A Supreme Court panel has advised that the Chief Justice has an inherent power to remove a commissioner for oaths appointed under the Chief Justice’s authority. The opinion says the power may be exercised on application or on the Chief Justice’s own motion, subject to the principles of natural justice.
The panel was asked to consider whether a removal power existed and how it might be exercised. It stressed that its opinion was advisory: it did not resolve a dispute, determine anyone’s rights or liabilities, or act as a judicial ruling in a case. The opinion was dated 27 November 2020.
The panel said legislation gave the Chief Justice power to appoint commissioners for oaths but contained no express modern power to revoke an appointment. It considered whether an earlier statutory removal provision supplied that power, but concluded it was not safe to rely on that provision as the basis for removing a commissioner appointed under the modern legislation.
Instead, the panel said the appointment warrant describes the commissioner as holding office “at the pleasure” of the Chief Justice. It reasoned that the Chief Justice must be able to withdraw that authority, because a commissioner appointed under the warrant acts under that authority. The panel also pointed to the role commissioners play in authenticating affidavits and other sworn documents used in court and other matters.
The opinion outlined possible procedural safeguards rather than setting out a binding procedure. A removal process might begin with a complaint or an application to the Chief Justice by originating petition supported by affidavit. The Chief Justice could also start a process on their own motion. Depending on the dispute over facts, sworn evidence or a judge or panel of judges might be needed. The person facing removal would be entitled to a process that respects natural justice.
The panel distinguished solicitors who hold practising certificates. Their power to administer oaths comes from statute rather than the Chief Justice’s appointment warrant, and ends when the practising certificate lapses. It said the courts’ supervisory role over solicitors does not provide an indirect route for the Chief Justice to remove a commissioner appointed under the statutory power.
The panel recommended statutory intervention to clarify the removal power and establish a suitable procedure. It also endorsed a Law Reform Commission proposal for regulations or practice directions covering, among other matters, revocation of appointments. The opinion did not remove any commissioner or decide any individual complaint.