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Thursday, 6 September 1984
Page: 580


Senator HAMER(3.58) —We are dealing with a very serious matter. Perhaps, when it is looked back upon, it will be seen as one of the most serious matters ever dealt with by the Senate; and as far as possible we have to deal with it with dignity and restraint. I wish that we could deal with it on a non- party basis, but that does not seem very easy. We are dealing with a fundamental principle of the Constitution-the separation of judicial power and legislative power. A further point we must keep in mind in all we do is that, to put it at its very lowest, there is a very real possibility that the judge may be totally innocent of any offence. In all we do we must always remember that. Nevertheless , what is alleged is a very serious charge which, if true, would in my view render the judge concerned quite unsuitable for the High Court. It is the Parliament's responsibility to determine whether this is so. Section 72 of the Constitution provides for removal of judges:

They 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:

I repeat: 'both Houses'. That is a considerable safeguard, the lower House by definition is controlled by the Government and the upper House usually is not controlled by the Government. I cannot accept the limited, narrow legalistic view put by the Attorney-General (Senator Gareth Evans) and the Solicitor- General on the meaning of the words 'proved misbehaviour or incapacity'. We must remember that it is only this Parliament which can remove a judge who has proved his unsuitability. If a judge espoused the cause of the League of Rights, say, and was anti-Jewish and anti-Aboriginal, in the Attorney-General's view that would not be a ground for removal. If he were an habitual companion of notorious criminals, that would not be a ground for his removal. According to the Attorney -General, so be it; nothing could be done. I do not believe for a moment that that, as I read the Convention debates, was the purpose of the authors of the Constitution. It is not in my view a commonsense reading of section 72 of the Constitution and I do not believe that attitude is compatible with the requirements of the administration of justice in this country. I think these three points make the attitude of the Attorney-General an absurd proposition- because the buck stops here. We cannot pass it on. We have to decide whether an offence is proved or not. We have to decide whether the level of misbehaviour or incapacity is sufficient to warrant passage of a petition, an address, for the removal of the judge. That is the responsibility of the Parliament and no one else can do it.

What has happened? The Senate Select Committee on the Conduct of a Judge, as we have heard, sat for six months and reached no firm conclusion on the facts. In the absence of the judge and evidence from him under cross-examination, I do not believe any other conclusion was possible. In normal circumstances that would be the end of the matter. No one is looking for self-incrimination, and the fact that the judge did not give sworn evidence before the committee is not a ground for pursuing it any further. That should be the end of the matter. There is not sufficient evidence so far for anyone to come to a firm view. That would normally be the end of the matter, but this is not a normal case. It would also normally be the end of the matter if the complainant was not such a prestigious person as a chief magistrate. With someone of less prestige, it would not be pursued. But we have the two factors: One that a High Court judge is involved, and the second that the complainant is a man of some standing in the community, the Chief Stipendiary Magistrate of New South Wales. The judge is on a different plane. Senator Richardson spoke of the rights of the ordinary individual, but a judge must be on a much higher plane. I should like to read something the Attorney-General said in 1980, regarding the standards required of judges:

It might be thought that the standards I am suggesting are unreasonably high and not such that lesser mortals could reasonably be expected to attain.

But the fact remains that the standards we require of our judiciary are higher than might be reasonable to require of everyone else.

He went on to quote with approval some words of Sir Winston Churchill, who said of judges:

A form of life and conduct far more severe and restrictive 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 . . . The judges have to maintain, though free from criticism, a far more rigorous standard than is required from any other class that I know of in this realm.

That is why this matter must be resolved. It cannot in the interests of the administration of justice be left in the category of not proven. We must resolve it one way or the other. The question is where do we go now? The Government would like to refer the matter to the Director of Public Prosecutions, but he has no coercive powers. He could do no better than the Senate committee. He would not and could not resolve the issue. It may well be that purely as a criminal case it is inherently unprovable. Referring to the Director of Public Prosecutions the evidence on which the Senate committee was unable to reach a clear resolution will get us no further forward at all without evidence from the judge-which could be cross-examined given in person. The Government should set up a royal commission to look into the matter. But the Government refuses; it does not accept its responsibilities.

The Opposition proposes as the second best alternative to set up a Senate committee with two independent commissioners, people of prestige and standing in the community, to conduct the investigation on the Senate's behalf. That committee will report the conclusions of the commissioners to the Parliament. It is the second best solution. We would much prefer the royal commission, but the Government refuses. The Government will not face up to its responsibilities. The Attorney-General raised what seemed to me to be a thoroughly trivial objection: namely, that the finding of the commissioners would not be binding on the Senate . Of course it would not; nor would the finding of a court be binding on the Senate. It is up to the Senate in every case to satisfy itself that the matter is proved and that the misbehaviour is adequate to justify removal. The fact that it is not binding is self-evident, and it is extraordinary that it should be raised as an objection by the Attorney-General.

Government senators have pointed out that Britain, from which we take our customs and privileges of parliament, has not used this committee system of investigation this century. I am sure that is true, but the reason is that the British Government has never refused, and would never refuse, to set up a proper independent inquiry into a matter which the majority of an elected house of parliament thought merited investigation. This course of action is necessary only because the Government will not face up to its responsibilities to investigate these matters properly.

I conclude by quoting some words by the Attorney-General. I do not often agree with him, but I entirely agree with these words which he used in a different context about another judge but which are just as true of this situation. He said in 1980:

If public confidence in the absolute integrity and impartiality of the judges of the highest court in the land is in any way put at risk by the questions which have been raised here not being satisfactorily answered, there is little hope for the long-run survival of public confidence in any democratic institution in this country.

I agree with those words. We are taking the best course of action available to us to resolve this matter, in default of responsible action by the Government.