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Thursday, 2 December 1965

Dr MACKAY (Evans) .- As has been indicated by the Attorney-General (Mr. Snedden), this question has exercised the minds of all parties in the House. One of the points that has come from the debate and about which we can all be gratified is the recognition of the integrity and high sense of responsibility which attaches to the judiciary in this country and the delight that the presidential member of the Tribunal shall have the rank and dignity of a judge. Nevertheless there has been disquiet about the role of the lay members, if I may use that term. These men may have spent a lifetime in the cut and thrust of business with its interlocking interests. The public press today affords many opportunities for us to see examples of the way in which large business concerns and very prominent public names have been associated with events in the business world that have come to an unhappy conclusion. Yesterday in the New South Wales State Parliament the AttorneyGeneral was subjected to what I feel were revolting innuendoes in an Opposition question. The uniform company law of New South Wales contains many sections directing scrutiny of the interests of directors. For instance, section 123 forces disclosure of any interests related to deals or contracts made by a company. In sub-section (5.) it states -

Every director of a company who holds any office or possesses any property whereby directly or indirectly duties or interests' might be created in conflict with his duties or interests as a director shall declare at a meeting of directors of the company the fact and the nature, character and extent of the conflict.

This is exactly the kind of requirement that we introduce in this new clause. We have agreed that having part time members may be a good thing in some regards. I have already expressed reservations, for a variety of reasons, about the wisdom of all lay members being part time members. One of the chief reasons is that not only should justice be done but it should be seen to be done. There should be no grounds provided for vicious criticism such as has been seen in the last few hours in the New South Wales Parliament, nor for suggestions of collusion between business executives, even on matters of principle, before the Tribunal.

I have appealed to the Government to consider making provision whereby a member shall, on being approached to sit on any matter, make known to the President in a confidential statement any interest he may have which bears directly or indirectly on matters that are likely to affect the issues before the tribunal. This would lease to the judgment and discretion of a presidential member the decision whether any individual ought to be appointed at all. I concede that there are times when it might well be in the public interest to have a member of the Tribunal with close personal experience of and interest in a matter being decided, but at least the

Presidentof the Tribunal should be aware of that interest. This does not require a blanket disclosure of all a member's interests large and small, because that could be tedious and repetitious and could interfere unnecessarily with private and personal liberties. It means that a panel member is free to decline a particular appointment without giving further reasons or disclosing his private interests. It means, moreover, that the great mantle of integrity that we all agree is possessed, most happily, by the judiciary will be thrown over the whole Tribunal, because knowing the facts the President of the Tribunal will be able to guarantee that integrity. This provision would be queried and challenged, I believe, by only the ignorant or the vicious. I have appealed to the Government to give some thought to this proposal and I now move -

That the following new clause be inserted in the Bill- " 19a. When a member, other than a presidential member, is informed by the President that the President proposes that the member shall be a member of a Division of the Tribunal in any proceedings, the member shall, to the best of his knowledge, disclose to the President any direct or indirect pecuniary interest that the member has in any business carried on in Australia, or in any corporation carrying on any such business, being an interest that could be in conflict with his duties as a member of the Tribunal in those proceedings."

Mr. WENTWORTH(Mackellar) [3.21J. - I am glad that this new clause, which the Government is prepared to accept, goes at least halfway and removes some of the defects in the Bill. I am glad, too, that it arose out of a debate initiated last night. Nevertheless I do not think the proposal goes quite far enough and I am therefore going to move as an amendment to the amendment, as follows -

At the end of the clause add the following words: - " and if the President decides that such member shall nevertheless be invited to sit, he shall disclose to all parties to the matter that such an interest exists and thereupon any party to the matter may require that such member shall not sit in t:;at matter."

This seems to me to be an answer to the hypothetical objections raised by the honorable member for Evans (Dr. Mackay) and by the Attorney-General (Mr. Snedden). It will cure possible abuses or suspicion of abuses that might arise under the proposal now before the Committee. It is essential that the parties should know that one of the members of the Tribunal has an interest. It is not essential that they should know the full extent of that interest if they concur in his sitting. The honorable member for Evans pointed quite rightly to something with which this Committee has already agreed - that sometimes in this kind of tribunal, as opposed to a court, a member having an interest should nevertheless be invited to sit. However, it is contrary to natural justice that he should sit unless the parties to the matter know that he has an interest, though not necessarily the extent of it, and concur in his sitting. I believe that in almost every case they will so concur, but by force of natural justice these decisions should not be made in secret. However great the integrity of the presidential member might be, he should not be called upon to carry the responsibility of making in secret a decision of this kind, because this would lay him open in the future to the most vehement criticism. I recall again to the Committee the example of an import licensing tribunal given by the honorable member for Moreton (Mr. Killen). In that case a member who had interests unknown to the parties sat. There is no evidence that that interest corruptly or improperly influenced him. There is no evidence before us that he did not tell the president of the tribunal in advance. He may have done so. The whole thing may have been quite proper, but it did not appear to be proper and the party to the case had a very justifiable grudge against the justice of what he had been called upon to suffer.

In natural justice, the party to the case is entitled to know whether one of the persons sitting on the Tribunal has an interest in the case. It is wrong to put on to the presidential member the responsibility of making this decision for the parties. The parties have a right, themselves, to make this decision. There is a conflict as to the understanding of the Government's proposals in the mind, on the one hand, of the honorable member for Evans and in the mind, on the other hand, of the honorable member for Moreton. I understand that the honorable member for Moreton believes that the President being of a judicial background, he will make this disclosure. The honorable member for Evans believes that having received the matter in conference, the President will not make the disclosure.

Mr Killen - The honorable member did not say that.

Mr WENTWORTH - I understood that to be the implication of what the honorable member was saying. We have no right to put this kind of responsibility on to the presidential member. If we are to put a duty on him the statute must say what that duty is. My amendment to the new clause proposed by the honorable member for Evans is open to none of the objections that he raised, because it does not require a man to disclose his private affairs at any stage. If he does not want to do so, he does not sit. That is the end of it. If he wants to sit and an objection is made, he still is not under any obligation to disclose his own private affairs. I ask the Committee, as the guardian of natural justice, to try to get away from this hole in corner practice; to try to get away from putting on to the presidential member the responsibility for making a decision without giving him any guide as to the principles that he should follow in making it. I hope that the amendment will be acceptable to the honorable member for Evans and to the Government. I will be interested to hear what the AttorneyGeneral has to say about it.

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