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Thursday, 6 September 1984
Page: 578

Senator RICHARDSON(3.43) —After some six months of tedious and lengthy investigations the Senate Select Committee on the Conduct of a Judge finally came down with a report. Three of its members had one opinion, two another and one a further opinion still. Some of us queried the necessity, indeed the propriety, of setting up the Senate Committee in the first place. Some of us were of the view that a result like the one that eventually came down may well have been inevitable. If there was one thing that all of the honourable senators who served on that Committee were unanimous in finding, it was that the authenticity of the Age tapes could not have been substantiated. I do not think that we needed six months of investigations to come up with that conclusion. When one is presented with but a handful of tapes and hundreds of transcripts that purport to be of conversations but which could never possibly be verified, one wonders why we decided to proceed any further. But having had six months of investigations-apparently all of us are convinced that the authenticity of the Age tapes cannot be verified-we seem, yet again, to be heading down the path of a further investigation. If we had looked six months ago at the probabilities of what the Committee might find and look now at the probabilities of what setting up a committee of this nature might find, I am afraid, once again, that we would come back to thinking that very little can possibly be achieved.

Two prominent men of high public position are stating contrary views about an alleged conversation. No matter how long, no matter how deeply one probes the word of those two men, in the end someone has to decide who to believe. Traditionally in our system of justice one needs more than just one accuser. There must be more than just one person saying: 'You did the wrong thing'. Yet very sadly, in the Senate, not just over the last six months of this inquiry but over the last 18 months, during the flurry of allegations that have been flung back and forth across the chamber we have seen the steady erosion of a very basic principle of British justice-a principle that has stood the test of centuries-that is, that a person is innocent until proven guilty.

In the end, what all these inquiries seek is for Justice Murphy to prove that he is innocent. That is a standard that no one should have to live up to, whether that person be a judge of the High Court of Australia, a housewife or someone who digs ditches. In the end we should all be equal under the law. Justice Murphy should have the right of someone examining, with the proper criminal onus of proof, whether or not he has committed any criminal action. Let us face it, it is a criminal action that is being alleged. Any allegation that he attempted to interfere in the conduct of a case before the courts in the end must be a criminal offence. Why should a different standard of proof apply to that which would apply in a normal criminal proceeding? The first problem that we come across is a constitutional one. The words 'proven misbehaviour' in section 72 of the Constitution mean that a criminal offence must be proved.

Senator Peter Rae —It says 'incapacity' also.

Senator RICHARDSON —And incapacity, I grant that, although I am not hearing Senator Rae too often. I do not think that anyone is alleging that Justice Murphy is incapable. I have yet to hear that allegation advanced. However, I get back to my point on proven misbehaviour. There is obviously some controversy over what that means. We have had eminent legal brains applying their minds to it. We have had different opinions. We can get one highly paid professional lawyer to say those words mean that an ordinary criminal onus of proof should apply; we can get other highly paid and well qualified lawyers to say that some lesser standard, like the balance of probability, or words to that effect, should apply. But no matter who we now seek to give us an opinion, we should go back to the Constitution, to what the founding fathers-or as it might better be said in today's climate the founding persons-had in their minds when they drafted the Constitution.

Senator Hamer —They were all men.

Senator RICHARDSON —That is irrelevant. However, that is another debate. The founding persons went to very great lengths in all of the provisions that they put into the Constitution to separate the Parliament from judicial functions. I would have thought up until just a few days ago that they had been successful, that no one was in any doubt that the founding fathers did not intend this Parliament to give to itself some right to adopt a judicial function. However, now we have seen that position advanced at length. We will do more than just have a judicial function. That is not just a retrograde step; it is one which we will all regret for many years to come. I wonder just what qualifies politicians to act as judge and jury, let alone take upon themselves the role of investigator. I have not had great police experience and, looking around the chamber, I can see that there are not too many ex-policemen among us. There may be some in the lower House and I may be doing a disservice to some honourable senators, but I do not know of anyone here who has an investigative background. Yet in spite of that lack of background, suddenly we take unto ourselves the role of supersleuth. The Sherlock Holmes mentality sets in and we can all solve complex legal problems.

Really the problem here has never been legal. The problem here is political. What is happening is a purely political exercise. To achieve political ends the steps which some people, particularly the Opposition, would have us take involve new and treacherous ground which for 90 years we have been able to avoid. Why now at this late stage should we take any of those steps? The Attorney-General has suggested, in my view quite properly, that the only appropriate course for the Senate to take is to refer the allegation of Mr Briese to the Director of Public Prosecutions, Mr Temby. In the end, where else could it go? Where else than to the Director of Prosecutions can a criminal allegation ever properly go? I can remember Senator Evans, in answer to a question in the last few weeks, speaking of robust exchanges between himself and Mr Temby, exchanges he referred to as appropriate for exchanges between a Minister and an independently-minded servant such as Mr Temby. I find that refreshing both because of Senator Evans's honesty in admitting that not all has been rosy in the garden and because it should demonstrate to us all that no one can possibly question Temby's independence of thought in a matter of this kind. His reputation, from all that I have been able to check, is unchallenged. I cannot find anything that even remotely enables us to question. He has been given the job of conducting an investigation into the allegation and I submit that his experience and his qualifications make it far more likely that he will do a better job than anyone in this chamber.

If Temby says 'No, there is not sufficient evidence to prosecute', and we are assured that this investigation can run for only something like 10 days, it is still within the prerogative of the Senate to have another look. Why is it necessary therefore to jump the gun and not wait even 10 days for Temby to finish, unless of course too many people here suspect that there is little likelihood of criminal charges being laid and they want the issue to go on? Really all we are seeing now is a tawdry exercise to make sure the issue goes on . The rights of Mr Justice Murphy, so sorely trampled on for so long, are now being completely discarded. The Senate is gradually making up its mind that in fact he has none, that even the rights of the ordinary citizen are long gone and that no longer can Mr Justice Murphy rely on them. If Temby were to say yes, we would have the situation which in a sense Mr Justice Murphy has already invited, because he quite properly had the courage to stand up and say to Mr Briese: 'If you have evidence, if you believe you have a legitimate complaint against me, take it to the police. If they lay charges, I will defend them in court'. When I read that, I thought to myself: Why has that not happened over the last six months, since this allegation first surfaced? Why does not anyone go to the police with it? Mr Briese apparently had these conversations years ago. I am not sure of the exact dates upon which they are alleged to have taken place, but it is a very long time ago. Why could he not go to the police with the information and find out whether he had a case that could stick? The reason I suggest he has not done so is that no such case exists. I do not believe any other conclusion can be drawn from his failure to come forward.

What sort of spectacle will we have if, during the 10 days Temby has said he will take, we have two inquiries running simultaneously? What sort of spectacle will that present to the Australian people of the propriety, indeed the intelligence, of those who sit on the red benches of the Senate? I think more highly of the Senate than that. I hope it is an action we do not see. Last Sunday in the Sydney Sunday Telegraph Laurie Oakes wrote a short piece covering this very spectacle, what he saw as the difficulties inherent in the steps being talked about last week and what might go on in the chamber during our deliberations. The first point he made was that, with criminal allegations, in the normal course of events there has to be proof beyond reasonable doubt. Suddenly in the Senate we have seen the balance of probabilities entering into the argument. His simple statement was: Why should a lesser standard of proof be required if the Senate takes it upon itself to be investigator, prosecutor and judge? That is a question Laurie Oakes has not had answered and it is a question I have not seen answered anywhere yet, certainly not to my satisfaction and, I would have thought, not to the satisfaction of the Australian people. Time and again in recent days we have heard from more and more legal authorities. The Council for Civil Liberties and more and more people are questioning why Mr Justice Murphy's rights can be so easily thrown aside. Until the Senate and the Australian people have had a proper answer to that question, I suggest the action contemplated by the Senate is not only improper but will also for centuries drag down the basic principles of British justice and we will all live to regret it.