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Tuesday, 2 October 1984
Page: 1036


Senator HAINES(4.30) —It is not my intention to take a great deal of the Senate's time this afternoon in debating the matters before us in any great detail, nor do I intend to be provoked by some of the earlier inflammatory statements made by the Attorney-General (Senator Gareth Evans) with regard to the whole establishment of this Senate Select Committee on Allegations Concerning a Judge; that, I think, was canvassed well enough during the debates last month. I would, however, like to pick up the references that he has made to the question of analogies between the Committee that has been established and various other forms of trials and hearings. The simple facts of the matter are that we are not acting as a civil hearing, we are not acting as a criminal trial , we are not acting as a royal commission and nor are we indeed acting as an ordinary standing or select committee. We are, if you like, a hybrid, and the reason that that hybrid has been produced is that we are in an unprecedented situation which has arisen out of the responsibilities placed on this Parliament by section 72 (ii) of the Constitution. We have got to respond to that and the Committee, the Senate and the Parliament as a whole have to act in accordance with those responsibilities. To do anything else-and I remind the Senate that it is not something of our doing-would be highly irresponsible.

I want to deal with the matters before us today generally in the order in which Senator Tate approached them. The first matter on the agenda, so to speak, is the question of Mr Hughes's petition to come before the Bar of the Senate. Essentially we agree with the points that Senator Tate brought forward in the statement that he read to the Senate earlier, that is, that Mr Hughes's arguments are a matter of public record and they are available for senators to read and digest. Mr Hughes put those arguments with considerable flair and enthusiasm. Indeed, I almost wished that he were in this place to--


Senator Gareth Evans —He is.


Senator HAINES —No, I mean a little further in this place than simply sitting in the gallery, to entertain us and enlighten us from time to time with that sort of delivery. I have to say, however, that I took exception-I suspect I was not the only one-to his statement, made when he was in full flight, that the Committee runs the risk of becoming an unjust farce. I remind honourable senators and anybody else that we paid considerable attention to the matters that Mr Hughes raised-the objections that he raised and the challenges that he issued to the previous Committee, the Senate Select Committee on the Conduct of a Judge. I believe that as far as possible those concerns that Mr Hughes raised about the full requirements of natural justice being seen to be met were indeed accommodated in the formation of the current Committee.

On the matters contained in the four motions before us today, the Australian Democrats have elected to be guided by the recommendations of the Commissioners assisting the Committee and by counsel assisting that Committee. That is, after all, the reason why those people were put there. For that reason it is my Party' s intention to oppose the first motion moved by Senator Tate. As he points out, this in fact effectively returns to the rules and procedures recommended by the Commissioners, their original provisions numbered 13 (c) and 14. On page D.-2 of the recommendations, the Commissioners had this to say:

Our recommendation therefore is that cross-examination generally of Mr Justice Murphy, if he is called, and of any witnesses called on his behalf, be conducted by counsel assisting the Committee and, as in the case of other witnesses, counsel representing Mr Briese should be confined to cross-examination on matters relevant to his evidence.

Item 13 (c) of the Commissioner's original recommendation reads:

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 that counsel appears .

Item 14 reads:

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

The second motion that is before us today-in the form presented by Senator Tate- requires that neither the statement by way of letter from Mr Justice Murphy to the previous Committee nor the oral submission made by Mr Hughes to that Committee be made available to witnesses. We are of the opinion, which is shared by Senator Durack, that there is little justification in preventing access to Mr Justice Murphy's written statement. However, we concur with and are convinced by the Commissioners' opposition to access being allowed to Mr Hughes's oral submission since it would seem that this runs perilously close to giving a witness advance notice of the direction of Mr Hughes's likely cross-examination of that witness. For that reason we will support the amendment that has been foreshadowed by the shadow Attorney-General to the second motion; that is, deleting reference to Mr Justice Murphy's letter and supporting the remainder of the motion, which would stop access by witnesses to Mr Hughes's oral submission to the previous Committee. Of the last two motions I simply wish to say that we support Senator Tate on the same grounds as those which he issued in his statement to the Senate.