ARE COLONIAL JUDGES AMENABLE TO COLONIAL PARLIAMENTS ?

Evening Post, Issue 110, 16 June 1865, Page 2

ARE COLONIAL JUDGES AMENABLE TO COLONIAL PARLIAMENTS ?

The Saturday Review, adverting to the late difficulty in Victoria, between Mr. Higinbotham and the " officers of his department," remarks: — "A curious question has just arisen in Melbourne, touching the independence of the judicial office. A Judge wishes to go away from the colony to a pleasure trip, and accordingly does so, without asking leave from anybody. The Colonial Cabinet have no objection to his going, but insist that he should have asked them. Thereupon th c other Judges take the alarm. They say that their independence is being violated i and they stoutly maintain that they owe no duty to the Colonial Executive, and that, by the Constitution, they are liable only to be removed by the Sovereign, on the petition of both Houses of Assembly. The champions of the Executive, relying on an older Act, claim for it a power of suspending the Judges either for absence or misconduct ; and they argue that otherwise there would be no remedy if a Judge were to misbehave grossly during the recess, or even if all the Judges were suddenly to leave the colony at the beginning of term. The argument, so far as it depends upon the interpretation of statutes, is not of much importance to us, but the practical question touches us as

closely as it does the colonists. Our Judges are, beyond all question, in the position in which the Vi.torian Judges claim to be. The Executive has not the slightest authority over them. If they are negligent, the Home Secretary cannot force them to do their duty ; if they behave ill. lie can neither suspend nor punish them. No misconduct of theirs, however scandalous it might be, would authorise him to take the administration of justice out <,f their bunds. If Parliament is sitting, there is the only one remedy of an i address to the Crown, from both Houses, pra^ ing for the removal of the offending Judye — a remedy winch, unless the offence i* very gross indeed, would be impossible of application. If Pailiament is not sitting^ there would »hj no remedy at all. As soon as thu prorogation has taken place a Judge may dai:ee a hornpipe in Court at every assize town, and commit the Dean and Chapter ot every diocese for contempt, but there is no possibility of bringing his amusements to a close till the time has come round again for Parliament to meet. In their anxiety to make Judges independent, the statesmen of the Revolution have clothed them with an irresponsibility almost without limit. The curious thing is that we should have remained so long unconscious of this anomaly in our institutions, and that it should first have been laid bare to us by the experience of one of our youngest colonies."