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Thursday, 4 October 1984
Page: 1191

Senator DURACK(11.48) —I realise that the Attorney-General ( Senator Gareth Evans) might want to get his amendment in relation to the Solicitor-General out of the way first. I wish to speak about the remuneration of Family Court judges, but I might do that separately. The Attorney-General's amendment is another ad hoc, ad hominem type of amendment, if I may use a Latin tag in this place in this day and age. We have two matters before us in one debate today, about which I have considerable reservations. Senator Reid has already made some reference on behalf of the Canberra community, but my reservations are much wider than that. I am not in a position to say that the Opposition supports this amendment. On the other hand I do not think it is a matter on which we would want to register our opposition in a very determined way, such as by having a division. In fact, I am not in a position to speak on behalf of the Opposition because we have not had an opportunity to consider the amendment in view of the time since it was sprung on us. But I do not believe it is a matter of sufficient significance to require an adjournment to obtain its view.

I will express my own views on this amendment with the object of indicating that we do not believe that this is really an appropriate course to be taken. The problem arises, again, because of the way in which the present Solicitor- General was appointed. It appears that there was no real consideration of this question at the time of his appointment, otherwise presumably the matter would have been fixed up long before now. Indeed, it was the subject of some discussion at an Estimates committee meeting earlier this year. That indicates that the situation was in a state of flux at that time despite the fact that the Solicitor-General had been appointed from 1 January this year, and has now been in office for most of the year. If at the time of his appointment it was perfectly clear that he would be required to live in Canberra, unlike his predecessor with whom arrangements were made in the first place by the Whitlam Government which appointed him, the appropriate course would have been for that matter to have been resolved one way or the other at that time.

This proposal puts the Solicitor-General in a totally special position as far as statutory officers are concerned. A number of other important statutory appointments have been made by the Attorney-General in the last 12 months. I instance the Director of Public Prosecutions and the new Chairman of the Australian Institute of Criminology, both of whom have had some special but interim travelling arrangements. There is no suggestion whatever that they should be paid any ongoing benefit in the nature of a Canberra allowance. As Senator Reid has said, a Canberra allowance was paid to people coming to Canberra, at a time when there were real disadvantages for anybody having to come here. I suppose we had to encourage people to come to Canberra before it achieved the status it now has as the Australian capital and one of the country' s major cities.

Senator Gareth Evans —Who introduced it for the High Court judges?

Senator DURACK —I will come to the High Court judges in a minute. The idea that people have to be paid something extra for the burden of having to live in Canberra is rather odd. I would have thought it would be no more expensive for a person from Melbourne to come to live in Canberra, and it may even be cheaper. It would certainly be cheaper for people from Sydney to come to live in Canberra .

It seems to be a matter of strange principle that in this day and age a person appointed to a job in Canberra be paid an allowance. Other statutory officers do not receive any such allowance and public servants who come to Canberra, even people who come as permanent heads of departments, or secretaries as they should now be called, are no longer paid an allowance. Yet here we have this whole idea being revived by this Bill in respect of only this person. Senator Jessop has just spoken about the special advantages being granted in this legislation, as it is at present, to an office-holder. Despite what the Attorney said, it is a proposal at which some criticism can be levelled, as Senator Jessop has done. Here we have another example of where some special provision is being made available, fortunately in this case for only one statutory office-holder. Nevertheless, it is a provision which for that reason alone is even more subject to criticism.

Senator Jessop —It is a dangerous precedent.

Senator DURACK —This provision certainly is a dangerous precedent, and one is left to wonder why on earth it has become necessary. If it is done in this case, it will be clearly a precedent for other people in future cases. I do not know how we would stop. It may well be that in view of the high earnings of senior members of the legal profession a special salary package is required to attract these people to take on the office of Solicitor-General. This group is not confined by any means to one or two people, but certainly the present Solicitor- General belonged to that category. I think Senator Macklin had that in mind as the reason for this legislation. That did not apply to Dr Griffith. As far as I can ascertain, Dr Griffith was quite pleased to become Solicitor-General. He did not require any special salary package.

Senator Gareth Evans —You must have heard some different conversation.

Senator DURACK —At least he accepted the position. This is a situation of great interest, and obviously of great value, to leading members of the profession. No salary package was negotiated with him. The Attorney seems to be suggesting that Dr Griffith was not pleased to become Solicitor-General, and maybe he had to be persuaded.

Senator Gareth Evans —He was delighted to be Solicitor-General; the trouble is, he just woke up the next morning.

Senator DURACK —The fact of the matter is that no salary package was negotiated, or demanded. He may well have assumed that he was entitled to continue to live in Melbourne. But that was not his fault; it was the fault of the Attorney- General who did not make it clear to him that he had to come to Canberra. As I said, coming to Canberra is not in itself a significant financial disadvantage. On a purely financial basis, it could even be an advantage when coming from some parts of Australia. I am really addressing myself to the argument Senator Macklin has used, that the real problem in getting people to take these jobs is the provision of a salary package. I do not know whether this allowance is said to be some sort of a sop to the Solicitor-General, some sort of compensation for the fact that he woke up next morning, to use the Attorney's words. If that is the case, I am even more horrified by this proposal.

Senator Gareth Evans —No.

Senator DURACK —As I understand it, that is not the reason. I can well understand that we may have to change salary arrangements if we want to get the best people to take these jobs but that is irrelevant to whether or not they are expected to be in Canberra. The issue here is whether some special Canberra allowance should be given to this office-holder, after he has accepted and been appointed to the position. We have here an additional benefit over and above his salary or the salaries of any other people who come to Canberra. It is a completely wrong approach in principle and the only explanation of it is that there was a bungle by the Attorney-General at the time the appointment was made and Dr Griffith did not realise he had to live in Canberra. In view of the fact that his predecessor had lived in Sydney that was not an unreasonable assumption for him to make.

The Attorney seeks further to dress up this proposal by using the analogy of High Court judges. He seems to be anxious for that matter to be canvassed further. As I pointed out in my interjection, what has been granted to High Court judges is not a Canberra allowance as such; it is a non-Canberra allowance . It is an allowance the judges are given if they choose to remain living in their home city after their appointment. I suppose that is the only analogy one can make with Dr Griffith, and that is why I say it is the reverse of the Dr Griffith situation.

Senator Gareth Evans —Except that it is now applicable to all of them.

Senator DURACK —I do not think so. It is applicable only to those who do not live in Canberra. Am I right? I think what the Attorney may have in mind is that it was given only to those judges who were sitting on the court when the transfer occurred. Subsequently it was extended to all future appointments.

Senator Gareth Evans —That was the original intention.

Senator DURACK —Yes. It does not apply to those who choose to live in Canberra. That is an interesting analogy with the situation of Dr Griffith. I understand that two of the seven judges live in Canberra by their own choice. I do not know whether any others have elected to live in Canberra. The payment of this allowance to the High Court judges simply follows from a decision that they should be allowed to continue living in their home cities. When they come to Canberra, like anyone else who travels from home base they receive an allowance. In the case of the High Court judges, this lump sum was settled upon in lieu of their ordinary daily travelling allowance to which they would otherwise have been entitled, like any other public servant or member of parliament who is away from home overnight on the business of government or Parliament. The decision was made on the basis of very high policy considerations. (Extension of time granted) As I said, it was a matter of high policy considerations that High Court judges should be allowed-I might even say encouraged-to remain as part of the community in which they have always lived. They are not serving the Government, as are the Solicitor-General and other public servants who come to Canberra. They are members of the highest court in the land, the final court of appeal under not only Federal law but also State law. They are the interpreters of the Constitution. It was thought, in the highest considerations, that they should remain part of the general Australian community and not be confined simply to working out of Canberra and losing contact with the rest of the Australian community. Public servants travel around a good deal, even when they live in Canberra. If High Court judges live in Canberra they do not have the same opportunity of keeping in touch with the rest of the community. That was the reason for encouraging High Court judges to remain in their own cities. The High Court is in a unique position and it should not be used by way of analogy as an argument for this provision.