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Judges and Law Council of Australia criticise failure to appoint Justice Jim Staples to newly established Industrial Relations Commission.

PAUL MURPHY: At midnight tomorrow the Conciliation and Arbitration Commission will cease to exist and on Wednesday morning its function will be taken over by a new body the Industrial Relations Commission. Everybody bar one from the old Commission will be reappointed to the new entity. The odd man out is Mr Justice Jim Staples who's effectively been dismissed from the industrial bench. But Judge Staples isn't going quietly and over recent months he's gained a lot of support, support from inside the old Commission, from sections of the legal profession, some unions and the Federal Opposition. And this afternoon the former Painters and Dockers Royal Commissioner, Frank Costigan, QC, joined the battle. He's written a public letter supporting Judge Staples and this afternoon he read it to Peter Jepperson.

FRANK COSTIGAN: Jim Staples is a friend of mine. The treatment of him particularly over recent months shows a lack of principle, honour and decency. For these faults the Government and in particular the Prime Minister must take the blame. This sorry episode shows how little the pragmatists from Sussex Street understand or care about judicial independence. It's saddens those who do understand how central these principles are to our society.

PETER JEPPERSON: Why have you written that letter?

FRANK COSTIGAN: Well, I think what has been done to Mr Justice Staples in fact is a very serious intrusion into judicial independence and I've been very concerned about it now over some months. But I think Australians are slow to anger and slow to understand the implications and I finally thought I just had to say publicly what I've been saying privately now for some time.

PETER JEPPERSON: You say the Prime Minister is to blame, to blame for what?

FRANK COSTIGAN: Well, blame, one has to be careful about the use of words, although I've used it. The fact is that the Prime Minister as head of the Government must take responsibility for the actions of his Government and in a very special kind of way of course his background is in the industrial sphere and therefore, perhaps more specially in a case like this he ought to have understood what was happening and done something about it.

PETER JEPPERSON: So he is responsible for what has happened to Justice Staples?

FRANK COSTIGAN: At the end of the day he's got to accept responsibility for it.

PETER JEPPERSON: Well, what exactly do you see has been done to Mr Justice Staples that particularly upsets you?

FRANK COSTIGAN: Well, there are really, there a number of things but there are two basic ones. And the first is that when he was appointed to the Commission he was appointed under an Act which said he could be removed only on a joint vote of both Houses of Parliament for proved misbehaviour etc. And a new court has been set up, which again provides that members of that court can only be removed on the same terms, and by a rather shabby exercise the court he belonged to and to which he was appointed has been abolished and he has not been reappointed and accordingly he's been removed from his office not by the procedures which were part of his contract.

PETER JEPPERSON: Have you any idea what he's done to incur the wrath of those in power?

FRANK COSTIGAN: It would be only for me to speculate and I prefer not to do that. The real complaint, and the second complaint, is that he has never really been told what it has that has provoked that anger.

PETER JEPPERSON: Yes, that's the substance of my question, now I mean, it's an intriguing question, people I've spoken too are just totally reluctant to talk about it. What is going on?

FRANK COSTIGAN: It is an intriguing and it's a scandal. Because he has begged, of the Government, that he be told in writing or told through the Parliament what it is that is said he's done wrong. And you know what I suspect is the problem, that Jim Staples when he was appointed believed that he was a judge and thought that his oath required to him to according to judicial principles which meant making decisions on the evidence before him. And as I have indicated in my letter there is some areas of government practice where independence is not welcome.

PAUL MURPHY: Frank Costigan QC with Peter Jepperson in Melbourne. And now I've been joined in the studio by Mr Justice Jim Staples. Thanks for coming in. At midnight tomorrow, as I said earlier, the old Commission ceases to exist, it disappears and so do you as a judge. You're still fighting but you're running out of time. Now what can you do now?

JIM STAPLES: Well, Paul I don't agree that the striking of midnight tomorrow has the least impact upon my status. I contend that my status can only be disposed of, not by Big Ben but both Houses of Parliament resolving that I am guilty of misbehaviour, they've not done it, I remain in office.

PAUL MURPHY: So you'll stay there, you'll turn up for duty on Wednesday morning?

JIM STAPLES: Well, I will, but I doubt that much will be different on Wednesday morning. The last three years or four years I've had absolutely nothing to do, I guess thought there'll be even less to do now because the Commission of which I am a member at this moment will have been dissolved. My point is that you may dissolve the Commission you may take it to business elsewhere but you can't take away from me the letters patent that I hold of the Governor-General.

PAUL MURPHY: Of the Governor-General?

JIM STAPLES: I hold my office as a result of the issuing to me in a manner that is recorded in the register of patents of the Commission under and Act of the Parliament and the Governor-General has not withdrawn it. There's no expression in the Act that it is a nullity. I contend that it is of full force and effect and I will be shifted from that position only by a resolution of the Parliament.

PAUL MURPHY: So are you going to make some sort of approach to the Governor-General, the new Governor-General?

JIM STAPLES: Well, depending on the events of tomorrow. I cannot believe that 400 years of parliamentary government is going to be thrown aside tomorrow by either of our Houses of the Federal Parliament. But if it is done, if 400 years of undisputed jurisdiction over the tenure of office by judges in the Parliament is passed up by the Parliament, by them sitting on their hands tomorrow, then I will in the first instance have recourse with the Governor-General.

PAUL MURPHY: So you're going to ask Bill Hayden to use his reserve powers?

JIM STAPLES: Well, section 61 of the Constitution declares the executive power of the Commonwealth is exercisable by the Governor-General and that it extends to the maintenance of the laws of the Commonwealth. One of the laws of the Commonwealth touches the manner in which I may be removed from office and I will go to the Governor-General, in writing that is, and ask him to direct those of his, or to direct all of his Ministers not to do that which they have given me notice they will do, namely to ignore the existence of my commission. I will ask him to direct them to treat, recognise and respect my commission.

PAUL MURPHY: And what if you don't get a hearing?

JIM STAPLES: Oh I'll get a hearing, there's no question of that. I mean I don't assume that I'll be summoned to Government House to make the case, I'd go of course if I were. But I will write to him and provide him with the documents and no doubt he will consider them and I would assume that he'll be moved to accede to my request. And if his Ministers disobey his direction then I guess he'll have to dismiss them.

PAUL MURPHY: Dismiss them?

JIM STAPLES: Well, what other sanction will he have? I mean he has the task of, as he has sworn in his oath recently given, to uphold the customs and usages and the laws of the Commonwealth.

PAUL MURPHY: Well of course he's apolitical now, but the present Governor-General used to lead the Labor Party. The Labor Party was very badly burned by the events of November 11 1975 and you're now seriously asking the present Governor-General to dismiss Labor Ministers.

JIM STAPLES: Well, the Governor-General has been put in office which separates him off from those of colleagues with whom he had a formal relationship before. He now exercises the authority over the Constitutional arrangements of our community which puts him in a position removed from the Party problems that may once have been his prime concern.

PAUL MURPHY: Are you also considering the High Court?

JIM STAPLES: Yes, of course I am. Whether I go to the High Court or not remains a matter to be determined in discussion with others.

PAUL MURPHY: Will you represent yourself or will somebody else do it?

JIM STAPLES: No, no. This is not about me and I am the least important person in this affair. What is involved here are the institutions of our community, the institutions of Parliament, the institutions of the separation of powers of the judiciary. It's not about Jim Staples, it never was about Jim Staples. That's one of the reason why I am grateful for people drawing attention to the fact that I've never even been given a hint let alone a clear explanation of the reasons for this. But I've never regard the natural justice point as in any way nearly as important as the Constitutional point.

PAUL MURPHY: Well, just a final one Judge Staples. You say you'll turn up for work on Wednesday morning, it's a new body, a new entity, you haven't been appointed to it, so you'll be sitting in your office, what, waiting for the bailiffs to carry you out?

JIM STAPLES: Look I enjoy good personal relations with everyone in the building in which I work and I've no doubt whatever happens on Wednesday will happen under conditions of courtesy and good cheer. There'll be no question I'm sure of the bailiffs coming to impose their will upon the Constitution.

PAUL MURPHY: Judge Staples thank you very much for coming on PM tonight.

And also tonight the Law Council of Australia has entered the controversy. It's written to the Prime Minister asking for an assurance that the Government hasn't acted improperly and taken advantage of the setting up of a new Commission to get rid of Judge Staples.

And also this evening five judges from the New South Wales Court of Appeal have put up a statement expressing their concern about the implications of the purported removal of Judge Staples as a Deputy President of the old Commission. They say to bring this appointment to an end in the manner proposed departs from a very important convention. The security of tenure of judges is an essential part of their independence and an important support the impartial performance of their duties. The five judges say if the precedent set isn't reversed it could be copied in the future in respect of State courts and for this reason the judges say they've taken the exceptional course of expressing their concern.