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Thursday, 6 September 1984
Page: 551

Senator CROWLEY(12.35) —I will resist addressing the points raised by Senator Harradine until later in my comments. I would like to start by picking up the remarks made yesterday by Senator Tate in his speech to the Senate. He made very clear why the Government is faced with putting this motion to the Senate. It seems to me that Senator Harradine has a remarkably selective way of arguing and dealing with the facts. It is important to recall that what Government senators are being asked to do is very straightforward. We are being asked to pursue the consequences of a divided vote of the Senate Select Committee on the Conduct of a Judge. Senator Harradine and Opposition senators are suggesting that the arguments they have put in the last few days show that all this is the first step in the process. They seem to be unaware of the six- month history of that Senate Committee. I say to Senator Harradine: The precedent is not starting now; it has long been in process. In fact I made a comment about exactly that when I spoke on Friday, 24 August. I said:

The Committee had the task of examining section 72 of the Constitution as well as the terms of reference given by the Senate, while at the same time establishing a precedent for any such future inquiry. Not only did the Committee address the questions and the material under examination; it also addressed the procedures it adopted at every stage with equal seriousness.

It was very aware of the precedent process in which it was involved. It was acutely aware that the question it had to address went to the very heart of the Constitution and directed itself to the separateness of the legislature, the Executive and the judiciary. While I am sure the people of Australia can thank Senator Harradine for his little lecture today, it is not the first time people involved in this issue have thought about it.

One of the findings in the Senate Committee's report was the unanimous decision that all the matters initially given to the Senate committee of inquiry contained no evidence constituting proved misbehaviour. I will come to that later. We are left with a set of words claimed by Mr Briese to have been said by Mr Justice Murphy. Counsel assisting the Senate Committee, Mr Pincus, advised us that, if those words were said, they would constitute a criminal charge-that is, the charge of attempting to pervert the course of justice.

It is quite clear that the dispute about what proven misbehaviour means will continue and, no doubt, will exercise legal minds, journalists and dinner party conversationalists for centuries to come. It was not really a continuing matter for the Committee precisely because the only matter for serious consideration was the words claimed by Mr Briese to have been said and the importance attached to them which, as our counsel advised us, would constitute a criminal offence of attempting to pervert the course of justice. So for precisely that reason it is reasonable for the Government to consider trying to exhaust all the options of a criminal prosecution before moving any further or in any other way. Further dispute about what proven misbehaviour may or may not mean for any case or any judge at any time is not for dispute or discussion in this chamber or under the terms of this motion. I noted with great unease the comments on the front of today's Age attributed to Senator Haines. I quote the article:

Senator Haines said that while Mr Temby would be examining the narrow question of whether Mr Justice Murphy may have broken the law, the Senate inquiry 'is looking at the wider question of misbehaviour under section 72 of the Constitution'.

I am amazed and appalled at Senator Haines's statement. We have here an example of an investigation into behaviour by Mr Justice Murphy that found no evidence of proven misbehaviour. The Opposition and the Australian Democrats are saying: 'We did not find anything there; we will change the charge'. Furthermore, if we follow the Democrats' motion, not only will we change the charge and have another shot but also we will change the people who are to do it. It will be not only a rehearing but also a rehearing by new people. It is a quite remarkable exercise in non sequitur. I simply put this to the Senate: How often does a person have to be proved innocent?

I find the motions being debated now to be in some ways disgraceful. They are a disgraceful consequence of the difficulties some people had in the initial inquiry. I say again to Senator Harradine that this is not the precedent establishing moment. That happened when the Senate committee inquiring into these matters was initially set up. The Senate committee did its task. It examined the evidence, the tapes material and the conversations. It came to a unanimous decision: On the matters within the terms of reference of that committee there was no evidence of proved misbehaviour against the judge.

In passing, I make reference to Senator Durack's pathetic and sloppy representation of facts in his speech yesterday. He claimed that the Attorney- General (Senator Gareth Evans) resisted the call for that inquiry earlier this year. Of course he did. He had the benefit of knowing what was in that material. He had the benefit of the advice of his Executive and Mr Temby. He had seen the material and he knew what was there. However, with the numbers as they are in the Senate, the Opposition could force that inquiry to proceed and it did.

We have seen six months' work by six honourable senators who eventually came to agree entirely with the Attorney-General and the Government that on the material of the Age tapes, et cetera, there was no evidence of proved misbehaviour. The ex-Attorney-General, Senator Durack, says that one might say: 'Look what it has led to'. I ask Senator Durack: Is he saying that the Attorney-General knew that there was something more and was trying to cover it up or that as an alternative he should be a good explorer and open any inquiry at the Opposition's whim, for no good reason, on the off-chance that something might emerge? Our Attorney- General and this Government do not fit such a mould. The suggestion from Senator Durack that the Attorney-General knew and was covering up is a disgraceful suggestion. It is clearly wrong, because we did not know about Mr Briese or his evidence until he came before the Committee and told it. It would seem bizarre, to say the least, to follow the second possibility-that, knowing there was nothing there, the Attorney-General should have an inquiry anyhow.

I ask again: How often do the Opposition and the Democrats require that the judge, Mr Justice Murphy, be proved innocent? The common law in this country-I think Senator Harradine should listen to this-requires that a man or a woman be deemed innocent until proved guilty. While we may read things about the meaning of acquittal, when there has been no evidence to prove a person guilty to the satisfaction of the court, that person is, under our law, innocent. It seems that that common justice is not applied to the judge.

Senator Harradine —What about Mary Gaudron's statements?

Senator CROWLEY —Is Senator Harradine asking me to rearrange the law of this land? I am not about to do that. Technicalities of the law have been with us since God knows when and no doubt they will stay with us. That is not a matter for dispute here. The matter of dispute is whether or not on the evidence a person is found guilty. If a person is not found guilty, then the presumption of that person's legal status is that that person is innocent. These are not the criteria that are being applied in this case. Mr Justice Murphy's name was on the tape, so the hunt was on. An inquiry was forced on the Government by the Opposition numbers in the face of independent evidence that there was no substantiation of anything regarding the judge on the tape or in the transcripts . This was subsequently confirmed by the Opposition in its unanimous vote on these matters.

The Committee was given Mr Briese's evidence as a bonus but it is only on one set of words that the Opposition hangs its case. Even more remarkably, the Opposition senators have heard other Briese claims and dismissed them. They themselves say that other parts of Mr Briese's evidence do not stand up to the weight he gives it. There is no evidence to sustain many of his claims. Opposition senators themselves dismiss Mr Briese's evidence and yet place a totally different reliance on the one line at the end, in effect. They agree with the Attorney-General about the tapes and material, they dismiss most of Mr Briese's evidence and, left with six disputed words in a disputed context, they claim to have sufficient evidence to know that the state of Mr Justice Murphy's mind is clear enough for them to be able to say that there is a prima facie case against the judge. I find that quite remarkable. I am particularly mindful that Senator Chipp does not quite say that. He says that while he cannot say that there is a case, he cannot say that there is not a case and that this all depended on Mr Justice Murphy's refusal to appear. I seek leave to continue my remarks later.

Leave granted; debate adjourned.