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Wednesday, 28 March 1984
Page: 767


Senator DURACK(10.33) —I move:

(1) That a Select Committee, to be known as the Select Committee on the Conduct of a Judge, be appointed to inquire into and report upon-

(a) whether any or all of the tapes and transcripts delivered by The Age newspaper to the Attorney-General on 1 February 1984 are authentic and genuine; and

(b) whether the conduct of the judge as revealed in the tapes and transcripts referred to in sub-paragraph (a) constituted misbehaviour or incapacity which could amount to sufficient grounds for an address to the Governor-General in Council from both Houses of the Parliament praying for his removal from office pursuant to section 72 (ii) of the Constitution.

(2) That the Committee consist of 6 Senators, as follows:

(a) three to be nominated by the Leader of the Government;

(b) two to be nominated by the Leader of the Opposition in the Senate; and

(c) one to be nominated by the Leader of the Australian Democrats.

(3) That the Committee proceed to the despatch of business notwithstanding that all members have not been duly nominated and appointed and notwithstanding any vacancy.

(4) That the Committee elect as Chairman one of the members nominated by the Leader of the Government.

(5) That the Chairman of the Committee may, from time to time, appoint another member of the Committee to be the Deputy-Chairman of the Committee, and that the member so appointed act as Chairman of the Committee at any time when there is no Chairman or the Chairman is not present at a meeting of the Committee.

(6) That, in the event of an equality of voting, the Chairman, or the Deputy- Chairman when acting as Chairman, have a casting vote.

(7) That the quorum of the Committee be three members.

(8) That the Committee have power to send for and examine persons, papers and records, to move from place to place, to sit in public or in private, notwithstanding any prorogation of the Parliament or dissolution of the House of Representatives, and have leave to report from time to time its proceedings and the evidence taken and such interim recommendations it may deem fit.

(9) That the Committee be provided with all necessary staff, facilities and resources.

(10) That the Committee be empowered to print from day to day such papers and evidence as may be ordered by it, and a daily Hansard be published of such proceedings as take place in public.

(11) That the Committee report to the Senate on or before 31 May 1984.

(12) That the foregoing provisions of this Resolution, so far as they are inconsistent with the Standing Orders, have effect notwithstanding anything contained in the Standing Orders.

On 8 March last I moved in the Senate for the appointment of a Joint Select Committee to consider the same matters that this motion proposes should be examined by a Senate Select Committee. That motion commended itself to the Senate and it was transmitted on that day I think to the House of Representatives. In moving that motion in this chamber on 8 March last I referred to the extensive debates, discussions, questions and answers to questions that had taken place in the Senate over the two weeks leading up to 8 March which I then said and still believe clearly delineated the issues which the proposed Joint Committee and now this Committee should consider.

I pointed out in that debate that the Opposition was concerned that this matter should be dealt with in a calm and rational way and outside the considerations of the New South Wales election. Included in the previous motion was the point that the inquiry should not commence until after the polling day of the New South Wales election. In that debate the Opposition was at pains to emphasise that it was important that the material should be authenticated by any such committee, that no findings should be made without proper evidence to support them and that, as I said, the matter should be dealt with in a calm and rational way as befitting the very important considerations which were before the Parliament.

As I said, some amendments were made to the motion proposing the appointment of such a committee which were acceptable to me. The resolution of the Senate was conveyed to the House of Representatives. I pointed out also that the Opposition believed that a joint select committee was the most appropriate way of dealing with the problem. It was conceded by both sides of the Senate that this matter was the responsibility of and a major role for both Houses of Parliament. That is why the proposal was for the appointment of a joint select committee. We pointed out, however, that it would be appropriate for the Senate to embark upon an inquiry of that kind on its own but that the most appropriate method of proceeding would be for the appointment of a joint committee.

Prior to the House meeting yesterday to consider the Senate's message for the appointment of such a joint committee, the Prime Minister (Mr Hawke) had unfortunately announced that the Government would not accept that proposal but that it would be prepared to participate in a Senate committee if the Senate established such a committee. In accordance with the Prime Minister's views expressed several days ago, when the House of Representatives considered the message from the Senate yesterday it rejected the proposal for the joint committee to which I have referred. We are now confronted with what I believe is a second-best solution to the problem.

However, the fact that we are now faced with that situation is the responsibility of the Government and particularly the Prime Minister. The Prime Minister went to great pains to denigrate this whole exercise. He made absurd statements about the prostitution of Parliament, abuse of power and so on. So absurd were those propositions that his own Attorney-General (Senator Gareth Evans) conceded in this chamber, albeit somewhat belatedly and perhaps reluctantly, that the ultimate responsibility for the conduct of a judge-whether it constitutes misbehaviour within the Constitution-resides with the Parliament; it does not reside with the Executive. Certainly it does not reside with the public servants and advisers to the Executive such as a Solicitor-General or a Director of Public Prosecutions. It is a responsibility of the role of the Parliament. In the light of that accepted view of Parliament's role and power and responsibility, in the light of the Attorney-General's concessions to that effect-what qualifications he may make upon them is another matter-how the Prime Minister can allege that there is an abuse of power on the part of the Parliament or whatever is really incredible and absurd. It is clear that the Prime Minister has no concept whatever of the status and role of the Parliament. I think the sooner that message is made clear to the public of Australia the better.

The proposal for the establishment of the Select Committee is one which I think is made responsibly by the Opposition. We are proposing that the Government should have three of the six members of the Committee and that one of the Government members should be its Chairman. That is in accordance with the traditional composition of Senate committees, whether they be standing committees or select committees, regardless of the state of numbers in the Senate chamber. This is a tradition. One might say that it is becoming almost a convention in this chamber in relation to its committee system, of which we are very proud. I think that the Senate is very rightly proud of the system that has been established. We are not proposing any disturbance whatever of the balance of membership of a committee. As I said, the Committee will have three Government members, two Opposition members and one member of the Australian Democrats. Incidentally, Senator Harradine, who may well be entitled to representation on a committee of this kind, indicated in the previous debate that he would not be available, for reasons he then mentioned, to serve on this Committee.

I wish to mention one or two other aspects of the motion I have moved. I refer in particular to the part which states that the Committee may sit in public or in private. That is a general rule that applies to committees, and I think Senate committees have acted very responsibly in exercising that power. Clearly, the Senate is a public forum. Clearly, it is desirable that as far as possible Senate committees sit in public, as does the Senate. Nevertheless, over the years that the committee system has been operating, it has been recognised, rules have been clearly developed and precedents established, that in some cases committees need to sit in private. No doubt there are considerations in this case which will clearly indicate that the Committee should sit in private. That is a matter for the Committee itself to determine. Committees have sufficient responsibility and well established traditions for them to be relied upon to exercise that power in a responsible manner.

Another point about my motion that I wish to emphasise is that it provides that the Committee report to the Senate on or before 31 May 1984. That is a very important aspect of my proposal. This issue should not be allowed to lie around any longer. As I said earlier, and as I said on 8 March, the issues have been clearly delineated. It is important now that the Parliament, whose responsibility is now recognised and accepted by everybody apparently except the Prime Minister, should proceed promptly to grasp the problem, come to a conclusion on it and make a public report as soon as possible. It may be that the period allowed of virtually two months will be a very tight one. Circumstances may arise, particularly with regard to proving authenticity of the material or part of it, which cause delays. It may be difficult to meet that deadline but I sincerely hope that the Committee can do so. Of course, we fully appreciate that, if it cannot, it has the power to come back to the Senate and ask for an extension of time. But I cannot overemphasise the need for this matter to be dealt with promptly, efficiently and certainly without any unnecessary delay and, desirably, for the Committee to report within the period of two months that I have emphasised.

I have already mentioned the denigration of Parliament by the Prime Minister. I suppose he was directing his views at the Opposition in the comments he made in very general terms about the prostitution of Parliament and so on. But we have had another entirely gratuitous commentator on this exercise-a man who seemed to believe that the Senate would take an interest in him, which I thought was a rather remarkable assumption on his part. I refer to the recently elected Premier of New South Wales who, no doubt in a fit of satisfaction about being re -elected even with a much reduced majority, largely due to the low esteem in which he is held by the New South Wales electorate, decided that he would go public about this exercise in the Senate and called it a kangaroo court. That was a total insult to this chamber by no lesser a person than the President of the Australian Labor Party, two or three days after the Prime Minister had said that the Government would participate in the exercise. The Premier was presumably suggesting that the Labor members who participate in this exercise will be taking part in a kangaroo court. I mention that because I think that clearly the proposal that the Opposition is putting forward is very far removed from any such appellation or criticism.

For the reasons I have indicated, the Government is to have the control and the chairmanship of this Committee, which will conduct its inquiry in accordance with the highest traditions of the Senate. Mr Wran, the President of the Australian Labor Party, should be nothing less than ashamed of himself for the comments he made about this institution, this Parliament and the Senate. I am very pleased to see that the Australian newspaper this morning, in a very fine editorial indeed, made that point very clearly and indicated that the Opposition 's proposals are 'sensible and moderate'. It also made the very important point that:

The contents of the tapes are such that doubts have been raised in the minds of many people, including impartial observers with no partisan axe to grind, as to the propriety of the behaviour of a member of the highest court in the nation.

These are very serious issues indeed. I believe the proposal I am making is consistent with the exercise of a very heavy responsibility of the Parliament, and now of this chamber following the refusal of the House of Representatives and the Government to exercise properly that responsibility and to participate in a committee in the way that we previously proposed. As I have said, this is a second best and it is unfortunate that it has to rest on the Senate. But we should not shirk that responsibility.