International Standards Relating To Judicial Removal: Two Experts’ Views

By Professor Adrienne Stone and Laureate Professor Cheryl Saunders AO -December 18, 2012 

The University of Melbourne

Mr Basil Fernando
Executive Director
Asian Human Rights Commission
E-mail basil.fernando@ahrc.asia
17 December 2012

Dear Mr Fernando:
Advice as requested by the Asian Human Rights Commission 

We thank you for the opportunity to provide this advice in relation to the procedures and protections which regulate how Australian judges may be removed from office, and international standards relating to judicial removal.

We provide this advice in our capacity as academics who specialise in Australian and comparative constitutional law.

Australia forms a good comparator jurisdiction for Sri Lanka. Both nations share the same English common law arid parliamentary heritage. The rule of law forms the fundamental basis entrenched in the AustralianConstitution. The stability of the Australian polity, its economic growth and prosperity, and the wellbeing of its people depend upon respect for the rule of law. Central to the realisation of that ideal is that the independence of the judiciary be beyond question. Australian courts, and not Parliament, have the final say on the interpretation of the law. The High Court has general authority to determine the meaning of Australia’sConstitution, and its interpretations bind Australian legislatures and executives at all levels of government[1]The Court’s power of judicial review prevents any law or executive action from transgressing the principles and limits to government laid down in the Constitution. The Justices of the High Court of Australia are highly respected as the guardians and guarantors of Australia’s democracy: like all judges, they cannot fulfil these vital tasks without complete independence; in practice as well as principle.

These are the hallmarks of all successful and lasting constitutional democracies. Such a state cannot be achieved without entrenched safeguards to ensure judicial independence, chief among which is proper standards preventing the arbitrary or baseless removal of judicial officers.

Yours sincerely

Laureate Professor Cheryl Saunders AO

Professor Adrienne Stone

Director, Centre for Comparative
Constitutional Studies

I. AUSTRALIAN PROCEDURES FOR REMOVAL OF JUDGES

Judicial removals have been very rare in Australia. Of the four major examples of investigations and considered removals frequently referred to in the literature, only one — relating to a state supreme court judge[2] — was carried through to completion.[3] This rarity is attributable to the strong security of judicial tenure in Australia, as well as general good behaviour of individual judges ensured by close scrutiny from inside and outside the courts.[4]

Due to the small number of attempted or completed removals, many specific questions relating to the removal of judges remain undetermined by Australian courts. Nonetheless, the general procedures for removal and protections from removal are clear.

This section is split into two parts, relating to federal and state judges. Australia’s federal system of government means that the instruments and wording of protections may differ, however the principles and standards remain the same at both levels of government.

A) Removal of Justices of the High Court and Judges of the Federal Court           Read More