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Monday, 10 September 1984
Page: 733


Senator HARRADINE(8.14) —I rise as the only person who recorded a vote against the motion to send this matter to Mr Temby in the first place. I feel exonerated, if I may use that term, by the letter we now have from Mr Temby . If honourable senators look at the letter they will see that what he is saying there is that if he is requested to do what is set out in the motion of 6 September, referring the evidence before the previous Senate Select Committee, then he could not do so; he could not properly discharge his functions. On page 2 of the letter he says:

Accordingly, if and when I am formally requested to give an opinion in relation to the first motion passed . . . I will respectfully decline to do so until the Select Committee on Allegations Concerning a Judge has taken such evidence into the allegations as might touch upon the question of criminality. It would then be for the Senate to decide whether further materials should be sent to my Office.

What he is really saying is that our first motion has no effect at all. The first motion said, and I quote from the Attorney-General's motion on 5 September :

That the Senate-

(a) refer-

(i) all evidence given before the Senate Select Committee on the Conduct of a Judge . . .

. . . to the Director of Public Prosecutions . . .

That was the previous Senate Select Committee and that Select Committee no longer exists. Let us make very clear what Mr Temby is saying here. He is saying that that motion of 6 September, and I was the only one to vote against it, is now no longer in existence and nobody will take any notice of it. Ultimately what we will have to do is to determine whether or not, having regard to what the new Senate Select Committee does, we send the evidence to the Director of Public Prosecutions. I take the view I took on the previous occasion, that the Senate in so doing is seriously confusing its role and confusing the roles the judiciary, the Executive and the Senate have been given by the Constitution. For the Senate or the Parliament to act as an informant to an officer of the Executive against a member of the judiciary is a serious confusion of our role and a serious undermining of the separation of powers doctrine which is enshrined in the Constitution.

I maintain that it was proper for the Senate itself to establish a new committee in order to discharge the obligation we have to determine whether or not there has been misbehaviour on the part of a High Court judge which would warrant his removal from the High Court. We are faced with a situation that is not of our making. It has been thrust upon us and we must discharge that obligation. In this document Mr Temby has said that he is not going to discharge that obligation for us. He has said-let us look at the wording on page 2-that his responsibility is to examine the conduct insofar as the allegations might touch upon the question of criminality. That is his job, it is not ours. Our job is to consider the question of whether the behaviour was such that it would, under the Constitution, warrant an address by the Parliament for the removal of the judge.

Question resolved in the affirmative.