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Monday, 5 March 1984
Page: 351

Senator DURACK —I refer to the Attorney-General the answer he gave Senator Chaney on Friday when Senator Chaney asked whether he had arranged for tabling of the Age tapes and tapes transcripts. The Attorney, inter alia, replied that Parliament's responsibility in relation to conduct of the judiciary begins and ends with the Parliament's role in relation to section 72 of the Constitution relating to misbehaviour and incapacity. Apparently the Attorney's view is that that is circumscribed in a very narrow way, as is the view of the Solicitor- General given in the opinion. Does the Attorney-General agree that a reading of the Constitutional Convention debates shows the overwhelming majority of the founding fathers of the Australian Constitution were of the view that Parliament and Parliament alone should have the final say on the question of judicial misbehaviour? In particular, I draw the Attorney's attention to a view of the then Mr Isaacs, the Attorney-General of Victoria, who said on 31 January 1898:

You must not allow the solemn verdict of the two Houses of Parliament on this question to be challenged elsewhere--

There were numerous other opinions to that effect by those who took part in the debate. How can the Attorney-General, in the light of all this and the Solicitor -General's own reference to the Convention debates in his opinion-although he did not mention these-justify his refusal to provide the factual material contained in the Age tapes and transcripts on which Parliament can decide, as it alone has the responsibility, the question of judicial conduct?

Senator GARETH EVANS —I readily agree that the determination of whether something is a matter of misbehaviour in relation to section 72 of the Constitution is something for Parliament and not the courts and that the Convention debates were very careful to draw this distinction and in particular to insist upon an approach to this question which is very different from that which applies in Britain, the mother of parliaments, where the ground rules that are capable of being applied by the Parliament are very much more wide-ranging so far as the judiciary is concerned than the ground rules that have been thought appropriate in the Federal, written constitutional system here in Australia. Certainly I have no quarrel with the references to the flavour of those parliamentary debates that Senator Durack has made. However, if he reads the debates exhaustively and appreciates the context in which the arguments were being put and, moreover, if he focuses on the particular language employed in 72 (ii) of the Constitution, which talks not of misbehaviour at large but of proved misbehaviour, he will, I think, appreciate the force of the option of the Solicitor-General, Dr Gavan Griffith, that Parliament is not at large, it is not at liberty, to apply any criterion that occurs to it as appropriate in order to determine what misbehaviour might mean. A lot of learning has gone into that conclusion. It is not simply a matter of some intuition by the Solicitor-General ; it is a very carefully argued out conclusion, which I suggest follows quite inexorably from the materials to which he refers and from the whole course of Australian jurisprudence on this matter.

It is the case that Parliament is and should be circumscribed as to the matters that it can take into account. What Dr Griffith's opinion makes perfectly clear- this is consistent with what Mr Temby had said, rather more briskly, before him- is that there are only two sorts of circumstances in which it is appropriate for Parliament to pray for removal for misbehaviour. One is when there is some misbehaviour properly described as attaching to the performance of the judge in his judicial office. That is clearly not in issue in the circumstances of this case. The other criterion that is applicable is whether or not there is misbehaviour in the sense of criminal misconduct, some offence, not necessarily one that has been dealt with by the courts but one that might be dealt with by the courts, which is of such a character that it is obviously quite inappropriate for a judge to stay in office. They are the only two circumstances and situations to which it is proper for this Parliament to have regard.

When those two situations have been quite explicitly ruled out in the way that has been the case with Mr Temby's opinion, looking both at the law and the facts , and the Solicitor-General's opinion, I simply do not regard it as appropriate to go down the exploratory route that the Opposition is inviting me to follow. To do so is simply to give aid and comfort to those who would reduce the standard and tone of political debate in this country, and it does no credit to those who are seeking to follow that course.