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Thursday, 6 September 1984
Page: 586


Senator GARETH EVANS (Attorney-General)(4.35) —Let me wind up this debate by replying to a number of the points that have been made in it without, I hope, covering ground that has been trodden over many times in the last 48 hours. I should say at the outset, however, that the amendment moved by the Australian Democrats to require the reference of material to Mr Temby to occur not earlier than the establishment and first meeting of the Senate Select Committee is, as I foreshadowed yesterday, wholly unacceptable to the Government . It is unacceptable to the Government because the whole principle of simultaneous reference to Mr Temby and to the proposed re-established Senate committee is itself unacceptable to the Government, is itself a complete nonsense for reasons that I have sought to explain and articulate on numerous occasions in the course of this week.

The reason it is a nonsense is that it does confuse the proper roles that ought to be played by the various institutional players on the present scene. The situation might be different if the allegation of misbehaviour that was here involved was something other than misbehaviour of a criminal kind. But given that the allegation in question here is one of a kind which, if substantiated, would clearly constitute criminal misconduct of a kind prohibited by the Crimes Act, it is very important indeed that we have very close regard to the principles appropriate for dealing with that kind of allegation.

The way in which allegations of a criminal kind are normally dealt with is by reference to the ordinary criminal processes and the ordinary criminal institutions which means nowadays, in the first instance, Mr Temby. If the matter in issue had, as I have said before, involved an assault of some kind or an obvious fraud of some kind, there would be very little doubt, I suspect in most people's minds, that that would be the appropriate course to follow-to exhaust the criminal option first before going down the track of parliamentary consideration. The criminal institutions, the criminal processes are the ones best equipped to apply the appropriate standards of proof and they are clearly constituted by that provision in the Constitution which talks in terms of proved misbehaviour, not just misbehaviour without more, but proved misbehaviour, anticipating some method of proof that would be appropriate to the circumstances of the kind of misbehaviour that is in issue.

When we talk about criminal misconduct or allegations of criminal misconduct, it cannot be doubted that the most appropriate way of testing that conduct is through the ordinary criminal process and that is why we have emphasised and re- emphasised, repeated and gone on repeating the desirability in principle of the criminal prosecution route being first exhausted before bouncing the issue back into the parliamentary arena. That is why we think it is appropriate that the matter ought to be referred to Mr Temby before there is any question of considering the reincarnation of a committee to further deal with this particular matter.

I will not go into any more detail about the kind of investigation or review that Mr Temby will necessarily be carrying out, except to repeat in a sentence that it is exactly the kind of job that he does every day of the week. The evidence before him on this occasion will be substantial and very bulky as a result of the work that has already been done. The investigative work, with rather greater powers than are available to the Australian Federal Police, has already been done by the pre-existing parliamentary Committee. We can expect a sensible, reasoned conclusion on the basis of the material and one that will be forthcoming in a short time so as not to produce unnecessary delay in the final resolution of this matter.


Senator Harradine —Using different criteria.


Senator GARETH EVANS —Using the criteria that are appropriate to a criminal prosecution because if it is the case that on the material, the allegation here demands a criminal prosecution, that is the best way, the most appropriate way, the most principled way of establishing proved misbehaviour within the meaning of the Constitution. That is why we want to go down that particular track.

Let me now address quite directly the arguments about confusion of the institutional role, which Senator Harradine has been putting vociferously in the course of this day. Senator Harradine is asking us to accept that reference of the matter to the Director of Public Prosecutions confuses the role of the Senate and the Executive Government and somehow undermines the role that this Parliament is vested with by virtue of the provisions of section 72 of the Constitution. Let me make it clear, as simply and as succinctly as I can, that that just does not follow; it is not so. The allegation is of serious criminal conduct, for a start. The Constitution, under section 61, if I need constitutional reinforcement for stating the obvious, vests responsibility for the maintenance of the criminal law of the Commonwealth in the Executive Government.


Senator Harradine —That is right, not us.


Senator GARETH EVANS —In the Executive Government. Insofar as what we are concerned with here is an allegation of misbehaviour concerning a judge, and alleged to be such and argued to be such as to justify the removal of that judge from his position on the Bench, the situation becomes more complicated and we have a choice intruding into the situation. It has never been denied by me, or by anyone else in the Government, that it is appropriate for Parliament to have the last word. It has never been denied by me, or by anyone else in the Government, that Parliament is technically capable of itself dealing with and establishing to its own satisfaction proof of the misbehaviour in question. We have argued that it is inappropriate, given the availability of that criminal process. It is not appropriate for the Parliament to go down its own track first . It ought to exhaust that process before getting into the very deep and very muddy water that is involved. I simply cannot accept that there is any fundamental diversion from basic principles in what is here being involved.

Let me address-I do so in a piecemeal way-some other matters that have been raised in the debate, including in the first instance by Senator Harradine when he asked: 'By what right did the Attorney-General ask the Australian Federal Police to approach Mr Briese?'. The suggestion is that again somehow there has been some confusion of role, confusion of institutional responsibilities and, indeed, some imputation of impropriety in the way in which the matter has been handled by me and by the Government. Let me again say that the allegation is of serious criminal conduct. That is a matter which it is appropriate for the Executive Government to investigate under section 61 of the Constitution. The Senate Committee report, in paragraph 79, agreed that the allegation was that a criminal offence had been committed. Under those circumstances it is appropriate for the Commonwealth to pursue in the ordinary way, through its ordinary executive instrumentalities, investigations of this kind. Senator Chipp is indicating that I should wind up the debate. I am addressing, in the debate as a whole, a number of other points that have been raised, including the ones that are in issue in relation to this amendment. They are matters which, if not corrected, will stand undenied and unresponded to on the record and that would be wrong.

The only information that was otherwise available to the Government was the summary in the Senate Committee's report. The situation confronting the Government was the necessity to make a judgment as to whether some criminal prosecution should in any event flow. The Australian Federal Police were instructed to limit their approach to asking whether the evidence that Mr Briese would give, in the event that a prosecution was brought against the judge, would be to the effect of the statements attributed to him in Appendix 5 of the report of the Senate Committee. He was asked also whether he wished to make a formal complaint. That is as far as the police went on that occasion. I suggest that any imputation that the Executive Government was behaving somehow inappropriately in its conduct of this aspect of the matter is quite ill-founded .

Many other points were made in the course of the debate about the meaning of misbehaviour and whether it should properly be regarded as extending to behaviour other than purely criminal behaviour or matters that are squarely related to the conduct of judicial office. Maybe that is something that will recur in the debate at the Committee stage. I think I have said enough to explain clearly what the Government's position is. I think it should be said that the objection about partisan political activity, for example, not justifying removal from office is one that overlooks the constraints and the pressures that would operate against such activity occurring on the part of the judge. I am not talking only about the disciplinary kind of role that the Chief Justice of an institution can always apply; if there is any question of political bias being evident in a judge which might flow through and influence his determination of a particular case in which those issues might be relevant, clearly that would either be misbehaviour in the conduct of his office such as would justify it, or it would certainly justify his removal from the Bench in the hearing of that case, in accordance with familiar principles.

There are many other points. I think it is probably redundant at this stage to track over them, although I am very reluctant indeed to leave them unanswered on the record. Let me simply assert that they are all capable of answering, within the terms either of the original statement or the various glosses on it that I have been making all over the place. I commend to the Senate the original motion about the reference of the matter to Mr Temby. I urge the Senate to reject out of hand the amendment that has been proposed by the Democrats, in consort, of course, with the Opposition, which would have the effect of requiring that reference to proceed simultaneously with the establishment of the Committee. It is quite premature at this stage to establish the Committee and the Senate should reject that approach.

Question put:

That the words proposed to be added (Senator Macklin's amendment) be added.