Getting a Judge, Part 6: How To Tip an Aussie Judge Overboard

by Mary W Maxwell, LLB 

The Australian Constitution of 1901 says in its Chapter III, section 72:

“The Justices of the High Court and of the other courts created by the Parliament:

1. shall be appointed by the Governor-General in Council;
2. 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….”

And there you have it.  Out they go.

The phrase “other courts created by Parliament” means Commonwealth parliament; this is not for state judges.  It is, however for Family Court judges, as that court was created by Parliament.

Note that the “address from both Houses of Parliament” mentioned in Australia’s Constitution only “prays” to the Governor-General; it doesn’t tell the G-G he must act.

(By contrast, a majority of members of the US the House of Reps can impeach a federal judge, and then send it to the Senate for conviction. If a majority of senators vote to convict, the person is removed from office instantly without the need for a presidential signature.)

In Colonial Times

Before the Australian Constitution came into effect in 1901, making us a nation, each of the colonies had judges who were appointed by the Crown.  To tip them out, for bad behavior, the colony could appeal to Britain to “amove” the bad judge.  Ten judges – from various colonies – were so “amoved.” For example:

Tasmanian judge (technically, Van Diemen’s Land judge) Algernon Montagu (1802-1880) was amoved by the Lieutenant Governor over “questionable financial transactions.’

John Walpole Willis of Melbourne had previously been removed as a judge in Canada. His sins were “cantankerousness and foibles.” In 1842 he got the flick.

In South Australia, John Jeffcott (1800-1855) was the very first judge of the colony’s Supreme Court. He had been removed as judge of Sierra Leone for having killed a man in a duel. In SA however he was not amoved.  He died by drowning in the River Murray.

Note that what these three judges had done was of a personal nature. This is almost always the case in America too. The most recent judge impeached by Congress was tipped out for being a “Dud Dad” in regard to paying child support. Another was impeached for hitting his wife.

No Australian judges in colonial times was punished for making a court ruling in a criminal fashion. And none since 1901 either.

Ah, aren’t judges immune in regard to any rulings they make from the bench?  Well, yes, of course they have to be protected from civil actions for their judgements – or they might make lenient rulings in fear of being sued. But I am not talking about immunity from civil suit.  I am talking about immunity from criminal charges.

As I have yelped many times at Gumshoe, there is only one person in Australia who is immune from criminal liability. “The king can do no wrong.” (I note that Sir Walter Scott challenged this, in regard to the throne in England but that is off-topic here.)

We are talking about judges.  They are never immune.  If they commit a crime they get punished like anyone else.  And that crime could be something they do on the bench. Of course. That is where they can inflict a lot more harm than beating a wife or failing to pay child support.

Something Less Than the Full Judge-Overboard Punishment

Both in the US and Australia there are “boards” you can go to with a complaint about a judge. These boards are made up of judges.  Will they actually discipline their colleague? They might, but one would not want to count on it.

In the US there is a so-called Judicial Conference; it meets annually in Lexington, Kentucky. It handles ethics business but other matters, too, such as upgrading court technology or problems of jurisdiction. It is presided over by the Chief Justice of the United States who appoints all its members.

The American Bar Association (please, God don’t let me say what I want to say about the ABA) has concocted a model Code of Ethics for judicial Conduct.  For example

CANON 1
A judge shall uphold and promote the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.

CANON 2
A judge shall perform the duties of judicial office impartially, competently, and diligently.

CANON 3
A judge shall conduct the judge’s personal and extrajudicial activities to minimize the risk of conflict with the obligations of judicial office.

Surely you’d think anyone who is a judge does not need to be told those mundane rules. Probably, though, it helps a complaining citizen to be able to point to a specific breach.

In Australia, New South Wales is the only state with a set-up for making complaints against judges. If that board finds the matter serious enough it may get moved to the floor of Parliament.

In his Boyer Lecture of 1983, Justice Michael Kirby discussed the Australian Law Reform Commission’s consideration of setting up such a thing for the Commonwealth, but it met public resistance.

Crimes Committed by Judges in Office

There is material in the Crimes Act, Commonwealth, of 1914. (That  is a model criminal code for any state wishing to adopt it.)  Its Part III is devoted to Crimes in the administration of justice. Section 32 says that a judicial officer who

(b)   corruptly gives, confers, or procures, or promises or offers to give, convert, procure, or attempt to procure to, upon, or for, any such judge, magistrate, or Commonwealth officer, any property or benefit of any kind, on account of any such act or omission on the part of the judge, magistrate, or officer; shall be guilty of an indictable offence. Penalty:  Imprisonment for 10 years.

On Beyond “Corruption”

It is disappointing that attention is always focused on the judge’s selfish interest, such as swinging a case a certain way in exchange for money – as if this were the only type of corruption going on.

How about a provision for judges who do the wrong thing because someone is leaning on them, maybe has even threatened his/her life?  It would be good to make that an indictable offense similar to taking a bribe. Once a provision is on the books at least people can talk about it.

(Is the reader thinking that judge should be let off the hook due to the threat he/she received?  No. The idea of “diminished responsibility” only comes later, after a verdict that he or she did the wrong thing.)

What about the fact that many judges are placed in office to carry out the agenda of a sinister secret society?  If he/she then obeys these instructions while in office, the essential crime is treason.  But people find it hard to see the law against traitors. I think a specific law about judges doing these things needs to be enacted.

At the very least, every nominee to the bench should be asked to state is he/she is a member of a secret society.

Justice Angelo Vasta

As I said, since federation (1901) no federal judge has been removed from office in Australia. Only one state Supreme Court judge, Angelo Vasta of Queensland, was removed after a Commission of Inquiry reported to state parliament that he should be removed.  Interestingly, a former Australia Chief Justice, Harry Gibbs, chaired that commission.

The matter on which Vasta was removed from the bench was his personal tax situation. Currently Bob Katter is seeking to have the 77-year-old judge exonerated and reinstated as a judge, saying he was unfairly treated.

It would be good to see how the Vasta debate goes, as one of the charges against Vasta had been perjury.  We need to see more discussion of that crime, and in the interstices of that case there was a matter of four policemen having committed perjury.  Wow.

Prosecuting a Judge

Many judges in the US have been convicted of crime.  If you type “the judge was prosecuted” into a Google search (as I just did), you may get this headline from Oklahoma:  Ex-judge Donald Thompson, busted for using penis pump during trials, has pension cut off.”

One remark in that article that I don’t understand is that Thompson’s exposing himself was said to violate his oath of office. I am unaware of the violation of an oath – as such — being a crime. Anyway he spent two years in prison.

In Australia the only High Court judge to have been prosecuted was Lionel Murphy.  But it was a state court that did the prosecuting (regard to his previous behaviour as a state judge).  He continued to sit on the High Court as he went through appeals of his conviction.

His case is complicated.  He died at age 64 of cancer.  I reckon “they’ gave him cancer in order that the threatened federal prosecution (and perhaps a tipping over) would never occur.  Much dirt would have come out.

By the way his mugshot appears on Fiona Barnett’s famous gallery of pedophiles but none of them has ever been hauled before a court and I do not pretend to know that Fiona is correct as to each “candidate.”

In 1986, the material in the Lionel Murphy case was put under seal for 30 years.  Hence it emerged into daylight in 2016. One item caught my eye. In regard to his desire to see a certain mafia  company get a construction contract,  Lionel had asked someone to find out if certain AFP police were “approachable.”’ The answer came back: “No, those two are straight.”

Two handy vocabulary words for us, Folks, in regard to Federal Police:   “approachable” and “straight.”

Family Court

It is obvious that humans have an instinct for worshipping those high up. All judges should be respected, almost as God – they do the work of God.  High standards should apply.  But that does not mean they can be unaccountable.  We have recently heard of judges doing horrible things in the Family Court in South Australia and Queensland.

Prosecutions are in order.  But so is “tipping them overboard” which is a separate punishment.  As stated, in Australia, the Constitution’s sec 72, gives Parliament the power to judge a judge.

Granted, our MPs can only “pray” to the G-G if they want to do a “judge overboard” thing, but that’s OK. They must do it, even if they think the Governor-General (the Crown) will overrule them.

Why have a Constitution if you don’t use it?

— Mary W Maxwell, LLB is the author of Fraud Upon the Court (2015)  and a soon-to-be-released book, The Soul of Boston