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Thursday, 6 September 1984
Page: 573


Senator CROWLEY(3.15) —Before the suspension of the sitting for lunch I was saying that the Senate Select Committee on the Conduct of a Judge had been given Mr Briese's evidence as a bonus in the pursuit of the terms of reference originally given to it by the Senate. I reminded the Senate that the Opposition hangs its case on only one set of words. Even more remarkable is the fact that opposing senators have heard other claims from Mr Briese and they have dismissed them. They have said that other parts of Mr Briese's evidence do not stand up to the weight he gives them. There is no evidence to sustain some of his claims. Members of the Opposition dismiss his evidence yet they place a totally different reliance on one line at the end of his evidence.

In summary, Opposition members agree with the Attorney-General (Senator Gareth Evans) and the Government about the tapes and the material contained therein. They dismiss most of Mr Briese's evidence and are left with six disputed words in a disputed context. They claim to have sufficient evidence to know that the state of Mr Justice Murphy's mind was clear enough for them to be able to say there is a prima facie case against the judge. I am particularly mindful that Senator Chipp does not say that. Rather he said that, while he cannot say there is a case, he cannot say there is not one either. That is dependent on Mr Murphy 's refusal to appear.

I turn now to deal with what is proposed by the Opposition. Yesterday Senator Durack was at his most lollipop like; all sweet reason, begging to be licked. He said: 'If only the Government would agree with us there would be no problem'. Bless his heart! Does he not know that being in opposition means that he is no longer the Government? If ever I heard a case for the demand of blatant continuation of power, even in opposition, I heard it yesterday. The cartoon of the outside of the Establishment Club which is not only doing Mr Justice Murphy in but is being seen to be doing him in was brilliantly illustrated in this chamber and across the airwaves of Australia by Senator Durack yesterday. I quote from Senator Durack's own words in Hansard. He asked:

Why does the Government not co-operate-

he said this waving his arm around-

and pass the necessary legislation to put the matter beyond doubt?

He continued:

If the Attorney believes that it is of such importance, why does the Government not co-operate?

He also said:

Select Committee on the Conduct of a Judge

Select Committee on the Conduct of a Judge

Select Committee on the Conduct of a Judge

Select Committee on the Conduct of a Judge

Select Committee on the Conduct of a Judge

Select Committee on the Conduct of a Judge

Select Committee on the Conduct of a Judge

Select Committee on the Conduct of a Judge

Select Committee on the Conduct of a Judge

Select Committee on the Conduct of a Judge

Select Committee on the Conduct of a Judge

Select Committee on the Conduct of a Judge

Select Committee on the Conduct of a Judge

Select Committee on the Conduct of a Judge

Select Committee on the Conduct of a Judge

Select Committee on the Conduct of a Judge

It is so simple to give effect to the ideal solution.

In short, Senator Durack was saying: 'Do it my way'. I thought that was a tired slogan for the Liberal Party of Australia. Senator Durack said further:

Those are the facts that we want to have proved specifically for us; we do not want simply to be told whether someone is guilty or not or whether or not he will be prosecuted by the Director of Public Prosecutions. We want the facts established for us to make our judgment as to whether misbehaviour has taken place.

What does Senator Durack think he was doing for the last six months? He continued:

. . . we would have independent experts of high authority exercising their completely non-political judgment in regard to these matters.

I draw the attention of the Senate to that comment to make sure that any political participation of members of the Senate Committee referring to the judge was in the minds of members of the Opposition and not in the minds of members of the Government. I ask again what Senator Durack wants with the motion he put on behalf of the Opposition yesterday? In summary, more of the same, only different. He is saying: 'We want a Senate committee. We do not want six members , we now want three and we want new terms of reference'. The Opposition is saying: 'Let us do it again. We had six months, we heard the evidence but you never know what happens if you do it again. This time, though, we will not have six members but three'. Senator Durack is proposing that there be one member from the Government, one member from the Opposition and one member from the Australian Democrats. Yet Senator Durack and I heard Senator Chipp say on a number of occasions how difficult it was being the solitary member of a party on that Committee addressing such matters of importance. This Committee, he notes in a further item, would have a quorum of one. A quorum of one to address an issue of such significance and importance? He further allows a casting vote to the Chair. If this Committee were constituted in the way in which Senator Durack proposes, the Government would never expect to win a point at all when the Opposition, including the Australian Democrats, decided to unite and say no-and we have had some evidence to make us suspect that they do that and will continue to do that. So the Government, in accepting that proposition, would be facing at best a tied vote and then only if the Chair used a casting vote. So the Government would face the proposition of being able only to negate motions, not propose them. I think it is a quite remarkable-in fact, a disgraceful- proposition, particularly as the honourable senator was a member of the existing well balanced, properly constituted Senate Committee.

Senator Durack went on to say that he would like to appoint a commissioner to do all of those things necessary and as listed in his notice of motion. The Committee would have a commissioner, and, further, it would have a counsel. The Committee's role, it would seem from that notice of motion, would be left at one remove, orchestrating the commissioner and the counsel. Yet members of the Opposition argued at length that this is a matter of great seriousness and a matter for the Parliament. I ask: How can they possibly ask Parliament to do it when they are proposing a motion that asks Parliament to be at one remove, with commissioners and counsel and all sorts of people between us and the decision? Again I ask those honourable senators: If they think it is a matter for Parliament, why did they not do it when they had the occasion? They were there. Senator Durack was there and he had his opportunity. Now he wants to keep it but to give it away.

Moving to the Australian Democrats' notice of motion, the Democrats actually want to appoint a commission, again of the magic number of three, as apart from three senators. As I examine the Democrats' proposal, all I can see is that they are seeking a Senate committee without senators. Both of these proposed motions point to the weakness of the Opposition's case and highlight the Government's problem. The Opposition does not know what it wants, but it knows that it does not want the Government to have what it wants, and the Opposition has the numbers. Of course this matter is a matter for the Senate. The Opposition agrees , yet both its notices of motion propose to do other than that. Members of the Opposition claim that they want responsibility in the Senate and then put up proposals that substitute for the Senate.

We have had the Senate committee; we have heard the evidence; we have made a decision. Four members did not find proven misbehaviour. A cloud of innuendo and smear by suspicion has been hanging over the High Court, the judiciary and Mr Justice Murphy for nearly nine months. We have addressed questions pertaining to section 72 of the Constitution and agreed on what had to be determined. The Committee so determined. But the Opposition ignores all of this and says: 'We do not agree with the umpire'-which surprisingly included themselves-'and want to play the match again and again until we win'.

This is a rehash and running-over again. I ask again of this Senate: How often does Mr Justice Murphy have to be proved innocent? I might add, as I said earlier in this debate, that Senator Harradine and others seem not to understand that in our society one does not have to prove innocence; one is presumed innocent until guilt is proved. It seems to me that the Opposition does not allow that right and that ordinary natural justice proposition to pertain to every person in the land.


Senator Harradine —Do you need it for a High Court judge?


Senator CROWLEY —I hear Senator Harradine asking whether it is needed for a High Court judge. Of course it is. It is needed for every member of society. That rule of common justice provides for every member of our community. None are exempt.


Senator Harradine —The common denominator of acquittal.


Senator CROWLEY —And to the highest common denominator. In summary, we have an appalling waste of time and money, an appalling prolongation of personal distress for the judge, an appalling prolongation of the doubts prevailing on the judiciary, an appalling exercise in blatant power politics and an appalling set of Opposition motions that actually run against the Opposition's own arguments. I dismiss the Opposition's proposals and I commend the Government's motion.