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Thursday, 29 November 1973
Page: 2303

Senator MURPHY (New South WalesLeader of the Government in the Senate and Attorney) (General) - The honourable senator has referred to this matter a number of times. It ought to be put into some perspective. The fact is that this practice was established under the Government of which he was a member. On an earlier occasion he said that he was not aware of it- that there was some committee of the Cabinet.

Senator Wright - It was not established when I was a member of the Government.

Senator MURPHY -Well, then, it was established before the honourable senator was a member. The honourable senator said that he was not aware of it. It is no use his coming in here and thundering about the matter, saying that it is terrible and asking for all sorts of assurances. If there ought to be an alteration, then let it be made. But let it be clear that this was established under the previous Government- probably for sensible reasons.

Senator Webster - Who benefited from it previously?

Senator MURPHY -There was a list of other persons. I do not have it with me now. It was given to the Estimates Committee. This procedure was established under the previous Government. If there is to be a change in the procedures and it is to be done by an Act of Parliament, then let it be done by an Act of Parliament, that is to say, by special provision. But here it has been brought into the appropriations. There are some errors of fact in what has been put by Senator Wright. I ought to explain that he is in error in saying that it was Mr Whitlam 's decision. As a matter of strictness, it was a decision of the Executive Council. The Governor-General in Council decided that the payment should be made. That is my recollection of the matter.

Senator Greenwood - The correspondence says it was 3 Ministers only.

Senator MURPHY - I understand that it went to the Executive Council. Whoever the 3 Ministers were, it was formalised. In any event, it is brought into a Bill and put before Parliament for its endorsement. As to the person concerned, whether it affects the principle or not, at least we ought to be clear that he was occupying a nonjudicial office. If ever anyone ought to know, the honourable senator should know that the office of a judge of the Court of Conciliation and Arbitration is a non-judicial office. It was declared in the great boilermakers case to be an administrative office. The other office- the President of the Commonwealth Conciliation and Arbitration Commission- also is a non-judicial office. That may not affect the matter significantly but at least the facts ought to be clear instead of the honourable senator constantly asserting that it is a judicial office. It is not a judicial office. It may be that the principle he asserts should apply to non-judicial offices. I am not questioning that. But let us be clear that both offices held were non-judicial offices.

The payments were made and the reason for the payments has been dealt with in the Estimates Committee. The President of the Commission said that during his time as President he was unable to take his long service leave because of the requests made by the Government to spend his leave in settling industrial disputes. Thereby he was deprived of his leave at the request of the Government. The amount to which he was entitled was somewhat in excess of 2 years and a payment was made which was the equivalent of 2 years' salary.

Senator Durack - Would it be taxable?

Senator MURPHY -I imagine that it would be taxable in the same way as any other such amount. The same principle would apply. Maybe only portion of it was taxable. But whatever it was, the President of the Commission would be under the same rule that applied to anyone else. Here was an appointment made by the previous Government. Records were kept, a request was made by the previous Government and a principle was established that payments could be made in respect of accrued long service leave. There was some extension of this principle by this Government because of the request made, the reasons for which were advanced. I take it that the honourable senator does not dispute the facts of the matter. He is not going so far as to assert that the President did not accrue a period in excess of 2 years long service leave. The Government considered that in those circumstances he should be paid the amounts. That is how the matter arose. I would think that it ought to be covered by legislation. This would be the reasonable course. But to me there seems to be no basis for making an enormous fuss about a practice which was in substance instituted by the Government of which the honourable senator was a member.

Senator Byrne - Would you think of commending to the Government the introduction of legislative procedures to cover this sort of practice?

Senator MURPHY - Yes. I have already said that. I said at a meeting of the Estimates Committee that I think it ought not be left to decision in this way. All these matters ought to be covered by legislation. I am on record as taking the view that this ought to be covered by legislation. Senator Wright has wanted to achieve that approach on both sides of the chamber and I accept that. Let us clear some things out of the way. This is not an undermining of the independence of the judiciary because, in strictness, he was not a judicial officer, he was a non-judicial officer. But I think the procedures ought to apply to such an officer as well as to judicial officers and that it ought to be covered by legislation. Ought not that to be the end of it instead of its being carried on week after week?

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