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Wednesday, 21 May 1980
Page: 3032


Mr LIONEL BOWEN (Kingsford) (Smith) - I second the amendment. I do so in the terms of what the Leader of the Opposition (Mr Hayden) has clearly indicated to the House, namely that the Opposition is not at all satisfied with the Government's approach to this matter. Perhaps the Government might take some refuge in the fact that the Committee that it has set up -


Mr Yates - I rise on a point of order, Mr Deputy Speaker. Is the honourable member for Kingsford-Smith seconding the amendment?


Mr DEPUTY SPEAKER -The Deputy Leader of the Opposition is seconding the amendment.


Mr LIONEL BOWEN -I think the honourable member for Holt knew that- his point of order was just a ploy to cause an interruptionotherwise I would not be on my feet. I make the point that we are anxious to debate this matter in an impartial way because the propriety of the public duty and private interests has got to be acceptable to the people of this nation. It is not a matter of being acceptable to a government or an opposition, or both; it is a question of what the people of the nation expect of us.

I had a chance to make a few comments on this report when it was introduced, as the Leader of the Opposition said, on the last day of the session last year. We are debating it again virtually on the last day of the session this year. Not every honourable member got a chance to talk on it last time, but on that occasion I was able to indicate that the opposition was not satisfied because the report did not grapple with the problems we felt it could solve easily. We made it very clear that as a government we would introduce an obligation to disclose all shareholdings, all interests, all gifts, all liabilities, not only of ourselves but also of our spouses and dependent children. We said also that it was important for this to be done immediately. We said that there should be a public declaration by members of parliament of their interests, including their incomes and liabilities. That is a clear statement. That information should be available to the public. This will not happen under the recommendations that have been made by what is called the Bowen inquiry.

The other more significant point to which I want to address my remarks relates to the fact that if we leave the procedure as it is at the present time, we will not even be keeping pace with the rest of the world. We will not even be keeping pace with other States in Australia in what they regard as being an obligation of members of parliament to disclose their pecuniary interests. Even in local government, as you would know, Mr Deputy Speaker, an alderman is obliged to announce immediately to the council meeting whether he has a pecuniary interest in a matter. That means that if one is a legal officer in a firm which has some interest in a building application simply because the firm has a client, nevertheless one is deemed to have in interest. The legal profession naturally seems to have more obligations of onus in this regard because it has to act for people. Once a person in the legal profession acts for people, he comes to the point of getting a fee. So there could be a pecuniary interest. Therefore, the matter dealt with in the second part of our amendment is something that really has not been grappled with at the present time.

The inquiry was established in December 1977 by the Prime Minister (Mr Malcolm Fraser). He made a Press statement, and that is very significant because we had what was then known as the Lynch problem or the Lynch scandal. That matter involved a quick capital gain being made out of a land sale option under which a Minister of the Crown achieved a remarkable increase in capital. This caused a public outcry and the Minister was obliged to step down. Following the election the Prime Minister said: 'I think something has to be done about the situation.' He went on to say: 'There must be a procedure whereby obviously a high standard is maintained by those people in public office '.

It follows from what has been said already that everybody thinks that the only people in public office who have to maintain a high standard are politicians. Even the report of the inquiry downgrades us on the basis that most people hold politicians in some sort of derision or cynicism. We are usually the butt of some cartoon figure or somebody who suggests we need a higher intelligence quotient. When it comes to a politician making money, he is deemed to be rogue and a thief. We can be all those things. We face one test, and that is that the public ought to be informed about our behaviour, our assets and those of our spouses and our children. In other words, we are subject to this test. We are also subject to the test of having to be re-elected every two or three years, and that is important.


Mr Goodluck


Mr LIONEL BOWEN -The reason is that honourable members are in a position of trust which they can exploit and, therefore, they are in a position of making gains. The Lynch situation clearly indicated that there had been a rezoning of land which might well have created an impression in the public mind that somebody had special knowledge or some special reason to get it rezoned. That was the clear indication. It was the reason that the Prime Minister had to set up this inquiry.

Let me deal with the other aspects about which we ought to talk in relation to this amendment; that is, that there ought to be the establishment of an inquiry to draft some legislation which prescribes standards of behaviour for the Australian judiciary. That has not been done. I am not here just to criticise the judiciary, but the gaps are enormous. The committee adverts to that fact in paragraphs 11.6 and 11.7 of its report. In paragraph 1 1.6 it said:

It is now accepted that judges should not engage in business or in any way be associated with business insititutions, for example as director, trustee or adviser. The law disqualifies a judge who has a pecuniary interest in one of the parties before the court . . .

That is very clear. However, in paragraph 11.7 the committee concluded: . . . that there was no discernible need for such extension of the existing rules, which, in the Committee 's opinion, render extremely unlikely the possibility that a conflict of interest involving a member of the federal judiciary might develop . . .

The Opposition makes it clear that that is not the situation. We think, and we believe the public would think, that such a conflict of interest certainly has been brought to light. This was not done by the Opposition as a political group agreeing to bring the matter before the Senate. It was done by Senator Evans when talking about the Chief Justice. The Opposition did not know anything about it. Having been brought to light, the Prime Minister indicated in this House that there was no problem because he had a letter from the distinguished Chief Justice clearly indicating that there was no infringement of the provisions. We are not here to argue the merits of just that case. It goes without saying that we should talk about the standard of judicial tests and what should be done when there is a conflict of interest. The most significant statement made is that made by Sir Winston Churchill. Referring to judges, he said:

Far more freedom is granted by the convention of our way of life to Members of Parliament, to Ministers or to Privy Councillors. The Judges have to maintain a far more rigorous standard than is required from any other class that I know of in the realm.

That is important because judges are appointed on a permanent basis. They are not subject to public review; they are subject to parliamentary review. There has to be fairly substantive evidence as to what a judge might have done wrong before a Parliament- that is both Houses- can remove him from such an appointment. There should be a public disclosure of the judicial interests which might exist and which could well affect the justice of the situation. A very good test was given by no less a person than the Chief Justice in collaboration with Justices Gibbs, Stephen and Mason in what was known as ex parte Watson. The test in that case is admirable. The joint judgment states:

The view that a judge should not sit to hear a case if, in all the circumstances, the parties or the public might reasonably suspect that he was not unprejudiced and impartial and that if a judge does sit in those circumstances, prohibition will lie is not only supported by the balance of authority as it now stands, but is correct in principle.

That is the test we want to see brought into a statutory situation here because it has not applied in the High Court in regard to the matters that were raised in the Senate. It is no good arguing; it just has not applied because there was no public declaration of pecuniary interest. If we start talking about pecuniary interest, we have to talk about the assets of a company and we have to talk about whether one enjoys the benefits of those assets. If one does, as was pretty clear one would have an interest. It is no good the Minister for Home Affairs (Mr Ellicott) coming into the House and saying by way of explanation:' Well, of course in the bank nationalisation case there were also judges who had financial interests.' The great distinction there was that the judges in the bank nationalisation case declared their interests in advance. It is not fair or-compatible to say: Well, of course the same situation arose in the matters that were debated in the Senate'. It did not. There was no declaration of public interest. There is a lot of disquiet at present in this nation because of a number of incidents that have occurred since November 1975. Not only did they affect the appointments of people to judicial office because of opinions then given without being asked for, but they certainly affected the nation. The question of the Sankey case comes right into that thrust. Four Ministers of the Labor Government were prosecuted. The question arises: What was the interest of a government in that prosecution? Who financed it? The whole thrust of public disclosure -


Mr Viner - The Government financed the defence.


Mr LIONEL BOWEN -The Government financed the defence! I am delighted that the Minister acknowledges that. I know that. But we had a lot of trouble getting the point -


Mr Viner - How can you then imply that the Government financed the prosecution?


Mr LIONEL BOWEN -The point I want to make is that -


Mr Viner - That is a false implication.


Mr LIONEL BOWEN -It is not palpably false. If the Minister looks at Hansard of July 1975 he will see that one of his Ministers suggested that there ought to be a prosecution for conspiracy. That is the point. Does the Minister think that it is a coincidence that the four Labor Ministers were charged to appear in a Queanbeyan court on a return date which was the same date as Mr Bjelke-Petersen had convened the Parliament of Queensland for one special purpose on that day? This is your challenge, Mr

Minister. The Government has been asked before to hold an inquiry into who financed this prosecution. There is a beneficial interest to a government if it can malign members of the Opposition. The test of what we are about, though, is that there must be judicial impeccability. I make the point that when one sees enormous sums of money, which the Minister has admitted were spent in the Sankey case, being expended by an impecunious solicitor and when one sees the two senior counsel in the Sankey case getting the Government brief in the Greek conspiracy case, one is talking about thousands of dollars.


Mr Viner - Mr Deputy Speaker,I take a point of order. I made no such admission as asserted by the honourable gentleman concerning the extent of the costs incurred by prosecution. I made no such admission.

Mr DEPUTY SPEAKER (MrMillarOrder! There is no point or order.


Mr LIONEL BOWEN -The Minister admitted that the defendants were given legal aid. It has cost the taxpayers thousands of dollars. The point I am making is that there is a public disquiet at the fact that the learned counsel prosecuting for Sankey then got Government briefs which are costing thousands of dollars to prosecute in the Greek conspiracy case. The real issue is the fact that if any judicial appointments were made from this Government's Ministry or from that learned counsel group, there would be a lot of public disquiet because the Government has failed to answer the charge whether it was involved.

The point, though, comes down to this question. The Prime Minister comes into this House and says that the test whether there has been any judicial impropriety is a matter of personal opinion by the judge himself. That is not the test and all Government members admit that. The question is the test that was given by His Honour Mr Justice Connor recently in the Australian Capital Territory Supreme Court. When talking about a particular magistrate, His Honour said:

I have every confidence that he is perfectly free of bias in this matter.

But His Honour said that that was not the complete test. He said:

That however is not the test. The question to be asked is whether reasonable people would suspect that he might be biased . . . If I ask myself the question which I think is the correct question whether reasonable people looking at this matter might suspect that the learned magistrate is biased, I can only give an affirmative answer to that question.

The problem is the question of the public interest and the question whether there is some impropriety.

Let me also deal with the matter mentioned by the Leader of the Opposition. It related to Sir Percy Spender. A question was asked in this House whether Sir Percy Spender was entitled to be a member of the International Court when he was a director of the Goodyear Tyre and Rubber Co. Government members ought to be impressed with what the then Mr Menzies said in a letter which was tabled in this Parliament. He said:

I have discussed this matter with my senior colleagues and with the Leaders of the Opposition . . .

I should make it quite clear that your action, if it comes to be openly challenged in the House, will, so far as I can judge, be condemned on both sides of it.

That is a pretty clear indication. In fairness to Sir Percy Spender, I should point out that he wrote back: 'I am a director. I did not get any money, but I resign forthwith'. That was the test and it ought to put on the record. It is a shame the Prime Minister did not advert to that situation because it is not a test whether the judge himself thinks there has been some question of impropriety. The test is what public opinion thinks of the situation. So we come to the necessity of now asking again, to overcome the problems of recent weeks and the stigma that attaches to the whole sorry episode of 1975 onwards, that there be a reconvening of this Committee.

Mr DEPUTY SPEAKER (MrMillarOrder! The honourable member's time has expired.







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