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Wednesday, 5 September 1984
Page: 467

Senator TATE(12.28) —I enter this debate on the appropriate next step in the further consideration of and deliberation on the evidence proffered by Mr Briese to the Senate Select Committee on the Conduct of a Judge. His evidence amounted to an allegation that the judge had engaged in conduct that constituted the offence of attempting to pervert the course of justice, such as is dealt with by section 43 of the Commonwealth Crimes Act 1914.

Naturally, I support the motion moved an hour ago by the Attorney-General ( Senator Gareth Evans) which states:

That the Senate-

(a) refer-

(i) all evidence given before the Senate Select Committee on the Conduct of a Judge, and

(ii) all documentary or other material furnished to the Committee,

relevant to the Briese allegation, to the Director of Public Prosecutions for consideration by him whether a prosecution should be brought against the judge . . .;

It is important to recall what Government senators propose. It is a very straightforward proposition-that the proper course to follow is to exhaust the criminal prosecution option before considering any other approach. Our proposal does not preclude any other approach or pre-empt any other action by the Senate. Our proposal simply says that we should exhaust the criminal prosecution option. That step is justified by the nature and seriousness of the allegation that has been made by Mr Briese under oath before a parliamentary committee and by the fact that two Committee members felt that a prima facie case had been made out, while a third member, Senator Chipp, was not persuaded to the contrary. There was a conflict about the very serious allegation of conduct which would amount, if it were ever proved, to a criminal offence.

Once that option was exhausted, of course Parliament would review the situation . The action of placing this matter in the hands of Mr Temby, the Director of Public Prosecutions, would not in any way derogate from the Senate's ultimate responsibility under section 72 of the Constitution. That action would not preclude or prevent further parliamentary consideration of the matter; but we should not be denied the usefulness and propriety of that consideration by the Director of Public Prosecutions.

We must take account of the constitutional realities and practices that should prevail. At the same time, we should be conscious that not only must we act in accordance with what we gleam to be the proper constitutional processes but also that we are really engaged in moulding and creating those constitutional processes, given the novelty of the very serious situation that has arisen. We should be very cautious and conservative in that regard. A surprising feature of Australia's political life over the last decade is the fact that honourable senators opposite have been prepared from time to time to manipulate the Constitution for their own opportunistic political ends while senators on this side of the chamber have tried to conserve the true meaning of the Constitution.

Given the fact that the repercussions of the action proposed by the Opposition could affect the future integrity and independence of the Federal judiciary, especially the High Court of Australia, and given the fact that its members are particularly vulnerable to political pressure because of their pre-eminent role in determining the constitutionality of Executive action and the law making that we undertake, it is important that we be most cautious in deciding the course of action to pursue in relation to allegations against a member of the Federal judiciary, particularly the High Court.

Opposition senators would do well to note how the more responsible journalists in the community are moving in their considerations of these matters. A moderate and cautionary voice was raised by Geoffrey Barker last Saturday in his article in the Age headed 'Justice, politics and Murphy's little mate'. Mr Barker stated :

. . . actions tending to diminish judicial independence, or casting doubts on the integrity of judges, ought not to be undertaken lightly. They are especially to be avoided in the fevered atmosphere that surrounds elections when politicians are jostling for issues and advantages.

Speaking of the proposal to take consideration of Mr Briese's allegations further, Mr Barker said:

This seems to me dangerous, unwarranted and futile. Dangerous because it is an instance of Opposition political pressure (reinforced by some newspapers) clouding the integrity of a prominent High Court judge, and therefore the integrity of Australia's highest judicial institution, on extremely tenuous grounds. Unwarranted because Mr Briese's uncorroborated and disputed evidence does not credibly establish any misbehaviour by Mr Justice Murphy, and would not credibly establish misbehaviour even if it was corroborated and undisputed. Futile because the judge's denial of the evidence means that a new inquiry would be essentially a fishing expedition on behalf of a beleaguered Opposition in search of an issue.

I bring that moderate and sensible note into the discussion. The action in which Opposition senators have been partly engaged has been well exemplified by Petty' s cartoon on the same day. Petty shows various people gathered outside the Australian Establishment Club and the caption reads:

Of course it's always been fundamental to our system here that Justice Murphy must not only be done, but be seen to be done.

When the cartoonists of Australia, who of course are amongst the best in the world, start to take that line, Opposition senators should take it as a cautionary warning of the disrepute into which they are bringing themselves by pursuing this matter. Nevertheless, let us consider the proposition and the motion that I support, namely, that the materials should be handed to the Director of Public Prosecutions. Last night I listened intently to the debate when the motions were foreshadowed because I wanted to give them due weight. It seemed that some matters were causing concern to the Opposition. One involved a fear that, in allowing the matter to be referred to the Director of Public Prosecutions, the Opposition would somehow be conceding that misbehaviour can be constituted only by misconduct relating to office or an offence against the law; that is, that misconduct or a reprehensible activity outside the duties of office or not amounting to an offence against the law can never amount to misbehaviour. The Opposition seems to be wary of sending the matter to the DPP for fear that this would undermine its position that misbehaviour can embrace conduct and activity wider than offences against the law. I do not see the situation that way. Although I find the Solicitor-General's opinion generally convincing, I do not find a need to decide on the exact range of activity that might constitute misbehaviour in any particular situation. I believe we should leave open the possibility that the Opposition in this regard is expressing the better view. The Senate Committee, in paragraph 79 of its report, stated:

The Committee did not need to conclude that misbehaviour unrelated to the duties of office must always be constituted by an offence against the general law. However, the committee agreed that since the allegation of Mr Briese, if sustained by the evidence, was that the judge had engaged in conduct which constituted the offence of attempting to pervert the course of justice . . . its proper inquiry was whether the evidence established the commission of such an offence.

I believe that, given the nature of that allegation and given the fact that if it were sustained by the evidence it would amount to such an offence, it is very proper that the Director of Public Prosecutions review the materials. Related to this is the fact that some have said that they have misgivings because the Director of Public Prosecutions, in assembling the evidence to determine whether prosecutions should be launched, will have in mind the standard of proof applicable to criminal proceedings. That is, he will be looking at the evidence to see whether the uttering of certain words took place and whether their uttering was accompanied by an intent to influence the outcome of committal proceedings, beyond reasonable doubt. Are the uttering of those words and the existence of that state of mind able to be established beyond reasonable doubt? Why are people fearful of that particular standard of proof being used to assess and measure the evidence? I refer to an article in the Sunday Telegraph by Laurie Oakes. I need to quote it in full because I find it irresistible in its compelling logic. He states:

There is reason for concern over the treatment of Mr Justice Murphy in the continuing affair of the so-called Age tapes.

The leader of the Australian Democrats, Senator Chipp, rejected the idea of referring the issue to the DPP . . . for what seems a very strange reason.

Mr Temby, the senator said, would have to be able to prove ''beyond reasonable doubt'' that the judge had committed an offence before any action could be taken .

A Senate committee, or a parliamentary commissioner appointed by the Senate, in contrast, would merely have to find ''on the balance of probabilities'' that Mr Justice Murphy had done something wrong . . .

Laurie Oakes also stated:

I find extremely disturbing the possibility that Mr Justice Murphy might have his career-and his life-destroyed on the basis of ''the balance of probabilities ''. What the judge has been accused of in the evidence of N.S.W. Chief Stipendiary Magistrate, Mr Clarrie Briese, is a criminal offence. The allegation is that he attempted to interfere with the administration of justice by a magistrate. If the charge was heard in a court of law proof beyond reasonable doubt would be required.

Why should a lesser standard of proof be required if the Senate takes it upon itself to be investigator, prosecutor and judge?

I find that a very compelling comment by Laurie Oakes, in relation to this misgiving.

Senator Missen —Pretty ignorant comment.

Senator TATE —The honourable senator may call him ignorant but I believe that he speaks for the common sense and common decency of our common law tradition in dealing with the proof of matters which are alleged and which, if proved, would amount to a criminal offence. If the honourable senator wants to abandon the common law and its traditions in that regard, of course he is quite entitled to do so. The Senate can adopt whatever standard of proof it wants. We know that, but if the honourable senator is advocating a lesser standard of proof no doubt he will be able to argue for that. However, I believe that Laurie Oakes is speaking for common sense in that regard.

There was the fear that the Director of Public Prosecutions would be embroiled in a political controversy. I have always understood that it was the function of the DPP precisely in an area of political controversy, subject to all the heated hysteria of the to and fro that goes on in the chamber, particularly prior to an election, to make decisions of an independent character, an impartial character, quite removed from political influence.

Senator Jack Evans —But not on behalf of this Senate.

Senator TATE —He is not being asked to do it on behalf of the Senate; he is being asked to do it as the Director of Public Prosecutions and we, of course, will then consider his report. I have never said that it precludes further deliberation by this chamber. I am very pleased in relation to this matter, which is a serious allegation of an offence, that the Attorney-General has removed himself, has forgone his right as Attorney-General to press a prosecution. I do believe it is a highly political area.

Senator Harradine —He is an officer of the Executive, is he not?

Senator TATE —This is said continuously. It was said by Senator Haines last night and by Senator Durack again today that the Director of Public Prosecutions is an officer of the Executive. It is true he is appointed by the Executive but to slide from that proposition, which is perfectly proper, to the proposition that he is a political appointee and subject to political influence, is quite wrong. When the Director of Public Prosecutions Act 1983 was passed by this Parliament in November 1983-late last year-Senator Durack had this to say:

The same thinking behind the establishment of the special prosecutors has led to this further step-

setting up the DPP-

of having the general prosecutions of Commonwealth related crime in the hands of a specialist, a person who is independent and seen to be independent of the Attorney-General and of any political influence.

He went on:

This Bill preserves that very high function of the Attorney-General. It enables him to conduct prosecutions in his own right, although, obviously, that would be done only in very rare cases, because he would have this major, prestigious and expert Office of the Director of Public Prosecutions to carry on the work of prosecutions for the Commonwealth in the great majority of cases.

A major element in setting up the Office of the Director of Public Prosecutions was to remove these matters from decision making by the Attorney-General and to put them into an impartial, independent atmosphere.

Senator Durack —Day to day, but he is still subject to the direction of the Attorney-General.

Senator TATE —The honourable senator knows very well that if there were to be a direction from the Attorney-General in relation to this matter it would have to be tabled and subject to the full scrutiny of the Senate and the Parliament. The honourable senator has not mentioned that so far, and there is no question of any direction in this case.

Having disposed of those misguided fears about the referral of this matter to the Director of Public Prosecutions, I now turn to elaborate on the view that such a reference, in the context of the Select Committee's prior activity, is a better course to follow constitutionally when compared with the proposal put forward by those on the opposite side of the chamber that Parliament hand over its powers to conduct further inquiries to a parliamentary commissioner of some type. I must say that when I first heard this proposition I was astounded. It is an attempt to revive what is now perceived in England to be a nineteenth century anachronism of the United Kingdom Parliament. It has not been used this century by the Westminster Parliament, whose privileges, powers and traditions we inherit and claim to find some guidance from.

Senator Missen —What about Canada?

Senator TATE —I am talking about the Parliament from which we draw our parliamentary privileges, powers and principles of action. Once again we are faced with a situation in which, as it seems to me, the Australian Labor Party is acting, in the proper sense of the word, in the conservative tradition by trying to conserve the proper power of the Parliament and certainly not transferring it to an outside person or body. As I have said, the course of action proposed by those on the opposite side has not commended itself this century to the Westminster Parliament faced with all the crises and all the problems that have confronted the United Kingdom over the past 80 years. It has not found it necessary to have recourse to such an odd transfer of its powers to another body.

There are very good reasons why that should not occur. I do not need to elaborate on them as the Attorney-General dealt fully with the legal problems facing witnesses and the Commissioner. I would be most unsafe to assume that the subjects of freedom of speech, privileged situations and even the administering of oaths could be handed to an outside body. The objection to handing over such powers is not a narrow, legal one; it is doubly fortified by the separation of powers which is part of our tradition in Australia and which is different therefore to the United Kingdom situation. Judicial power is vested in the Federal judges, Executive power is vested in the Executive and parliamentary power is vested in the Parliament, and it cannot be disposed of or delegated elsewhere. I have heard nothing today-this has been reinforced by Senator Durack -to suggest that any determination by such a commissioner or commissioners would have any conclusive or binding effect on this chamber.

Debate interrupted.