, no holder of a judicial office can be removed except by the Governor on address from both houses of the NSW Parliament in the one session.
Again the only reasons that can justify the removal of a judicial officer in NSW are proved misbehaviour or incapacity.
And judicial officers in NSW are given the additional protection of section 41 of the Judicial Officers Act 1986 which states that it is necessary for a report of the Conduct Division of the Judicial Commission to be made before they can be removed from office.
This operates as a prerequisite to the matter being referred to parliament.
How often are judicial officers actually removed?
It is very rare for member of the judiciary to be removed in Australia – in fact, there have only been a handful of times when this has occurred.
The first instance was in 1843 where Justice Willis of the Supreme Court was removed before the current laws were in place; but he successfully appealed to the Privy Council back in England and was reinstated.
A high court justice has never been removed, although there were investigations into Lionel Murphy at one time. Justice Murphy was acquitted of two counts of attempting to pervert the course of justice, but lived only another six months after his name was cleared.
In the Local Court, a number of magistrates who were facing the possibility of sacking, including Barry Woolridge or Ian McDougall, resigned before a decision was made by Parliament.
In 2011, NSW Magistrate Jennifer Betts came under scrutiny when accused of bullying defendants in court and treating them unfairly. Four complaints were made against her between 2003 and 2009 which formed the basis of an inquiry into her conduct.
Betts told Parliament that she was suffering from depression and had recommenced her medication. She said that she didn’t see any reason why she would have another lapse and showed contrition; acknowledging that her behaviour was not acceptable.
The ultimate decision then lay in the hands of Parliament, who decided in Betts’ favour.
Her remorse won on the day, as MPs from all sides of politics condemned her behaviour but ultimately decided that it did not warrant her losing her job.
And another Sydney magistrate, the late Brian Maloney, faced the prospect of being sacked after he too was accused of inappropriate behaviour; which was a surprise to many lawyers who saw him as an extremely intelligent, jovial, pleasant and fair magistrate to appear before.
Maloney was under treatment for bipolar disorder. He too managed to keep his job, with 22 votes in favour of his return to the bench and 15 against. But Maloney tragically lost his life due to health issues within 2 years of the inquiry.
Then, of course, there is the notorious case of Justice Marcus Einfeld who was removed from office, stripped of his Order of Australia and sent to prison after lying about a speeding ticket.
The dismissal of magistrates and judges is an issue that still sparks a considerable amount of debate in the community – with some believing that members are out-of-touch and should be made more accountable.
But as former High Court Justice Mason points out, the independence of the judiciary is a fundamental feature of our justice system – and should be used to protect the public rather than allowed to sway to the expectations of any particular body.