Re Reid; Ex parte Bienstein [2001] HCA 54

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 RESPONDENTS

EX 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

M80/2001

ORDER

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).

1. 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.