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Tuesday, 4 September 1984
Page: 422

Senator HAINES(4.16) —The Australian Democrats are, as I hope is every other honourable senator, acutely aware of the importance of not only today's debate but the issue with which the debate is concerned and the responsibility to resolve this matter that rests not just with the Australian Democrats-a group of five-or even with 64 honourable senators but with the Parliament as a whole. I do not intend to cover ground already covered by the reports of the Senate Select Committee on the Conduct of a Judge or to debate the various findings contained in them. Nor do I intend to canvass abstruse legal or constitutional issues. A plethora of conflicting opinions already exists about the way in which section 72 of the Australian Constitution should be interpreted, particularly the meaning of the words 'proved misbehaviour'. Yet another opinion is not necessary. Suffice it to say, I believe-I believe that my opinion is shared by many others-that the issue is not as black and white or, as Senator Durack said, as narrow as the Attorney-General (Senator Gareth Evans) seemed to indicate in his statement.

I and my Party are firmly convinced that this is not so much a question of whether the judge committed a criminal offence or even whether he is liable to be convicted of such an offence but rather a question of whether the behaviour shown in the allegations made by Mr Briese is such as to render questionable the judge's fitness to remain in a position in the highest court in this country. The issue is that the community must have and must be able to retain the fullest confidence in members of the judiciary at all levels. The Australian people are entitled to expect exemplary behaviour of the judiciary. I think that Senator Durack's point is one to which we should pay close attention.

Very grave allegations have been made against Mr Justice Murphy. They cannot be allowed to remain unanswered or publicly unresolved. That aspect is particularly important, given Mr Briese's status. As my colleague Senator Chipp said in the Senate on 24 August:

. . . 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 . . . 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.

On the other hand, we all know that the judge, in his wisdom, has consistently declined to be cross-examined on the allegations or on his unsworn statement denying them. The Senate Committee, not surprisingly, was unable to reach a unanimous decision on the question of whether there had been 'proved misbehaviour' under section 72 of the Constitution or even whether a prima facie case could be made against the judge. Therefore I would have to agree with the Attorney-General that it is pointless to reconstitute a Senate committee of inquiry, given that three reports came from the original committee.

At the moment I do not want to discuss the contents of those reports-they are, after all, readily available and I think very well known-except to make the point that Senator Chipp's report argued strongly that insufficient evidence had been put before the Committee to enable any member of that Committee to come to a clear and definite conclusion. Indeed, the work of the Committee was, it has been suggested, significantly handicapped by the fact that Mr Justice Murphy consistently refused to appear before the Committee either to make a sworn statement or to be cross-examined on a written statement. Furthermore, Senator Chipp's attempt to use Senate procedures to summon the judge was not supported by a majority of the members of the Committee. The Committee was therefore in a position not unlike that of a jury faced with an unsworn statement by the accused in a trial.

All of this puts the Parliament in a particularly invidious position. To do nothing after the tabling of two dissenting reports is unthinkable. It is unfair to the judge and to the Australian public and an abrogation of the Parliament's responsibility to the people. Section 72 of the Constitution places the decision firmly with the Parliament. Whatever else can be argued, that fact is not open to debate. There is no question in my mind that there is a need for further action to be taken on this matter. The question, of course, as the Attorney- General has said, is what action.

It is vitally important that whatever moves are undertaken by the Senate today must lead to an inquiry which is beyond party politics. I cannot stress that point enough. It is essential that the inquiry be totally divorced from both the overt and covert political arenas. For that reason the Australian Democrats do not believe that the reconstitution of a Senate committee is appropriate, particularly in an election year. For a similar reason we do not believe that a reference of the matter to the Director of Public Prosecutions is acceptable. While I do not question in any way-I stress this-the integrity of Mr Ian Temby, QC, the fact remains that he is an appointee of the current Government and would be placed in an awkward position at best if asked to examine the evidence brought before the Committee and to come to a definitive conclusion about the culpability of the judge, given his limited investigative resources and lack of coercive powers.

Senator Missen —He does not think he should do it, either.

Senator HAINES —That does not surprise me at all. After all he would be in a position similar to that of the Senate Committee in that he could only make a judgment on the balance of sworn evidence given by Mr Briese and the unsworn written statements from Mr Justice Murphy. Therefore it is my belief and that of my party that the only appropriate course of action is for the Senate to establish a three-member parliamentary commission. I do not subscribe to the Attorney-General's argument that this is out of the question because it has no precedent. There is, after all, a first time for everything or precedents would never be established. Neither do I believe, as the Attorney-General appears to believe, that it is too difficult to provide such a commission with the powers and protection for it to function effectively. For the first time set a precedent, Senator Gareth Evans. The provision of a commission with powers and protection can be achieved through legislation. Furthermore the Australian Democrats believe that the selection and appointment of the three commissioners referred to by me a moment ago should take place on the basis of consensus reached among the Government, the Opposition and the Australian Democrats. I would have thought, given consistent comments by the Prime Minister (Mr Hawke) over the last year and a half, that it would not be impossible for that sort of consensus to be reached on a matter as important as this.

Our proposal is based on the dissenting report by Senator Don Chipp, who insisted that the Senate Committee could not and should not make a finding without hearing the judge and without the opportunity of cross-examining him on his evidence. We believe there should be no constitutional or any other grounds preventing the judge from appearing before an impartial commission which would combine the authority of Parliament with the high judicial status and proven public record which will be the criteria for the selection of its members. However, if Mr Justice Murphy believes that it is beyond the jurisdiction of such a commission to investigate allegations against him or to determine what ' proved misbehaviour' is, he has the right to challenge these issues in the High Court of Australia. Indeed, because of the wide divergence of opinion already surrounding the exact meaning of the term as it is used in section 72 of the Constitution, a High Court interpretation of the words would of itself be of tremendous value.

Finally, I can do no more than echo the sentiments expressed in the last two paragraphs of the Attorney-General's statement. I believe that they sum up the belief not only of this chamber and honourable senators in it but also of the general public. He said:

What is abundantly clear is that the longer this matter lingers, the greater will be the damage caused to the reputation and prestige of the High Court and to the respect afforded to the institution of the judiciary generally.

There is an enormous burden resting upon the Senate, and it is important that we discharge it quickly, conscientiously and honourably.

We would not be doing that if we allowed ourselves to go no further than we already have or if we referred the matter to another source of inquiry which is questionable at best, which perhaps would not satisfy this chamber and would not satisfy the general public. On behalf of the Australian Democrats, I seek leave to give notice of a motion.

Leave granted.

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

(1) That a commission be appointed to inquire into the matters raised by the evidence of Mr C. R. Briese before the Select Committee on the Conduct of a Judge and relating to the conduct of Mr Justice Murphy of the High Court of Australia, and report to the Senate whether Mr Justice Murphy engaged in any conduct which would amount to misbehaviour providing sufficient grounds for an address to the Governor-General in Council by both Houses of the Parliament praying for his removal from office pursuant to section 72 of the Constitution.

(2) That the commission consist of three commissioners appointed by resolution of the Senate upon terms and conditions of appointment agreed to by the commissioners and specified by that resolution.

(3) That the commission 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.

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

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

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

(7) That the commission determine procedures and rules for the examination of witnesses before it, having regard to the procedures and rules followed by the Supreme Court of the Australian Capital Territory.

(8) That the commission 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 may, for the purpose of the examination of witnesses, make those records, documents and transcripts available to witnesses and counsel and authorise witnesses and counsel to refer to them in the course of the commission 's proceedings.

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

(10) That the commission report to the Senate on or before 30 October 1984.

(11) That, if the Senate be not sitting when the commission has completed its report, the commission 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 authorised by this Resolution,

(c) the President or the Deputy President, as the case may be, may give directions 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.

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

Debate (on motion by Senator Kilgariff) adjourned.