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Wednesday, 1 December 1965

Mr WHITLAM (Werriwa) .- Mr. Temporary Chairman,the proposition that all members of the Trade Practices Tribunal should give to the Attorney-General written notice of all direct and indirect pecuniary interests that they have or acquire in any business carried on in Australia or in any corporation carrying on any such business is eminently reasonable. I do not consider that the President of the Tribunal should be excluded from this requirement. Therefore, as an amendment to the amendment proposed by the honorable member for Moreton (Mr. Killen) I move -

Omit " other than the President ".

If our amendment is agreed to, we shall then ask the Committee to divide on the proposition that all members of the Tribunal should declare their interests. If the Committee does not agree with our contention on this matter, we on this side shall support the more limited proposition of the honorable member for Moreton that members of the Tribunal other than the President be required to declare their interests.

The Committee has already rejected on the voices the Opposition's proposal that members of the Tribunal hold fixed terms of office, as was proposed in the Bill as it was brought in last May. The Committee has rejected also our proposal - which became superfluous - that members of the Tribunal should not be directors of companies and that no director of a company should be appointed a member of the Tribunal. However, the amendment moved by the honorable member for Moreton and the amendment to the amendment which I have proposed would not disqualify members of the Tribunal. They would merely enable the Attorney-General to know the interests - perfectly proper interests - that part time members of the Tribunal may have in various enterprises.

Mr Hulme - The Minister is the only one who would know.

Mr WHITLAM - Hisofficers and all the other people who advise and assist him in carrying out his duties would know the fact, too. This would ensure that persons would not be appointed to determine matters in respect of which they might not appear to be completely uncommitted and impartial. The old proposition that justice not only must be done but also must appear to be done ought to apply to this Tribunal as fully as it does to the courts and the increasing number of administrative tribunals that we have in Australia. I press my amendment, which is designed to ensure that the President of the Tribunal shall not be excluded, merely because he is a judge, from the requirement that interests be disclosed.

Mr Freeth - The honorable member proposes to apply to the President a standard different from that applied to judges in any court.

Mr WHITLAM - It is true that judges do not have to declare their interests when they are sitting as a court. Nevertheless, in this instance, judges would be sitting in essentially commercial matters. Therefore, it becomes of more moment that their interests be known. It is perfectly legitimate for judges, their wives or their children to have investments. Generally judges are most scrupulous in refusing to sit on cases in respect of which they may appear to have some particular interest. I recall that before the war when the Supreme Court of New South Wales was drawn from a body more restricted than that from which it is drawn now there was a period of some years during which a judge could not be found to sit in a case between the Commissioner of Taxation and the Royal Sydney Golf Club because all the judges were members of that club. So seriously did the judges take their obligation that they were not available to sit in the case. However, there was a case, which honorable gentlemen will well recollect, in respect of which a different view was taken. This was the Banking case. Mr. Justice Starke and Mr. Justice Williams had direct or indirect pecuniary interests in some of the parties. Nevertheless, they sat.

Mr Bowen - They declared their interests.

Mr O'Connor - But they still sat.

Mr WHITLAM - They still sat. It would have been better if they had not done so.

Mr Bowen - The parties did not object.

Mr WHITLAM - That is true. But are parties to be in .the position of objecting or should judges abstain from putting themselves in this position? Why should parties have to play the role of dogs in the manger by objecting in these circumstances?

Mr O'Connor - At the time, objections to the judges sitting were made in this chamber.

Mr WHITLAM - My recollection is that the Solicitor-General called on them in chambers before the court sat.

Mr Daly - They still sat.

Mr WHITLAM - They persisted in their intention to sit. At all events, we on this side of the chamber want to avoid the occurrence of that sort of situation in respect of the Trade Practices Tribunal. Judges are entitled to have investments. However, when judges are being called, summoned, or invited to sit on the Tribunal the persons extending the invitation or requesting that they sit should be aware of their interests and thus be able to avoid embarrassing them.

Mr Freeth - The honorable member's amendment will not prohibit judges from sitting because they have interests and those interests have been disclosed.

Mr WHITLAM - No, but it will mean, if it is agreed to, that the Attorney-General and his officers, who would be charged with calling the Tribunal together-

Mr Snedden - That is not so. They do not call it together.

Mr WHITLAM - Who does call the Tribunal together?

Mr Snedden - Since the honorable member has proposed an amendment on the matter, one would expect him to know that the President of the Tribunal will constitute Divisions of it.

Mr WHITLAM - There have been several consequential matters flowing from the fact that this is to be a Tribunal of part time members instead of members with fixed appointments. So far as I can recollect, nothing was said in the Minister's second reading speech and nothing appears in the Bill to suggest how the Divisions of the Tribunal are to be constituted. At all events, if the amendment moved by the honorable member for Moreton, amended as I propose, is agreed to, any consequential amendments can be inserted in the Bill. Does any honorable member suggest that the President of the Tribunal, because he is a judge, should be able to sit on a matter in which he has a direct or indirect pecuniary interest?

Mr Hulme - Some people might want him to. A furniture manufacturer might want a furniture manufacturer to sit, because such a person would know the business.

Mr WHITLAM - Maybe and maybe not. The declaring of an interest will impose no disqualification. The interest should be known. I suggest that there should be no greater immunity in this respect for a judge who is a member of this Tribunal than there is for a layman. At all events, honorable members can declare their attitude to the proprieties in this matter. We have proposed our amendment to the amendment moved by the honorable member for Moreton in an endeavour to ensure that all members of the Tribunal declare their direct or indirect interests. If our amendment is rejected we shall support the more limited proposal embodied in the amendment moved by the honorable member, which will require members of the Tribunal other than the President to declare direct or indirect pecuniary interests.

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