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Thursday, 6 September 1984
Page: 575


Senator WALTERS(3.25) —We have just heard Senator Crowley, who sat on the Senate Select Committee on the Conduct of a Judge for six months, prove to this chamber that she still has not the faintest idea of what was in the Committee's report. She said that four members did not find proven misbehaviour. Indeed, six members-every member-of that Committee did not find proven misbehaviour. No one attempted to do so. An attempt was made to find out whether the judge had a case to answer. No attempt was made to prove anything of Mr Justice Murphy. The Committee's role was just to determine whether there was a case for him to answer. Senator Crowley has just proved by those words that she has not the faintest idea of what the Committee was all about.

Parliament is in a very difficult position. Not only the Parliament but also the Government and Opposition party members are in a difficult position. We have had the Age tapes headlined in this country now for months and months. Accusations of criminal actions have kept coming forward, as every member of this society knows. The judge's identity is very well known. From the beginning Senator Gareth Evans has tried to cover up, and that is why the position is as it is today. It is really quite tragic that he took that action. Senator Evans said that he had never tried to cover up. I will just make a few quotes from Hansard. In February this year Senator Evans said in answer to a question:

I do not propose to satisfy the salacious and politically motivated curiosity of those on the other side of the chamber in that respect.

He would not give information. He would not come clean; he would not acknowledge anything. That is how it has been from then on. In March he said:

There is no basis whatsoever on which I will assist the Opposition in its desire to trail imaginary stinking fishheads across the noses of the Australian public for every sordid and immediately obvious political motivation. I do not propose to assist the Opposition further in this enterprise.

These were answers to the questions that the Opposition was putting. Indeed, this is why we are in the position we are in today. Senator Evans even answered a question that was put to him about his interview with the judge. Senator Lewis asked: 'Did the judge say that it was his voice on the tapes?' Senator Evans said: 'I had a conversation with him. The question simply did not arise.' Senator Evans claimed that he did not even ask the judge whether it was his voice on the tapes. We received all these answers from Senator Evans right up to yesterday when he could not contain himself on the air and accused Senator Chaney of being a political scavenger rubbishing around rubbish bins. He has attempted at every turn to hide the facts and to cover up. It seems to me that if in the very beginning he had decided to co-operate with just questions put by the Opposition we would not be in the situation in which we are placed today.

As I said, Parliament is in a very difficult position. None of us like the job we are doing, none of us like the particular sort of controversy that is going on in the Senate at the moment. Nobody likes to acknowledge that there are questions out there in the community about our system of justice. Nobody in Australia likes this. It does Australia so much harm. But if we decide that because we do not like it we will cover it up and not ask questions, if the Senate decides not to accept the responsibility on its shoulders, the people of Australia will have no respect for us. They do not want us to cover it up and they cannot expect us to cover it up. We have to deal with what, unfortunately, is before us.

We must take action against crime in any form in this country. We can start by looking at the areas in which the majority report agreed. It agreed in a number of areas. Senator Bolkus attempted to throw much doubt on Mr Briese's integrity. Senator Crowley was very selective in her quotes. Indeed, she even said that there was only one area of doubt-the comment 'now, what about my little mate?' That is absolutely untrue. Senator Missen went to great lengths to say that there were 10 different areas of disagreement, including whether the judge did or did not try to have a car made available to Mr Briese. There were 10 different areas, not one area, of disagreement.

Let us look at the major areas of agreement, because it is important to acknowledge that there were areas of agreement between the majority report and the two minority reports. The majority report said very clearly that Mr Briese was an honest witness. The majority report clearly stated:

The Committee was of the view that Mr Briese gave his evidence sincerely and honestly, and to the best of his recollection as to actual events and conversations and the interpretation he placed on them at the time.

Senator Chipp made a great point of that in his minority report. The Opposition' s minority report stated:

It is our firm view that Mr Briese was not shaken by such questioning despite its length and, at times, vehemence. All members of the Committee agree that he was an honest and sincere witness.

There was no doubt or disagreement, until two Committee members started in the Senate to question Mr Briese's evidence. Every Committee member wanted Mr Justice Murphy to come before the Committee. Not just the Opposition and Senator Chipp-not their two parties on their own-but the whole Committee thought that it was appropriate for Mr Justice Murphy to come before the Committee. They were disappointed that he did not do so. That is a quite important point. They were not prepared to force the issue.


Senator Georges —If they all wanted it, why didn't they subpoena him?


Senator WALTERS —Senator Georges should ask his Party's members of the Committee , because the whole Committee said in the report that it wanted Mr Justice Murphy to come before the Committee. That was a matter of agreement.

Let us look at what Mr Pincus, QC, said, because this again is a crucial area. Mr Pincus, who was the counsel assisting the Committee, when referring to Mr Briese's evidence, said:

. . . it really does make a difference whether the judge gives evidence or not, because if the judge does not give evidence . . . the evidence remains uncontradicted and it is all the more difficult to reject.

Mr Pincus went on to say:

As to the suggestion you made Mr Chairman, that the case of uncontradicted evidence is altered if a written submission is made, I simply do not agree with it.

As Senator Chipp said in his minority report, until the judge gives sworn evidence he cannot say that what Mr Briese said was incorrect. I agree entirely with that statement. It is important to point out the areas in which the whole of the Committee agreed.

Let us look at the areas in which members of the Committee disagreed. The Government members of the Committee placed greater emphasis on Mr Justice Murphy 's written evidence, almost taking it as sworn evidence, than did Senator Chipp and the Opposition senators. The Government senators said that they accepted that written evidence as full evidence, but that view was not supported by the Queen's Counsel whom the Committee employed to advise it. The Opposition agreed that unless Mr Justice Murphy came before the Committee there was a problem. As I have said, at no stage was there a suggestion that Mr Justice Murphy was found guilty in the minority reports. He was not found guilty in those reports, even though Senator Crowley attempted today to mislead us into believing that that was the case.

We have had divided reports. The Australian Labor Party senators said: 'It is all done. We did not find anyone guilty. There should be an end to it.' Unfortunately, we cannot leave that political decision, which is seen as a political decision by the public, as the final decision, and, therefore, it is up to the Senate to come up with something else. The Government agrees with that , and its answer is: 'We shall send all the evidence that we have collected to the Director of Public Prosecutions'. The Government decided to send the evidence to Mr Temby. If Mr Temby does not find enough evidence to say a prima facie case exists, we are back to square one and the Senate will have to look at the issue again. The Opposition said that there was no way that could be done and that justice must be seen to be done. The Democrats said: 'You cannot send the matter to the Director of Public Prosecutions'. An article in yesterday's Sydney Morning Herald which is headed 'Evans runs for cover' states:

A Senate committee inquiry is not the best way to deal with the allegations against Justice Murphy.

The Democrats wanted that independent inquiry, and we agree that an independent inquiry would be the best way of dealing with the allegations. The article continued:

But if the Government continues to refuse to hold its own independent inquiry then the Senate is left with no alternative.

That is, the Senate would have no alternative but to set up its own committee. The article went on clearly to state:

Mr Temby would be inappropriate. Mr Temby is not an investigator. He can only take the material already at hand . . . and decide if a criminal charge is justified.

The idea that Mr Temby is not the right person to conduct the investigation is not just a political decision-many sections of the media are saying just that. They are saying that justice must be seen to be done.

The Government wanted to send the evidence to Mr Temby. The Democrats wanted the ideal position-an independent commission. The Government will not co-operate and give us that commission. The Government will not allow an independent commission to consider the matter; it wants to have control. Because there has been no co-operation from the Government, the Opposition's less attractive but necessary amendments must be implemented. A Senate committee is to be set up. That committee will be able to delegate its powers to an independent commission, and that independent commission can then take over. There has been much criticism to the effect that that step would not be constitutional. The precedent for doing so has, however, been set. Some committees in Canada employ permanent legal counsel who can be directed by a committee to conduct an inquiry . Senator Missen has already spoken about that sort of procedure and given examples. That process is something that Canada does regularly. Canada has set a precedent that we would do well to follow. For a Senate committee to delegate its responsibilities to a commission is a very suitable process, and that is what is about to happen.

We have reached the position where we are talking about the misconduct of a judge. The Attorney-General has accepted Mr Temby's decision that the misconduct must be a criminal offence. He goes even further and says, 'Of course, it is not even considered misconduct by a judge' referring to a judge of the High Court of Australia, if that judge is involved in a partisan political activity. This Attorney-General would say: 'That still is not misconduct'. I find that a most extraordinary attitude for the Attorney-General to take.

We have the situation in which the minority report is less restrictive than would be the case with a criminal offence. Mr Pincus, QC, who was appointed by the Committee, also agreed with the minority report. That is stated in the report. I do not have time to read what he says but he makes it very clear that he disagrees with the three Government members on the Committee and agrees entirely with the minority report on this piece of evidence. We are back to the responsibility of the Government. We all agree that under the Constitution- Senator Evans said so today-Parliament is the place where this matter must finally be decided; it cannot be done outside. No matter what occurs, it is this place that must make the decision as to whether there has been misconduct and whether the judge should continue to hold office.

I believe our judges must be in a position in the community where people can look up to them. They must be above criticism. If we destroy that respect, we are in real trouble. If we say that it is all right for a judge to do something but it is not all right for Joe Blow to do it, we are in real trouble. If we cannot say to the Australian people that we expect a higher standard from all judges in the Australian community, but particularly from judges of the High Court, we are really in trouble. Finally, I will quote what Sir Winston Churchill said when he gave his view on judicial conduct. Senator Durack spoke of this a couple of days ago in this place. Sir Winston Churchill stated:

A form of life and conduct far more severe and restricted than that of ordinary people is required from judges and, though unwritten, has been most strictly observed. They are at once privileged and restricted. They have to present a continuous aspect of dignity and conduct.

Far more freedom is granted by the convention of our way of life to Members of Parliament, to Ministers or to Privy Councillors. The judges have to maintain, though free from criticisms (in parliament), a far more rigorous standard than is required from any other class that I know of in this Realm.