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Tuesday, 11 December 1973
Page: 2632


Senator GREENWOOD (Victoria) - I refer to a question which I ask this morning of the Attorney-General (Senator Murphy) and an answer I received. In order to do so I must refer to two earlier questions which I asked in this chamber. On 21 November I asked the Attorney-General to say in what States the Commonwealth Deputy Crown Solicitors had received directions to brief on behalf of the Commonwealth only those counsel who are members of the Australia Labor Party. I also asked him why those directions had been given. The AttorneyGeneral then replied:

As to the States in which directions have been received to brief only members of the Australian Labor Party, I would think the answer would be none . . . From my own knowledge of the matter not only has no such direction been given but also I think the contrary in a sense applies in fact and the practice is quite inconsistent with what is alleged.

I was not satisfied with that answer and subsequently asked another question. On 28 November I asked whether the AttorneyGeneral had sought further information in Melbourne as to the matters alleged in my question and I sought confirmation that directions had been given. Senator Murphy replied that he had not made any inquiry in Melbourne. He said:

I have stated in the Senate what I understand the position to be and I have raised the matter with the Department. I understand the position to be exactly as I have stated it, namely, that persons are being briefed who certainly are not members of the Australian Labor Party.

I do not question that there are persons being briefed as counsel who are not members of the Labor Party and that much is public knowledge. The cause of my disquiet is a growing concern which has been expressed to me by the members of the Bar in Melbourne. I can speak only of the position in Melbourne because I am unaware of the position in any other State. I have been seeking information as to whether the position prevailing in Melbourne is the position which prevails in other States.

The facts in Melbourne are that the Deputy Crown Solicitor has sought from the barristers' clerks in Melbourne the names of those counsel who are members of or who are sympathetic to the Australian Labor Party. To understand the nature of what I am saying, Mr President, it must be appreciated that in Melbourne where there are several hundred barristers in practice there are currently 6 clerks who act for them. Solicitors who wish to brief counsel are able to ascertain their availability in many cases simply by approaching the clerks of these barristers. The Deputy Crown Solicitor, approximately 3 to 4 weeks ago, sought from these clerks- to be accurate, I have confirmed that he sought the information from 4 clerks of the 6; whether or not he sought it from the other 2 1 am unable to say- the identity of the Australian Labor Party supporters, or those who were sympathetic to the Australian Labor Party, on the lists of barristers for whom the clerks act. This, of course, has become a matter of increasing knowledge to barristers in Melbourne.

I cannot accept, knowing the Deputy Crown Solicitor in Melbourne, that he would have made this approach on his own initiative. I can only believe that by way of a hint, by way of a suggestion or by way of a direction- I am unable to say- he is complying with the view or the wishes of some superior. I can only say that if this inquiry has come as a result of some hint, suggestion or direction, it is regrettable and it ought never have occurred and it ought to be countermanded. Of what concern is the political leanings or the political allegiance of a barrister to a solicitor who wishes to brief him unless, of course, in the briefing of counsel the political allegiance is the uppermost consideration? Why should such a political allegiance be of any concern to the competence of counsel to do the job for which he is briefed? I would have thought that the standards of the Bar throughout Australia are such that counsel who appear for a client do their utmost to represent that client in accordance with the standards of the profession which have, I believe, a vital and honoured place in the annals of our history. The briefing of counsel ought to be on the basis of counsel's competence for the particular task for which he is to be briefed and that ought to be the consideration and the only consideration. I cannot see that the political allegiance, the political background and the party poitical membership of a barrister ought to have any concern to a solicitor concerned with briefing counsel for a particular task. It certainly ought not to have any concern for the Deputy Crown Solicitor or the Crown Solicitor of the Commonwealth. As far as I am aware it never has had any concern for those people. If we are to have something in the nature of spoils for the victor and jobs for the boys approach then this is the antithesis of the Bar's independence. I hope that the Attorney-General forthrightly will assert, as the chief law officer and the titular head of the Bar in this country, that a person's political allegiance does not have, should not have and will not have any affect upon the person to be briefed for a particular task.

I suggest to the Attorney-General that if this position remains unchallenged and uncorrected there will be the impression amongst barristers that the future for a young barrister lies in his becoming a member of the Australian Labor Party. He will regard that type of membership as in some way a means of furthering his career at the Bar. If that attitude develops then one strikes right at the outset at one of those characteristics of independence which all barristers ought to assume and ought to have in the conduct of their clients' business. It will create further problems. It will create the problem that clients who may possibly be of a particular political persuasion will have an unwarranted rear simply because the Deputy Crown Solicitor appears to be judging a person's competence or ability for briefing on his particular background to decide whether he has got the right sort of person for a particular brief.

I say only to illustrate the point that I am making that in the course of my practice at the Bar I appeared directly for the Australian Labor Party. Senator Murphy's deputy of some years ago, the late Senator Cohen, was a person with whom I had the closest associations during the time that I was so acting. It did not seem proper to the solicitors who were then acting for the Labor Party that my political allegiance, which was clearly known at that time and was known to those who were my clients, should have prevented me from so acting.

The history of the Bar in Australia shows many instances of persons who have acted purely as barristers for persons who may not have had the same political persuasion. That has been pan of the strength and respect of the Bar. I feel that this request, which has demonstrably and clearly occurred in Melbourne, is striking at that independence. I hope it is of concern to the authorities of the Bar in Melbourne. I hope, if it is a matter which has occurred in other States, that the Bar Councils in those States are equally concerned. I hope that the Attorney-General will indicate clearly, unequivocally and as soon as possible that the political membership or the political allegiance of a barrister is immaterial and that briefing by the Commonwealth will be solely on the basis of the barrister's availability and competence; and that there will be no evasion or seeking to justify a position in terms of the political allegiance of barristers who may be briefed by the Commonwealth at the moment; and that there will not be any desire to redress a balance which he thinks to be as unfortunate.

I do not accept that that consideration has prevailed in the past. It has not prevailed in the past. I do not believe that it should prevail in future. I raise this matter only because I have sensed, from the replies which I have received from the Attorney-General, an accusation that I am trying in some way to dredge up some issue. All I say is that the facts are as I have stated them. They are becoming increasingly known among barristers in Victoria, and they are concerned. I think that the Attorney-General owes it to the profession as a whole to indicate clearly that in future preferment will not be granted in any way to persons who are members of or sympathetic to the Australian Labor Party.







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