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Thursday, 6 September 1984
Page: 549

Senator HARRADINE(12.10) — I reluctantly enter this debate. My reluctance to do so would be understood if people were aware of what I said on pages 650 and 651 of the Hansard when the decision was taken to establish the Senate Select Committee on the Conduct of a Judge. However, I reluctantly enter the debate because I believe that the Senate is about to take a decision which will establish a precedent and which will besmirch the integrity of the Senate and hopelessly confuse its role. Yesterday Senator Tate, the Chairman of the Committee, said that we should take care because we are moulding a constitutional process which will provide a precedent for years to come. I believe that for the Senate to vote for the Government's proposition to refer the evidence, which is our property, to an officer of the Executive, namely, Mr Temby, would be to misunderstand our role, to besmirch our integrity, and hopelessly confuse our role. Before I prove that let me respond very briefly to something the previous speaker, Senator Bolkus, said. He characterised the whole matter of concern before the Senate as a political prosecution of a High Court judge, which is unconstitutional and improper. Apparently he had not read the first paragraph of the ministerial statement on Tuesday by the Attorney-General (Senator Gareth Evans), which said:

The issues confronting the Government and the Senate arising out of the report of the Senate Select Committee on the Conduct of a Judge are about as serious as could possibly be imagined.

It is not our doing that this matter is before us. It is not the Government's doing that the matter is before us. This matter was not generated by the Senate. As the Attorney-General said, 'it is about as serious as could possibly be imagined'. We must bring to bear on that problem an open mind but one which is guided by the principles that underline the Constitution. I refer particularly to the principle of the separation of powers between the Executive, the Parliament and the judiciary. The reason that the Constitution is so framed with its separation of powers is to ensure the integrity of the institutions of the Parliament, the institutions of government, and the institutions of the judiciary, and to ensure the independence of the judiciary. Roles have been established by the Constitution for each of these institutions so as to preserve their integrity. Of course, the role of the Senate in this case is set out in section 72 of the Constitution. That section is well known to all honourable senators but I think it bears reading again for the benefit of the previous speaker. Section 72 of the Constitution states:

The Justices of the High Court and of the other courts created by the Parliament-

(i) Shall be appointed by the Governor-General in Council:

(ii) Shall not be removed except by the Governor-General in Council, on an address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity;

Whether we like it or not-I for one do not like it-we are faced with a constitutional obligation, which has been imposed on us not from our own doing but in circumstances that have arisen out of the doings or non-doings of other people. I am not going to back away from my responsibility as a member of parliament to discharge ultimately my responsibility in respect of section 72, irrespective of the vivid memories I have about one of the persons concerned. I wish that I were not placed in this position but I am. There are others who may have a conflict of interest-for example, the Attorney-General himself, whose mentor we are talking about. I wonder whether the Attorney-General has confused the role of the Executive as compared with the integrity of the judiciary on this matter. Why did he initially go to see the judge after the revelation of the Age tapes? Is that not confusing the role of the Executive? Is that not besmirching the integrity of the judiciary? By what right did the Attorney- General sool the Commonwealth Police on to Mr Briese on 24 August 1984? The Attorney-General said in his statement, since the tabling of the report on 24 August 1984:

. . . Mr Briese has indicated to the Australian Federal Police, on an approach initiated by me-

Is not the Executive interfering with the responsibility that is properly ours, and only ours, under the Constitution? Why is he doing that? In the discharge of the Senate's obligations under section 72 of the Constitution, where is there a place for the Senate to refer this matter to an officer of the Executive? That is what we are being asked to do by the Government in its notice of motion on which we will vote. For what purpose is it to be referred to the Director of Public Prosecutions, an officer of the Executive?

Senator Crowley —It has been made clear.

Senator HARRADINE —Oh yes, it has been made clear. Let me deal with the two proposals that have been put: Firstly, that the DPP is the best person to test the allegations; secondly, that if in the opinion of the DPP the allegations and the admissable evidence are such that a prosecution for a criminal offence is warranted-this has not been made clear; it is said to be a criminal offence and there is no such word in law; whether it is meant to be a summary offence or an indictable offence, I do not know, but the wording refers to a criminal offence- and the judge is convicted, there is an a fortiori argument that he ought to be turfed out by us under our obligations under section 72.

Senator Crowley —You don't dispute that, do you?

Senator HARRADINE —I do. I will come to that in a moment and I will tell the honourable senator why. Those are the two reasons that have been advanced. Let us take the first one, the testing one. It has been argued that the DPP is in the best position to test the facts surrounding the allegations.

Senator Crowley —When other people fail.

Senator HARRADINE —As we all know, the criteria to be used by the DPP in determining whether there is a prima facie case for prosecution for a 'criminal offence' are different from the criteria to be used by the Senate in the discharge of its obligations under section 72. The DPP would be required, through the police, to obtain admissible evidence. How are the police going to do that? The only way they are going to do that is by getting an admission. They are not likely to get an admission. Even if they did get an admission the prosecution, were it launched, could fail on a technicality. One of those technicalities was referred to in the Senate yesterday in reference to an article by the Solicitor-General of New South Wales, Mary Gaudron, in which she was proposing that the allegation may not be regarded as a criminal offence because it involved a discussion between a High Court judge and the Chief Stipendiary Magistrate and not the magistrate dealing with the case. It could be thrown out because of that technicality. Indeed, a prosecution could fail because it failed to convince all members of the jury of the guilt of the person beyond any reasonable doubt-not on the balance of probabilities, but beyond any reasonable doubt. That is what the DPP is about but it is not what we are about.

Let me remind the Senate of the effect of an acquittal. This was laid down in a decision of the High Court of Australia in the Queen v. Darby in 1982 before Gibbs C J, Murphy J, Aickin J, Wilson J, and Brennan J, which was a majority decision, Murphy J dissenting. It states:

An accused is entitled to be acquitted unless the evidence satisfies the jury beyond reasonable doubt that he is guilty.

Let me just outline the background of this case. It was a conspiracy case. Two people were charged with conspiracy; both were convicted and put behind bars. One appealed and his appeal was upheld. The other one was still behind bars. He said: 'That is not good enough for me'. The essence of conspiracy is an agreement between two people to break the law, in this case to steal. He appealed but his appeal was knocked off. It is a very interesting case, but that is an aside. The interesting part about it is that the High Court found:

A verdict of not guilty may mean that the jury is certain that the accused is innocent, or it may mean that, although the evidence arouses considerable suspicion, it is insufficient to convince the jury of the accused's guilt beyond reasonable doubt. The verdict of not guilty is consistent with the jury having taken either view. The only effect of an acquittal, in law is that the accused can never again be brought before a criminal court and tried for the same offence.

But the High Court went on to say:

Anyone acquitted of a criminal conspiracy may still be sued in damages for the conspiracy of which he has been acquitted at his trial.

What is the relevance of sending the matter to the DPP, because he will be using criteria that are not appropriate to the criteria that must be considered by the Senate? For example, it may well be that on an examination, admissible evidence is not able to be presented to a court; the jury is convinced there is overwhelming evidence of the guilt of a person but the admissible evidence is lacking or there is a technicality and the person is acquitted.

So what is the purpose of sending it to the DPP? It is suggested that if there is a conviction for a criminal offence-as I said, the term 'criminal offence' has not really been defined-that is an a fortiori case for the judge to be turfed out by us on an address to the Governor-General under section 72. I dispute that too as being a valid reason for sending this matter to the DPP. What happens if a court convicts the judge? We immediately move, make the address and the judge is removed. He appeals. What do we do during the time of the appeal? We might have even removed him and he may have appealed but, more importantly, let us get to the conviction. Are the Attorney-General, and particularly the Chairman of the Senate Select Committee on the Conduct of a Judge, Senator Tate, saying that if a judge of the High Court is convicted of a criminal offence he must be removed? Let me pose an example: What if a judge is found smoking marihuana and in possession of cannabis?

Senator Crowley —It depends what state he is in.

Senator HARRADINE —That is very interesting. The honourable senator has interjected: 'It depends what state he is in'. He has been charged and convicted of possessing cannabis. We are talking about precedent now; I am not talking about the current situation. Honourable senators are saying: 'All right, if he is convicted of a criminal offence he ought to be turfed out'. What if he is convicted of that criminal offence? Is the Chairman of the Select Committee saying that that would constitute proven misbehaviour to the extent that he ought to be removed under section 72? There would be opinions to that effect elsewhere in the Senate but I doubt whether the Chairman of the Senate Select Committee, given his views on that topic, would adopt that view. Apparently a deal has been done. What are we doing voting for this matter to go off to the Director of Public Prosecutions? I submit that if we send the material we have to the Director of Public Prosecutions and if we carry the decision we are about to carry, we are besmirching our integrity and confusing our role.

What are we being asked to do? Let me read the motion of the Attorney-General to show honourable senators what we are being asked to do. The motion states:

That the Senate-

the Senate mind you-

(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; . . .

The Attorney-General is asking us to make the Parliament an informer to the Executive on the judiciary. I find it very difficult to accept that members of the Australian Labor Party or any honourable senator in this Senate want to adopt a motion which will turn this Senate simply into a common informer for the Executive. If ever there was a confusion of roles this is it. It is not our job to shop the judge. Our role is well stated and entrenched in the Constitution. Our role is to consider whether the behaviour or the conduct of a judge is such that that judge should be removed from the High Court of Australia. If we so consider we make an address and the procedures of the Constitution are followed.

Senator Bolkus, who preceded me in this debate, said: 'To refer this matter to the Director of Public Prosecutions is the proper and formal way to proceed'. It is no such thing. It is improper; it is confusing the role of this Senate; and it is besmirching this Senate's integrity. Mr Acting Deputy President, I say to you and to honourable senators: We are faced with a very difficult constitutional situation but we must discharge it in the best way possible. We must understand that we are moulding constitutional processes which will establish precedents. I consider that the establishment of a committee which would be empowered to appoint parliamentary commissioners to test the facts is a constitutionally appropriate procedure to follow. On the other hand, to support the Government's proposal and refer the material that is in our possession to the Director of Public Prosecutions, an officer of the Executive, is to confuse our role as a parliament with that of a policeman. I for one will not be accused of voting in a way that will render this Senate as simply a common informer for the Executive.