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Tuesday, 4 September 1984
Page: 418

Senator DURACK(3.49) —The Attorney-General (Senator Gareth Evans) has put down a most important, but I regret to say, disappointing statement in regard to the report of the Senate Select Committee on the Conduct of a Judge which was tabled in this chamber a little over a week ago. The statement of the Attorney covers a lot of matters of serious legal and constitutional importance. I believe it is necessary to study them carefully. Certainly, in the time that has been available since notice was given of this statement, it has not been possible for me at least to study the supplemental opinion of the Solicitor-General which has just been incorporated. Of course, that opinion covers ground of which we are very familiar. I think the issues have now become fairly clear in relation to the question of what amounts to misbehaviour. I feel that the Attorney's response and proposals very much turn on the view of the Solicitor-General which the Attorney has adopted. He adopted the Solicitor-General's view in the first place in February and March this year, and he is adopting it again today. Of course, that is a very narrow view of misbehaviour.

Senator Georges —What is your view?

Senator DURACK —My view is very well known. It was expressed in this chamber in debates earlier this year and in an article which was published in a number of newspapers earlier this year. That view has been supported by the counsel who was retained by the Committee, Mr Pincus; namely, that the word 'misbehaviour'- the aspects and problems associated with it because of the word 'proved' are another matter-in the Constitution has a wider significance than it does in the view which has been adopted in this debate by the Attorney-General. As I said in the course of my remarks, I think it will become clear that the Attorney's response has been very much dictated by the continuing narrow view that he and, admittedly, the Solicitor-General adopt in this regard. I want to make it quite clear that the Opposition has never accepted that view. The view that the Opposition has put has now been supported by the opinion of Mr Pincus and numbers of other people who have commented on this whole problem. We will certainly maintain that wider view of misbehaviour.

In earlier debates in this chamber I referred to a view of judicial conduct by Sir Winston Churchill in 1954 and was rubbished by the Attorney-General for my pains in doing so. In fact, in this Senate on 29 April 1980 the Attorney-General , then shadow Attorney-General, in moving a motion for the establishment of a select committee to look into the alleged conduct of the then Chief Justice of the High Court, also quoted Sir Winston Churchill as to the standards of judicial behaviour that are required. I propose to quote Sir Winston Churchill again, with the authority of the Attorney-General himself, despite the comments that he made earlier this year, when he must have forgotten his quotation. On 29 April 1980 the Attorney-General said:

In that respect I rely on no less a presence than Sir Winston Churchill who, according to Shetreet-

another author he did not think much of earlier this year, honourable senators may remember-

said in the House of Commons in 1954-

about judicial life-

A form of life and conduct far more severe and restricted than that of ordinary people is required from judges and, though unwritten, has been most strictly observed. They are at once privileged and restricted. They have to present a continuous aspect of dignity and conduct.

Far more freedom is granted by the convention of our way of life to Members of Parliament, to Ministers or to Privy Councillors . . . The judges have to maintain, though free from criticisms [in parliament], a far more rigorous standard than is required from any other class that I know of in this Realm.

Senator Missen —That applies only to Sir Garfield Barwick, apparently!

Senator DURACK —Yes. That is a view of judicial standards and way of life which we on this side have adopted at all times in this debate, and we will continue to do so. I am very glad that since we last debated the subject the Attorney- General has adopted that same standard-at least he did in 1980. However, he now quite clearly adopts a very much more restricted standard. In this statement he makes a very surprising comment in relation to this standard. On page 5 of the statement, in dealing with the issue of what is meant by 'misbehaviour', under the sub-heading 'Proper Approach to Section 72', and having quoted Quick and Garran on the subject, he says:

Some classes of 'misbehaviour' may not be subsumed by the approach of Quick and Garran-for example, partisan political activity or notorious private behaviour not directly related to, or affecting, the conduct of judicial office. So be it.

'So be it', says the Attorney-General. He says that misbehaviour does not comprehend partisan political activity or notorious private behaviour not directly related to the office. How can anyone in this chamber or any thinking citizen in this country, adopt a standard of judicial behaviour which excludes the Parliament from considering partisan political activity in relation to the future of a judge? What chamber of Parliament in this country would ever tolerate judges engaging in partisan political activity? It is really an absurd notion. Certainly, the fathers and founders of our Constitution when they used the word 'misbehaviour' as they did in their convention debates on that subject, would not have tolerated for one minute this restricted attitude and understanding of judicial conduct and behaviour.

As I said, the approach of the Attorney-General at all times and again in this statement is entirely coloured-dictated, one might say, by that very narrow approach to this subject. The question that he addresses here is a problem which he has endeavoured to prevent this Parliament from considering. His whole approach from the first day that this Parliament sat in February this year, the day that he came into this Senate with his statement on the subject of the Age tapes, as it has been known, has been a very definite attempt to stifle any further consideration of the subject by this Parliament. He did his very best to heavy this chamber from the word go. His response today again is an attempt to divert the course of this chamber from its responsibilities and its duties in relation to this matter.

I wish to quote another thing that the Attorney said earlier this year in debates and in response to questions in relation to this matter. On 2 March, only a couple of days after this debate commenced this year, in answer to a question from Senator Reid, the Attorney said:

I really believe that the Opposition has drained the last drop out of this matter concerning the judge.

On 2 March the Attorney was desperately trying to stop any further consideration of this whole subject. I ask the Senate: Where would we be today if we had adopted that attitude of the Attorney-General? We certainly would not have the problem, but we would not have these allegations which had been heavily resting in Mr Briese's mind for so long. The Senate Committee gave Mr Briese the opportunity to bring forward this very serious matter which the Committee has considered, and the appropriate approach which it is now the responsibility of this chamber to determine. There is no suggestion by the Attorney-General in this statement that no problem has to be faced. He recognises that the problem exists, yet the attitude that he took before would have prevented this information being brought forward. Page 7 of the Attorney-General's statement reads:

The seriousness of this offence and the clear division of opinion in the Committee have led the government to conclude that further action of some kind needs to be taken to clear the air, and to remove the cloud hanging over the Judge and the High Court. The question is what.

It is interesting to see the way the Attorney-General puts it-'to clear the air' . That does not necessarily mean to have a full investigation of the matter, but simply to clear the air. That is important, but it is also important that we use the right approach and have the truth fully determined. At least the attitude of the Attorney-General in September is some improvement on his attitude in March, when he did not want anything done by the Senate. At least he recognises now that something has to be pursued seriously and determined. So in six months there has been some advance in the attitude of the Attorney-General, disappointing though this statement is.

As the Attorney recognises in this statement, the responsibility for this issue rests with the Parliament. It does not rest with the courts. It certainly does not rest with the Executive. It rests with the Parliament. As I understood it, in debates earlier this year the Attorney-General did ultimately recognise that. He certainly recognises it in this statement, but he again takes a half-hearted approach in that his attitude is that as far as possible the Parliament, and the Senate in particular, should keep out of it. The proposal he is making is for reference to the Director of Public Prosecutions of the Senate Committee evidence and the allegations of Mr Briese.

The Senate will remember that the Attorney, when he came into this chamber in February to try to heavy us not to take any action in this matter, armed himself with two opinions, which he tabled. One was from the Solicitor-General and the other was from the Director of Public Prosecutions. The Director of Public Prosecutions, who admittedly at that stage did not have the Briese material, formed views about the meaning of misbehaviour. He formed views about the Age tapes and the alleged conduct they involved. So he has already been involved in this matter. The Director of Public Prosecutions, although an independent statutory officer, is subject to the directions of the Attorney-General under his statute. He is an officer of the executive side of government, as is the Solicitor-General.

What was the attitude of Senator Evans two years ago when he called for the tabling of documents related to the Costigan Royal Commission on the Activities of the Federated Ship Painters and Dockers Union in the bottom of the harbour tax avoidance matter? He called for the opinion of Mr Brinsden and for a police report on a particular case. The Government of the day said that it would not table those documents because they might affect the course of possible criminal proceedings-a very clear ground for exemption under the Freedom of Information Act and under Executive privilege. The Government of the day produced an opinion of the then Solicitor-General, but Senator Evans and the then Opposition were not prepared to accept the opinion of an executive officer of the Government, namely the Solicitor-General. They proposed an independent person to handle that matter and to advise on whether those documents had that effect. Certainly, on that precedent, there is some reason why this chamber should be somewhat doubtful about the Attorney's suggestion, in effect, that it should be left to Mr Temby to decide whether there should be a prosecution. I do not believe that it is satisfactory for the Senate chamber, or for any parliamentary chamber, simply to put such a matter in the hands of an executive official.

Of course, there are many other reasons why that is not a satisfactory course. The question that Mr Temby will again be asked to determine is whether there should be a prosecution; that is, whether there has been, or may have been, on the evidence, a criminal offence which should be prosecuted. As I have said, that is not the real question before the Senate in this matter. The question is whether a judge has been guilty of misbehaviour. One will see from Mr Pincus's opinion that that is the way he addresses this question. A criminal offence may also be involved, but that is a separate question. Whether or not a person is to be prosecuted involves a number of considerations, which the Attorney-General sets out in this statement. A prosecutor has to take into account a number of considerations in deciding whether to prosecute. A decision not to prosecute may not resolve the issue, and the Attorney does concede that in this statement.

Mr Temby is only a prosecutor. He does not have any investigative or coercive powers. He does not investigate; he simply looks at the material and makes a judgment about whether, on that material, it is appropriate to prosecute. He gives a purely legal opinion. We want resolved the question of judgment on who ought to be believed.

Senator Georges —Not you.

Senator DURACK —That is not what I am suggesting.

Senator Georges —Yes, you are.

Senator DURACK —We will suggest a different course, as Senator Georges will see. That is not the approach that is required here. It is not the case of simply looking at papers and making a decision that there may or may not be grounds for prosecution. What is required in this case is a judgment on facts. What are the facts relevant to the question of misbehaviour, not to a breach of the Crimes Act? They are different questions. Different powers are required. Different questions have to be answered and, of course, it is very likely that different standards of proof will be involved.

Ultimately this question may well be decided on Mr Temby's attitude. I am pleased to note that Mr Temby has understood the problem in a way which the Attorney-General has not understood it. The other day, when the original suggestion was put to him by Senator Tate, Mr Temby is reported as saying very firmly:

It is not my function to help solve the problems of politicians, whatever their persuasion may be.

Obviously, Mr Temby clearly understands the problem he would face if the matter were referred to him. He clearly understands that it is not an appropriate function for him; that it is a function for the Parliament, or for the politicians, as he referred to them.

Those are the inadequacies of that proposal. The Government's response is most disappointing. The Government wants this matter resolved quickly but in fact suggests a process which may only prolong it. The Attorney concedes that ultimately there may well be a role for a Senate committee-either the Senate Select Committee on the Conduct of a Judge or a reconstituted committee. It is well known that Senator Chipp and I have suggested that a most satisfactory way of handling this would be to have an independent parliamentary commissioner resolve it. I agree that that would be the most satisfactory way of resolving these disputed questions of fact, with the commissioner then making a recommendation to the Parliament as to what the facts are.

Senator Tate —Does that include a state of mind?

Senator DURACK —That includes, of course, a state of mind. The honourable senator will realise that a state of mind is a question of fact, resolved every hour of the day, every day of the week. There is nothing new about that. The issue is resolvable, despite some comments to the contrary that I have read. That is the best way to resolve the matter. The Government's co-operation would be required to resolve the questions of fact in that way. That action will certainly not resolve the whole question; the Senate must decide whether there was misbehaviour, on the facts, and whether any other action is justified. The disputed questions of fact must be determined by an independent person with-I agree with the Attorney-General-greater expertise than we as parliamentarians have. The difficulty is that although that proposition has been put to the Government, it is, to say the least, very lukewarm in its response.

Senator Gareth Evans —Not lukewarm; negative.

Senator DURACK —It is a negative attitude, as the honourable senator said.

Senator Gareth Evans —Cold.

Senator DURACK —It is a negative response in almost every respect because the Government really did not want this matter to be ever faced. The Government wanted and still wants the problem to go away. Government co-operation is still my and, I am sure, Senator Chipp's preferred solution. In the absence of any sign of co-operation by the Government, on behalf of the Opposition I give notice that I shall move a motion calling for the constitution of a select committee to deal with Mr Briese's allegations and to make a finding of fact with respect to them. The select committee should consist of three honourable senators-one from the Government, one from the Opposition and one from the Australian Democrats. The real nub of the committee is that it will have the power to appoint a commissioner who will conduct the formal hearing for which Mr Hughes asked on behalf of his client.

As I said, it would be preferable if the Government co-operated. If the Government really were willing to resolve the substance of this matter and really believed, as we do, that a substantial matter must be resolved, it would co-operate in establishing a form of parliamentary commission. In the absence of that commission, the only way in which the matter can be resolved is by reconstituting a Senate committee. The Senate can give that committee the power to appoint a commissioner. Formally the powers would have to be exercised by a committee. We would obtain a man or woman of sufficient stature with the necessary expertise and time to devote to resolving the questions of fact and reporting the finding to this chamber. Our powers would in no way be taken away by that process. That would be the only way in which we could ensure that the disputed facts are resolved in accordance with the ordinary principles of natural justice. As I said, I agree entirely with the submissions made on behalf of the judge by his counsel. If those measures were undertaken we could satisfy all of those requirements and the matter could proceed in the right way. That is also the appropriate way in which to obtain the expedition that the Attorney- General says he desires. That process will certainly be a case of this chamber exercising its powers to resolve the very difficult problem that has arisen and has resulted in the division of opinion in the previous Committee. Those measures are entirely consistent with the proper resolution of the matter by the only body that can, as the law stands, resolve it in the end.

In his statement the Attorney-General recognised that it may well be appropriate or necessary for the Senate Select Committee to be reconstituted. In our view that should be done forthwith with the powers that I have outlined. We hope that the Committee's findings of fact can be made expeditiously. That is the Opposition's response to the Attorney-General's statement. I seek leave to table the notice of motion.

Leave granted.

Senator Chipp —On a point of order, Mr Acting Deputy President. Should not Senator Durack incorporate the notice of motion in Hansard? I understand that he is simply tabling the notice of motion. Would it not be preferable to incorporate the document?

The ACTING DEPUTY PRESIDENT —Senator Durack, do you wish to incorporate the notice of motion in Hansard?

Senator DURACK —Yes. I seek leave to incorporate the notice of motion in Hansard .

Leave granted.

The document read as follows-

I give notice that, on the next day of sitting, I shall move:

(1) That a select committee, to be known as the Select Committee on Allegations Concerning a Judge, be appointed:

(a) to inquire into the allegations made by Mr C. R. Briese, the Chairman of the Bench of Stipendiary Magistrates of New South Wales, concerning Mr Justice Murphy of the High Court of Australia, which are outlined in Appendix 5 of the Report of the Select Committee on the Conduct of a Judge; and

(b) after conducting such inquiry, to report to the Senate its finding of fact upon those allegations;

(2) That the Committee consist of three Senators, as follows:

(a) one to be nominated by the Leader of the Government in the Senate,

(b) one to be nominated by the Leader of the Opposition in the Senate, and

(c) one to be nominated by the Leader of the Australian Democrats.

(3) That the Committee proceed to the despatch of business notwithstanding that all members have not been duly nominated and appointed and notwithstanding any vacancy.

(4) That the Chairman of the Committee be the member nominated by the Leader of the Government.

(5) That the Chairman of the Committee may, from time to time, appoint another member of the Committee to be Deputy Chairman of the Committee, and that the member so appointed act as Chairman of the Committee at any time when there is no Chairman or the Chairman is not present at a meeting of the Committee.

(6) That, in the event of an equality of voting, the Chairman, or the Deputy Chairman when acting as Chairman, have a casting vote.

(7) That the quorum of the Committee be one member.

(8) That the Committee have power to send for and examine persons, papers and records, and to meet notwithstanding any prorogation of the Parliament or dissolution of the House of Representatives.

(9) That the Committee appoint a commissioner, upon terms and conditions agreed to by the President, the Committee and the commissioner, who shall be present at all meetings of the Committee, and who may participate in the Committee's deliberations and examine witnesses before the Committee.

(10) That the Committee appoint counsel to assist it, subject to the approval by the President of the terms and conditions of the appointment.

(11) That witnesses before the Committee may be examined by counsel assisting the Committee, by counsel for Mr Justice Murphy, and by counsel for witnesses.

(12) That Mr President be authorised to reimburse witnesses for reasonable costs of legal advice and representation by counsel in respect of the Committee' s inquiry.

(13) That the examination of witnesses before the Committee and any submissions made to the Committee by counsel be heard in public session.

(14) That witnesses before the Committee be summoned by the Committee at the request of the commissioner.

(15) That the commissioner report to the Committee and make findings upon the matters into which the Committee is to inquire, and the Committee include in its report the report and findings of the commissioner.

(16) That the Committee, the commissioner, witnesses and counsel appearing before the Committee have access to the records of, transcripts of evidence taken by, and documents submitted to the Select Committee on the Conduct of a Judge and relating to the Committee's inquiry, and may refer to those records, transcripts and documents in the course of the Committee's proceedings.

(17) That the Committee report as soon as possible.

(18) That, if the Senate be not sitting when the Committee has completed its report, the Committee may send the report to the President, or, if the President is unable to act, to the Deputy President, and, in that event

(a) the report shall be deemed to have been presented to the Senate,

(b) the publication of the report is authorized by this Resolution,

(c) the President or the Deputy President, as the case may be, may give direction for the printing and circulation of the report, and

(d) the President or the Deputy President, as the case may be, shall lay the report upon the Table at the next sitting of the Senate.

(19) That the foregoing provisions of this Resolution, in so far as they are inconsistent with the Standing Orders, have effect notwithstanding anything contained in the Standing Orders.