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Thursday, 29 November 1973
Page: 2305


Senator GREENWOOD (Victoria) - I rise to echo and support what Senator Wright has said. I think this payment ought to be exposed because when I heard of it I was literally astounded. I do not think that the AttorneyGeneral (Senator Murphy) serves himself or his office well by the defence of it which he has raised today. He said that there were outstanding administrative arrangements under which judges were to be paid 12 months salary in lieu of leave which they had not taken and that those arrangements had been in existence for many years. That is quite correct. He then went on to say that, of course, Mr Justice Kirby was not a judge and therefore it did not apply to him as a matter of strict equity.


Senator Murphy - I did not put it in that way.


Senator GREENWOOD - I hope I have not misunderstood the honourable senator. I notice that he indicates by gesture that that is not the position. But I refer to what were the administrative arrangements. These of course, were amongst the documents which he provided for the Estimates Committee. Those arrangements were made on 21 June 1967. They set down a rule which, on the face of it, was inflexible. They indicated what the entitlements were. I draw attention specifically to the introduction of these administrative arrangements which reads:

LONG LEAVE FOR COMMONWEALTH JUDGES

The following are the administrative arrangements approved for long leave for Commonwealth judges (including the President and Deputy Presidents of the Commonwealth Conciliation and Arbitration Commission):

(i)   that 12 months' long leave be available after 10 years' service as a judge, and that for each successive period of 10 years' completed service as a judge a further 12 months' long leave be available; provided that the maximum amount of leave to which the judge shall be entitled at any time shall not exceed 12 months and leave not availed of within 10 years of accrual shall lapse;

That is the arrangement which was laid down. It is quite clear. I would have thought that any judge would have known what his entitlements were. It represented a basis upon which the Executive's granted emoluments to judges could be ascertained. I agree with Senator Wright that it is far better that these arrangements be put in statutory form. If they are not put in statutory form they should be put in a form of regulations so that they are known and clear. I think the exposure of what has now happened makes it abundantly clear that the Attorney-General should indicate that this should be the situation for the future. But until it is put on a statutory basis and until rights are made clear by statute there is always the risk that some arrangements will be made.

It is quite clear that the amount which was paid to Mr Justice Kirby, as Senator Wright indicated, was contrary to the administrative arrangements and in excess of what he was entitled to receive by statute and by those arrangements. We are still not told why that amount was paid. In the documents which were provided for the Committee there was a statement, given by way of answer to Senator Wright, in which there was a short explanation of the circumstances. I read the last 2 paragraphs of that statement which was given to Senate Estimates Committee A. It appears at page 302 of the Hansard report of 22 October and it states:

6.   Under the administrative arrangements referred to above, Sir Richard was entitled to payment, in lieu of untaken leave, in respect of a period of 12 months' leave.

7.   Having regard to the special circumstances that existed in Sir Richard Kirby 's case, the Government decided that it should be treated as a special case and it authorised payment to him on retirement of a sum equivalent to 2 years ' salary.

We are not told what were the special circumstances which applied to Sir Richard Kirby. What appears is the grant of a most generous emolument by Executive discretion. If we are in this country ever to allow a situation to develop in which special favours may be made available to judges because there is some payment to them by the Executive, then the independent judiciary upon which we have prided ourselves for centuries will be in jeopardy. The regrettable feature about this is that it comes to light not as an appropriation sought for this year but as an indication- almost a footnote- of a payment which has already been made.

I believe that when the occasion arises there is a need for us to make emphatic that the judiciary is independent. The Executive should always maintain a relationship with the judiciary which ensures that there can be no suspicion that favours can be given or that favours have been given for which payments or rewards are offered. That is the vice. That is where independence is in jeopardy. That is where it is under suspicion. I only regret that this particular payment has occurred so soon in the lifetime of a new government. I do not believe that those administrative arrangements should be set aside and some particular provision made. The administrative arrangements set out a fixed pattern. They had been in operation for many years before. Other judges had received the exact entitlement to which those administrative arrangements favoured them. I welcome what has been said by the Attorney-General and that is that he feels that the situation should be put on a statutory basis for the future. I simply hope that he will give an undertaking to the Senate that the administrative arrangements of 1967 will continue in the form in which they have been stated without exception, without special favours, and without extra amounts being given until the matter is put on a statutory basis.







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