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Thursday, 4 October 1984
Page: 1195


Senator DURACK(12.17) —As I indicated in my speech on the second reading debate of the Bill, the Opposition is opposed to the provisions of clause 5. We will not move an actual amendment to clause 5. I think the appropriate course is simply for the Opposition to vote against it. It is the only clause in the Bill to which we are opposed. As I have said, we believe that Mr Justice Stewart should not suffer any financial disadvantages as a result of his decision to resign from the Supreme Court of New South Wales, but having decided to resign from that Court, he should not be accorded the courtesy title of Judge or Mr Justice. I have given the reasons for that view, and Senator Reid has also indicated her support, particularly in relation to the aspect of this clause which gives him the status and precedence of a judge of the Supreme Court of the Australian Capital Territory.

The Attorney-General (Senator Gareth Evans) responded to the arguments in his speech in reply on the second reading debate and emphasised the importance that status as such may well have and that it is not just a matter of financial compensation. I certainly appreciate that argument. It was one of the arguments that would have been weighed, no doubt, by Mr Justice Stewart in making his decision to resign from the Supreme Court of New South Wales. He has not been forced to resign from the Supreme Court of New South Wales. That was certainly a voluntary decision of his, albeit an understandable one and perhaps it may even be thought to be appropriate in all the circumstances that arose.

Nevertheless, unfortunate as that may be, the fact remains that we have here a very major question of principle. Even though in some way Mr Justice Stewart's status may be affected, although his financial situation will not be affected as a result of that decision, I do not believe that that is a sufficient consideration for the serious erosion that will occur as a result of this measure to the standing and indeed the status of the judiciary in this country.

As other people and I have said, if the title of Justice is detached from those who are performing judicial functions, the notion of the judiciary is thereby devalued. People will not know whether a person who has the title of a judge is a judge or not. People will then cease to have the same respect for the judiciary. Even if this Bill went through, when all is said and done Mr Justice Stewart would retain the title only for the time in which he is Chairman of the National Crime Authority. At that time he will be just short of 60 years of age. If he had remained a judge of the Supreme Court of New South Wales he would not have had to retire until he reached 70 years of age. It is very likely that he will be reappointed to some other Commonwealth position in the Administrative Appeals Tribunal. As he will not then have the title of judge, the proposal that he retain the title while Chairman of the NCA is a strange one. He will keep the title of Justice only for the next four years while he is Chairman of that body.

The status argument really does not seem to be particularly relevant to Mr Justice Stewart personally wanting to retain the title as much as to the Government wanting the Chairman of the Crime Authority to have the title of Mr Justice. Thus I think this argument has become a bit muddied. It boils down to a fairly narrow compass. Be that as it may, the fact that the Opposition is opposed to this in no way is a criticism of Mr Justice Stewart whom, indeed, we praise for the course of action he has taken in light of the circumstances that arose and for which the Government has to carry some considerable responsibility . We oppose the measure on the ground of the misuse of the judicial status and title.

If this measure is passed, because of the precedent it will give, it will lead to an erosion of the community acceptance of and attitude to the judiciary. It is simply misleading the community if people are given this courtesy title. The community is entitled to believe that those who have that title are in fact performing the functions of a judge. In this case, the person with that title will not be performing the functions of a judge. It is really a very simple case of the Parliament and the Government misleading the community if this legislation is agreed to. For those reasons, the Opposition opposes this clause.