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Thursday, 6 September 1984
Page: 545


Senator BOLKUS(11.48) —We have just listened to what is well and truly an indication of what the Opposition is on about in this debate. The Senate is embarking on nothing less than a political prosecution of a High Court judge. Senator Sir John Carrick, claiming to be an objective witness to all this , has indicated that he is nothing like that at all. He proved himself both judge and counsel for the prosecution in the way in which he presented his case, which of course reflects the way in which the Opposition and the Australian Democrats are behaving in this matter. They want the Senate to embark on a political prosecution based on unconstitutional, improper and illegal grounds. They are unconstitutional because what they are asking the Senate to do is, firstly, unprecedented and, secondly, probably an excess of Senate power. They are improper because the matter continues to drag into the political mire this allegation about one High Court judge. It is unfair to the person involved and to the judiciary.

As we see often when the conservatives are in opposition in this country, those sorts of establishments and traditions are of absolutely no consequence to them. They are illegal because, let us face it, we have had one trial and we have been through one procedure. We have had one Senate committee. We have the procedure that the Opposition and the Democrats wanted. The result was that only two of the six members of that Committee, after the worst evidence possible against the judge, could find a prima facie case. What we are embarking upon now can be nothing less than double jeopardy. There are two distinct and clear alternatives : The Government's, which at least in referring the matter to Mr Temby is the proper and normal procedure to take, and the Opposition's, which is nothing less than a political prosecution-the word 'inquisition' was mentioned by the Melbourne Age this morning.

Let us look at how we got into this situation. It started six months ago in this Senate when we set up a Senate committee. Despite what Senator Sir John Carrick says, in his ignorance of the way the committee worked, that committee worked with all the powers it needed to exercise-let us not dispute that. It called all the witnesses the committee wanted to exercise and got all the evidence it wanted. If we accept the fact that that committee is the best mechanism by which one can coerce people to appear before a committee of this sort or any inquisitive procedure, what are honourable senators opposite arguing about? The committee worked in the way they wanted it to work; there was no obstruction from Labor and Democrat senators. And at the end of it, what have we got? We have the Opposition saying: 'We do not agree with the judgment, as a consequence we do not like the umpire we ourselves appointed, so let us appoint another one'. Yesterday Senator Durack had the gall to say: 'If at the end of this next inquisition there are still matters to be resolved, maybe we can send them off to Temby. Let us have another inquiry after that'. And on the ball rolls. At the start, six months ago, there were bleatings from the other side that we needed to get this inquiry started and complete it quickly for the sake of the judge and the reputation of the judiciary. Six months later we are still talking about a continuing inquiry.


Senator Walters —I wonder why.


Senator BOLKUS —As I have said, Senator Walters, only two of the six members of the Committee could find that there was a prima facie case. When one looks at their decision-making process, one wonders how they ever reached that conclusion .

What was the result of the Committee's deliberations? Let us look at what the Committee actually decided. In one part of the report the Committee decided- curiously, this does not appear in the Age reports of the Committee's deliberations-on the authenticity and genuineness of the tape. Let me quote paragraph 48 of the Committee's report just in case honourable senators opposite missed it.

The Australian Federal Police transcripts contain many obvious and significant errors of transcription. In some cases these errors impinge upon the interpretation to be placed upon the conversations. For example, the transcript of the one alleged conversation involving the judge left part of that conversation open to an interpretation of sinister motives, an interpretation which was dissipated by the addition of a word which was clearly audible on the tape recording but which the Australian Federal Police transcriber omitted from the transcription. This experience of such inaccuracies finding their way into a transcript prepared in good faith by the Australian Federal Police alerted the Committee to the grave danger of accepting as accurate transcripts for which no tapes exist.

We had one tape, we had one transcript to compare that to, and we found that there were dangers. It is a pity that Mr Briese, who based much of his evidence on recollection, hindsight, discussions with Bob Bottom and reading the Age tape material, did not come to that conclusion. He may very well have had a different interpretation on what he gave us. In respect of the Age tapes themselves, the Committee as a whole found that from the conversations depicted in those tapes there was no proved misbehaviour. In respect of the matter of the Australian Federal Police officer, the Committee as a whole once again found no proved misbehaviour on the facts before it.

So one turns to the one outstanding matter, the Briese allegations. It is acknowledged, as Opposition senators have mentioned, that Briese came before us and intended to give honest and sincere evidence. But that does not dispute the fact that, with all the honest intention in the world, Mr Briese was confused. Mr Briese had discrepancies in his evidence. Mr Briese was very quick to make conclusions from which he had to resile. Mr Briese acknowledged that much of what he put to us was said in hindsight. This is in the report. At the end of the day there were only two people on that committee of six who found a prima facie case. Let Senator Chipp, if he wants to, explain his own manoeuvrings on the matter. Let us also examine Mr Briese's objectivity on this matter. Let us accept that it is not his responsibility to lay charges against the judge, but since that date he has had the opportunity. As a law officer he has a duty-not an opportunity but a duty-if he feels there is an offence committed, to convey evidence to the correct authorities. He does not have to institute the charge. It took him two years before, in his own mind, he felt the need to talk about the conversations with Mr Justice Murphy. One wonders what happened in that period. One wonders what in the end triggered it off, considering that he acknowledged that all that time he had been talking to people such as Bob Bottom . One wonders why two years later he felt obliged to raise it.

All this does not impinge on the fact before the Committee that he came to us with sincerity and honesty, but I am saying that with all the sincerity and honesty in the world it does not mean that the person is accurate. At the moment , as I have said, he has had the opportunity. He has been approached by members of the Australian Federal Police. Not only would he not make a statement to them -as a law officer he has a responsibility to do that-but he would not even authenticate the evidence in the appendix of this report. What is he on about? If he believes that there is an offence, if he believes sincerely and honestly that there was pressure exerted, if he believes in his own mind that he can sustain that, he has a duty to convey that evidence to the law enforcement officers. If he has not, then one has to question not only his intentions now, but also what he is on about. It is rather curious that the law enforcement procedures are being frustrated by political intransigence. It is not good enough for Mr Briese to say: 'The politicians in Canberra are looking at this problem and, because of that, I will stay out of the law enforcement function'. It is not good enough for him to assume the role of a pawn in the political game . He is a law officer and has a responsibility. He should stay out of politics.

I mentioned earlier that two members of the Committee came to a conclusion of a prima facie case. That highlights the problem that we as a committee, we in the Senate, and we in this country face with the Australian Democrats, who surely in this instance in this whole procedure should be the big losers. Not only are they indecisive-they have been indecisive all the way through-but they now come to us saying: 'The Government has one proposal, the Opposition another. We cannot decide, so we will support all of them. We will put up a hotchpotch of the whole lot and support it. Maybe out of all that mire some divine light will descend on us and we will find some way out'. It is no wonder some people are now referring to Senator Chipp as the Mickey Mouse of Australian politics. He does not know in what direction he is heading.

What he is saying to us, and what he has said in his report, is that even on a lesser degree of proof, even on a balance of probabilities-that disregards the fact that in criminal cases one needs proof beyond reasonable doubt-he cannot find a prima facie case against the judge on all the worst evidence against him, he cannot find that the judge has committed proved misbehaviour in terms of the Constitution but, since he cannot find it, the judge has an obligation to come here and prove his innocence. If he does not come voluntarily he will force him to come along. Is it not curious for a defender of civil liberties to take that approach? Is it not even more curious that it was only six to eight months ago that this same person in the considerations of the Senate Standing Committee on Constitutional and Legal Affairs said, as part of a majority report on the National Crime Authority Bill:

The privilege against self-incrimination should be recognised only if claimed by natural persons.

Is he claiming that Justice Lionel Murphy is not a natural person, or is he being totally inconsistent again?

The action proposed six months ago was unprecedented. The Committee embarked upon its work with good, honest and sincere intent and with the intention to protect the judge and to adhere by the rules of natural justice. But as we know from Australian history, as it has been indicated in the case of Fitzpatrick and Browne and elsewhere, good intentions alone do not mean that in delivery those principles will be adhered to. The Committee embarked upon an investigatory stage only. So the record holds only the evidence against the judge. The magistrate was not cross-examined by judge's counsel. The judge did not have an opportunity to put forward his case in response.


Senator Walters —He had the opportunity and refused.


Senator BOLKUS —He did not. So what are we saying now? As I said earlier, we are working on the basis of balance of probability. We now have a judge hanging out on the principles of natural justice for the whole case against him to be heard, for the opportunity to cross-examine witnesses and so on and to bring in his own witnesses. It is now being said that because those sorts of natural justice commitments were not met, and because the judge did not appear before us he was running away. That is the argument put by Senator Sir John Carrick. Further, in respect of the operation of the Committee and of politicians, I quote from a book by Mr Shetreet entitled Judges on Trial which has been referred to on a number of occasions. Shetreet discusses the rights of an accused under the law in these sorts of circumstances. On pages 124 and 125 of his book there are seven points which I wish to cite very quickly. I ask the Parliament to consider how a committee can operate in the light of these principles: The first principle is that the person ought to be brought to a speedy trial in order to be acquitted or condemned. The second principle is that in all cases of moment, the defendant shall have copies of all depositions, both pro and contra, and I shall come to that point later. The third principle is that there is a procedural safeguard to secure justice that all the lords must be present at the trial, and absence from the trial, without due excuse, is deemed a great and wilful neglect of duty. In that respect I refer honourable senators to the Bulletin last week and the statement made in response to it by Senator Lewis on 5 September when he claimed to have been misrepresented. It is stated in respect of the fourth principle:

It seems that the hearing of the evidence and arguments could not be delegated to a committee-

Which is rather curious in this instance. The fifth principle is that the trial should be confined to the charges contained in the articles of impeachment. Let us look at the motion of the Australian Democrats in the light of that principle . The sixth principle is given as follows:

when in doubt about a question of law the Lords will consult the judges before making a final decision---

The seventh principle states:

On the whole, it appears that impeachment is criminal in nature and the [House of] Lords considered as such---

I am saying that we as a Committee, with all good intention, cannot meet those particular obligations, for we are assuming the role of interpreters of the Constitution. We assume that we interpret what misbehaviour means, and what proved means in terms of the requirement of burden of proof in this matter. It is rather curious to consider where we would be left if we went ahead on a lesser burden of proof and found the judge guilty, and a court in a later case found him not guilty. Let me submit that the only proper approach in cases of misbehaviour external to the performance of judicial function is for the particular person be charged, found guilty and then the Senate and the House of Representatives together make some assessment of the gravity of the charge.

So where are we now? We have before us a couple of motions from the Opposition- perhaps three in all-with no charges specified. We have Senator Sir John Carrick rambling on about instances of discrepancy between evidence. We have other honourable senators saying the same sort of thing. But in essence, no one has specified what the continuation of this inquiry will be all about. What are these charges? Are they limited to Briese? Are they limited to the specific part of the Briese evidence that the Committee highlights or do we take the approach of Senator Sir John Carrick and go wider than that? As I have said, we have two distinct alternatives. One will be dangerous when one assesses it in terms of natural justice. The other alternative, and to me the proper alternative, is to refer the matter to Mr Temby to see what he feels about the chances of prosecution. It should be noted that not only the Government is saying that. Let us acknowledge also that some Opposition senators are saying it. Let us look at what the Leader of the Opposition (Mr Peacock) has to say in respect of this matter. A report in the Australian of 30 August 1984 states:

At the time the Leader of the Opposition, Mr Peacock, added support for the matter to be referred to the Director of Public Prosecutions, Mr Ian Temby, QC, but not as a final solution.

He sees a role for Mr Temby to play at the moment. Let us compare that with what Senator Chaney has to say in this politically charged environment. Senator Chaney said that the proposal to refer the matter to Mr Temby served only to confuse the issue. He said that it was not for Mr Temby to launch investigations or to determine an issue that is the responsibility of Parliament. There is a clear contradiction between the two leaders of the Liberal Party in this Parliament, a contradiction which has not been highlighted previously but which is important, because if we are considering referring this matter to Mr Temby, obviously we have the support of the Leader of the Opposition.

Why is the Opposition delaying the matter? It claims to be delaying it because it thinks that, firstly, Mr Temby does not have the powers to get all the evidence before him. I submit that I have already laid to rest that allegation. The second claim is that Mr Temby is looking only at misbehaviour in a criminal sense and not at misbehaviour as Mr Pincus in his opinion would describe it. It is important to dwell on that because if we are looking at the precise words alleged by Mr Briese to have exerted some sort of pressure on him: 'And how about my little mate', and if there was no intention by the judge to interfere, if those words do not stand up to be criminal in nature, they have to be innocuous. They cannot be anything else. One cannot have a halfway house. Either the action is criminal in nature or it is not. If we are looking only at that particular instance it does not matter whether one follows the Pincus approach, the Gavan Griffith approach, the Temby approach or the Gareth Evans approach. The allegation is that those words constitute a perversion of the course of justice. If those words do not stand up to that allegation, obviously the intention one has to ascribe to them is not there and obviously the change does not stand up. There cannot be a halfway house.

If one is looking at other sorts of behaviour, for example at political involvement which Senator Sir John Carrick and others may claim to be appropriate, we have argument as to whether that constitutes misbehaviour and the disagreement between the Temby opinion, the Gavan Griffith opinion and the Pincus opinion is important. But in this specific instance we have a set of words which, if they are not criminal in nature, do not constitute anything.


Senator Crichton-Browne —Where would you put criminal intent as distinct from criminal behaviour?


Senator BOLKUS —I would put criminal intent in your mind often.


Senator Crichton-Browne —Answer the question, or are you not competent enough to do that?


Senator BOLKUS —I have been asked where I put criminal intent as compared to criminal behaviour.


Senator Crichton-Browne —In terms of the argument.


Senator BOLKUS —In terms of the argument, what I am saying-the honourable senator, I am sure, will see this when he gets around to reading the report-is that one sees that his people on the Committee mention one set of circumstances and allege that they could constitute a criminal offence, a perversion of the course of justice. If the words, together with the intent that is necessary for those words to constitute a criminal action, do not form that action then they do not form anything at all which can constitute misbehaviour. That should answer the interjection.

What I wish to do-I suppose that I could talk for ever on this matter, having spent six months on it-is to close with one parting shot. I, as much as anybody else in this Parliament, have been concerned about organised crime in this country. It is interesting to note the bleatings now coming from the Opposition, which had eight years in government, eight years under which organised crime blossomed. We need not ask Senator Durack about the massage parlours that were operating with his own Attorney-General's Department during that period. I am concerned about organised crime. However, I think there is one group of people sitting back laughing at what is going on in this country and in this Parliament at the moment. That group is the real organised crime czars--


Senator Walters —What hypocrisy.


Senator BOLKUS —Because they can see that Senator Walters and her mates over there are pursuing a course of triviality. Bob Bottom tells us that. Bob Bottom acknowledges that publicly. That is trivial, incidental. Those people, the real crime czars, have the heat off them. They can pick up the Sydney Morning Herald or the National Times each week and sit back and laugh at what is going on because the heat is off them. While the Opposition is preoccupied with a minor figure, with something totally incidental, organised crime can continue without scrutiny. In closing let me quote a paragraph by Ken Davidson in this morning's Melbourne Age. He said:

If we are going to get at organised crime there are better ways than running witchhunts against reforming judges who are unlucky enough to get caught in an illegal phone tap by a police force which is notorious throughout Australia for the level of its corruption.

Let us get back on to the main course that the agenda against organised crime should be on.