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Thursday, 6 September 1984
Page: 529

Senator MISSEN(10.19) —This is a cognate debate relating both to the report which the Senate Select Committee on the Conduct of a Judge put down a fortnight ago and to motions which have been moved or notice has been given by the Attorney-General (Senator Gareth Evans) and by Senator Durack and Senator Haines in respect of the course that should be followed from this time onward. It is important to refer to all those aspects during the debate and, therefore, some discussion must be truncated.

As we know, during the past 24 or so hours there have been developments and discussions on what should be the future course of action. What emerges will not be the ideal solution, but the response to and responsibility for the difficulties lie heavily in the Government's hands. Throughout these proceedings , which gave gone on since February this year, there have been obfuscation and attempts by the Government to avoid discussion and investigation. In recent days there have been attempts to avoid any facilitation by Government action for the inquiries which it is obvious the Senate now wishes to pursue. What emerges from the debate in the Senate will be the best that can be done in the circumstances. It is clear that something must be done. The Parliament cannot allow the position to continue wherein a committee has reported-unfortunately, divided on party lines-and has been obstructed from obtaining the whole of the available evidence. Among other things, the judge in question, His Honour Mr Justice Murphy, has refused to appear before the Committee.

It was unfortunate that the investigation was conducted by an ad hoc select committee rather than the Senate Standing Committee on Constitutional and Legal Affairs, which normally has responsibility for considering constitutional and legal matters. Because the judge was a founder of that Committee and other Senate standing committees, it might have been easier to get him to come before a committee that has a record in these matters and which must live up to that record. Committees that are appointed for a specific purpose lack some of that command. However, that was not the course taken by the Senate.

The Senate Standing Committee on the Conduct of a Judge is to be generally commended for the rational and sensible way in which it went about its duties and the time that it put into what is essentially a very unfortunate and unpleasant job. Those are my general comments on the Committee, from what I understand of its work. I shall make some critical comments on the Committee's findings, particularly the majority report-the report by Australian Labor Party senators, as they had a casting vote. Their findings are officially the Committee's findings.

A number of important results flowed from the Committee's findings, including the fact that there is now certain evidence before the Senate which had not been given before. We have received material with respect to Mr C. Briese, the Chief Stipendiary Magistrate in New South Wales. That information requires the Senate' s continuing attention and, perhaps, examination by a more impartial body, before we make a final decision.

Apart from the Committee's various reports, we have received in the attachments very useful advice from Mr C. W. Pincus, QC, the President of the Law Council of Australia and an eminent legal authority. His evidence confirms what we have been saying in the Senate for some months; namely, that the advice which the Committee received from Mr Temby, the Solicitor-General, Dr Griffiths, and the Attorney-General (Senator Gareth Evans) on the limitation of Parliament's power and duties in determining what may be proved misbehaviour was unwise and unsound . It is now clear from the excellent opinion that Mr Pincus, QC, gave to the Committee-unfortunately, that information was largely ignored by the majority of the Committee-that this is a matter for the Parliament alone to decide.

The Parliament will, of course, act with all the sense of natural justice that is called for in that job. It is for the Parliament to determine whether actions of a judge display either moral turpitude or an inability to uphold the traditions of a judge such that he is no longer fit for that position. I am not forming any concluded view on that case, but there is no doubt that that is the Senate's power. All the limitations that the various Government advisers have tried to impose on the Senate have been shown to be inconsistent and faulty.

I spoke on this subject on 5 March 1984-what I said is recorded at page 372 of Hansard-and also on 8 March in a summary way. I set out here in detail the mistakes which the Solicitor-General was making in his opinion and which the Attorney-General was following. I invite the media to read those speeches-I think the media people were too lazy to read them before-because they are on all fours with what Mr C. W. Pincus QC has now advised the Committee, and through it the Senate, as to the undoubted powers and duties of both parliamentary chambers .

I will not say very much about the statement the Attorney-General made yesterday, and even less of the highly obscure supplementary opinion which the Solicitor-General put down. That opinion repeats the mistakes that he made before and disregards the clear intentions of the founders of the Constitution that Parliament should prevail and that courts should not sit in judgment on Parliament's decisions. That opinion reminds me very much of a ship which has been mortally wounded and is trying to disappear behind a smokescreen. It is a smokescreen opinion and is not very helpful to the Senate.

The Attorney-General, in his statement yesterday, quoted from Quick and Garran commenting on the powers-a statement which, I think, is very dubious. He then stated:

Some classes of ''misbehaviour'' may not be subsumed by the approach of Quick and Garran-for example, partisan political activity, or notorious private behaviour not directly related to, or affecting, the conduct of judicial office. So be it. What may be a cause for admonition by the Chief Justice of the Court in question, peer group pressure and like forces, should not necessarily be regarded as grounds for dismissal. The separation of powers principle demands that the power of Parliament to remove a Judge not extend to undefined residual areas of behaviour which are neither clearly illegally nor clearly related to the performance of judicial duties.

The Attorney, in those remarks, repeats his old errors and makes the situation worse. The example, which was the example given by Mr Pincus, of partisan political activity by a judge may be most serious; it may destroy his whole authority in the community. Likewise one could take the purely hypothetical case of very serious personal derelictions of a judge engaged in prostitution in such a way as to flout the whole mores of the community. Such action may not be illegal; it may not be a criminal matter at all; but it would be a matter which would ruin the judge's public standing and ability. The precedents which have been set in England-they are very useful to us here despite what the Attorney- General says-show that those considerations very much face the English Parliament when it considers such matters. To suggest that if the matter is not a criminal offence the judge should be slapped on the wrist by the Chief Justice , or that there may be 'peer group' pressure that may cause him to change his ways, is a totally inadequate response. Indeed, one can imagine criminal convictions which would not be grounds for removing a judge from office. One could say that a judge of our superior courts found guilty of driving in Victoria when his blood alcohol level was in excess of 0.05 or 0.08, which, I think, is the allowable level here, is deplorable. However, that in no way would necessarily mean that the judge is not able effectively to carry on his duties and be upheld generally in the community. As I have said, criminal offences often are not of sufficient importance to justify such action, but action which is not criminal very often does, and that is the view of Mr Pincus. It is the view which this Senate has maintained and which, by its appointment of the Select Committee, it has confirmed.

Later I will refer to the complaints of the Attorney-General about the Opposition's suggestions. Now I want to refer to something he said previously and which I think is important. I refer to an article written by Maximilian Walsh in the Age of 3 September headed 'Times might change but principles stand' .

In the article Mr Walsh took the example of the attempts of the Attorney- General, then shadow Attorney-General, to take action against Sir Garfield Barwick in 1980. Honourable senators will recall an exchange between the Attorney-General and me yesterday when he said: 'Oh, that is about the judge's actions in the course of his duty'. Of course, that is not so. When one looks at the article and at the evidence one sees that the Attorney-General in 1980 was dealing with a judge whom he did not like so he was adopting a certain set of principles. But now he is dealing with a judge whom he does like, to whom he has some obligation and for whom he once worked, his principles have changed. In 1980 he quoted Sir Winston Churchill, as Senator Durack did yesterday, upon the severe restrictions imposed upon judges-different and higher standards from those placed on others. Of course, the important thing is that when in 1980 he moved a motion in respect of Sir Garfield's directorship of a family company he was concerned with a conflict between public duty and private interest and not with an allegation that the judge was not performing his job correctly. I will quote the terms of the motion he moved. He wanted to set up a joint committee of the Parliament which, among other things, would determine:

whether in all the circumstances the actions of the Chief Justice have been such as to involve a conflict between public duty and private interest contrary to the high standards required of judicial office holders;

He went on to say in his motion:

whether in all the circumstances public confidence in the administration of justice has been imperilled by the Chief Justice;

Of course, that is a very important consideration in dealing with any allegation made against a judge. Then he went on to say:

if so, what action should be taken by the Parliament by way of censure, proceedings pursuant to section 72 of the Constitution, or otherwise;

It is perhaps doubtful whether Parliament has a power to censure under section 72, which is a power for an address for removal. There is dispute as to whether he could do that but that is what he was seeking to do at that time, and he was seeking to do it upon the basis of arguments which, he said, made it necessary for the Parliament to take action. In view of the fact that people have criticised the possibility that Parliament might interfere in this way, let us look at what Senator John Button, who is very much away from and has not been seen in this debate, said in that debate in 1980:

I am worried by any group of people which says: 'In a democratic society this is not a matter which should be looked into. It is not a matter for inquiry by anyone'. I think that any group of people which puts itself in that position looks a bit spooky.

Leaving aside the grammar of the now Leader of the Government in the Senate on that occasion, one could say that he must now find a bit spooky criticism of honourable senators who say that an inquiry into allegations made against the judge should be brought to a firm conclusion and all necessary advice should be obtained. We will be interested to hear what Senator Button thinks today.

In dealing briefly with the majority report of the Committee, I want to make certain comments of which I would like to have given references but which are in the report. People tend to forget that the Select Committee made findings as to whether the tapes were authentic or genuine. Of course, it was not able to find much about that. People did not come before it. The Committee did not call a witness who was overseas and the report does not show why he was not called. There have been suggestions, particularly in the National Times, that other policemen might have been called. I think the overwhelming thing about that finding is that the Premier of New South Wales, Mr Wran, and the Attorney- General made it very clear from the beginning, that they would do all they could to ensure that people did not come forward and give evidence because it was their desire to put into gaol those people who had broken the law by taping. They were concerned not so much about whether the contents of the tapes might lead, with further investigation, to proof of illegalities and disgraceful behaviour by organised crime figures in this country but with nailing those who made the tapes. So I am not surprised that so far people have not come forward to authenticate the tapes.

Senator Chipp —There is no doubt that Mr Wran's threat to gaol stopped witnesses coming forward.

Senator MISSEN —As Senator Chipp has said, there is no doubt that it would have that effect. I also have no doubt that that was the intention of doing it-to have the issue remain foggy so that it could be disregarded. That is one of the problems. There is another matter the concentration which we have here on the judge, which is important because it is the Parliament's own responsibility in this case, tends to make people forget that there are thousands of pages of transcripts and tapes that should be investigated. I believe-Bob Bottom has said publicly that he understands this to be the case-that those matters are not being investigated at the moment. Various executive authorities are relying on the question of authentication and are not going forward than that examination. While we are today debating what we will do about the judge, let us not forget that there are much larger issues that should be of concern to the community in regard to matters which have come to public knowledge due to the action of the Age and the National Times. I think they deserve public support for the dangerous course they have taken but it is necessary in the overall public interest.

I want to say this, too, about the Committee report: We have the Committee's report and the evidence which the Committee has brought to our attention, but most of us in this chamber have no knowledge of the rest of the evidence. I have no knowledge of the tapes and the transcripts. I have never seen any of them. In particular, I have not seen the evidence that was before the Committee. This we may now be sending to Mr Temby for his consideration and that is probably all right, but before we in this chamber make any final decision in respect of the judge, we would need to see the evidence and make our judgment-not just the judgment of the members of the Committee-as to whether there is other evidence which is important.

I want to make one or two remarks about the actual report and the curious inconsistencies in the majority report as it appears. It is important that this not be overlooked because we probably will not be debating this report further in this session of Parliament. In the first place, there is a very curious statement by the Committee in paragraph 33 where it deals with the tapes.

Senator Tate —It is not a majority report. That is a unanimous report if you are quoting the tapes.

Senator MISSEN —Yes, in regard to the tapes it was unanimous; I acknowledge that fact. In paragraph 33, the Committee states:

This examination of the 'conduct as revealed' in the materials and evidence obtained by the Committee was undertaken with a 'no prejudice' acceptance of the interpretation placed on the meaning of 'proved misbehaviour' by the Committee's legal adviser,--

It went on to say that some Committee members did not hold that view, but that ' it was used as the guiding criterion' for consideration. I do not know what the 'no prejudice' acceptance is, but I think I get the general purpose of it. It is then said that it was used as the guiding criterion, but when we go on to the further part of the report-the majority part only-we find a different consideration. There is probably no part of the report which is more inconsistent than paragraph 79:

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.

That is a very curious mixture of things. First, the Committee said that it does not need to decide that question. Of course, I know why the majority did not need to; it was because Mr Temby, Dr Griffith and counsel for Mr Justice Murphy all have completely different views on what is required in regard to a criminal offence.

Senator Tate —Paragraph 79 was agreed to. It was unanimous.

Senator MISSEN —The honourable senator has had his chance and I am now having mine. It will be recalled that Mr Temby thought it had to be an infamous offence . He advised the Senate very quickly on his views. He looked at the tapes and so forth very quickly. He told us that he thought we had to find that there had been an infamous offence, before a House could proceed against a judge. Also he said that there may have been some injudicial behaviour by a judge, which was important. On the other hand, the Solicitor-General, Dr Griffith, and the Attorney-General said that there must be a proved breach of the general law, whatever that may mean.

Senator Harradine —Criminal law.

Senator MISSEN —No, the phrase used was 'general law'. Presumably that would not include taxation law. I do not know what it means. I have not time to go down that burrow. He said that it dictated to the Senate what it must do. There must be a breach of the law, but he did not think a conviction was necessary; it had to be proved. I now come to Mr D. Bennett, QC, counsel for Mr Justice Murphy, and his written opinion in this report. He said that it must be a conviction recorded in the court. It is no wonder that the majority of the Committee, in paragraph 79, did not want to make up its mind about that. Of course the Attorney-General has no problem with this. As I understand it, that view is not a majority view. So far as a criminal offence is alleged, members of the Committee went on to consider that. The majority, having satisfied themselves that they could not find a prima facie case, thought that nothing further should be done. I regret the reference in the report to 'prima facie' cases because it seems to me that misconceives, to a certain extent, the duty of the Committee, which was to advise this Parliament, this Senate, just as what we do next will be to advise the Senate. The responsibility lies here.

The Committee was not sitting, as it were, as a stipendiary magistrate, deciding whether there was a case to answer. I think it made that mistake, and therefore most of the members of the Committee probably debarred themselves from dealing further with this matter because it could well be alleged-I do not think necessarily with justice-that they had already made up their minds on the question by finding a prima facie case. The Committee's role was to say whether there were grave and weighty matters and concerns that might call for the Senate to go ahead with a motion for removal of a judge. The Opposition senators, in their statements and in the terms they laid down, displayed a very sound view of their responsibilities. However, I will not go into it in detail.

In regard to the Committee report, it is clear that the Committee held firmly the view that Mr Briese gave his evidence sincerely and honestly and to the best of his recollection. He was examined twice. He made a statement. He appeared before the Committee, at its request. It is not necessary for him to become a prosecutor and launch prosecutions, as Mr Justice Murphy suggested in a very foolish political statement he made last week. Mr Briese came before the Committee as requested. He showed in his evidence that he was reluctant to come to conclusions as to what, in his view, Mr Justice Murphy was putting to him. I say in passing that the majority of the Committee did a grave disservice to Mr Briese by quoting only part of the Committee's examination of him in paragraph 97 of the report. Senator Chipp intervened with a further question and pressed Mr Briese further, but the majority report did not bother to mention that. He came to the conclusion that the judge was endeavouring to importune him and to get him to do things contrary to his duty. It is clear that Mr Briese believed there was a quid pro quo expected of him for things which the judge had done. One should sharply criticise the majority of the Committee for the distortion that appeared in their report, which fortunately was corrected in the report by Senator Chipp, who put forward the entire evidence.

One must make another comment about the evidence. Whereas the Attorney-General now says, and the majority of the Committee say, that there is only one crucial point in the Briese evidence and that is in regard to the statement about 'my little mate', that, of course, is not so. I have been through the evidence and the summary of evidence by Mr Briese. There are at least 10 different aspects where they are in conflict. There are 10 important questions about which one has to believe someone or the other. They include such questions as whether or not Mr Briese was offered a car which, if it is true, was a very obvious form of inducement.

Senator Georges —That is ridiculous.

Senator MISSEN —I will not allow Senator Georges to interrupt me in the short period I have. I want to make these points. Those 10 matters all need to be cleared up. I do not say who is telling the truth and who is not. We have not heard from the judge. The judge declined to appear before the Committee and give evidence, and he has given his reasons for doing so. I hope he will have a future opportunity to do so. It is important for us to make the decision whereby we are going to give him that opportunity, complying, of course, with all the requirements of natural justice.

I turn now to the question of what is to be done next. We know of the proposals that have come forward. It is suggested by the Attorney-General that the evidence will go to Mr Temby for examination. I do not care about that. I think I know what the result of that will be. Unfortunately Mr Temby, has already formed various conclusions about this matter-he has been pitched into this. He indicated last week that he did not want to become involved in this matter and that it ought to be a matter for the politicians to decide. Apparently now, at the insistence of the Government, he will be forced to be involved. He probably will not find sufficient evidence on which to ground a case at this stage. That will not surprise me. Of course, that is not the question that is before the Senate; the question is whether these matters of such seriousness ought to be considered by the Senate.

More importantly, the proposal that is now the basis of some negotiation for agreement between the Opposition and the Australian Democrats is that the Senate take the matter further, for further independent examination by people of independence and standing able to question properly a judge of such eminence. There is a limited number of such people. It does not matter whether there be one, two, or three such commissioners; it is important that there be commissioners. I think it is agreed that there should be a committee to back up and give strength to the commissioners' investigation and which will facilitate their actions and report to the Senate. This will enable the Senate to make up its mind on hearing the evidence. This will be subject to such reasonable conditions which Mr Justice Murphy and his counsel impose. I think they are reasonable conditions.

It should always be so that this Senate-as have the Houses of Parliament in England-should apply standards of natural justice when dealing with judges and their conduct. That is set out very clearly in Dr Shetreet's book Trial of Judges which I have studied closely and which, although especially applicable to England, shows that the same conditions apply to misconduct, as it is called, there as in Australia. Although the Parliament there has greater powers it limits itself and ensures that natural justice is observed. I trust that we will ensure that as well. Of course, in Canada there is an excellent precedent: Commissioner I.C. Rand in 1966 investigated a judge and his conduct on behalf of a committee of the Parliament. I am endeavouring to get that report. It is referred to as a reference in Canada and in other parliaments. I think that the use of outside experts to analyse and conduct an inquiry is recognised as a power of parliaments and its committees.

It is important to realise that what we have here is a criticism which remains against a judge. I regret the judge's very political intervention last week in a statement which even distorted the terms of the Committee report. I hope the judge does not continue with that. I trust that people such as Mr Kerry Packer's counsel, Mr Malcolm Turnbull, who wrote on the matter and who was criticised by Senator Austin Lewis yesterday-Mr Malcolm Turnbull calls himself 'The Officious Bystander'-will not continue to make allegations which probably are in contempt of this Parliament. I do not suggest that we should worry about that at this stage. I believe that we should make sure that what is done now is done with all due consideration to the position of the judge and the danger it causes to the standing of the judiciary. I refer finally to something which the Attorney- General said on 29 April 1980 in Hansard. He stated:

If public confidence in the absolute integrity and impartiality of the judges of the highest court in this land is in any way put at risk by the questions which have been raised here not being satisfactorily answered . . . there is little hope for the long run survival of public confidence in any democratic institution in this country.

It is important that the Attorney-General apply those principles now in this case. It is important that the Government should co-operate with what the Senate decides in relation to a further investigation. The other House sleeps on and is allowed to do nothing about it. We must find out the facts and endeavour to see that the matter is heard and that we have competent advice. Thus it is left of course to the Senate to make up its mind. Whether to proceed is a matter for the Senate and no one else. Therefore, I trust we will adopt the proposals which the Opposition and the Australian Democrats by agreement are bringing forward today to ensure that this duty is satisfactorily performed by the Senate.