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Tuesday, 2 October 1984
Page: 1028

Senator DURACK(3.40) —The Chairman of the Senate Select Committee on Allegations Concerning a Judge, Senator Tate, has moved four motions of very considerable significance in regard to the procedures of the Committee. In my view, they modify in a very material way the resolution of the Senate of 6 September. The resolution consists of 23 paragraphs which are appended to the copies of the statement which has just been made by Senator Tate . I think it useful for honourable senators to have a copy of the resolution and to be reminded of it in the course of this debate.

Before going into the particulars of the matter, I wish simply to recall the nature of the debate that took place in the Senate following the report of the previous Committee, the Select Committee on the Conduct of a Judge, and the various recommendations that were made by members of that Committee, including me. One problem faced by that previous Committee was based upon submissions that were made to it by counsel for Mr Justice Murphy, Mr Hughes, who put to that Committee, in my view quite properly, and with his usual vigour, a number of views about the procedures that should be followed by that Committee in the event of his client being placed in any jeopardy by any of the findings, tentative and all as they may be, of that Committee. He submitted, and I believe he was correct, that before that Committee made any findings which could in any way be adverse to his client, his client should be accorded a formal hearing in accordance with the principles of natural justice.

Although I do not need to traverse all the facts about that report and the subsequent debate in the Senate, the fact is that in the resolution of 6 September which constituted the present Committee known as the Select Committee on Allegations Concerning a Judge, the Senate was at considerable pains to ensure that the hearing of evidence concerning allegations by Mr Briese against the judge should be conducted in accordance with the principles of natural justice. To some extent, the Senate was called upon to follow a new procedure. Although there are precedents for witnesses to be represented by counsel at Senate committee hearings, in an attempt to give effect to the full force of the submissions that had been made to the previous Committee, it was required that fairly detailed rules be laid down about the right of examination or cross- examination of various witnesses by various counsel who might appear. That issue was certainly one of the difficulties faced by the previous Committee because to give effect to such submissions would have been contrary to one of the Standing Orders of the Senate regarding the procedures of its committees.

As I have said, apart from setting up the Committee to deal with the allegations made by Mr Briese, the prime object of the resolution of 6 September was to ensure that the principles of natural justice were observed in the proceedings of this new Committee. Although the object of the investigation of that Committee would be to ascertain the full facts, the truth of the matter, its procedures should, as I said, observe the rules of natural justice. As a result, fairly detailed provisions were made in the resolution. In my view the Senate gave very close regard to those rules. Although the Attorney-General ( Senator Gareth Evans) and the Government were opposed to the establishment of the Committee, the Attorney-General, together with Senator Haines on behalf of the Australian Democrats and me on behalf of the Opposition, gave very close and very detailed attention to what I might call the rules for the procedures of this Committee which are set out in the resolution. That is why they are so detailed.

The first matter that was attended to was the right of representation of witnesses before the Committee. Paragraph (12) of the resolution states:

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

Although Senator Tate says that one view that could be taken of that paragraph is that counsel for any of the witnesses may cross examine any other witnesses, I would not have thought there was much room for doubt as to what that paragraph means. In fact, in my view, it is very difficult to see how there could be another view as to what was intended by that part of the resolution. It was intended that the Committee should have the utmost facility to arrive at the proof and the facts but that that should be done in accordance with the utmost protection of witnesses before the Committee, including Mr Justice Murphy. Under the existing Standing Orders of the Senate, counsel are not allowed to ask questions-only senators are allowed to do that-and it was decided that that standing order be set aside and that those witnesses appearing before the Committee should have their counsel and their counsel should be able to give them full assistance and protection and thereby assist the Committee in its ascertainment of the truth.

It was further felt that some additional protection should be accorded to Mr Justice Murphy in the light of the submissions that had been made by his counsel , Mr Hughes, to the previous Committee. A special paragraph, paragraph (18), was included in the resolution, with specific reference to Mr Justice Murphy in an effort to give full protection to him as he was, if I can use the phrase, although it is an unfortunate one, 'the accused person'. Paragraph (18) states:

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

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

That was another major submission that had been made earlier by Mr Hughes. Of course, that in itself is a major change in the rules of Senate committees, because any witnesses may be summoned. The paragraph continues:

(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;

That is another major concession and an amendment of the existing rules. The paragraph continues:

(c) when all examination of 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.

That refers to the whole resolution of the Senate. The object was to accord to Mr Justice Murphy, in the position he was in, the right of declining to give evidence if he so desired or if his counsel so advised. In other words, that right of Mr Justice Murphy's is a very fundamental right. That is my opinion, the opinion of the Senate and, I am sure, the opinion of most people. Mr Justice Murphy would be given the right of silence if he chose to meet the allegations made against him in a way other than giving evidence himself. Accused people in our system of justice have that fundamental right. This very special rule was constructed for Mr Justice Murphy, and rightly so. Nevertheless, sub-paragraph 18 (d) provides:

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

That is, Mr Justice Murphy may be examined, as any other witness may be, under the provisions of paragraph (12) which reads:

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

As I said, the object of this exercise was to accord the principles of natural justice. We had specifically in mind according those principles to Mr Justice Murphy, but we must also bear in mind that other people appearing before the Committee are also entitled to have the principles of natural justice accorded to them. Simply because we are making special efforts to accord the principles of natural justice to Mr Justice Murphy is no reason to deny justice to other witnesses before the Committee.

Senator Gareth Evans —How are they at risk by these proceedings? Tell us that.

Senator DURACK —Is the Attorney trying once again to frustrate this exercise? He has been doing that from the word go. The first matter of concern in the motion moved by Senator Tate concerns the right of cross-examination of Mr Justice Murphy by counsel for Mr Briese or any witness called by him. The Commissioners, two independent retired judges appointed with the agreement of both sides of this chamber and selected because of their independence and their status, recommended the rules of procedure as follows: Counsel for a witness may cross- examine all other witnesses including Mr Justice Murphy should he give evidence and any witness called on his behalf on matters relevant to the evidence of the witness for whom the counsel appears. That would mean that the counsel for Mr Briese or any other witness may cross-examine Mr Justice Murphy on matters relevant to the evidence of that witness. It is confined to the evidence of that witness. The cross-examination may not be wide-ranging on all matters. It must be relevant to that witness. The second rule of procedure recommended by the Commissioners was:

The Committee may stop any secondary cross-examination if it considers it repetitive or oppressive.

The first motion moved by Senator Tate would prevent that provision applying to the rules of procedure of this Committee. The Chairman of the Committee has a casting vote. Apparently we have decided that this provision should not apply to the rules of procedure. Senator Tate's first motion is to affirm deletion of that provision. The Opposition will certainly oppose that motion. Senator Tate gave as the arguments against allowing the right of cross-examination by counsel for witnesses:

. . . the proceedings of the Committee should conform as closely as possible to proceedings in a criminal trial, and Mr Justice Murphy, who is the person in peril . . . should be accorded all the rights of an accused person in criminal proceedings. In criminal proceedings . . . a witness is not permitted to be represented by counsel or to cross-examine . . .

The position is, of course, that in a criminal trial there would be a prosecuting counsel. There would be full and rigorous cross-examination of the person on trial by such a counsel, if the person on trial gave evidence. But clearly an analogy between a criminal trial and these proceedings is very remote . The Senate was not setting up a trial court. It was setting up an inquiry in accordance with the principles of natural justice. It had regard to the special position of Mr Justice Murphy, but it also had to have regard to the rights of other people giving evidence before the Committee. Therefore, it has not surprised me that the Commissioners believe that counsel for other witnesses, including Mr Briese, should have the right of cross-examination in regard to what they said. I am pleased that that has been pointed out in Senator Tate's statement. He pointed out that Mr Briese would be exposed to cross-examination by counsel for Mr Justice Murphy. Therefore, I argue very strongly that Mr Briese should be provided with the protection afforded by the right of cross- examination by his counsel. The second argument advanced against allowing the right of cross-examination was:

. . . it may be held to be unfair to witnesses and to Mr Justice Murphy, if he gives evidence, to be exposed in cross-examination by more than one counsel.

But it is quite competent in trials, civil and criminal trials, royal commissions and other proceedings, for a witness to be exposed to cross- examination by more than one counsel. There seems to me to be absolutely no substance as far as any legal procedures are concerned in that argument. Therefore, it is only elementary justice, and was always intended by the Senate in its resolution, that if Mr Briese is to be cross-examined by counsel for Mr Justice Murphy-as indeed he must be; we have conceded that-Mr Briese should be afforded the protection of his counsel being able to cross-examine Mr Justice Murphy. The Commissioners themselves recommended that principle; it should be adhered to.

The next matter which is the subject of variation of the Committee's resolutions is access to documents. Paragraph (20) of the resolution for the setting up of the Committee makes it perfectly clear that the Committee, the Commissioners, witnesses and counsel appearing before the Committee should have access to the records of, transcripts of evidence taken by, and documents submitted to the former Select Committee on the Conduct of a Judge which relate to the inquiry. It has been argued strongly before the Committee by Mr Hughes that neither the submissions he made to the former Committee as counsel for Mr Murphy nor the statement that Mr Justice Murphy gave to that Committee should be made available to the other Committee. I turn to the terms of the second motion. The second motion states that notwithstanding paragraph (20) the Committee may determine that it will not disclose to witnesses or their counsel either of these documents. So that applies generally. It applies to Mr Briese, of course, in particular and to his counsel. Again, we have a question of the responsibility of the Committee to endeavour to ascertain the proof. Of course, it would be perfectly normal that any statements that have been made, provided they are statements which have been made voluntarily, should be available to any inquirer of the facts. They do not have to be just the evidence given at that hearing. Any statements should be available.

The arguments for and against are set out in Senator Tate's statement. The argument is put forward that the nature of Mr Justice Murphy's evidence in his defence, if he gives evidence, should not be known until other evidence has been heard and that it would be unfair if Mr Briese and other witnesses knew of that evidence in advance. But the fact of the matter is, of course, that a summary of Mr Justice Murphy's evidence has been included in the public record of the former Committee. This was set out in the appendix to the report which the Committee made to the Senate. But if one is going to make some analogy with a criminal trial, the fact of the matter is that previous statements that have been made by an accused person either to investigators of the case, provided those statements are voluntary, or statements made in other proceedings-earlier proceedings or committal proceedings-of course can be available and must be available to the prosecution as indeed statements made by witnesses that the Crown may or may not call are made available to the defence. It is a perfectly clear principle that previous statements, provided they are made voluntarily, should be freely available to both sides in criminal proceedings. Therefore, I and the Opposition certainly oppose this added restriction on the availability of one of the relevant documents in the proceedings of the Committee. However, we are prepared to concede that the submissions that were made to the previous Committee by Mr Hughes may be justified, depending on the Committee's decision about whether that material should be used in the proceedings of the present Committee. Therefore, we will be moving an amendment to that motion.

The third motion again seeks to modify paragraph 20 of the resolution which established the Committee. It provides that the Committee may determine in respect of any person other than Mr Justice Murphy, Mr Briese and their counsel that it will not grant to that person access to the whole or part of the records of the previous Committee. I believe that that motion is wrong in principle. I believe that paragraph 20 in its existing terms expresses the right principle, that where one is trying to arrive at the facts and the truth, all relevant testimony and records of the previous Committee should be available to this Committee and to all those taking part in it. I find it very difficult to see why there should be this restriction. However, the Opposition is prepared to leave that to the determination of the Committee, as this motion provides. I will be watching very carefully what the Committee does in relation to this matter because if there is any attempt by the second committee to suppress relevant evidence which was before the first committee and if we have any further evidence like some of the decisions this Committee has made the subject of motions here--

Senator Georges —Mr Deputy President, I take a point of order. Those words imply a threat to the Committee. That is actually what the honourable senator has done . He has threatened the Committee.

The DEPUTY PRESIDENT —What words are you complaining about?

Senator Georges —In essence Senator Durack used the words: 'If the Committee endeavours to suppress any of the evidence before the Committee or to alter any of its procedures'. What I am saying is that by the tone, by the words and by direct implication he is placing that Committee under threat. He is threatening that if the Committee does not do as he wishes--

The DEPUTY PRESIDENT —Senator Georges, you are making a debating point, not a point of order. You are entitled to raise this matter in debate if you wish, but it is not a point of order.

Senator Georges —I would say that the honourable senator ought to be brought to order because he is threatening the Committee. He is implying that the Committee might seek to suppress evidence.

The DEPUTY PRESIDENT — There is nothing in Standing Orders which would prevent Senator Durack from doing that if he were doing so.

Senator Georges —Then, if I might say--

Senator Chaney —Oh, sit down.

The DEPUTY PRESIDENT —Senator Georges, are you continuing your point of order? You may make these points in debate if you wish but this is not a point of order as you have expressed it.

Senator Georges —Mr Deputy President, let me say this: I am very difficult to sit down. When the Leader of the Opposition by interjection says 'sit down' that is an affront to me and I ask him to withdraw that. If I cannot get anything else withdrawn at least I ask that he withdraw the remark that I ought to sit down. I am trying to exercise my right as a senator in this place.

The DEPUTY PRESIDENT —I certainly will not order Senator Chaney to withdraw that remark because there is nothing unparliamentary in it.

Senator DURACK —I am simply saying that the purpose of the Senate in setting up this Committee is to ascertain facts and the truth of this matter. Everything that will assist the Committee in ascertaining the truth should be considered by the Committee. There should not be suppression of relevant evidence that was before the previous Committee. I am simply saying that the Senate should keep a very watchful eye to ensure that that rule is observed by the Committee at all times and in all respects. This Committee is a creature of the Senate. It is subject to the Senate and that is why we are debating this matter at present. The fourth motion is a tidying up and clarification process which the Opposition will support.

In conclusion, I want to refer briefly to statements that have had wide currency this morning by counsel for Mr Justice Murphy who talked in extravagant terms about the possibility of an unjust farce in the case of this Committee. The fact of the matter is, as I have pointed out, both the Senate, and I am sure this Committee, will be conducting these proceedings in accordance with the principles of natural justice. The Committee has a very difficult task. It does not assist the Committee or the Senate if extravagant statements of this kind are made. I repudiate entirely the suggestion of counsel for Mr Justice Murphy that there is any sort of unjust farce in anything this Senate has done or in anything that the Committee itself has done in regard to this matter. I conclude on this note: The Committee and the Senate will not be assisted in any way by such extravagance of that kind.