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Wednesday, 5 September 1984
Page: 514

Senator TATE(6.32) —Prior to the suspension of the sitting for lunch, I was supporting the motion moved by the Attorney-General (Senator Gareth Evans) , which had as its first leg the notion that the criminal prosecution process should be exhausted before any further steps are taken by this Senate chamber in relation to the allegations of Mr Clarrie Briese that Mr Justice Murphy of the High Court of Australia had engaged in conduct or activity which was intended to put pressure on Mr Briese and influence the outcome of certain committal proceedings in the magistrate's courts of New South Wales. I was addressing my remarks to the propriety of exhausting that criminal prosecution process by the Senate giving its material, its evidence, to Mr Temby, the Director of Public Prosecutions, for his assessment as to whether a prosecution should go ahead.

I understand that only an hour or so ago the Australian Democrats agreed that the step of sending the materials to Mr Temby ought to go ahead, though in tandem with another proposal. To that extent, I must give myself some credit for having been so persuasive in that hour or so before lunch, because obviously I dispelled at least the misgivings and fears of the Democrats, if not those other honourable senators opposite.

But then we come to the proposal that the Democrats now say should go in tandem with the Temby reference. As I understand it, the Democrats still have in mind a notion that a Senate Committee act in conjunction with a special adviser or parliamentary commissioner. Their exact intention is a little obscure. Therefore , in the 10 minutes remaining to me, I should like to deal with the notion of a parliamentary commissioner, so that at least I may be as persuasive as I was before lunch in dispelling the thought that that is really a viable option.

When it was first floated that the parliamentary commissioner might be used to conduct an inquiry into alleged misbehaviour by Mr Justice Murphy, I was astonished that this nineteenth century British anachronism should be revived in our twentieth century Australian democracy. It is a form of adjunct to the parliament that has never been used by the House of Commons or the House of Lords this century, and it carries many difficulties with it. The legal difficulties attending handing over the coercive powers to an outside person or body is quite immense. They have to do with the privilege that would attach to any evidence taken by such a commission and whether, indeed, it could even administer an oath. Indeed, it would be almost certainly subject to legal challenge at its creation.

Just before lunch I was saying that in any case, any decision made by any such commission or commissioners, could not be conclusive or binding on the Senate or any member of it. I certainly would not give up my right or responsibility under the Constitution to assess the evidence or come to a decision as to whether the conduct or activity or states of fact, or even states of mind, amounted to misbehaviour on the part of the judge. Anything which gave to the Commission any conclusive power to determine such matters would involve a gross dereliction of the duty of this chamber and of the individual members in it.

I had a quick look at the history of this parliamentary commissioner concept as it has operated in the United Kingdom in the nineteenth century. Nothing that I see in the few examples that the Parliamentary Library has been able to find gives me much confidence. There were three such occasions. One was the Select Committee of the House of Commons on the National Land Company which investigated the affairs of a co-operative land settlement company and appointed an independent accountant to examine documents of the company. Again, a Select Committee of the House of Commons on Army and Navy Estimates was empowered to appoint independent accountants to examine the books and accounts of certain defence supply establishments. The Select Committee of the House of Lords on the Sweating System inquired into labour conditions in certain industries and was empowered by the House to employ a person to visit the localities where those conditions were alleged to exist and to report back to the Committee.

It has been put to us now that there is some analogy between the use of a parliamentary commissioner in the United Kingdom and the high, solemn constitutional responsibility of this Parliament, and of this chamber in this instance, in relation to the removal from office of a High Court judge. Should we compare this situation with the appointment of auditors to examine accounts and a factory inspector to check on unduly harsh conditions in the factories of the late-nineteenth century England? It just seems incredible to me that it should be proposed that we, in our twentieth century Australian democracy, with our robust parliamentary system being part of the separation of powers which is so important to our Federal system, should adopt this nineteenth century anachronism which, as I say, the United Kingdom, the Westminster Parliament, the Parliament from which we draw our privileges and our principles of action, has not seen fit to employ at any time during this century.

Senator Peter Rae —Are there not some United States analogies which are rather more modern?

Senator TATE —If they exist, of course, they are more modern; but whether they are more pertinent or more apt for imitation by our Australian democracy which, as I say, is based on the Westminster parliamentary system, is very questionable indeed.

So, very shortly, to hand over coercive powers of the Senate to a parliamentary commissioner is fraught with legal uncertainties. It certainly would be inconclusive. Most importantly, it is misconceived in terms of our constitutional role and responsibility. After all, and Senator Peter Rae who is a well known committee man within the Senate system would appreciate this, this matter is not exceedingly complex or difficult. It is very serious; it is even solemn, as I have said, and awesome. But the matters of fact that have to be determined if the allegation of Briese is to be sustained are relatively simple. What it boils down to is a simple question of determining whether certain facts occurred or whether certain states of mind existed. Did the judge utter certain words, particularly in the crucial last telephone conversation, to which only he and Mr Briese were parties? If the words were used, and if the words on the face of them do not amount to an attempt to influence the outcome of the proceedings, can an inference to that effect be drawn from their being uttered in a certain context?

They are very simple questions which, though, as I say, carry with them tremendous weight as to consequence, are themselves relatively easy to determine . To put forward a proposition that a Senate Committee with full powers of calling before it witnesses, papers and documents and so on, and with standing order 304 suspended so as to permit the cross-examination of Mr Briese by Mr Justice Murphy's counsel, with the judge then being given an opportunity to respond if he so desired, as natural justice requires, could not adequately determine the facts as to whether certain words were uttered and whether a certain state of mind can be inferred, a certain intention on the part of the judge to influence proceedings, is nonsense. Indeed, it is demeaning, and rather a reflection on the capacity of members of this chamber, to suggest that we as a committee, with those extra powers to permit cross-examination, could not come to a determination and a conclusion. After all, this very Senate Select Committee which was unable to come to unanimity on the question of the weight to be attached to the Briese evidence, nevertheless unanimously concluded that the tapes and transcripts, the original Age materials, were not authentic and genuine and did not in any event disclose misbehaviour. Again, we unanimously concluded that no facts existed to support or sustain another very serious allegation.

Senator Peter Rae —You concluded that they were not genuine, did you say?

Senator TATE —Yes, we did. We were unable to conclude that the tapes and transcripts were authentic or genuine.

Senator Peter Rae —Which is different from finding that they were not genuine.

Senator TATE —I cannot believe that honourable senators, who quite obviously demonstrate an ability unanimously to come to certain conclusions as to fact in relation to very serious allegations arising out of the Age materials, would not equally, without the assistance of a parliamentary commissioner, determine the simple questions of fact which I have outlined. In any case, I believe that the course proposed by the Opposition is fraught with danger. If there must be another stage after the criminal prosecution process is exhausted by consideration of the materials by Mr Temby, to which I understand the Democrats have now agreed, then let us as honourable senators in this chamber take on the constitutional responsibility that is placed fairly and squarely on our shoulders by section 72. We do not need to hide behind the skirts of any parliamentary commissioner, or further special adviser, or retired judge.

I believe that with the suspension of standing order 304, and by giving the judge's counsel full right to cross-examine Mr Briese, giving parties power to call what evidence they want, and opportunity for the judge to respond as he is entitled by the rules of natural justice, then the Senate Committee could come to a proper conclusion. I believe, therefore, that the course of action proposed by the Government in the motion put forward by the Attorney-General is the constitutionally proper one, and certainly the constitutionally safe one, if there is to be any further step. I must reiterate that my own position arising out of the chairmanship of the Senate Select Committee on the Conduct of a Judge was simply that there was not sufficient evidence to justify a further judicial phase of our inquiry. If there is to be any further phase, then the Government's proposition is eminently reasonable and I believe ought to commend itself to the Senate.