Byers did not think that the High Court could set aside an address by both Houses of Parliament even if it was based on an erroneous view of the meaning of section 72(ii). However, he considered that the Court would restrain the Ministers comprising the Federal Executive Council from advising the Governor from removing the judge, and if occasion required it, restrain him from acting to remove the Judge. If the address was not founded upon ‘proved properly construed, this would quash any order removing the misbehaviour’ judge. Memorandum of Dr. Bennett QC August 1984 Dr David Bennett was a Queens Counsel in 1984 but later became Solicitor General of Australia from 1998-2008. He took the view that ‘narrow’ ‘proved misbehaviour had acquired a technical meaning in the last decade of the ‘ nineteenth century and was reflected in Section 72 of the Constitution. The only type of behaviour which could give rise to was conduct ‘proved misbehaviour’ which had led to a criminal under section 72 is conviction. Parliament’s role therefore confined to considering whether the circumstances of the conviction constitute all convictions e.g. traffic violations are ‘misbehaviour. Not sufficiently grave. The Choice between the Narrow and the Broad Interpretation of ‘Misbehaviour’? From 1984 the Parliamentary Enquiry Commissioners had three memoranda advocating the interpretation of in Section 72 of the ‘narrow’ ‘misbehaviour’ Australian Constitution and one, that of CW Pincus QC advocating a non- non - legal meaning, untrammelled by ‘ancient rules’. The next attempt to remove Justice Murphy depended upon the ‘Narrow’ interpretation. Criminal Proceedings in the Supreme Court of New South Wales The chief magistrate of NSW Clarrie Briese and the district court judge Paul Flannery alleged that Murphy had improperly attempted to influence them in relation to charges faced by Ryan. A majority on the second committee found that conduct might have amounted to Murphy’s “proved misbehaviour”. So, the fourth attempt to remove Murphy from the Court was the indictment of Murphy by the politically independent DPP, Ian Temby QC, in February 1985 charged Justice Murphy with to pervert the course of even ‘conspiracy justice,’ though he considered a conviction in the case as ‘not probable’.
Byers did not think that the High Court could set aside an address by both Houses of Parliament even if it was based on an erroneous view of the meaning of section 72(ii). However, he considered that the Court would restrain the Ministers comprising the Federal Executive Council from advising the Governor from removing the judge, and if occasion required it, restrain him from acting to remove the Judge. If the address was not founded upon ‘proved misbehaviour’ properly construed, this would quash any order removing the judge. Memorandum of Dr. Bennett QC August 1984 Dr David Bennett was a Queens Counsel in 1984 but later became Solicitor General of Australia from 1998-2008. He took the ‘narrow’ view that ‘proved misbehaviour ‘ had acquired a technical meaning in the last decade of the nineteenth century and was reflected in Section 72 of the Constitution. The only type of behaviour which could give rise to ‘proved misbehaviour’ was conduct which had led to a criminal conviction. Parliament’s role under section 72 is therefore confined to considering whether the circumstances of the conviction constitute ‘misbehaviour. Not all convictions e.g. traffic violations are sufficiently grave. The Choice between the Narrow and the Broad Interpretation of ‘Misbehaviour’? From 1984 the Parliamentary Enquiry Commissioners had three memoranda advocating the ‘narrow’ interpretation of ‘misbehaviour’ in Section 72 of the Australian Constitution and one, that of CW Pincus QC advocating a non - legal meaning, untrammelled by ‘ancient rules’. The next attempt to remove Justice Murphy depended upon the ‘Narrow’ interpretation. Criminal Proceedings in the Supreme Court of New South Wales The chief magistrate of NSW Clarrie Briese and the district court judge Paul Flannery alleged that Murphy had improperly attempted to influence them in relation to charges faced by Ryan. A majority on the second committee found that Murphy’s conduct might have amounted to “proved misbehaviour”. So, the fourth attempt to remove Murphy from the Court was the indictment of Murphy by the politically independent DPP, Ian Temby QC, in February 1985 charged Justice Murphy with ‘conspiracy to pervert the course of justice,’ even though he considered a conviction in the case as ‘not probable’. non-
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