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Friday, 24 August 1984
Page: 374

Senator DURACK(3.23) — I express my gratitude for the very conscientious manner in particular in which Senator Tate exercised and performed his role as Chairman of the Senate Select Committee on the Conduct of a Judge, and for the efforts of my colleagues who have engaged in this unenviable task in the best tradition of Senate committees. As would be obvious to the Senate from the nature of the reports and the time that the Committee has devoted to them, the very greatest attention has been paid to these very heavy responsibilities which were placed upon the Committee.

The question now before the Senate arising from the Committee report can, I think, be divided into two very clearly different matters-that part of the report which deals with the Age tapes, what has been called the provenance of the Age tapes, and what conclusions may be drawn from the tapes and transcripts which were received ultimately by the Committee from the Age newspaper via the Attorney-General (Senator Gareth Evans) and the Director of Public Prosecutions. That material was the subject of very great public disquiet and public debate prior to the establishment of this Committee. The establishment of the Committee arose out of that debate, which was vigorously pursued in this chamber as well as outside it.

It is no secret that I was particularly concerned about some features of this material relating to a judge. My colleagues on this side of the chamber and I were also very concerned about wider aspects of criminality which were thought to be revealed by this material. No doubt the work of the Committee and some of its conclusions will throw some light on what use, if any, may possibly be made of this material. As will be clear, we all agree with the conclusions that have been drawn in respect of those matters, but we were able to take it a little further than the Special Prosecutor, Mr Temby, who reported the other day. I think it is fair to say that although, as we have concluded in the report, despite all the efforts that have been made it is impossible to make any finding about the authenticity of this material, nevertheless some explanation of how and why it came into existence is perhaps a little clearer from our report than it was possible for the Special Prosecutor to find.

It was revealed by one of the methods that we adopted, that of seeking to ask people who allegedly had taken part in conversations, that some support was given to the view that all of this material from the Age is not just a complete hoax and a fraud on the public. There is something there, but it is very difficult to know to what extent. Certainly nothing is clear as to what can be done with it. Nevertheless, I think it is fair to say that it is not a complete hoax.

The other aspect of this matter is one which ultimately caused the Committee even greater concern. That is that in the course of our examination to determine the authenticity of material we asked people to assist the Committee, including Mr Briese, for the reasons set out in the report. The Committee was then faced, when he came before it, with the very serious allegations concerning the judge, which are set out in an appendix to the report. We have not submitted his statement as such or any of the transcripts of his evidence as such. Nevertheless, there is an agreed statement in Appendix 5 as to just what the nature of the transactions between the judge and Mr Briese are, giving Mr Briese 's version of them and the judge's version of them. As the Chairman of the Committee has said, we have decided not to table the full transcripts, for obvious reasons, I think, in view of the Committee's conclusion. Nevertheless, there is some reference to key aspects of Mr Briese's evidence under cross- examination contained in each of the reports. I refer to the majority report on this matter, the dissenting report by Senator Lewis and me, and the dissenting report by Senator Chipp. There is sufficient material before the Senate and no doubt before the public now on which it is possible to come to judgments or perhaps to understand the differences of judgment revealed by the report and the dissenting reports. I do not want to go over the differences and the reasons for them. Hopefully, the reports speak for themselves but, in summary, the difference boils down to the interpretation one places on the evidence given by Mr Briese. The members of the majority do not find themselves able to form from that material any judgment adverse to the judge in regard to his conduct, although it is conceded that Mr Briese gave his evidence honestly and sincerely.

Unfortunately, and with a somewhat heavy heart, I find myself unable to agree with that conclusion. The conclusions reached by Senator Lewis and me are set out in paragraph 5 of the dissenting report. I shall briefly read them:

Mr Briese's allegations have been put under much more rigorous testing than Mr Justice Murphy's denials--

And what was done emerges from the majority report. On the basis of that we concluded:

There is a prima facie case of misbehaviour against the Judge.

But that is not a finding that the judge has been guilty of this misbehaviour. We added that Mr Justice Murphy should now be granted the opportunity to have Mr Briese cross-examined, in the sense of a formal, judicial type hearing, as contended by counsel on his behalf. The judge himself should only be given the opportunity of deciding to give evidence for himself in light of those proceedings. The problem now before us is what steps should be taken to conduct that hearing which I believe is necessary.

The Chairman of the Select Committee, Senator Tate, referred to differences between the investigatory and judicial phases. I agree that the investigatory phase has concluded. I differ in the sense that I believe a judicial type hearing is required in light of the evidence obtained by the Committee, but I agree with the submissions of Mr Hughes, counsel for the judge, that that must be done in accordance with the principles of natural justice. The judge is entitled to have Mr Briese cross-examined fully by his counsel and to decide at that stage whether to give evidence, but if he does so he will be subject to cross-examination. Interestingly, Mr Hughes submitted that this should be conducted in public. I would agree to that as well because that is seen by him as being part of the process. The difficulty we faced was that the Senate Standing Orders do not accommodate that type of procedure. Therefore, special provision would have to be made if the Senate were of the view that that proceeding should be conducted.

I have also suggested that a possible other approach would be for the Senate to enable the Committee to conduct that form of hearing or presumably the Senate itself could appoint a commissioner to do so. In essence, my conclusion is that the question is of such moment, and the evidence of Mr Briese is of such strength, that the Senate should now resolve to permit some form of judicial type hearing in accordance with the submissions which his counsel made in referring to the type of situation which I believe has now arisen. I do not wish to say anything further at this stage. No doubt there will be further debate on this matter in this chamber. I shall reserve any further comment until that debate takes place.