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Wednesday, 1 December 1965

Mr KILLEN (Moreton) .- I move -

In sub-clause (3.), after " Commissioner ", insert "and members of the Tribunal other than the President".

I am prepared to press this amendment to a vote if I can find some honorable members to join with me in calling for a division, because I believe that the amendment goes to the heart of a fundamental principle. At least I regard as being a fundamental principle that no person should sit in judgment on his own case. I contend that the whole fabric and substance of natural justice requires that any person with a bias on, or with a pecuniary interest in, any matter should not be at liberty to adjudicate on that matter if it be brought before him. The Commissioner of Trade Practices must, under the terms of clause 25, give written notice to the AttorneyGeneral of any direct ori ndirect pecuniary interest that he has or acquires in any business carried on in Australia. I should imagine there would be no practising member of the legal profession, or any judge, who would not be sharply conscious of the obligation upon him to disclose any pecuniary interest that he might have in any matter.

I should like to give to the Committee an illustration of the sort of thing I have in mind. Some years ago, when the Government had an administrative body which was an import licensing advisory appeal body - it had some long, compendious title - a constituent of mine was refused an import licence. I went before this body on his behalf and presented a case seeking a review of the decision. The appeal failed. A few months later my constituent came to me and alleged that the chairman of that body at the time was the financial adviser to one of his competitors. I do not know whether that was true or false, but the view of my constituent, to put it in homely language, was that he had not got a fair go. That was his reaction. As I have said, he alleged that the chairman of the board was the financial adviser to one of his competitors. This sort of thing could well occur in relation to this tribunal. The presidential members, who could be judges who come over from the Industrial Court, would be sharply conscious of the obligation upon them to disclose their position, but I put it to the Attorney-General that in the case of the lay members of the tribunal this would not be so, and we could well have the circumstance of two individuals sitting on a tribunal who would have interests in an industry of a nature that would subjectively - at the worst - influence them against a party appearing before them. I suggest to the Attorney-General that this is completely wrong.

Now, for convenience sake, I turn to the circumstances of the inquiry by the Donoughmore Committee on Ministers' Powers. In this report is set out the case of Dimes against Grand Junction Canal (Proprietors of) (1852) 3 H.L.C. 759, where the House of Lords after consulting the judges decided that the decree of the Lord Chancellor, affirming the order of the ViceChancellor, granting relief to a company in which the Lord Chancellor had an interest as a shareholder to the amount of several thousand pounds, which was unknown to the defendant in the suit, was voidable on that account and must therefore be set aside. I would like to read what was said in that report. Lord Campbell said -

No one can suppose that Lord Cottenham could be, in the remotest degree, influenced by the interest that he had in this concern; but, my Lords, it is of the last importance that the maxim that no man is to be a judge in his own cause should be held sacred. And that is not to be confined to a cause in which he is a party, but applies to a cause in which he has an interest. Since I have had the honour to be Chief Justice of the Court of Queen's Bench, we have again and again set aside proceedings in inferior tribunals because an individual who had an interest in a cause took a part in the decision. And it will have a most salutory influence on these tribunals when it is known that this High Court of last resort, in a case in which the Lord Chancellor of England had an interest, considered that his decision was on that account a decision not according to law, and was set aside. This will be a lesson to all inferior tribunals to take care not only that in their decrees they are not influenced by their personal interest, but to avoid the appearance of labouring under such an influence.

This is a well defined and well apprehended principle.I put it to the Attorney-General that this Bill should not seek to destroy that principle in any shape or form.

Mr Whitlam - Does the honorable member know whether that case was cited to Mr. Justice Starke and Mr. Justice Williams in the Banking case?

Mr KILLEN - No, but if I recall the transcript of that case the person who led, my late friend the former right honorable member for Barton, Dr. Evatt, decided not to argue. He did not object-

Mr Whitlam - The Solicitor-General put that point.

Mr KILLEN - But the former right honorable member for Barton decided not to argue the case. Whether he would have presented the case I have quoted is a matter for speculation. I continue with what the Donoughmore Committee had to say on this particular point -

In that case the Lord Chancellor's disqualification was pecuniary interest. It goes without saying that in no case in which a Minister has a pecuniary or any other similar personal interest in a decision, e.g. as the owner - whether in his own right or as a trustee - of property which may be affected, should he exercise either judicial or quasi-judicial functions. Such cases may be presumed to be rare, but we do not think it necessary for us to make any special recommendations about them.

Applying the adjustments of ministerial discretions to the discretions of this Tribunal I submit that the views of the Donoughmore Committee on Ministers' Powers are very apposite to this matter. The Committee went on to report -

Indeed we think it is clear that bias from strong and sincere conviction as to public policy may operate as a more serious disqualification than pecuniary interest. No honest man acting in a judicial capacity allows himself to be influenced by pecuniary interest: if anything, the danger is likely to be that through fear of yielding to motives of self-interest he may unconsciously do an injustice to the party with which his pecuniary interest may appear to others to identify him. But the bias to which a public-spirited man is subjected if he adjudicates in any case in which he is interested on public grounds is more subtle and less easy for him to detect and resist.

For the information of the Minister for Shipping and Transport (Mr. Freeth), who is speaking to the Attorney-General, I point out that I have been putting a case to the Attorney-General. If the Attorney-General is not disposed to listen to the case I put, there is not much point in advancing any argument to the honorable gentleman. But

I indicate to the Committee that I propose to press this amendment to a vote. I believe we will sort out the sheep from the goats then.

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