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Thursday, 6 September 1984
Page: 588

Senator DURACK(4.53) —I move:

(1) That a select committee, to be known as the Select Committee on Allegations Concerning a Judge, be appointed:

(a) to inquire into the allegations made by Mr C. R. Briese, the Chairman of the Bench of Stipendiary Magistrates of New South Wales, concerning Mr Justice Murphy of the High Court of Australia, made before the Select Committee on the Conduct of a Judge and referred to in Appendix 5 of the Report of that Committee , and, after conducting such inquiry;

(b) to report to the Senate its findings of fact upon those allegations; and

(c) to report in relation to those allegations whether Mr Justice Murphy engaged in any conduct which could amount to misbehaviour providing sufficient grounds for an address to the Governor-General in Council by both Houses of the Parliament praying for his removal from office pursuant to section 72 of the Constitution.

(2) (a) That the Committee, in its report, indicate whether there was conduct which could amount to misbehaviour in accordance with the interpretation of the meaning of 'misbehaviour' contained in:

(i) the option of the Solicitor-General of the Commonwealth, and

(ii) the opinion of Mr C. W. Pincus, Q.C.,

attached to the report of the Select Committee on the Conduct of a Judge; and.

(b) That the Committee, in its report, indicate whether there is proof of conduct amounting to misbehaviour:

(i) beyond reasonable doubt, and

(ii) upon the balance of probabilities.

(3) That the Committee consist of three Senators, as follows:

(a) one to be nominated by the Leader of the Government in the Senate;

(b) one to be nominated by the Leader of the Opposition in the Senate; and

(c) one to be nominated by the Leader of the Australian Democrats.

(4) That the Committee proceed to the despatch of business notwithstanding that all members have not been duly nominated and appointed and notwithstanding any vacancy.

(5) That the Chairman of the Committee be the member nominated by the Leader of the Government.

(6) That the Chairman of the Committee may, from time to time, appoint another member of the Committee to be the Deputy Chairman of the Committee, and that the member so appointed act as Chairman of the Committee at any time when there is no Chairman or the Chairman is not present at a meeting of the Committee.

(7) That, in the event of an equality of voting, the Chairman, or the Deputy Chairman when acting as Chairman, have a casting vote.

(8) That the quorum of the Committee be one member.

(9) That the Committee have power to send for and examine persons, papers and records, subject to paragraph (18) of this resolution, and to meet notwithstanding any prorogation of the Parliament or dissolution of the House of Representatives.

(10) That there be two Commissioners Assisting the Committee, appointed by resolution of the Senate upon terms and conditions approved by the President, and those Commissioners shall be present at all meetings of the Committee, and may participate in the Committee's deliberations and examine witnesses before the Committee on any matter relevant to the Committee's inquiry.

(11) That the Committee appoint counsel to assist it, subject to the approval by the President of the terms and conditions of the appointment, and such counsel shall assist the Committee in relation to questions of law, evidence and procedure, and for that purpose may attend all meetings of the Committee and participate in the Committee's deliberations.

(12) That witnesses before the Committee may be examined by counsel assisting the Committee, by counsel for Mr Justice Murphy, and by counsel for witnesses.

(13) That the President be authorised to reimburse witnesses, for reasonable costs of legal advice and representation by counsel in respect of the Committee' s inquiry.

(14) That the examination of witnesses before the Committee and any submissions made to the Committee by counsel be heard in public session unless the Committee by absolute majority otherwise determines.

(15) That the Commissioners Assisting may recommend to the Committee that a particular witness be summoned.

(16) That all witnesses before the Committee be heard on oath or affirmation.

(17) That the Committee, after receiving recommendations from the Commissioners Assisting, determine procedures and rules for the examination of witnesses before it, having regard to the procedures and rules followed by the Supreme Court of the Australian Capital Territory, and subject to paragraph (18) of this resolution.

(18) That the Committee conduct its inquiry in accordance with the following procedures:

(a) Mr Justice Murphy shall not be summoned to give evidence;

(b) all examination of all witnesses shall take place in the presence of counsel for Mr Justice Murphy and of Mr Justice Murphy if he chooses to attend;

(c) when all examination of all witnesses has concluded, Mr Justice Murphy shall be invited to give evidence; and

(d) if Mr Justice Murphy gives evidence, he shall be sworn and subject to examination in accordance with this resolution.

(19) That the Commissioners Assisting advise the Committee in writing, in accordance with paragraph (2) of this resolution, upon the matters into which the Committee is to inquire and upon which the Committee is to report, and the Committee include in its report the advice of the Commissioners Assisting.

(20) That the Committee, the Commissioners Assisting, witnesses and counsel appearing before the Committee have access to the records of, transcripts of evidence taken by, and documents submitted to the Select Committee on the Conduct of a Judge and relating to the Committee's inquiry, and may refer to those records, transcripts and documents in the course of the Committee's proceedings.

(21) That the Committee report as soon as possible but not later than 11 October 1984.

(22) That, if the Senate be not sitting when the Committee has completed its report, the Committee may send the report to the President, or, if the President is unable to act, to the Deputy President, and, in that event:

(a) the report shall be deemed to have been presented to the Senate;

(b) the publication of the report is authorised by this Resolution;

(c) the President or the Deputy President, as the case may be, may give direction for the printing and circulation of the report; and

(d) the President or the Deputy President, as the case may be, shall lay the report upon the Table at the next sitting of the Senate.

(23) That the foregoing provisions of this Resolution, in so far as they are inconsistent with the Standing Orders, have effect notwithstanding anything contained in the Standing Orders.

Having moved the motion, as amended, if there is any need for further questioning presumably the Senate will facilitate that operation.

Senator Gareth Evans —I take it that the amendments to which Senator Durack refers are all the linguistic amendments that were accommodated in the last 20 minutes of debate as well as the terms of the document he circulated earlier. References to Commissioners Assisting are peppered throughout and the word ' report' is deleted. Does the honourable senator formally move the motion in that form? Is there no need for any further clarification?

The DEPUTY PRESIDENT —I think there is some need for further clarification. I think it would help if Senator Durack went through the amendments to the document as circulated so that all honourable senators are clear as to what has been moved.

Senator DURACK —The motion I have moved is the document that honourable senators have had circulated to them on which dark type indicates the amendments to my original motion. The lighter type indicates the original motion, if anybody is interested in that any more. I have sought to make an amendment to paragraph 19 of that motion to leave out the words in line (1) 'report to the Committee and' and to add in line (2) the words 'advise the Committee'. Paragraph 19 now reads:

That the Commissioners advise the Committee in writing . . .

In the last line of paragraph 19 I have sought to take out the words 'report and ' so that the final part of that paragraph reads:

. . . and the Committee include in its report the advice of the Commissioners.

Senator Gareth Evans also made a request, to which I agreed, that there be two commissioners assisting the Committee. I think the first reference is in paragraph 10. He is anxious that, wherever there is reference to 'Commissioners' , they be called 'Commissioners Assisting'. That does not mean any change to paragraph (11), which refers to the Committee being able to appoint counsel to assist it. He will be a different being. Where reference is made to the Commissioners, as in paragraph 15, which reads in part, 'that the Commissioners may recommend to the Committee', the word 'Commissioners' should be replaced by 'Commissioners Assisting'. The same thing applies in paragraph 19, which should read 'That the Commissioners Assisting advise the Committee . . .'. Wherever the word 'Commissioners' appears it should be 'Commissioners Assisting'.

Paragraph 20 should read . . . 'the Commissioners Assisting, witnesses and counsel . . . '. I have agreed to replace wherever the word 'Commissioners', wherever it appears, with the words 'Commissioners Assisting'. Those are the only amendments that I am aware of that were under discussion. I presume that Senator Georges is now satisfied with the explanation that I gave him.

Senator Georges —As long as it is on the record.

Senator DURACK —Yes.

Senator Gareth Evans —I wish to have one further point of clarification, if I may. The first line of paragraph (11) reads: 'That the Committee appoint counsel to assist it . . .'. The expression 'counsel' is, of course, ambiguous as to whether the singular or the plural is meant unless the context makes clear one thing or the other. Here the context does not do so. As I understand it there is a general acknowledgment, at least on the part of the Australian Democrats, that we are talking about a counsel, singular, to perform the particular function that is here identified. There has also been some discussion as to whether that person should have a fancy title, but there seems to be a further fancy title to add to the long list of people with fancy titles in this enterprise.

Senator Chaney —You get the fancy title of 'Chief Obfuscator-capital 'C' and capital 'O'.

Senator Gareth Evans —There is some resistance, as I understand it, to a fancy title in this instance so I do not pursue that. But I think it is important, if there is a mandatory provision here-not a discretionary one-that the Committee appoint, that it be clear whether one counsel or more than one is contemplated as fulfilling this role. Accordingly I ask whether Senator Durack is prepared to accept the force of that and to insert the word 'a' before 'counsel' in the first line.

The DEPUTY PRESIDENT —Is that acceptable, Senator Durack?

Senator DURACK —No, it is not. If the Committee wanted to appoint a Queen's Counsel of some distinction he might want a junior. If anything is clear to lawyers it is the phrase 'committee appoint counsel'. What is meant will be perfectly understood. I cannot see the slightest difficulty. When all is said and done, we know that one party before this Committee will probably be serviced by two Queen's Counsel at the expense of the Government, so I do not know why there should be any concern about leaving it to the Committee to decide on the number of counsel. The probabilities are that the Committee will obtain the services of a suitable Queen's Counsel without the requirement of junior counsel , but if it were not able to do so I do not see why we should exclude the Committee from making the arrangements which suit it best.

The DEPUTY PRESIDENT —Attorney-General, that amendment is not acceptable. If you wish to pursue it you will have to move it by way of formal amendment.