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Wednesday, 5 September 1984
Page: 457

Senator GARETH EVANS (Attorney-General)(11.29) —I move:

That the Senate-

(a) refer-

(i) all evidence given before the Senate Select Committee on the Conduct of a Judge, and

(ii) all documentary or other material furnished to the Committee, relevant to the Briese allegation, to the Director of Public Prosecutions for consideration by him whether a prosecution should be brought against the Judge; and

(b) request the Director of Public Prosecutions, should he conclude that a prosecution not be brought, to furnish a report to it on the reasons for reaching that conclusion.

The debate we are about to commence is one of the most important in the history of this place. I hope that we can approach it in a constructive and moderate spirit. The Government proposals for the resolution of this matter were prepared and have been advanced in that spirit. I continue to hope that the force of those proposals, their moderation and the good legal and political sense that lies behind them will in fact be accepted, if not by the Opposition which appears to have some axes of its own to grind, then at least by the Australian Democrats. It is not necessary for me, given the very long statement I made yesterday, to track over the whole series of considerations which have to be taken into account and which are relevant to the resolution of this matter, and I do not propose to do so. I simply want to set out, as clearly and succinctly as I can, what the Government's proposal is and why we advanced it, and indicate why we do not support the two alternative models which have been proposed, so far at least, by the Liberals and the Australian Democrats.

The starting point for the argument in support of the Government's proposal is simply this: We are dealing here with an allegation which, if substantiated, would amount to criminal misbehaviour of a kind which is clearly within the kind of conduct contemplated by section 72 of the Constitution. We are not talking here about some lesser form of misbehaviour which does not amount to a criminal offence or which is not directly related to the discharge of the duties of office. We are not talking about misbehaviour which falls within that disputed twilight zone which has been the subject of so much debate in recent weeks and months in this place.

The allegation of Mr Briese involves two fairly simple interrelated issues of fact: whether, on the one hand, Mr Justice Murphy used the words 'Now how about my little mate'; and secondly, if so, whether he used them with the intent to influence, perhaps pervert, the course of justice. If the answer to both those questions is yes-that is to say, he used the words in question and did so with that intent-then it is clear that an offence of some kind has been committed, probably an attempt to pervert the course of justice within the meaning of section 43 of the Crimes Act. But if the answer to either of those questions is no-that is to say, either he did not use the words at all or, if he did, he did not use them with any such intent to influence-then it is clear that not only has no offence of any kind been committed, but also there has not been any lesser form of misbehaviour either-unless one adopts the extreme view that mere social association, mere social intercourse with someone of an allegedly dubious character or reputation is in itself enough to justify dismissal from the judiciary. No one, I think, has taken such an extreme view-certainly not on the Committee-and it would be a quite extraordinary and outrageous application of guilt by association were that to occur.

Because the allegation is criminal, because it does not involve any lesser form of misbehaviour-if it is not in fact criminal-and because there is no doubt that a criminal conviction in the courts for an offence of this kind would constitute proved misbehaviour such as to justify an address, were the Parliament minded to make it, for a judge's removal, the Government strongly believes that the most appropriate way of tackling this problem in the first instance is to let the ordinary criminal process take its course. That means, in the absence of any willingness by Mr Briese to initiate the prosecution process himself, referring the matter in the first instance to the Director of Public Prosecutions, letting him examine the primary evidence, letting him weigh and balance that evidence against public interest considerations that always have to be taken into account in determining whether the prosecution shall proceed, and then deciding whether a prosecution is warranted. That is the very kind of job the Director of Public Prosecutions was established by statute by this Parliament to do, that is what he is completely equipped to do.

Senator Missen —That is not his duty.

Senator GARETH EVANS —That is what he does every day of the week in relation to other less sensational matters and, despite the repeated assertions that have been made by Senator Chaney and Senator Durack and, a moment ago, by interjection of Senator Missen, that is what he is willing to do. That is what he has expressed his willingness to do in the matter now before us. Let us hear no more of that canard.

It is not proposed that the Director of Public Prosecutions constitute some kind of mini-royal commission, running some major investigation of his own. It is proposed only, and it has only ever been proposed by the Government, that the Director of Public Prosecutions play his ordinary role of reviewing available evidence, weighing and balancing the weight of that evidence, and determining whether or not a prosecution should proceed. If the DPP, after evaluating the weight of the provable evidence that is available to him and after evaluating the weight of the competing public interest considerations, takes the view that a prosecution ought to proceed, that prosecution will proceed and the matter will be tested where it is entirely appropriate that it be tested-in the criminal courts of this land. If he decides that a prosecution is not warranted on the basis of the material before him and those considerations, then it will be appropriate for the matter to be considered again by this Parliament for such further action as this Parliament thinks appropriate. Only 10 days or so would be involved in allowing that process to work itself out.

Given the nature of the allegations that are involved here, it is quite extraordinary that that course should be resisted, as it has been resisted and as no doubt it will be resisted unless some reasoned sanity prevails today on the other side of this Parliament. The appropriateness of this course being taken should not be in doubt where an allegation of a criminal character is involved because allegations of that kind need to be determined in a rigorous, detached and expert way. They need to be determined by reference to and close regard to appropriate standards of proof, which in the case of a criminal matter is, of course, beyond reasonable doubt. I find it extraordinary that we should have the constantly reiterated suggestion that the criminal courts and the criminal process, and the DPP as the way into that process, are an inappropriate vehicle for testing the force, the strength, the weight, the credibility of the allegation that is now before us.

Let me test that assertion by asking: What if the allegation in question here were one of murder? What if the allegation here against a judge of the realm were one of armed robbery? What if the allegation were one of commercial fraud? What if, as has been the case in the past, the allegation were one of a sexual assault, or a sexual indecency of some kind? Would anyone suggest that that kind of allegation was appropriate to be determined in the first instance by a Senate committee unless other available options had been exhausted? Would anyone seriously suggest that a matter so obviously criminal in character would appropriately be dealt with by a Senate committee, with all the consequences that flow from a determination of such a kind? Would anyone make that suggestion ? That is the question which has to be answered, and answered during this debate by the Opposition and by the Australian Democrats it they are to emerge from this debate with any shred of credibility intact in the way they have approached it.

It seems that the assumption is being made in a number of quarters, not least by those opposite in this Parliament, that the Director of Public Prosecutions is somehow bound to find that there is no case to justify a prosecution proceeding. That assumption, to the extent that it is being made, is utterly unjustified. On the one hand it involves some suggestion, explicit or implicit- it has been pretty explicit from Senator Chaney, who is now in the chamber-that the Director of Public Prosecutions is not capable of exercising or likely to exercise any kind of independent judgment. That is an offensive suggestion, whether it is made by Senator Chaney or by anyone else. I reject it out of hand and any fair-minded person would reject it out of hand.

Senator Chaney —Mr President, I rise on a point of order. An allegation has just been made by the Attorney-General which is totally unfounded and untrue. He should withdraw it. If he wishes to cast aspersion on Mr Temby he should do so himself and not put words in my mouth which were not there.

The PRESIDENT —Order! There is no point of order. I ask that this very important debate be conducted as rationally as it can be.

Senator GARETH EVANS —I repeat: If the assumption is being made that the DPP is bound to find against some prosecution proceeding, either that assumption is based on some explicit or implicit suggestion that the DPP is not capable of or willing to exercise independent judgment; or alternatively, the assumption involves a quite remarkable lack of confidence in the judgment of Senators Durack and Lewis, who have already determined on the basis of exactly this same material which it is proposed to put to the DPP that there is a prima facie case to answer.

If this motion is passed, the Director of Public Prosecutions will have before him all the material that was available to the Senate. He may wish to conduct, through the Australian Federal Police, some further investigation or inquiry in relation to some aspects of that material. Apparently there is a very substantial bulk of material available in the Committee proceedings. There is obviously some weight to be attached to that material, properly greater than the normal run of the mill allegations that have been trumpeted around the media and the public arena in recent months, insofar as that material was put to the Committee on oath and insofar as it was tested by Committee examination. Accordingly, there is no reason why the DPP should not be able to make appropriate decisions about whether a prosecution should lie on the basis of that material and there is no reason at all to make any assumptions about what the outcome of his review would be.

What happens-I have to address the question-if the DPP finds, after all of that , that there is no basis to prosecute, if he advises against a prosecution proceeding? In an ordinary case that would be the end of the matter. But this is no ordinary case, as we are all well aware, because the issue is the application of section 72 of the Constitution. There is no doubt that Parliament has a constitutional role to play in this respect. Parliament has that role at two levels. In the first place there is the question of establishing proof of misbehaviour. I have readily acknowledged that that is a role that can be played by Parliament itself. However, I have also argued that it is a role much more appropriately played by the courts rather than the Parliament when the nature of the alleged misbehaviour in question is of the kind that it is here-an actual criminal offence.

The other way in which Parliament obviously becomes involved-necessarily involved this time-in the constitutional process under section 72 is, of course, the address stage of the proceedings on the basis of misbehaviour which may be proved, as I have argued, either in the courts or by some preliminary procedure in Parliament itself.

Of course, that provision in section 72 vests a discretion in the Parliament as to whether, even if it is satisfied that there is proved misbehaviour, it nonetheless still wants to address on the basis of it. None of those matters is in contention between us. The Government has not ruled out the possible appropriateness of further parliamentary committee inquiry in the event that there is some genuine doubt-not spurious doubt, not politically contrived or politically motivated doubt, but some genuine doubt or some genuine concern- still lingering after the DPP's report comes in.

There is no question here or anywhere else of a cover-up approach by this Government. I have always acknowledged that Parliament has a constitutional role to play and it may be appropriate for Parliament to play it if there is a continuing lingering concern of a genuine kind after the ordinary processes of the criminal law have been exhausted in the way I have suggested. What I do say and what the Government says is that if there is to be any further inquiry by the Parliament it has to be based on a very narrow and limited approach of the kind proposed by His Honour's counsel, which was accepted, of course, by Senators Durack and Lewis in their report. Essentially it should be a natural justice procedure based on a hearing or a putting back into the record of the primary evidence that is there, the cross examination of the witnesses by the judge or his counsel, and with the opportunity then for the judge to make his own decision as to whether he wants to give evidence and submit to the Senate's questioning. Thus the Government's position is very simple and very straightforward.

I repeat: Since the allegation here is criminal in character we should exhaust the criminal prosecution option first, which involves as the first port of call the reference of this material to the Director of Public Prosecutions. Secondly, the Government's position involves an acknowledgement that a parliamentary committee and Parliament itself may have some further involvement, although it is undesirable to exercise it so long as the criminal process remains an available option. The Parliament's role, if it does reconstitute a committee, should be confined in the way I have indicated.

I repeat that there can be no justification for the allegation advanced by the Opposition-and repeated by the Fairfax Press in particular-that this Government is engaged in some sort of attempt to hide this matter, to put it under the carpet. The Government's proposals as I have outlined them are consistent with both the spirit and the letter of the Constitution. The Government's proposal will enable the expeditious resolution of this matter and will ensure that justice-not Mr Justice Murphy, as one cartoonist had it-is both done, and seen to be done. There can be no credible justification for resisting the course that is proposed in this resolution.

I do not believe the Australian Democrats have any justification other than a misguided perception of what is appropriate. I am much less confident about the justification operating in the minds of the Opposition. I suspect it is based on a desire to prolong the agony for both Mr Justice Murphy and the High Court in the hope that something will turn up in this process of perceived political advantage to the Opposition. There can be no justification for the alternative courses proposed. I will explain why.

The Australian Democrats proposal-at least as it existed last night-was for a three-person commission created directly by the Senate. There may be some superficial attraction in taking the matter out of the political arena, which is the way in which this proposal for an independent parliamentary commission has been justified by the Australian Democrats, however it is not a proposition which can survive close scrutiny. It is a proposition which is subject to three absolutely fatal flaws. The most basic, the most intractable and the most irresolvable flaw is that Parliament cannot delegate the proving function to such a person or body. There can be proof for the purposes of section 72 of the Constitution only if that proof is established to the satisfaction of Parliament itself or a court. Therefore, any findings made by such a commission would need to be second guessed by either the Parliament itself or one of its committees or the criminal process. That is a flaw and the reasoning behind the statement I have just made. The argument I made is spelt out at length in my statement of yesterday and I have no need to repeat it. It is a flaw incapable of correction however much huffing and puffing may occur from the other side.

The second fatal flaw in the proposal for a parliamentary commission is that it is wrong in principle for an allegation of criminal misbehaviour to be dealt with otherwise than by the properly constituted criminal courts and the ordinary criminal process. It is wrong for a parliamentary commission, exercising the kinds of powers that are proposed to be vested in it, open-ended and not limited by any of the ordinary constraints that apply to the courts of this land, to be passing judgment and determining upon the kinds of allegations that are here in issue.

Senator Missen —That was not your view in 1980, was it?

Senator GARETH EVANS —Are you talking about the Mundroola affair? That was in the context, you silly man, of a different kind of allegation of misbehaviour which had nothing to do with breaches of the criminal law, which had to do with the first leg of misbehaviour which is misconduct in the conduct of one's judicial office. If you cannot understand the difference between that kind of misbehaviour and the kind of misbehaviour that involves an allegation of criminal misconduct you not only ought not to be hanging up your legal shingle but also ought not to be in this place. I repeat--

The PRESIDENT —Order! I ask the Minister to address his remarks through the Chair.

Senator Georges —Mr President, I raise a point of order.

The PRESIDENT —Order! Senator Georges, before you raise a point of order I ask Senator Evans to address his remarks through the Chair and to withdraw the phrase 'silly man'.

Senator GARETH EVANS —Mr President, I withdraw the phrase 'silly old man'.

The PRESIDENT —Senator Georges, do you wish to raise a point of order?

Senator Georges —Mr President, I think your ruling satisfied me. What I take objection to is that we have a very serious matter before the House today in public and broadcast debate; a person's position and reputation very much depends on this debate. Yesterday there were some emotional outbursts; I may have made one or two. Today I think that we ought to be listening to some reasoned debate on the matter without the benefit of--

The PRESIDENT —Order! Senator Georges, I have already made the point that there should be calmness and rational debate. I suggest that you do not now take up the Attorney-General's time.

Senator GARETH EVANS —The third fatal flaw with the proposal for a parliamentary commission is that it will necessarily, by its very nature, involve very substantial delay in creating a proper resolution of this matter. That, as I said yesterday, and I do not need to labour the point, is bad for the High Court and bad for the institution of the judiciary generally. Because of those flaws and because we believe that it is misconceived in principle and constitutionally unsound to go down that track the Government will, as I said yesterday, not support legislation to establish such a commission. In the absence of such enabling legislation the proposal simply cannot-as it has been put forward by the Democrats-be made to work. The Senate cannot, by simple resolution of its own, confer upon some body such as this the powers, privileges and protections of the Senate itself. Without those powers and protections no one in his right mind would be prepared to take on the job of commissioner. Without those powers and protections and privilege against the application of the law of defamation no witness could reasonably be required to appear before it. One could expect an immediate challenge to the makeup of such a body should it proceed to be purportedly established and should it seek to call someone before it on that basis.

That leaves the Opposition proposal to create essentially exactly the same kind of commission comprising one or more commissioners exercising, it seems, exactly the same powers and functions as those proposed in the Democrats' motion but this time with the commission appointed by some reconstituted committee rather than by the Senate itself and appointed in such a way that it somehow is to shelter behind the umbrella of that committee. It is a very strange animal indeed that the Opposition is contemplating. It is certainly not one that can be made to live and breathe in the political and legal air of the real world. As an animal it is a sideshow freak, perhaps plausible to the gullible but in fact a complete fake. I think I can explain why that is so by making a couple of very simple points. Either the commission--

Senator Durack —You can fix it up with legislation. Why don't you do that?

Senator GARETH EVANS —If Senator Durack is acknowledging that it needs to be fixed up by legislation, I fully share the point of view he seems to be expressing. The Opposition seems to want it both ways. The problem with the proposal is that either the proposed commission is completely subordinate to the proposed Senate committee, not exercising any independent powers and not making any independent judgments of its own-in other words playing some kind of glorified counsel assisting role-or if it is not that it is to be completely independent of the committee; it is to exercise powers of its own; it is to make judgments and determinations of its own as to whether there is misbehaviour proved or capable of proof. In other words, as Senator Chaney said this morning on AM, letting the cat right out of the bag in the process, of course, what is proposed on this view of it is a kind of royal commission to do exactly the same job as a royal commission, with the same sorts of powers as a royal commission but appointed by the Parliament-in this instance indirectly by a parliamentary committee-rather than by the Executive.

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One only has to state the issue in those terms and appreciate that this animal has to be either one kind or the other-there are no in-between circumstances that I can contemplate-to see the impossible weakness of this proposal which has been devised by the Liberal brains trust and the muddle-headed legal wombats that seem to lie behind it. On the one hand the commission is completely subordinate to the Committee, in which case, the enterprise has done absolutely nothing to take the matter outside the political arena, which is promoted as being its major attraction. What we would have is something that is quite indistinguishable from simply a re-established committee, with all the weaknesses that that involves, and which have already been spelt out. Alternatively, this particular commission that is proposed is to be completely independent of the Committee-notwithstanding that it sits periodically it seems in the same room-conceptually and legally, making its own judgments, exercising its own powers and not relying upon the authority exercised in each case by the Committee itself. If that is the model, it simply cannot work because it cannot be vested with these sorts of powers and functions by simple resolution. There has to be legislation to make it work. As I have said, and as I say again, there will not be such legislation. There will not be Government support for such legislation, for all the reasons of principle that I have already set out.

So the situation is this: There are no valid principled reasons for denying access of the Director of Public Prosecutions to the material which has been compiled and accumulated by the Committee; nor is there even a practical reason for denying it. I have indicated that the Director of Public Prosecutions believes that he can do the job within 10 days or so.

Senator Jack Evans —Does he want to do it?

Senator GARETH EVANS —He does express, and will express publicly, if anyone chooses to ask him-the Press has chosen to ask him-a willingness to do the job in the terms that I have outlined. He has indicated a willingness and a capacity to do it within 10 days or so and, obviously, on even the most optimistic scenario, and leaving aside the merits of those scenarios, even on the most optimistic version of it, it would take at least that long to set in train either the mechanism proposed by the Australian Democrats or the mechanism proposed by the Opposition. If the Opposition and the Australian Democrats are to credibly persist with the approach that resists the proposals that have been put forward by the Government and which are embodied in this motion, they are going to have to produce a lot better argument than they have produced so far. I do not believe they can.