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Thursday, 2 December 1965

Mr WENTWORTH (Mackellar) . - I think that my friends, the honorable members for Isaacs (Mr. Haworth) and Evans (Dr. Mackay), have missed one of the salient points in this regard. Both honorable members would put the presidential member of the Tribunal in a false and embarrassing position. There is a difference between this kind of tribunal and a court of law. In a court of law it is the usual legal convention that a judge who has a strong personal interest in a matter endeavours to avoid sitting on that matter. If he has a trivial interest he may disclose it. But the position of the legal profession is that a judge, having such interest, avoids sitting. In the kind of tribunal that we are considering we want to provide for something else. We feel that in this kind of tribunal a man who has a interest may often be the best man to sit.

Dr Mackay - Agreed.

Mr WENTWORTH - This is agreed. So we cannot have the situation where the presidential member, although he may be a judge, may apply the rules which he would have applied as a judge. He must come to another kind of decision altogether. It may well be that the right person to sit is one who has an interest, but it is altogether wrong that such a person who has an interest should sit unless the parties to the case concur.

Mr Buchanan - Or know.

Mr WENTWORTH - How can they concur if they do not know? So they must be told. If they are not told a quite intolerable burden is placed on the presidential member. He is asked to make an embarrassing decision without any principle on which to make it. If I may follow on from the remarks of the honorable member for Isaacs, he said that there may be another embarrassing position: Shall I tell or shall I not? In accordance with the present provision in the Bill and the foreshadowed amendment he would not be directed as to whether it was his duty to tell or whether it was his duty not to tell.

Mr Buchanan - It could be told in confidence.

Mr WENTWORTH - If it is told in confidence, perhaps he should not tell. We cannot put the presidential member in this embarrassing kind of situation. I think that my friend from Evans has not understood the consequence of the admission he made a moment ago that in this matter, unlike a strictly legal matter, sometimes we may desire a person who has an interest to sit, but we would only desire this if the presence of that person on the Tribunal was concurred in by the parties to the case, knowing that the member had an interest. Otherwise, not only would justice not be done but also justice would not seem to be done. The honorable member for Moreton (Mr. Killen) only today was telling me of a case in which he was concerned before an import advisory board. I believe that this matter was mentioned at question time today. In that case a member who had an interest sat on the board and the parties to the case did not know. I do not know whether the member who had an interest disclosed that to the president - he may well have disclosed it - and I do not know whether his interest in any way invalidated or swayed the judgment that he gave; but the point I make is that since the parties to the case did not know of the interest until after the case, they felt that wrong had been done to them. As my friend from Moreton has said, they felt right because they were entitled to know before the case started that one of the people sitting in judgment on them had a personal interest.

But in regard to the Trade Practices Tribunal my friend from Evans has said very rightly - I agree with him - that sometimes we would want a person who has an interest to sit; but we do not want him to sit unless the parties to the case know of this interest and raise no objection. How can they know when the disclosure is made in confidence to the President of the Tribunal only? How can we put on the President the discretion to tell or not to tell something which has been told to him in confidence? At least we have a duty to the President to make clear to him in the statute what his course of conduct should be. It may be, as I said last night, that the Government could improve the drafting of the amendment that I have put forward. As I said last night, I am perfectly willing to accept another draft, but I am determined to push to a vote the principle that where a member having an interest sits on the Tribunal, the parties to the matter must be informed, not of the details of that interest but that the interest exists. They should, if they feel so disposed, be able to object to the sitting of that member who has an interest. They do not have to object, but this is their elementary right. This does not prejudice the kind of person or the character of a person whom we could call up for or enrol in this Tribunal because no member of the Tribunal need disclose his affairs. All he has to do is to say: " I will not sit on this case." There can be no inquisition by anybody. If he does decide to sit on the case he is not called upon to make a personal disclosure of all his affairs; he is called upon only to declare that he has an interest.

Then we come to the next point. The parties to the case either accept this, as in most cases they would, in which case it is finished, or they object. At this stage the member of the Tribunal would have the free choice either to bow to the objection and leave the Tribunal or perhaps to explain, if he wishes to do so. It is on his own election that he would explain to the parties to the case that his interest was such that they should allow him to continue to sit - in other words, to explain to them something entirely proper. I suggest to my honorable friend from Evans that these are unanswerable arguments. I am not, of course, at variance with the principles that he has put forward; I suggest only that we should carry them out. This Tribunal will be of such a nature that sometimes - not always, but sometimes - it will be highly desirable that a person who has an interest should sit, but he should not sit unless the parties know that he has that interest and concur in his sitting. They should have a chance to object.

The Attorney-General (Mr. Snedden) perhaps may not have realised that I am not suggesting that anybody should be compelled to disclose his private affairs. If a member does not want to sit on a case in which he has no interest, he says nothing. He is not prejudiced. He just does not appear in that case. This is a matter between the member and the President. It never goes beyond the President. I am suggesting that we must not put on the President the twin embarrassments of deciding, on his own account, first, whether the interests disclosed are in conflict. That is an embarrassing decision that a judge does not have to make. If a judge has a substantial interest he merely says he will not sit. Secondly, the President should not be called upon to make the embarrassing decision, where we give him no direction by statute, as to whether he should or should not break a confidence. I say that it is important not only that justice be done but that justice seem to be done and that the parties to the case should know of the interest in the people who sit on the Tribunal, if indeed the people on the Tribunal have, as sometimes they should have, such an interest. This is only fair. I am very much moved by the circumstances recited to me today by the honorable member for Moreton.

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