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Friday, 24 August 1984
Page: 375

Senator CHIPP (Leader of the Australian Democrats)(3.35) —My dissenting report has become necessary as a result of the distinctly different view I take from other members of the Senate Select Committee on the Conduct of a Judge on a number of issues related to Mr Briese's evidence, the Committee's findings at this stage of its investigations, and the action which should be taken next. As the Senate would know, the activities of and evidence given to this Senate Select Committee have not been exactly the best kept secret in Australia. Almost from the beginning leakages of one kind or another have appeared in the media, followed by speculation by some parts of the media concerning the outcome of the report, quite often particularly insofar as I personally was concerned.

As published at the time, the material concerning my past and proposed action on the Committee could have led the reader to a false conclusion as to my views and conclusions, but because of privilege I could not comment at that stage. Indeed, I have been impelled to refer one particular leak to the Privileges Committee and to make a personal explanation to the Senate concerning particular references to myself.

In submitting my dissent from the report I am now able for the first time to make public my true position and the reasons for it. Let me hasten to say I am one of those members of parliament who hold a strong view that the media not only have the right but also a responsibility to publish leaked material if the editor believes it is in the public interest to do so. The only exception to this rule, I believe, is where our military or strategic interests could be threatened or jeopardised by the release of highly classified sensitive material . Indeed I pay a high tribute to the Age newspaper, The National Times and other sections of the media, including people such as Mr Bob Bottom who have shown courage in pursuing and exposing alleged misbehaviour concerning people in positions of power. In this context let me say that my reference of leaks to the Privileges Committee was not done for the purpose of harassing journalists or media outlets who use the leaks, but to pursue the person or persons who leaked the information which had been given in good faith in camera to a Senate Select Committee. If this type of leakage continues to occur, the value of Senate committees will be reduced to the point of farce and witnesses will be singularly reluctant to give evidence which might be helpful.

The inquiry arose from the publication by the Melbourne Age of purported tapes and transcripts which, if genuine in whole or in part, tend to reflect adversely on the conduct of a judge under scrutiny and, partly as a result, on the administration of justice in Australia. During the conduct of the inquiry and in reaching my dissenting opinion I have been conscious of the rights of indviduals facing the daunting process of public scrutiny. However, balanced against this, there must be the consideration that the administration of the law must be above reproach. If citizens find reason to distrust those who are charged with the duty to protect them against crime and corruption, the social fibre of our society is at risk and the future of this country is in jeopardy. There is also the direct threat posed to law-abiding citizens, judicial officers, politicians and honest policemen if the political system should prove itself too sluggish or too party political to take effective action. The task accepted by the Senate to provide impartial scrutiny and a base for appropriate action thus reflects the growing responsibility and significance of the Senate as an effective people's house of protection and review.

In summary, it is my view that the refusal of the judge to appear before the Committee has handicapped it to such an extent that it is not in a position to leave a finding of no proved misbehaviour on what is before it as its final conclusion. For the same reason, I believe the Committee is not in a position to find that a prima facie case for such proved misbehaviour has been established. I do not agree with the proposition that it is a denial of natural justice to summon a witness to a hearing, even if he is the subject of the inquiry, as long as he retains the right to refuse to answer questions which might tend to incriminate him. It has never been disputed that this right may be exercised by anyone appearing before the Committee.

Accordingly, I believe that investigations must continue before even a preliminary finding can be made and that the judge must be summoned to appear. These investigations should be carried out in a manner which affords him the full protection of legal procedures and the principles of natural justice. The handicap imposed on the Committee by the refusal of the judge to appear before it concerns mainly the written statement as well as verbal evidence and examination under oath by the Chairman of the Bench of Magistrates in New South Wales, Mr C. R. Briese. The allegations contained in this evidence remained unanswered except through a written, unsworn statement by the judge and an appearance before the Committee by his counsel.

I note that the Committee did not feel obliged to decide whether misbehaviour unrelated to the duties of office must always be constituted by an offence against the law. I believe that it is not possible for the Committee to come to any finding, even a preliminary finding, on the basis of the evidence before it without hearing the judge and that, as Mr Briese had twice been interrogated on oath in relation to the evidence which he had given, it was appropriate for the judge to attend and to answer questions on his written statement, and in particular the matters on which he differed substantially from the evidence of Mr Briese. If the matter were allowed to end there it would mean that the Committee has allowed its work to be affected by the refusal of a witness to appear before it even though it has power to summon witnesses.

I disagreed with the Committee's decision not to compel the attendance of the judge before it. My motion requesting the Committee to extend yet another invitation to the judge and, failing that, to issue a summons was lost. A further motion by me to suspend standing order 304-or to recommend to the Senate that we should suspend it-to enable the judge to cross-examine other witnesses if he agreed to appear himself under Federal Court rules of evidence, was also lost. I took the view that a man of acknowledged substance in the community, the Chairman of the Bench of Stipendiary Magistrates of the largest State in the nation, had made allegations of the gravest and most serious nature on oath on two occasions. There were some inconsistencies in the evidence given during the two appearances before the Committee, but in my view these inconsistencies were not fundamental in character. The overwhelming impression which was left with me was that he did not resile in any way from the grave and serious allegations that the judge had approached him with the intention to attempt to pervert the course of justice in one of the courts of New South Wales in a matter which involved a Federal criminal offence.

In my view the questioning of Mr Briese by all members of the Committee was thorough, painstaking, unrelenting and complete. When I was left with the substantive question: 'Did Mr Briese resile from the view that the judge had intended that Mr Briese use his position to interfere with the committal hearing of Mr Morgan Ryan in one of the courts over which Mr Briese had jurisdiction as Chairman of the Bench of Stipendiary Magistrates' I had to come to the view that he did not resile. Of course I could not at that stage find that any offence had been necessarily committed on the basis of this evidence unless I was given the opportunity to hear the judge's version and to test his evidence in the same manner as Mr Briese's evidence was tested-on oath and after subjecting himself to questioning.

I therefore came to, and still hold, the very strong view that, notwithstanding the fact that the evidence of Mr Briese has not been and cannot be corroborated, the question on the conduct of the judge cannot be determined or put aside until he has appeared before the Committee or the Senate or a commissioner appointed by the Senate. In these circumstances the rules of natural justice would, of course, have to apply and he would be entitled to adequate protection of counsel and the right for his counsel to cross-examine appropriate persons.

The gravity of the allegations and the consequences for the administration of justice in Australia are such that I believe that the Senate should seek to resolve the matter by making further investigations and to ensure that the judge is questioned on the allegations and to enable him to be afforded the protection of the rules of natural justice in the process.

Mr Acting Deputy President, you would know that it is not impossible that a future vote of the Senate may agree with some of the recommendations contained in the two dissenting reports. Although the majority finding advocates no further action, that does not, in this place, necessarily reflect the political reality of the future situation. Therefore, I hope that the Senate gives the earliest possible attention to the majority report and the two dissenting reports so that a final resolution of the matter may be brought about as soon as possible. I say that in fairness to the judge who must have suffered deep concern over the past several months and also because of the desirability of allowing the highest court in Australia to function without unresolved allegations remaining against one of its members.

Because of the limited resources available to the Senate and because of the natural and obvious difficulties which attach to a committee of parliamentarians engaging in investigative and deliberative functions concerning a judge, consideration should be given that these further investigations which I recommend should be carried out by or with the assistance of a parliamentary commissioner appointed by the Senate. In concluding, I pay the highest possible tribute that I can to the objective and fair way in which the Chairman handled the affairs of the Committee, to my colleagues on the Committee and in particular to Mr Harry Evans, the Secretary, who was assisted by Mr Andrew Snedden and Mr Robert Walsh.