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Thursday, 4 October 1984
Page: 1186

Senator GARETH EVANS (Attorney-General)(11.22) —in reply-With the conspicuous exception of Senator Reid I wish to thank all honourable senators for the moderate way in which they have approached the series of topics now before us, which topics have of course in recent weeks and months attracted a great deal of immoderate debate. I will deal quickly and shortly with the various matters that have been raised in the course of this basically moderate debate that we have heard over the last hour or so. First of all, as to the Judical and Statutory Officers (Remuneration and Allowances) Bill, Senator Durack raised the question of the treatment of Family Court of Australia judges and indeed that as part of the whole question of relativities of salary within the Federal judiciary. I draw his attention to a public document, a submission from me to the Remuneration Tribunal of 1 March this year, in which I set out a series of proposals on how in my view this question of relativity should be determined. In particular so far as relative status within the Federal judiciary was concerned I submitted the following propositions:

(a) the salary appropriately fixed for the Chief Judge of the Federal Court of Australia should become the bench mark for salaries for other federal Judges.

(b) the salaries payable to other Judges of the Federal Court should be fixed to the present level of relativity with the salary of the Chief Judge, that is, 92% of that salary.

(c) the status of the Family Court of Australia within the Australian judicial hierarchy does not do justice to the difficult and important jursidiction exercised by that Court-it should be seen as intermediate in status between the State District County Courts-

as the case may be-

and the Federal Court of Australia.

(d) to reflect the proper status of the Family Court of Australia, the salary of the Chief Judge of that Court should receive a salary fixed at 95 per cent of the salary payable to the Chief Judge of the Federal Court.

(e) the present differences in salaries payable to the Senior Judges and Judges of the Family Court of Australia should be abolished, and the salaries payable to the Judges of that Court (including the Senior Judges) fixed at 90 per cent of the salary payable to the Chief Judge of that Court.

In order to get to the basic bench mark, that is to say the salary of the chief judge of the Federal Court, later in my submission I proposed:

. . . the ultimate aim should be to establish the salary of the Chief Judge of the Federal Court at approximately the mean of the salaries of the Chief Justices of N.S.W. and Victoria. When that is achieved, other federal judicial salaries could be established according to the formula I have proposed.

I regret that in the recent report of the Remuneration Tribunal the Tribunal found it possible to produce only a catch-up formula for the judiciary generally and not to resolve some of these questions of relativity which I believe deserve to be treated as anomalies, for some of the reasons that Senator Durack outlined and with which he is certainly familiar. I will certainly make it my business as events unfold over the next few months to pursue the matter of relativities because I believe there are some real problems in the way the Federal judicial salaries are structured at the moment. I hope that is sufficient information for him. It may be appropriate for me to table the letter to which I have referred and I now do that.

Senator Durack —Would you like to incorporate it?

Senator GARETH EVANS —I have read the relevant bits into the record; it is enough if I simply table it. As to the question of the Solicitor-General's remuneration, that will be the subject of debate at the Committee stage in a few minutes. I simply record my indebtedness to Senator Macklin for the support foreshadowed from the Australian Democrats in this respect. I indicate my support for what I thought were some very sensible remarks he made about the need to approach the salaries and remuneration packages for high statutory officers in a flexible way which is responsive to the needs of each particular position as it arises.

The second matter dealt with in this cognate debate was the motion to establish the Parliamentary Joint Committee on the National Crime Authority. I welcome the Opposition's support for that course now being proceeded with, as indeed it had to be under the terms of the National Crime Authority Act. Inevitably the matter of the establishment of that Committee was used as the occasion for another feeble little serve from Senator Durack on the question of the transition from the Costigan Royal Commission on the Activities of the Federated Ship Painters and Dockers Union to the National Crime Authority but I do not think even Senator Durack thought that his contribution to today's debate deserved a response from me. Senator Missen used the opportunity to flog a familiar couple of hobby horses of his as to the structure and functions of the Committee, reliving yet another of his great dissents of yesteryear in the process-what has become a fairly familiar course of action for the old parliamentary war horse sitting opposite in this chamber and no doubt he will be doing that for many years yet to come.

Senator Missen —It is the Opposition view, not just mine.

Senator GARETH EVANS —But it was put most articulately by Senator Missen as always, as one would expect. The third matter dealt with was the National Crime Authority (Status and Rights of Chairman) Bill. This attracted a degree of debate put with various degrees of passion. Senator Durack acknowledges no difficulty in principle with the appointment of a judge to head the National Crime Authority. Indeed, of course, he could hardly do otherwise, given that the Liberal Party of Australia neither in government nor in opposition ever contested the appropriateness of the appointment of a judge to such a position. It certainly did not do so in this chamber when the issue was debated at the seminar last year. It certainly did not do so in the parliamentary debate on the Act or in the internal debate which took place at the Senate Standing Committee on Constitutional and Legal Affairs which was established to review that Act.

Senator Durack —And we nearly appointed one.

Senator GARETH EVANS —Indeed, as Senator Durack rightly takes me to, he appointed Mr Justice Williams of the Queensland Supreme Court as the Chairman designate of the proposed National Crimes Commission. So the burden of the criticism had to descend from the grounds of high principle where it was sought to be placed by some others who ought to know better and became a criticism of the way in which the matter of Mr Justice Stewart's appointment was handled.

That appointment was the subject of full consultation with the New South Wales Government and what I would regard as appropriate consultation with the Chief Justice of the New South Wales Supreme Court. I do not believe that any useful or constructive purpose would be served by tracking over the controversy which subsequently ensued. It is enough simply to note that at the end result of that controversy Mr Justice Stewart felt himself under pressure to resign his position from the New South Wales Supreme Court, and it accordingly became necessary for the Commonwealth to endeavour to pick up the pieces. I am glad to note Senator Durack's saying that Mr Justice Stewart should not be made to suffer as a result of that course of events. But I would say in turn to him that the suffering that is involved by someone in those circumstances cannot be measured just in financial terms. It is also a question of the status and the prestige of the positions which the person leaves and occupies, and it is a question of the dignity of the individual concerned. With that in mind the Government, after considerable consultation with a number of people, including senior judicial officers of the Commonwealth, decided to follow the precedent established in the early 1970s with the appointment of Mr Justice Else-Mitchell to head the Commonwealth Grants Commission and to give Mr Justice Stewart the status, designation, precedence and entitlements of a judge of the Australian Capital Territory Supreme Court.

Might I say in this respect that Senator Reid's contribution reflected a quite spectacular misunderstanding as to what the legislation actually accomplishes. It is not the case that Mr Justice Stewart was in any way appointed to the Australian Capital Territory Supreme Court. It is not the case that he was in any way appointed to become or should be regarded as an honorary judge of that court, which is the terminology that Senator Reid repeated on a number of occasions. It is the case that Mr Justice Stewart is not in any sense a judge of the Australian Capital Territory Supreme Court. What is the case is that that court is being used as a benchmark simply to identify his entitlements, his rank and precedence when situations arise-largely confined these days I suspect to the order of placement around the Governor-General's dinner table-as to the priorities he ought to enjoy in the protocol order of things.

Again the reference was made, as it was in the case of Mr Justice Else-Mitchell , to the position of the Australian Capital Territory Supreme Court simply because that court is regarded-I think Senator Reid ought to acknowledge the compliment that is involved in this-as a court which is equivalent in all respects to the Supreme Court of the States of Australia and the New South Wales Supreme Court in particular. It exercises the role of a superior court of record for a particular geographical area, as does the Supreme Court of New South Wales and the Supreme Court of every other State. It is the only court, apart from the Northern Territory Supreme Court, within the Commonwealth's constitutional control, which does have that geographical definition of its jurisdiction which makes it a peculiarly appropriate benchmark accordingly to be taken into account for someone coming off another court with a geographical jurisdiction-that is to say, the New South Wales Supreme Court. The great edifice of neurosis that was erected by Senator Reid on the basis of that reference in the legislation to the Australian Capital Territory Supreme Court was I believe wholly misconceived and ought to be treated accordingly by the Senate in its response to this legislation.

As to the larger criticism of the appointment that was made by Senator Durack on behalf of the Opposition generally about the use of a judicial title here at all, I simply say that there are many variations in the way in which judicial titles are used and have been used in this country. One of the most obvious variations from the norm, that is to say the confining of it to people who are judges properly, so-called, with a task to perform in particular courts, lies in the designation to which deputy presidents or legal deputy presidents of the Australian Conciliation and Arbitration Commission are entitled. True it is, as Senator Durack said in answer to an interjection that I offered, that that owes its reality to the historical circumstances that existed after the boilermakers case, when there were a number of people who were already appointed as judges who it was desired should perform non-judicial roles and as a matter of courtesy and decency it was thought appropriate that they should be able to retain their judicial titles. But the use of the courtesy title of 'Justice' that occurred in that circumstance was not just a transitional phenomenon. What has happened subsequently of course-and with the precedent being set by successive Liberal governments before we came into office-was that successive new appointments to the positions of deputy presidents to the Conciliation and Arbitration Commission became also entitled to the designation of 'Mr Justice' or 'Justice' as the case may be. I think it is sheer humbug once again for this particular appointment now being made to be singled out as some great breach of principle well established in this country. It is nothing of the kind.

I do not suggest by that that it is appropriate for judicial titles to be flung around with gay abandon as the mood strikes, but I do say that it is appropriate that that course of vesting a judicial title should have been followed in all the delicate and difficult circumstances of this case. I believe, in the circumstances of this case, that it would be, as Senator Macklin says, a very real injustice were Mr Justice Stewart to be treated otherwise than as entitled to the continuation of his judicial title. Finally, I believe it is a great pity that the Opposition should choose to be so churlish and so insensitive about this matter in pursuing its opposition as it has.

Senator Missen —Before you sit down; I take it you are not disputing anything I said in the speech last night or this morning?

Senator GARETH EVANS —I am disputing all sorts of things that the honourable senator said. I just do not propose to dignify them with a detailed reply, particularly given the size of the parliamentary timetable and the extent to which these matters have already been canvassed and no doubt will continue to be canvassed in a feeble way in Question Time.

Question resolved in the affirmative.

Bill read a second time.