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Thursday, 2 December 1965

Mr KILLEN (Moreton) .- Mr. Chairman,I hope I can settle the ruffled feelings of my friends, the honorable members for Mackellar (Mr. Wentworth) and Mitchell (Mr. Irwin). There is no statutory provision of which I am aware requiring any judicial officer to disclose his interest in a case which comes before him. That comes about entirely through the force of convention and long-established tradition. In respect of this matter, I have argued that as long as there is some disclosure to a judicial person - in the first instance to the Attorney-General, because in the time available to me I was not prepared to launch into a more radical form of amendment - no judicial person would preside over a Tribunal and have on that Tribunal with him people who had an interest that they had not disclosed.

The way in which this provision will work out, in my judgment, is this: If Mr. Justice Brown has Mr. Smith and Mr. O'Brien sitting with him on some matter in which they have an interest he will disclose that interest to the parties. If the parties take exception to it he will say that they will be replaced by somebody else. I understand perfectly the views put by the honorable members for Mackellar and Mitchell but I ask them to consider the position. There would be a judicial person as the President of the Tribunal and he would have to flout the whole ethos and his judicial training, the whole of his instinct, and the whole substance, tradition and convention of the law, if he were equipped with some information relating to interest and did not seek to remedy any defect that may have emerged, or did not acquaint the parties concerned with the position.

Mr Buchanan - Do you think he will disclose the interest?

Mr KILLEN - I do not think there is the slightest doubt in the world that he will disclose it. Let me give an illustration. There are two lay members on the Tribunal and one of those members says to the judge: " I hold an interest in so-and-so ". In that case I would imagine that the judge would say, when the party came before the Tribunal: " Mr. O'Brien has an interest in this matter. Are you prepared to allow him to proceed?" This would not happen through any statutory provision. This would come about through a convention which, according to my understanding, is scrupulously observed by judicial officers. I do not think the fears expressed by my two friends in this connection are well founded. The initial objection which I had to this provision of failure to disclose has been substantially met.

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