HIGH COURT OF AUSTRALIA
KIRBY J
IN THE MATTER OF AN APPLICATION FOR
DECLARATORY RELIEF AND MANDAMUS
AGAINST THE HONOURABLE MARGARET REID
(IN HER CAPACITY AS PRESIDENT OF
THE SENATE) AND ANOR RESPONDENTSEX PARTE HELEN BIENSTEIN APPLICANT
Re Reid; Ex parte Bienstein
[2001] HCA 54
Date of Order: 3 September 2001
Date of Publication of Reasons: 21 September 2001
M80/2001ORDER
Application dismissed.
Representation:
The applicant appeared in person.
No appearance for the first respondent.
G P J Carroll for the second respondent (instructed by Australian Government Solicitor)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Re Reid; Ex parte Bienstein
Constitutional law (Cth) – The Parliament – Removal of federal court judge – Initiation of a procedure for removal – Request to President of the Senate to distribute to senators request for consideration of removal of judge of the Family Court of Australia – Full Court of that Court finds federal court judge ought to have declined to further hear case for ostensible bias – President of Senate declined to distribute documents – Whether President answerable to writ under Constitution s 75(v) – Whether President is an "officer of the Commonwealth" – Whether Mandamus should issue to require consideration by senators of request – Privileges and powers of Houses of the Parliament.
Words and phrases – "Officer of the Commonwealth" – "proved misbehaviour".
Constitution, ss 17, 18, 19, 35, 49, 72(v), 76(ii).
Judiciary Act 1903 (Cth), s 30(a).
Family Law Rules, O 35 r 14.
The Act of Settlement 1700 (12 & 13 Will III c 2).
KIRBY J. Before me is an application for an order nisi brought by Mrs Helen Bienstein ("the applicant"). She seeks the issue of a constitutional writ of Mandamus directed to the President of the Senate (Senator the Honourable Margaret Reid) ("the President") and the making of certain declarations. The respondents named in the application are the President ("the first respondent") and the Honourable Paul Guest, a judge of the Family Court of Australia ("the second respondent"). The first respondent has not appeared before the Court. The second respondent has appeared by his legal representative who indicated that he had a "watching brief" only. He took no part in the proceedings.
A claim for a constitutional writ and declarations
The declarations sought in the draft order are that:
"a)Justice Paul Guest's unlawful direction to have Helen Bienstein removed from Court and locked in a cell constitutes a criminal offence against her person;
b)The committing of a criminal offence whilst engaged in the duties of judicial office constitutes "misbehaviour" within the meaning of section 72(ii) of the Constitution;
c)A judgment published by a Chapter III Court of Review [sic] with finding that the Judge at first instance committed a criminal offence whilst engaged in the duties of judicial office constitutes sufficient proof of 'misbehaviour' to satisfy section 72(ii) of the Constitution;
d)Section 72(ii) of the Constitution creates a…
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- AGLC
- Re Reid; [2001] HCA 54
- Case
- [2001] HCA 54
- Decision Date
CaseChat Overview and Summary
The central legal issues before the Court were whether the President of the Senate was an "officer of the Commonwealth" amenable to a writ of Mandamus under section 75(v) of the Constitution, and whether the President had a duty to circulate the specified documents and arrange for a parliamentary debate regarding the alleged misbehaviour of the judge. The applicant contended that the Full Court's finding of ostensible bias against the judge constituted sufficient proof of misbehaviour to trigger a constitutional requirement for parliamentary consideration.
Kirby J considered the nature of the President of the Senate's office, noting it was a constitutional office and part of the Parliament, not the Executive Government. While acknowledging the judge was an "officer of the Commonwealth" amenable to Mandamus, his Honour expressed uncertainty as to whether the President, in her capacity as President of the Senate, was similarly amenable. The application was ultimately dismissed.
Orders
Orders of the court
Application dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: KIRBY J
Before me is an application for an order nisi brought by Mrs Helen Bienstein ("the applicant"). She seeks the issue of a constitutional writ of Mandamus directed to the President of the Senate (Senator the Honourable Margaret Reid) ("the President") and the making of certain declarations. The respondents named in the application are the President ("the first respondent") and the Honourable Paul Guest, a judge of the Family Court of Australia ("the second respondent"). The first respondent has not appeared before the Court. The second respondent has appeared by his legal representative who indicated that he had a "watching brief" only. He took no part in the proceedings.A claim for a constitutional writ and declarations The declarations sought in the draft order are that:"a)Justice Paul Guest's unlawful direction to have Helen Bienstein removed from Court and locked in a cell constitutes a criminal offence against her person;b)The committing of a criminal offence whilst engaged in the duties of judicial office constitutes "misbehaviour" within the meaning of section 72(ii) of the Constitution;c)A judgment published by a Chapter III Court of Review [sic] with finding that the Judge at first instance committed a criminal offence whilst engaged in the duties of judicial office constitutes sufficient proof of 'misbehaviour' to satisfy section 72(ii) of the Constitution;d)Section 72(ii) of the Constitution creates a requirement that a court decision with finding of proven misbehaviour [sic] against a Judge must be notified to Parliament for consideration by all serving Parliamentarians;e)On receipt of documents proving 'misbehaviour' by a Judge, the President of the Senate has a duty to circulate the documents to all senators and to arrange time for debate under section 72(ii) of the Constitution." The proposed writ of Mandamus would purport to require the President:"a)to circulate to all Senators the 5 June 2001 Full Family Court Judgment in Bienstein appeal No SA87 of 1999, together with transcript of appealed first instance 28 October 1999 hearing that proceeded before the second‑named respondent; andb)to arrange a time for debate under section 72(ii) of the Constitution in regard to the second‑named respondent."The amenability of the respondents to process The second respondent is a judge of a court created by the Parliament. In terms of the Constitution, s 75(v), he is also an "officer of the Commonwealth". He is amenable, in that capacity, to the writ of Mandamus and to adjunct relief[1].[1]R v Commonwealth Court of Conciliation and Arbitration; Ex parte Whybrow & Co (1910) 11 CLR 1 at 22; R v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 267; R v Ross-Jones; Ex parte Green (1984) 156 CLR 185 at 215. The relief in the nature of Mandamus is sought against Senator Reid in her capacity as President of the Senate. This is a constitutional office. It is not part of the Executive Government[2]. In discharging that office it is not clear that the President is an officer of the Commonwealth. She is, in fact, an officer of the Parliament. However, I shall assume for the moment that the President would be amenable to a writ issued by this Court in these proceedings. I make no finding to that effect.[2]The Constitution, esp ss 17, 18 and 19.