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Tuesday, 2 October 1984
Page: 1042

Senator CHANEY (Leader of the Opposition)(5.06) —The Senate has just heard a speech by Senator Georges, the gravamen of which was that we should move right away from this inquiry, that we should drop it and should regard it as something we should do away with. That is an interesting viewpoint put forward in what was a very interesting and, in some ways, a rather entrancing speech. Because of the passionate way in which it was delivered it was very easy to lose sight of the facts with which this Senate is faced.

Senator Gareth Evans —Don't be patronising.

Senator CHANEY —I am told not to be patronising. I would point out that that demonstrates the difficulty of trying to avoid the ills which Senator Georges talked about of being abusive and so on. I am trying not to be abusive. I am trying to be calm about a subject which runs very deep in this chamber. I certainly do not mean to patronise Senator Georges. I think it is difficult to take any topic seriously in this place when the usual cry from the front bench opposite is that if one is being serious one is being sanctimonious. The fact of the matter is that we face a situation in which the Senate has had put before it evidence which was not sought by the Opposition-evidence which was not ferreted out by the Opposition-but was brought forward by the Chief Stipendiary Magistrate of New South Wales and which was laid before a Senate committee. A Senate committee has reported to the Senate on that evidence and has reported in terms that, having cross-examined Mr Briese twice, it thought he gave his evidence honestly. There is no escaping the fact that Mr Briese has made allegations which have been reported on to this place and which are serious in their nature. They are allegations which led to the judge making his appearance before the Committee in the form of senior counsel. The panoply of lawyers about whom Senator Georges has complained commenced with the appointment of a counsel to assist the Senate committee, but the larger number of lawyers commenced with Mr Justice Murphy's first appearance through counsel-a number of counsel and instructing solicitors-before the committee.

We have to deal with this matter because under the Constitution it is our responsibility. It is no use Senator Georges pointing his finger around this chamber and saying that none of us may deal with this matter, because under the Constitution it is we and only we who can. I can appreciate the concern which is felt by Senator Georges that we have to deal with this serious matter under section 72 of the Constitution when all of us now, since Senator Harradine started his Party, bear a party label and our actions can be impugned on the basis that we are caucused, acting out of party interest or whatever. The fact of the matter is that we have no choice but to act in this matter. There is no one else to sit. There is no one else to carry out the inquiry but this Senate. We thought there was a better way of going about it. It was not an invention of the Opposition. It was something which was mentioned by a number of members of the Senate Select Committee on the Conduct of a Judge in their first report. The Leader of the Australian Democrats, Senator Chipp, mentioned it. It was mentioned by Senator Lewis and Senator Durack that there was another way and perhaps we should consider the appointment of a parliamentary commissioner. That idea was originally meant to appoint a person who would be free standing from this Parliament-appointed by this Parliament, but able to sit independent of this Parliament. That proposition was put forward by the Australian Democrats and we gave the clearest possible indication that we would support it.

Senator Gareth Evans —It was constitutional nonsense, and you know it.

Senator CHANEY —The Attorney-General says: 'It was constitutional nonsense, and you know it'. We in the Opposition, with the Australian Democrats, at least sought to find a vehicle to carry out our responsibilities in this matter which was insulated from the political process and from politicians. We understand that that was something which could not be achieved by the Senate unilaterally. We understood that was something which required the co-operation of the Government, and the co-operation of the Government was not forthcoming.

The first option that was put forward by the Australian Democrats and supported by us was rejected by the Attorney-General (Senator Gareth Evans). In common with the Attorney-General's response to any of the matters that I have seen put before him, we got bluster, we got obstruction; we got the sort of behaviour which can lead parliamentary procedures to be described in terms of farce. Anyone can turn any procedure into a farce if he tries hard enough. A single family can be rendered a farce by the behaviour of one individual within it. The behaviour of this Parliament can be rendered farcical by the behaviour of a few individuals. To the extent that there is anything unsatisfactory about the way this matter is proceeding, the responsibility lies with the Government and with the Attorney-General who, I assume, has given his usual bad advice to the Government-it is either that or the Government has chosen to override whatever good advice he may have given in private.

We face a situation in which serious allegations have been made. There is no evidence of will on the part of the Government to get to the bottom, to the truth of this matter. There is no evidence at all of that on the part of the Government, and the responsibility is therefore left to us. I simply say in response to Senator Georges that I believe that we have put forward the best procedure which is available to us as a parliament to meet the responsibilities which are clearly ours under section 72 of the Constitution. I do not resile at all from the fact that we have established a parliamentary committee which has the obligations which are laid down in paragraphs (1) and (2) of the Senate resolution of 6 September. The honourable senator will note that we have not tried to give to the parliamentary Committee the responsibilities of this Parliament. We have asked it to report upon the facts and upon whether there is misbehaviour within the various meanings that have been put before the Parliament by the Solicitor-General and by the opinion of Mr Pincus, QC. We have asked that the Committee indicate whether there is proof of conduct amounting to misbehaviour beyond reasonable doubt or upon the balance of probabilities. There is a series of decisions which this Parliament may have to face, and this Committee has been established as a procedure which is insulated from the political processes of this chamber in an attempt to get the facts before this place so that we can exercise our responsibility.

I do not wish to go over the ground which has been covered very satisfactorily on behalf of the Opposition by Senator Durack, but let me make a number of points. We are not here establishing a criminal trial; we are here talking about a Senate committee of inquiry. The fact that this is not a criminal trial is quite evident. The Government tried to push this matter aside, to send it off to the Director of Public Prosecutions and to make it a matter which would be determined by his decision as to whether or not a prosecution should be brought and by the outcome of any prosecution which might be brought. It was the majority view in this place that that was not the way to meet the responsibilities of this Parliament and that the determination of whether or not a prosecution should lie was not the critical question for determination in this matter in any event.

The fact is that we have a Senate committee of inquiry, which is the best agent available to us to make inquiries into the facts and to report to us within the terms set out in paragraphs (1) and (2) of the Senate resolution. There is something novel about this inquiry. It is a novel inquiry in that, out of deference to the difficulty that we as members of political parties all face in dealing with a very sensitive matter, we have inserted into the process the appointment of commissioners to assist the Committee who, under the terms of the Senate resolution, will be required to report, through the Committee, their views to the Senate. They will be required to report their views on a series of issues. Therefore we have the possibility of having their clearly non-political views on these contentious and difficult matters. We cannot run away from the fact that an Australian in a responsible position, the Chief Stipendiary Magistrate of New South Wales, has come forward and made statements on oath. He has been cross-examined on those statements and has raised very serious issues which require to be determined.

The debate this afternoon has ranged rather wider than the matters covered by the motions which Senator Tate moved today. It has ranged much more widely, particularly with the contribution of Senator Georges. I think it is important to remind the Senate of why we have what Senator Haines described as a hybrid. We have this form of inquiry because an external inquiry was denied us by the Government. It ill sits in the Attorney-General's mouth to complain about the procedures which we have to utilise when he is primarily responsible for our having to utilise the procedure of a parliamentary committee. I say again that we have offered him an alternative. The Democrats offered him an alternative, we indicated that we would support it, and there was no interest on the part of the Government in pursuing that alternative.

Senator Gareth Evans —Say something honest for once in your political life.

Senator CHANEY —I do not wish to say very much in terms of the merits of the matters before us today, because they have been canvassed by Senator Durack. I welcome the interjection made by Senator Evans about my saying something honest for once in my political life because I have made it clear that I have very severe doubts about the resolve of the present Attorney-General to deal with the serious matters which his duties require him to deal with in the public interest instead of in the narrow partisan interest that I think he so often displays. So I do not mind his being critical of me because I am highly critical of him in his failure to live up to the traditions and standards of his office.

Senator Gareth Evans raised a matter which needs to be addressed in the context of his own remarks. We faced the difficulty of establishing a set of rules which would be fair and likely to produce the truth, the facts, for the Senate to consider. It is a difficult matter. Senator Evans placed great weight on the fact that it is Mr Justice Murphy who is at risk. I thought there was an interesting window into the fact that others are at risk in the Attorney-General 's comments when last this Senate sat, on 13 September, when Senator Austin Lewis expressed concern about the possibility of some threat to Mr Briese because of his having undertaken the course that he followed. It is worth looking at what the Attorney-General had to say in the Senate on 13 September-it is to be found at page 993 of the Senate Hansard-because I think that what the Attorney-General was saying was that quite clearly there was properly a risk for Mr Briese also in what is happening now. The concept that a man in his position has come forward with the statements that he has and that that is a matter on which he is not at risk is a concept which escapes me when I read the Attorney- General's words at page 993, spoken in what was an inconclusive debate because the facts were not clear as to what Mr Landa was saying regarding Mr Briese's position as the Chief Stipendiary Magistrate. The Attorney-General made clear that he thought it was a matter that could properly be taken into account in an administrative decision--

Senator Gareth Evans —You are misrepresenting me. I said it was a matter for argument.

Senator CHANEY —I will read the section to which I am referring. Senator Gareth Evans said:

I am simply making the point because Mr Landa is here being accused, if only hypothetically, of a grave contempt-I think they are Senator Lewis's words-of the Senate if he did say anything which could be construed as referring to the Canberra Briese controversy. All I am saying is that that must be a matter for reasoned and sensible argument and appreciation of all the facts and circumstances at some appropriate time. It is not something about which assumptions can be made. There conceivably may be circumstances in which what Mr Landa might have said along those lines could quite sensibly be justified as a cautious, careful exercise of the ordinary prerogatives and responsibilities of executive government.

Earlier in the debate Senator Evans said:

There is a sense in which executive governments that are on the verge of making major appointments of what are for all practical purposes judicial figures, ought to be able to have confidence that those appointments will in fact prove to be justified. To the extent that there may be some question in the air as to whether or not an allegation has been made which may prove to be justified and to the extent-

Here the Attorney-General was stopped by Senator Chipp, who made this interjection, with which I agree:

You are sailing fairly close to the wind yourself now.

The Attorney-General went on to say: 'Oh, yes, but I am speaking hypothetically' . The fact of the matter is that this is a serious inquiry. It is an inquiry in which I believe the Senate would want to be fair to Mr Justice Murphy. It would also want to be fair to Mr Briese and to the other people who are apparently now likely to be called before the Senate Committee and, indeed, who are volunteering to come before the Senate Committee to give evidence.

We have had a heated and wide-ranging debate on what is a series of fairly narrow but very important propositions which have been put forward by the Chairman of the Committee. Senator Durack has made it quite clear why we do not accept a number of the points which have been put forward by the Chairman of the Committee. On behalf of the Opposition, I foreshadow two amendments to the second motion, the terms of which have been circulated in the name of Senator Durack. The amendments read:

Resolution 2, line 5-7

delete-the written statement made by Mr Justice Murphy to the Select Committee on the Conduct of a Judge and

line 8

delete-that Committee

add-the Select Committee on the Conduct of a Judge.

The Opposition believes that this matter which is before the Senate Committee is one of major importance and that the proper conduct of this inquiry, which goes to the standing of this Parliament and to that of the High Court, has to be handled soberly, seriously and honourably on all sides. I believe that we have placed a very heavy burden on the four senators who have been appointed to this Committee. We have made that burden a little less by the appointment of the Commissioners assisting them but I believe we should avoid the quite understandable sense in which these proceedings could be criticised if we appear to be just bickering amongst ourselves without getting on with the job. I think it is important that we give a set of rules which is practical for the Committee to operate, which will operate fairly for all the individuals caught up in this matter and which gives us the best possible opportunity of having the truth put before this Senate, if necessary through the mouths of the Commissioners assisting, but I hope ultimately through the unanimous recommendations of the Committee itself.

Debate interrupted.