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Order of the Day read for the adjourned debate on the motion of the Attorney-General (Senator Gareth Evans)-That the Senate- (a) refer- (i) all evidence given before the Senate Select Committee on the Conduct of a Judge, and

(ii) all documentary or other material furnished to the Committee, relevant to the Briese allegation, to the Director of Public Prosecutions for consideration by him whether a prosecution should be brought against the Judge; and

(b) request the Director of Public Prosecutions, should he conclude that a prosecution not be brought, to furnish a report to it on the reasons for reaching that conclusion.

Debate resumed.

Senator Macklin moved an amendment, viz: At end of motion, add ''(2) That the papers referred to in sub-paragraphs (1) (a) (i) and (ii) be produced to the Director of Public Prosecutions following the appointment of the Commissioners Assisting the Select Committee on Allegations Concerning a Judge and on the day next succeeding the day on which that Committee first meets''.

Debate continued.

Notice of Motion amended, by leave: Senator Durack, by leave, amended General Business, Notice of Motion No. 114 standing in his name to read as follows- (1) That a select committee, to be known as the Select Committee on Allegations Concerning a Judge, be appointed: (a) to inquire into the allegations made by Mr C. R. Briese, the Chairman of the Bench of Stipendiary Magistrates of New South Wales, concerning Mr Justice Murphy of the High Court of Australia, made before the Select Committee on the Conduct of a Judge and referred to in Appendix 5 of the Report of that Committee, and, after conducting such inquiry;

(b) to report to the Senate its findings of fact upon those allegations; and

(c) to report in relation to those allegations whether Mr Justice Murphy engaged in any conduct which could amount to misbehaviour providing sufficient grounds for an address to the Governor-General in Council by both Houses of the Parliament praying for his removal from office pursuant to section 72 of the Constitution.

(2) (a) That the Committee, in its report, indicate whether there was conduct which could amount to misbehaviour in accordance with the interpretation of the meaning of ''misbehaviour'' contained in: (i) the opinion of the Solicitor-General of the Commonwealth, and

(ii) the opinion of Mr C. W. Pincus, Q.C., attached to the report of the Select Committee on the Conduct of a Judge; and

(b) that the Committee, in its report, indicate whether there is proof of conduct amounting to misbehaviour: (i) beyond reasonable doubt, and

(ii) upon the balance of probabilities.

(3) That the Committee consist of 3 Senators, as follows: (a) one to be nominated by the Leader of the Government;

(b) one to be nominated by the Leader of the Opposition in the Senate; and

(c) one to be nominated by the Leader of the Australian Democrats.

(4) That the Committee proceed to the despatch of business notwithstanding that all members have not been duly nominated and appointed and notwithstanding any vacancy.

(5) That the Chairman of the Committee be the member nominated by the Leader of the Government.

(6) That the Chairman of the Committee may, from time to time, appoint another member of the Committee to be the Deputy-Chairman of the Committee, and that the member so appointed act as Chairman of the Committee at any time when there is no Chairman or the Chairman is not present at a meeting of the Committee.

(7) That, in the event of an equality of voting, the Chairman, or the Deputy-Chairman when acting as Chairman, have a casting vote.

(8) That the quorum of the Committee be one member.

(9) That the Committee have power to send for and examine persons, papers and records, subject to paragraph (18) of this Resolution, and to meet notwithstanding any prorogation of the Parliament or dissolution of the House of Representatives.

(10) That there be 2 Commissioners Assisting the Committee, appointed by resolution of the Senate upon terms and conditions approved by the President, and those Commissioners Assisting shall be present at all meetings of the Committee, and may participate in the Committee's deliberations and examine witnesses before the Committee on any matter relevant to the Committee's inquiry.

(11) That the Committee appoint counsel to assist it, subject to the approval by the President of the terms and conditions of the appointment, and such counsel shall assist the Committee in relation to questions of law, evidence and procedure, and for that purpose may attend all meetings of the Committee and participate in the Committee's deliberations.

(12) That witnesses before the Committee may be examined by counsel assisting the Committee, by counsel for Mr Justice Murphy, and by counsel for witnesses.

(13) That the President be authorized to reimburse witnesses for reasonable costs of legal advice and representation by counsel in respect of the Committee's inquiry.

(14) That the examination of witnesses before the Committee and any submissions made to the Committee by counsel be heard in public session unless the Committee by absolute majority otherwise determines.

(15) That the Commissioners Assisting may recommend to the Committee that a particular witness be summoned.

(16) That all witnesses before the Committee be heard on oath or affirmation.

(17) That the Committee, after receiving recommendations from the Commissioners Assisting, determine procedures and rules for the examination of witnesses before it, having regard to the procedures and rules followed by the Supreme Court of the Australian Capital Territory, and subject to paragraph (18) of this Resolution.

(18) That the Committee conduct its inquiry in accordance with the following procedures: (a) Mr Justice Murphy shall not be summoned to give evidence;

(b) all examination of all witnesses shall take place in the presence of counsel for Mr Justice Murphy and of Mr Justice Murphy if he chooses to attend;

(c) when all examination of all witnesses has concluded, Mr Justice Murphy shall be invited to give evidence; and

(d) if Mr Justice Murphy gives evidence, he shall be sworn and subject to examination in accordance with this Resolution.

(19) That the Commissioners Assisting advise the Committee in writing, in accordance with paragraph (2) of this Resolution, upon the matters into which the Committee is to inquire and upon which the Committee is to report, and the Committee include in its report the advice of the Commissioners Assisting.

(20) That the Committee, the Commissioners Assisting, witnesses and counsel appearing before the Committee have access to the records of, transcripts of evidence taken by, and documents submitted to the Select Committee on the Conduct of a Judge and relating to the Committee's inquiry, and may refer to those records, transcripts and documents in the course of the Committee's proceedings.

(21) That the Committee report as soon as possible, but not later than 11 October 1984.

(22) That, if the Senate be not sitting when the Committee has completed its report, the Committee may send the report to the President, or, if the President is unable to act, to the Deputy-President, and, in that event: (a) the report shall be deemed to have been presented to the Senate;

(b) the publication of the report is authorized by this Resolution;

(c) the President or the Deputy-President, as the case may be, may give directions for the printing and circulation of the report; and

(d) the President or the Deputy-President, as the case may be, shall lay the report upon the Table at the next sitting of the Senate.

(23) That the foregoing provisions of this Resolution, in so far as they are inconsistent with the Standing Orders, have effect notwithstanding anything contained in the Standing Orders.

Debate continued.

Question-That the words proposed to be added be added (Senator Macklin's amendment to Senator Gareth Evans' motion)-put.

The Senate divided

AYES, 30

Senators- Archer Baume Boswell Carrick, Sir John Chaney Chipp Collard Crichton-Browne Durack Evans, Jack Haines Hamer Hill Jessop Kilgariff Lajovic Lewis MacGibbon Macklin Martin Mason Missen Rae, Peter Reid (Teller) Scott Teague Townley Walters Watson Withers

NOES, 28

Senators- Bolkus Childs Coates Coleman Cook Crowley Elstob Evans, Gareth Foreman Georges Gietzelt Giles Grimes Harradine Hearn Jones McClelland Maguire Primmer Ray, Robert Reynolds Richardson Robertson (Teller) Ryan Sibraa Tate Walsh Zakharov

And so it was resolved in the affirmative.

Main Question, as amended-put and passed, Senator Harradine, pursuant to Standing Order 168, having recorded his vote for the Noes.