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Thursday, 4 October 1984
Page: 1175


Senator DURACK(10.06) —Honourable senators agreed to have a cognate debate on three quite separate matters: First, a Bill to implement the Remuneration Tribunal's determination in respect of judicial salaries and those of statutory officers; secondly, the resolution from the House of Representatives for the establishment of a Joint Committee on the National Crime Authority; and thirdly, a Bill which will in effect confer on the title of Chairman of the National Crime Authority the status and rights of a judge.

The first Bill that I refer to is the Bill to implement the Remuneration Tribunal's recommendations in regard to judicial salaries. The Opposition supports the Bill. Indeed, I wish to comment on only one aspect. I suppose it could be raised in the Committee stage, but for convenience I shall raise it here. I note from Part II of the Schedule the relative salaries that are determined for Federal judges, in particular the salaries recommended for senior judges and judges of the Family Court by comparison with judges of the Federal Court. Indeed, there is a new determination for the President of the Inter-State Commission, whose salary has been determined as equivalent to that of judges of the Federal Court. I understand that the President himself has been made a Federal Court judge. However, the President of the Inter-State Commission has been given the same salary as a Federal Court judge.

The discrepancy, however, between salaries of judges of the Federal Court and judges of the Family Court remains. Even the salary of the Chief Judge of the Family Court by comparison with that of the Chief Judge of the Federal Court, reveals a quite significant discrepancy. Thus in broad terms the discrepancy between judges of the Federal Court and judges of the Family Court appear to remain the same as they have been for some time. I think this subject has been raised in this chamber from time to time. It was certainly a matter which was raised with the former Government and quite a number of discussions took place. Submissions were made to the Tribunal by me in regard to the matter, with the object of narrowing the discrepancy or of obtaining a fixed percentage of salary for judges of the Family Court as against those of the Federal Court. Those in this chamber who are interested in the matter will be well aware of this problem .

I am concerned to obtain from the Attorney-General (Senator Gareth Evans) an indication of what policies he or his Government is pursuing in relation to this problem and what steps he has taken in relation to it particularly in light of the fact that he has expressed views on previous occasions when he was on this side of the chamber, which would be highly critical of the situation which existed and which still exists.

So I am particularly interested to know whether he is of the same mind as in the past or whether he has now changed his view and, if so, where he now stands in relation to this question. An opportunity arose a year ago when amendments were being made to the Family Law Act to do something in regard to this matter, but nothing was raised about it at the time. The Judicial and Statutory Officers (Remuneration and Allowances) Bill 1984, which gives effect to the decision of the Remuneration Tribunal, perpetuates this discrepancy to a quite considerable extent. I believe it is appropriate that this matter should be raised and that the Government should indicate what its policy is.

The next matter I want to comment on is the message from the House of Representatives proposing the establishment of the Joint Statutory Committee on the National Crime Authority. The Government's performance in not bringing forward this matter when Parliament first sat in the Budget session is rather tardy. The National Crime Authority Act came into force on 1 July and the Authority has been established, but it has taken three months to deal with the establishment of the Committee to oversee the Authority. We welcome the establishment of this Committee, which was an important initiative of the Opposition during the debate on the National Crime Authority. I refer specifically to the initiative taken in Committee by Senator Missen to establish a parliamentary committee to oversee the Authority. We are naturally very pleased to support this proposal, even though we would have been happier if it had been before us at an earlier stage. The Committee would then have been in existence and operating, and of course there has been a very clear need for such a committee to have been operating in recent weeks. I do not say that it is too late, even at this stage, for such a committee to deal with the problem that has been presented.

A very real problem has been highlighted by the Opposition in recent weeks. I refer to the totally unsatisfactory situation which has arisen in regard to the handover from the Costigan Royal Commission on the Activities of the Federated Ship Painters and Dockers Union to the National Crime Authority. The timing of this handover, of course, has been laid down by the Government. I do not suppose that the proposed committee could have done much about that because the decision was taken by the Government-a decision to which the Govenment still pigheadedly adheres and tries to defend, without much success. Clearly there are questions apart from the timetable that was laid down. However, problems have arisen in trying to cope with that timetable, particularly in regard to the briefing of the Authority by Mr Costigan and his staff. These briefings have been very perfunctory, not because of Mr Costigan's wishes or beliefs but because of the timetable and the attitudes that have been taken by members of the National Crime Authority. I think the proposed parliamentary committee might well have been able to improve that situation.

The other very important and urgent question concerns a continuing problem. It is one which I believe the Committee will still have time to tackle and make, I hope, some contribution. Certainly if the Committee had been in existence it might have already been able to improve the situation. I refer to the totally unsatisfactory way in which the Costigan material is now being dealt with by the National Crime Authority and by the inter-governmental committee. A large amount -42 summaries-of material is set out apparently in some form of book which refers again to a large mass of other material which has been handed to the Authority without the benefit of any detailed briefing of any kind by members of the Costigan Commission. Because of the structure of the Authority it can exercise coercive powers only if it has a reference. That material must be sifted to determine what references may be suitable for referral.

The National Crime Authority has engaged a counsel, Mr Cummins, who is now being assisted by several other people on a part time basis. Mr Cummins has only recently become available on a full time basis. Indeed, he will be absent from this task for some period, while he conducts a brief. So we have a fairly ragged situation in relation to the sifting of all of this important material-material which is the result of the great momentum of Mr Costigan's investigations. Those investigations have ceased since 30 June this year and now that momentum has been lost. It cannot be revived until the references are obtained and the full coercive powers of the Authority can be used. Indeed, there may be other material which should be the subject of investigations, even perhaps without the use of coercive powers. At all events, it appears, as best we can ascertain from the torrent of words that pour forth from the Attorney-General every time he is asked a question about it, that there is a mass of material. Yet it is not being tackled by a sufficiently large group of people. It is not being pursued, except by Mr Cummins, on a full time basis and there has been some doubt as to what extent he will be involved on a full time basis until the end of the year.

This is a major problem and there is a major necessity that this whole exercise be expedited to the full. It is clearly a matter that this Joint Committee should be looking at and I certainly hope it will be looking at it. If the Committee had been established, of course, it would have been able to have been tackling this problem and prodding the Authority and the Government to get on with it and to do a far more effective job than has been done to the present time. As I said, the Opposition certainly welcomes the establishment of the Committee and hopes that it will be able to get on with the job as soon as possible despite the frustrations that it will probably have very early in its life as a result of the determination of this Government seemingly to have a totally unnecessary dissolution of the House of Representatives and an early election within the next few weeks.

The other Bill deals with the position of the Chairman of the National Crime Authority. It is a Bill for an Act relating to the status and rights of the Honourable Donald Gerard Stewart, the present Chairman of the National Crime Authority. The Bill does not amend the National Crime Authority Act as such. It is a special Bill to cope with a special problem which has been created by this Government, and in particular I suggest by the Attorney-General, although no doubt the Special Minister of State (Mr Young) has also played a pretty considerable part in this exercise.

The Bill arises from the fact that the Government chose to appoint as Chairman of the Authority Mr Justice Stewart, a judge of the Supreme Court of New South Wales. The National Crime Authority Act, as indeed its predecessor the National Crimes Commission Act, allowed for the appointment of a judge as Chairman of the Authority. In all of the parliamentary debate on the subject, although it ranged over very many other aspects, it was accepted on all sides that it was an appropriate provision that a judge may be appointed Chairman of the Authority although there were differing views as to whether it would be suitable to have a judge as Chairman of the Authority. But in all events the question was to be open and indeed when we were in government we had designated as the Chairman of it a Mr Justice Williams, as he then was, of the Supreme Court of Queensland. Nevertheless the question of obtaining the services of a judge for the chairmanship of an authority of this kind or of any statutory body, such as the appointment of Justice Roma Mitchell of South Australia, as she then was, as Chairman of the Human Rights Commission or of judges to be royal commissioners under the Commonwealth Royal Commissions Act, always requires some delicate negotiations with the State concerned and indeed the court and the Chief Justice of the court of that State.

Whatever may or may not have transpired in those negotiations between this Government, the New South Wales Government, the New South Wales Supreme Court and particularly the Chief Justice of New South Wales, the end result was a most unfortunate situation to say the least, one which I would have thought could have been avoided if proper procedures had been followed and full and proper consultation had taken place in accordance with ordinary convention and tradition in these matters. However the Attorney-General claims that consultation of some particular sort did take place with the Chief Justice of New South Wales and in fact that this Government was aware of the opposition to the appointment of a judge of the Supreme Court of New South Wales to this position.

Whatever the result, some of the public statements and actions of the Chief Justice of New South Wales indicate clearly that any consultation that took place with him must have been of the most perfunctory kind and quite unsatisfactory and inadequate. But be that as it may, the end result was that Mr Justice Stewart, who I think at that stage had already been appointed-certainly public announcements had been made of it-found that he was in conflict with his Chief Justice, and I think almost all of the judges of the Supreme Court of New South Wales. A most unfortunate public conflict had arisen. We know the way the Attorney-General operates in most things. I think it is a pretty fair assumption that he and the Government, of which he is a member proceeded in normally delicate negotiations with haste and determination to get their own way regardless of what anybody else might think. I believe that the Government has to take responsibility for the result.


Senator Missen —Would you say it was a case of crash or crash through?


Senator DURACK —It was both, I think. We are now having to pick up the pieces in this proposal. Mr Justice Stewart was left in a position where he felt obliged to resign from the Supreme Court of New South Wales. I think that was an inevitable decision that he had to make, and it was a very unfortunate one for him. I have a great deal of sympathy for him and for the position in which he found himself. Certainly he should not suffer. He has assumed the responsibility of chairing the National Crime Authority-a great responsibility and one which I have at all times believed he is well qualified to discharge. Therefore he should not suffer any financial disadvantage as a result of the public service that he has agreed to undertake. I trust that nothing I say in this matter will reflect in any way on Mr Justice Stewart.

This legislation, most of which the Opposition takes no exception to, is designed to preserve Mr Justice Stewart's financial situation-his pension rights and entitlements-to enable him to be appointed in due course, if necessary, to a Commonwealth office, if he is interested in accepting such an appointment when he finishes his term as the Chairman of the National Crime Authority. That is entirely appropriate. But there is one particular clause in this legislation to which the Opposition is totally opposed and which we believe is not only inappropriate but also improper. After Mr Justice Stewart has resigned from the Supreme Court of New South Wales-he has not yet done so-he will be entitled to retain the designation, rank, status and precedence of a judge of the Supreme Court of the Australian Capital Territory. This will make Mr Justice Stewart, as I have already said in a public statement, a Clayton's judge. He will not be a judge but he will look like a judge and appear to be one. I believe this is totally contrary to the whole standing of the judiciary in this community. This proposal has already received the greatest condemnation by the legal profession in Australia, and rightly so. The only precedent for it, the only justification the Government has for putting up such a proposition, is that it was done on a previous occasion. It was done by the Whitlam Government in regard to Mr Justice Else-Mitchell, the Chairman of the Grants Commission, when he resigned from the New South Wales Supreme Court to take over that position. It was criticised in the Parliament at the time and it certainly was wrong in principle. I do not know the ins and outs of the negotiations between Mr Justice Else-Mitchell and the Whitlam Government at the time, but there may have been some special reasons or justification for it. The fact is that this should not be used as a precedent for doing this sort of thing again. To give an appearance of a person being a judge when he is not a judge is misleading to the public, it is like a passing off situation in the commerical world.

There is no institution in this country that has greater respect than the judiciary and that respect must be maintained. The judiciary has that respect because of the standards of the people who serve in it. The reputation they have is one that they deserve, they have earned by their own efforts and their own standards.


Senator Gareth Evans —What do you say about Deputy Presidents of the Conciliation and Arbitration Commission, which was a Liberal innovation?


Senator DURACK —The Attorney-General knows well that that situation arose because the Commission had been a court until it was changed as a result of a High Court decision. People had been given that title because they were truly judges and it would have been quite wrong to have taken that title from them because of constitutional changes which were required as a result of the High Court decision. The Commission had been a court for 50-odd years before then. That was quite a different situation with a different background. Here there is no requirement for the Chairman of the Authority to be a judge. There is a lot of feeling that a judge should not serve on that Authority as Chairman. I do not share that view, but it is a widespread feeling in the judiciary.

This entitlement has been given simply and solely because Mr Justice Stewart has been so badly treated in the way in which he was appointed. The entitlement has been given to get the Government out of a hole, to clean up a mess. Again, it is another mess that has been created by the Government and the Attorney- General in this way. We should not, for no good reason whatever, lend our aid as a parliament to that problem and its solution. The problem is quite unnecessary and should never have occurred. As I said, there is no requirement for the Chairman of the National Crime Authority to be a judge. Indeed, there are a lot of arguments that he should not be one. There is no reason whatever for this, except this problem and unfortunately it is a personal problem for Mr Justice Stewart. That cannot be the basis upon which a step like this should be taken.

If we do this sort of thing it will devalue the status of the judiciary. The title 'Mr Justice' it is one of great honour and standing. That is because the people who hold it deserve it. When judges retire they do not retain the title of 'Mr Justice' or 'judge'. they usually retain the title 'honourable' but they do not retain the title 'judge'. Many of them take on other tasks, they may even go into business or go back to the Bar. Some perform other judicial tasks, as two are doing this very minute in Parliament House. But they do not retain the title once they cease to be judges and once they cease to perform the duties of the office of a judge.

Therefore, the Opposition strongly opposes that aspect of the Bill. Otherwise most of the provisions are totally suitable and necessary to compensate Mr Justice Stewart for the considerable sacrifices he has made in the public interest.