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Friday, 24 August 1984
Page: 377

Senator BOLKUS(3.45) — I also speak to the report of the Joint Select Committee on the Conduct of a Judge of which I was a member. I begin by stating that I hope for many reasons that the Australian Parliament does not embark upon this sort of procedure again. It has been an exhausting as well as an exhaustive procedure. The report details in depth the number of official meetings and indicates the amount of work that was involved in the short period. However, I believe that the greatest cost of this exercise has not been to the members involved but to the democratic principles and the principles of justice fundamental to our system of government. That process involved politicians in the investigation of matters which should be outside our sphere of involvement.

The judicial process, a process which under the Constitution is deliberately left separate from our legislative function, should remain that way. There are good reasons for this. Indeed, we are different animals from the judiciary. We live in an environment where rumour and half truth take on the credence of fact unless they are proven otherwise. Those sorts of considerations, of course, work against anyone who is in a position where he has to defend himself. Principles of natural justice demand that the judicial process should not operate in that sort of way. When I say that, I say it with absolutely no intention to impute any malicious intent on the part of any member of the Committee. It is a fact of the environment in which we live.

It is also ironic-I must comment on this-that we as a body of politicians have been involved in what is part of a law enforcement function. In fact, we were inquiring into whether some other extraneous influence took an undue part in the normal law enforcement function elsewhere. The Committee was, in fact, asked to investigate whether there was a breach of section 72 (ii) of the Constitution, to make an assessment of the law and of the rules of natural justice and, in fact, to interpret the facts as to whether they would constitute a breach of the law. I submit that all those functions should belong to the judiciary.

I submit that it is more appropriate-to this extent I differ from the majority- to have a system whereby the court should make a deliberation and a finding on whether an offence has been proven and for the Senate to decide as to the gravity of the finding. That is the sort of principle that has been embodied in legal opinions presented to this Parliament previously. It is the sort of principle that was not accepted by the majority in the Senate when this Committee was set up.

As I said-it has been said earlier-we embarked on the investigatory stage and only that. During that stage we heard all the evidence against the judge. We did not hear the evidence for the judge or any defence of the judge. There was no cross-examination by counsel hired by the judge. In this context, therefore, we have had presented to us as a committee the worst possible case against the judge. The only balance to the judge's interest has been that we met in private and we met with an agreement that after our inquiries we would not proceed to publish the evidence obtained in the investigatory stage. However, having said that, let me say that I do not believe that this sort of consideration is sufficient to balance the deprivation of rights that has occurred by the mere institution of this system.

I note for the record that I disagree with the majority on one or two other points of law. I do not believe that in our process we should be obliged to find whether an offence has been committed on the balance of probabilities. I believe that the criminal burden of proof is the one that is appropriate and that we should have proceeded to assess the situation on whether, in fact, the judge had committed a breach of section 72 (ii) of the Constitution beyond reasonable doubt. In the event this should be a major consideration because obviously it influences the decision taken by the Opposition senators on the Committee.

I do not wish to speak for long. I believe most of the issues have been canvassed. However, I do wish to say that I do not understand a particular part of the logic used. I think it is incumbent on me to highlight this, not for the reason of criticising any particular honourable senator but for the reason of highlighting a particular problem-the problem of politicians acting in a judiciary capacity. I illustrate this by referring to a proposition put to us that says 'Well, we can't find the judge guilty on what is before us; we can't find on the facts that there is a case of proven misbehaviour; we can't even find that there has been a prima facie case established against the judge, even if the burden of proof that we exercise is that based on the balance of probabilities'. Having considered all that we are then asked to take the matter one further step and demand of the judge that he come in here to prove his innocence.

It has been incumbent on us, with all the powers we have had, and given the lesser degree of proof and the disregard to a limited extent, as I have highlighted, of the rules of natural justice, that even though we cannot establish guilt-at least a majority of senators on the Committee say that we cannot on the balance establish that there has been a prima facie case against the judge-the judge has to come and prove his innocence. I think that is gross hypocrisy.

Having said that I do not wish to say any more other than to join in congratulating the Chairman of the Committee for his patient and tireless work, both in chairing the Committee and in preparing the report. I wish to thank my colleagues for having put up with each other over the last six months. Most importantly I wish to thank Harry Evans, Robert Walsh and Andrew Snedden for their tireless efforts in assisting the Committee.