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Thursday, 6 September 1984
Page: 538

Senator Sir JOHN CARRICK(11.19) —The matter before the Senate is of very great seriousness. That is agreed by both sides of the House. The Attorney-General (Senator Gareth Evans) in his statement said:

The issues confronting the Government and the Senate arising out of the report of the Senate Select Committee on the Conduct of a Judge are about as serious as could possibly be imagined.

Presumably everybody in this Senate accepts that. What is more, everybody in this Senate must know that the Senate cannot escape its duty in this matter. The Senate is given a duty and a responsibility by the Commonwealth Constitution which it cannot escape. It is not seeking for itself a responsibility or a power ; that responsibility is put heavily upon it. The matter must, therefore, be looked at with very great seriousness.

What are the circumstances? The circumstances are that the Senate set up a select committee of its members to inquire into certain aspects of the so-called Age tapes. The Senate Select Committee on the Conduct of a Judge was asked to determine whether the tapes were authentic and, if so, whether anything arising from them meant that the conduct of a judge could constitute misbehaviour or incapacity. During its journey, the Committee took evidence on the tapes and was unable to come to a conclusion about the authenticity or otherwise of the tapes, primarily because of the non-appearance of the originators of the tapes and their evidence. So the tapes may or may not be authentic.

During the Committee's inquiry a witness was summoned-the Chief Stipendiary Magistrate of New South Wales, Mr Clarrie Briese. He is on all sides accepted as a man of total integrity, great sincerity and honesty. The Committee itself recognised that. As shown in Appendix 5, Mr Briese indicated in his evidence that he believed the judge was attempting to influence him to influence the course of justice, and Mr Briese could not be shaken in that evidence. The Attorney-General has said that if that were so an attempt to pervert the course of justice was a grave charge.

Mr Briese was summoned to the Committee and gave evidence and made a written statement. He was then voluntarily examined on oath. The Committee agrees that his evidence was not shaken-that fact is accepted by all. Mr Briese has as many rights as any other person. During this whole debate, there has been an attempt to say that, because the other person involved is a High Court judge, that person has particular privileges and protections in law that nobody else has. I say emphatically that a member of the High Court has no more privileges before the law than the least person in this land.

The debate from the Government side of the chamber has centred on the fact that the judge is under attack. We must look into that matter. Unless this issue is cleared up factually, Mr Briese will suffer a very serious disability. He is already in some difficulty in his State. The Australian Labor Party Premier of New South Wales is voluble in his attacks on magistrates. Confirmation of Mr Briese's position in the chief magistracy is in abeyance. Mr Briese has as many rights as a High Court judge, and that should be absolutely clear.

The Senate Select Committee comprised six senators. Three senators-half the Committee-using the Chairman's casting vote, concluded that the matter should not proceed further. Two Committee members-the Opposition members-said that they saw a prima facie case, but that the matter could not go further until the judge could be given the opportunity, as the judge's counsel outlined, to come forward , give sworn evidence and be cross-examined and enable the cross-examination of other witnesses.

Senator Georges —You know better than that.

Senator Sir JOHN CARRICK —I do not know better than that. Since this matter has been raised with me, I must clearly point out what was said by Mr Hughes, QC, who represented the judge. Paragraph 20 on page 4 of the dissenting report states:

In his submission to the Committee on 14 August, Mr Hughes said forcefully that the judge would not appear before the Committee unless and until it embarked upon a hearing which observed the requirements of natural justice. This, Mr Hughes submitted, involved a hearing of all the evidence against the judge in the presence of the judge and his counsel, submitting witnesses to cross examination and leaving the judge free to determine at that stage whether or not he would give sworn evidence and be subject to questioning by the Committee. Mr Hughes also said that this process should be held in public.

We now know clearly, from a former Attorney-General and senior member of the Bar , the terms under which the judge would give evidence. It is stated that the judge was saying: 'I did not give evidence before the Select Committee because those conditions were not met'. That statement implies: 'Create those conditions and that will be a different circumstance'. The Opposition said: 'We cannot conclude this matter or bring it back to the Senate in its totality unless and until there is an examination of the other witness, the judge, and unless natural justice persists so that the judge can be examined on oath and have his counsel cross-examine'.

The Australian Democrats very forcefully put the whole of their dissenting report on this matter, and let us make no mistake about that. The Democrats said : 'We cannot conclude, because we have heard only half the facts. We have heard one witness who has impressed us enormously. He gave us evidence on oath. Another witness declined to come before us, but gave a written statement and had his lawyers talk to us.' The Democrats said that that was not the way to go about the matter, but rather there was a need for an inquiry that would bring about natural justice.

An attempt has been made to say that there is a plot of numbers between the Democrats and the Opposition, but there is common ground between the Opposition, the Democrats and the judge's counsel in the proposal to set up a committee with power to summon witnesses, to examine and cross-examine, and to give the judge, Mr Briese and any others their opportunities. In effect, Mr Hughes, QC, is saying: 'Set this up, and we shall not refuse'. Let no one think that this is a situation in which the judge is being forced. Those are the terms that have been set out.

Senator Georges —Why don't you go back to tradition and the Standing Orders?

Senator Sir JOHN CARRICK —I shall go back to tradition and the Standing Orders, because that judge, when the Leader of the Government in the Senate, established in the Standing Orders the powers and conditions of Senate select committees that he and his counsel are now rejecting. Do not let us invoke tradition. This is a deadly serious matter.

Senator Georges —He is wrong.

Senator Sir JOHN CARRICK —I have a great affection for Senator Georges. I remind him of the perversion of natural justice that I discussed with him on the day on which one of the worst things happened in this place-when David Combe was crucified behind doors. Do not let any honourable senator on the other side of the chamber talk of natural justice, but let us get back to the absolute facts. The fact is that section 72 of the Constitution states:

The Justices of the High Court and of the other courts created by the Parliament-

. . . (ii) Shall not be removed except by the Governor-General in Council, on an address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity . . .

Let us examine that paragraph. It does not give to any other body or individual the right, the power, the privilege, the responsibility to make the finding. The Constitution states that the Houses of Parliament must make that finding. Let us get that quite clear, because, with great respect, much nonsense is suggested by Senator Georges in saying that we are doing something that is outside our tradition and powers. The Parliament's tradition is contained in the Commonwealth Constitution. This chamber's responsibility is contained in the Commonwealth Constitution, and there it lies. It is for the Senate, whatever inquiries are made, to decide whether there is a case of proved misbehaviour or incapacity.

It is fascinating but I will not go into whether the Solicitor-General's opinion or Mr Pincus's opinion is right. In my view the Constitution has left it entirely to the Houses of Parliament to determine what is the plain meaning of ' proved misbehaviour and incapacity'. If the Constitution meant the Parliament to act on misbehaviour proved by conviction, prosecution or criminality, or if it meant to exclude social misbehaviour, scandalous conduct or immoral conduct, it would have delimited it. But it does not do that and it states it quite clearly. It is the responsibility of this and the other chamber to establish whether misbehaviour is proved.

It is not possible for this chamber to carry out its work because the information before us is not sufficient. Of course it is competent for this chamber to summon a witness before the Bar of the chamber but it is also necessary that we exhaust the facts. What an incredible situation it is that the Attorney-General, who has a subjective interest in this matter-honourable senators will remember that he decided he would be the judge, prosecutor and investigator of the original tapes concerning the judge-has ensured, in sending the documents to Mr Temby, that there is no opportunity to examine the judge. One must ask oneself what that means and why it was done. Mr Temby will have to make a recommendation based on evidence that half of what the Senate Committee said was extremely incomplete. What an extraordinary thing! Why has the Hawke Government decided to block any kind of examination of the judge, and to allow the judge the opportunity to what Mr Hughes, QC, said was natural justice?

Senator Bolkus —Why did Senator Durack not insist on it? You don't know what you are talking about, with all respect.

Senator Sir JOHN CARRICK —I understand that Senator Bolkus has had a subjective monologue on this issue ever since he sat on the Committee.

Senator Bolkus —Mr Deputy President, I raise a point of order. I, for one, have been misrepresented by that statement but I also resent, as would other members on this side, the allegation that we have a subjective assessment of this matter whereas this person claims for himself an objective one.

The DEPUTY PRESIDENT —Order! There is no point of order.

Senator Sir JOHN CARRICK —The fact is this Parliament has an obligation it cannot escape. In the end this matter must come back with all the facts that are available to be assessed in this and another place. One thing is certain: The facts are not before us at the moment. Another thing is certain: They will not be available when Mr Temby makes his report. They cannot be because Mr Temby's terms of reference are deliberately limited. As the Australian Democrats have pointed out, he cannot investigate the matter. He has no coercive powers to call witnesses so all he can do is look at the evidence that has come before the Committee and make a judgment. It will be one man's judgment. In any case, that does not matter at all because in the end the matter must come back to this Parliament.

Senator Georges has said how ludicrous it is to have two committees. That is absolutely right, but who has created two committees? The Opposition and the Democrats moved for a commissioner to inquire into the matter. It was the Government that put up the second proposition. Let me make it perfectly clear: Not only can Mr Temby not make a report of any substance, because he does not have the evidence, but he is now utterly compromised. He showed reluctance and unwillingness to have anything to do with this matter. Apparently he has been persuaded by his political masters to do so. However, he cannot possibly reach an opinion on evidence that is limited to what was received by this Committee when he knows that another committee taking objective evidence may have much wider evidence. He will have one responsibility which he will no doubt carry out . He will say: 'I can give a judgment only on what is limited evidence'. Clearly , more evidence must come. What a silly situation to ask me--

Senator Bolkus —You had a committee with all the powers you wanted to give it.

Senator Sir JOHN CARRICK —Why did not Senator Bolkus move to summon the judge? He had all the powers in the world to do so.

Senator Bolkus —Why didn't your Party do it?

Senator Sir JOHN CARRICK —My goodness, the brain fever birds are active today.

The DEPUTY PRESIDENT —Order! Senator Bolkus you are interjecting too frequently.

Senator Sir JOHN CARRICK —Why does the Government not respond to the request of the judge's senior counsel to set up an inquiry which will give the judge natural justice? Honourable senators should ask why the Government chose the only solution that would block that.

It is very interesting that the Attorney-General said that he would be the investigator, the policeman, the judge and the jury on the original tapes and he interviewed the judge. I took the view that that was an outrageous breach of an Attorney-General's duty, particularly an Attorney-General who had been an employee of that judge. An Attorney-General should be separated from that situation. He should in the end decide on the law and the facts. How can we say that we will leave this matter to a person, of whatever integrity-I do not question it-who is a servant of the Attorney-General?

Let us talk natural justice. Let us ask why in New South Wales, when allegations were made about a district court judge, the Solicitor-General, as I understand it-I hope I am not stating the matter incorrectly; if I am I would be prepared to correct it-vigorously interviewed Mr Briese but not the judge and found on the facts that there was no case against the judge. That is very interesting. There were two parallel Labor governments with subjective activities on this matter.

Let me take the next step, because some extraordinary things have happened. The most extraordinary situation is the Attorney-General's attempt to exclude from ' misbehaviour' or 'incapacity' any anti-social misbehaviour, any immoral or any scandalous misbehaviour; he confines it to criminality only. What nonsense it is to say that the only thing one can do to a judge who misbehaves scandalously, immorally or wrongly in the public mind and who shows he has not an independent judicial mind is to have the Chief Judge say: 'Tut tut, you are a naughty boy'. That is what is being said. What an immature, adolescent and misbegotten view an Attorney-General who says that has.

Senator Bolkus —Are you making the same allegation of the Crown Solicitor? Of course you are not. He says the same thing.

Senator Sir JOHN CARRICK —I am talking about Solicitors-General. I remind the honourable senator of the fact that solicitors-general are employees of the government of the day. If we want a decision on this matter let us get it beyond the reach of the government of the day. I want to make a very clear picture of the evidence.

Senator Bolkus —Through coloured glasses again.

The DEPUTY PRESIDENT —Senator Bolkus, I have warned you before; you must not interject.

Senator Sir JOHN CARRICK —Of course no Government senator will object if I seek leave to incorporate in Hansard the four and a half pages of Appendix 5 of the report of the Senate Select Committee.

Leave granted.

The document read as follows-


1. Mr Briese first met Mr Justice Murphy at a dinner at the home of Morgan Ryan on 10 May 1979. This was a small dinner party attended by Mr Murray Farquhar, who was then Chief Stipendiary Magistrate of New South Wales, and Mr Mervyn Wood , then Commissioner of Police of New South Wales.

2. The nature and purpose of the dinner have been the subject of considerable evidence before the Committee. The only significance of this dinner in relation to the issue now remaining before the Committee is the fact that Mr Briese and Mr Justice Murphy engaged in lengthy conversations about various subjects concerned with the courts and the law including the administration of justice in New South Wales until 2 or 3 a.m. Mr Briese made the most of what he saw as an opportunity to seek the views of a High Court Judge for whom he had the highest respect.

3. Mr Briese and Mr Justice Murphy met again on several occasions at a Sydney restaurant, at the High Court and at Mr Justice Murphy's Canberra home over the period 1980-81, during which the principal topic of conversation was the question of independence for the New South Wales Bench of Magistrates, which Mr Briese was anxious to obtain and for which Mr Justice Murphy expressed his support. Mr Briese sought Mr Justice Murphy's intervention with the Premier and the Attorney-General of New South Wales. Mr Justice Murphy said he would take the opportunity of doing so.

4. Although one or two statements were made by the judge in the course of these various conversations to which Mr Briese now ascribes some significance to matters before the Committee, we do not believe that they are relevant to the question which the Committee must now decide.

5. Early in January 1982, Mr Briese received a telephone call at his home from the judge who, according to Mr Briese, said he had a matter which he would like to discuss, but not on the telephone. The judge denies this and explains the telephone call as being in response to several messages he had received from Mr Briese reminding him of a standing invitation to return his hospitality.

6. Mr Briese denies this but agrees that in response to the call from the judge he invited the latter and his wife to dinner with him and his wife at their home in Sydney. Prior to dinner being served, while Mrs Briese was engaged in its preparation, the judge, his wife and Mr Briese had a discussion in the lounge room. According to Mr Briese the judge raised the question of the social security conspiracy case, and criticised it in strong terms.

7. There is again some conflict between Mr Briese and the judge as to how this subject arose, but it is common ground that the judge criticised the case in strong terms, although there is no suggestion that any request was made by the judge to Mr Briese that he should communicate the judge's views to the magistrate who was hearing that case.

8. The judge states that Mr Briese said that he had not discussed this case with the magistrate handling it, and that he had made it an invariable rule never to discuss any case with a magistrate unless that magistrate came to him for advice. The judge claims he responded that this was the proper course. Mr Briese denies this conversation.

9. Mr Briese says that the judge then said to him ''and I will tell you about another wrong case of conspiracy too and that is against Morgan Ryan''. The judge denies this, saying that Mr Briese first mentioned the Morgan Ryan case.

10. The judge admits that he criticised the Crown for its habit of ''tossing in (a) conspiracy (charge) if a case is not very strong''. Mr Briese states that he had the impression from the judge that he had read the evidence and that it was very weak. The judge denies indicating anything more than a reading of newspaper accounts.

11. There is no suggestion that Mr Justice Murphy requested Mr Briese to speak with the magistrate hearing the Morgan Ryan case. Nevertheless Mr Briese indicated he would make some inquiries about the matter to see what the situation was. He says that he did so because he felt that he was under pressure to take some action in relation to the case because of the possibility of some wrong happening in his court.

12. Prior to the judge's departure from his home that evening, Mr Briese alleges that the judge told him that he might be able to do something about obtaining an official government car for his use. This embarrassed Mr Briese to the extent that he told the judge that he already had one, which was not the case. The judge denies that any such conversation occurred.

13. Shortly after this visit by the judge to Mr Briese's home, Mr Briese asked the magistrate hearing the case about the strength of the evidence against Morgan Ryan, and was told that there was enough for a prima facie case, although it was not that strong. Mr Briese did not tell the magistrate that any inquiries had been made of him about the matter, and emphasised to the magistrate that the case was one entirely for his own judgment.

14. A few days later, Mr Briese received another telephone call from the judge who, he says, asked him about the inquiries he had promised to make about the Ryan case. The judge denies this and said he rang Mr Briese to thank him for the dinner, though Mr Briese does not recall that. He questioned the likelihood of this because a huge bouquet of flowers had been delivered at his home the morning following the judge's visit.

15. Mr Briese asked the judge whether he would be attending a reception at the State office block that evening, and told the judge that he would see him there. At the reception Mr Briese told the judge that it was his impression that the presiding magistrate seemed to have a different view of the Ryan case than the judge and it was Mr Briese's guess that Ryan would probably be committed for trial. Mr Briese says that the judge responded ''the little fellow will be shattered''. Although the judge denies that he used the expression ''the little fellow'' he admits commenting that ''Ryan would be shattered''.

16. Mr Briese then went on to suggest two possible ways that Ryan had of getting around the problem. First, he could try to persuade the magistrate not to commit him under ''the second leg of section 41'', which is a reference to a section of the New South Wales Justices Act under which a charge may be dismissed if the magistrate is of the view that even though there is a prima facie case it is not of sufficient strength to commit for trial. The second matter mentioned by Mr Briese was an application for a ''No Bill'', which Mr Briese and the Judge then proceeded to discuss.

17. Several days later the judge again rang Mr Briese and told him that he had discussed the question of the independence of the magistracy with the New South Wales Attorney General, and that the government was going ahead with legislation to give effect to it. The judge states that he told Mr Briese that his conversation with the Attorney-General had taken place at the reception. Mr Briese does not recall this.

18. Mr Briese says the judge then said to him ''and now what about my little mate?''. In evidence Mr Briese was unsure of the exact opening words of the inquiry (''and'' or ''now'' or ''and now''), but was adamant that the question was asked with such emphasis as to suggest a link between the inquiry and the preceding conversation.

19. The judge's recollection is that he did not use the expression ''my little mate'', but that, not having heard the exact reference at the reception, he did make an inquiry about the section of the Justices Act there referred to by Mr Briese.

20. Mr Briese and the judge agree that Mr Briese then simply repeated the general advice he had offered at the reception.

Senator Sir JOHN CARRICK —Having established ophthalmological objectivity on this matter, no doubt Hansard will bear out that the evidence is not in only one direction. Let us not forget that day after day the Attorney-General says in here that we are resting the whole of our case on one little phrase-'what about my little mate?' What nonsense! Because it is now in Hansard, I invite the Parliament and the public to read the evidence. There are something like 10 instances throughout this evidence where the judge and Mr Briese disagree on the facts. This is a very serious matter. They disagree not on one occasion, not just about 'what about my little mate?'. After all, what about the other one-' the little fellow will be staggered'? They are only two of about 10 grave situations. What about the inference that there was the offer of a car as a promise and a hope? The fact is that wherever one looks one sees such situations . Early in January 1982 Mr Briese had a telephone call at his home from the judge who said he had a matter which he would like to discuss-but not on the telephone. That is interesting. Why? What was the matter he wanted to discuss but not on the telephone? It does not come out from the judge because he was not cross-examined. Mr Briese therefore invited the judge to his house. Mr Briese says that the judge then said to him: 'And I will tell you about another wrong case of conspiracy too and that is against Morgan Ryan'. The judge denies this, saying that Mr Briese first mentioned the Morgan Ryan case to him. If that is so , how can we as a Parliament find on facts? We can go on. Mr Briese alleges that the judge told him that he might be able to do something about obtaining an official government car for his use. This embarrassed Mr Briese to the extent that he told the judge that he already had one, which was not the case. The judge denies that any such conversation occurred. How can we let at rest--

Senator Georges —What about the judge's statement in response to that? Where is the judge's statement?

Senator Sir JOHN CARRICK —One has to ask Senator Georges one question: Why was the judge not asked, like any other person, like the least person in the land, whether he was willing to come forward voluntarily? Let me make it clear that there is nothing in the argument of separation of powers despite the nonsense of the Attorney-General's statement which said that the judge had privilege so that he could not be summoned to give evidence and could not come forward voluntarily and give evidence on oath. One has to ask oneself: Why did he not come forward voluntarily? He gave conditions. It must be made clear ad nauseam that we are asking for there to be set up an inquiry based on the terms and conditions said by the judge to be natural justice. Those opposite will not even fulfil that.

Let me go further. Mr Briese said that he had found out that there was a prima facie case against Mr Morgan Ryan. A few days later Mr Briese received another telephone call from the judge who, he says, asked him about the inquiries he had promised to make about the Ryan case. The judge denies this and says that he rang Mr Briese to thank him. That is one case that the Attorney-General points to. Mr Briese said: 'I will see you at the reception if you are going there tonight', and he had a discussion. Mr Briese told the judge of the general view. Mr Briese says that the judge responded: 'The little fellow will be shattered'. Although the judge denies that he used the expression 'the little fellow', he admits commenting that Mr Ryan would be shattered.

Several days later the judge rang again and told him that he had discussed the question of the independence of the magistracy with the Attorney-General. Later Mr Briese said that the judge then said to him: 'And now what about my little mate?' The interesting thing is that there is a comity between the judge and Mr Briese on dates and events. The difficulty is in respect of the substance of what happened. Mr Briese is part of the judicial system. He is no less a human being and has no fewer rights than the highest judge in the land, and that is a simple fact. Mr Briese's integrity will remain in question unless we flush this out. But in any case--

Senator Crichton-Browne —How did the Committee find Mr Briese as a witness?

Senator Sir JOHN CARRICK —The Committee as a whole found that Mr Briese was honest and sincere. Members of the Committee have said that the judgment went further than that: They found his evidence compelling and sincere. The evidence shows that Senator Chipp asked Mr Briese-I paraphrase-whether Mr Briese believed he was being pressured in some attempt to influence the course of justice, and he said that yes, he did.

Let me sum up. The fact is that on all sides it is admitted that this is a grave case. It cannot be argued against that the only body in the end to decide this matter is this chamber. There can be no doubt that the only body to decide what is proven misbehaviour and what is incapacity is the Parliament. Even if the Government stalls and puts it off, it cannot get away from the fact that in the end a decision will be made on the floor of the chambers. What are lacking are the facts. What is lacking is the Government's response to the judge, through Mr Hughes QC, asking for natural justice and stating the terms; and those terms are identical with those of the committee that the Opposition, in conjunction with the Democrats, is putting forward. Let us get that perfectly clear. It is no good Mr Temby proceeding. As I have said, Mr Temby has only one course and I am sure that he will carry it out. He now knows that there will be a committee and that it is very likely that that committee will have quite significant extra evidence. Which solicitor-general or special public prosecutor could make any recommendations on evidence that he knows is limited, restricted and might be completely altered in the future? So we have to ask: Why is the Government seeking to take the only course it could take to prevent the judge coming forward as a witness and being examined?

Senator Georges —There's another way; you could lay a charge.

Senator Sir JOHN CARRICK —Senator Georges knows that the individual citizen's capacity to lay charges is very limited indeed, and it is a wrong road. As I understand it, he has not done so. There can be only one solution to this-to accept the judge's conditions, the Opposition's conditions and the Democrat's conditions, and to set up a system of natural justice to get the facts. It will not be a committee to find anything or to prove anything. It will be a committee to bring the facts to the floor of this Parliament which, no matter how those opposite hedge or stall, is where it will be decided. That is where traditions, responsibility and absolute obligation lie, according to the Commonwealth Constitution, which says that this Parliament and no one else shall decide.