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Tuesday, 29 April 1980
Page: 1929


Senator BUTTON (Victoria) -In the Senate yesterday Senator Evans gave notice of a detailed motion which stands on its own feet. It was worded with restraint, care and precision. The notice of motion essentially advocated the setting up of an inquiry by a committee of this Parliament into matters of public concern. A few minutes ago Senator Carrick said the Press reports on this matter contained suggestions and implications. I would have thought that a Minister in a government would be concerned to lay them to rest with the establishment of a committee of inquiry. The Minister is not concerned about that matter. I point out that the notice of motion stated that the proposed committee would comprise a government majority. The notice of motion provided for careful procedures for the committee's operation and stated that such a matter was properly one of concern for this Parliament.

Today Senator Evans spoke to that motion with care and restraint. He gave careful attention to both judicial and parliamentary authorities and their relevance to the facts of this matter. Once again, he raised matters which are appropriate for careful consideration by the Senate. I am concerned to deal firstly with the Government's response to this matter. Senator Carrick said tonight that it is quite improper to raise these matters because Sir Garfield Barwick has had a record of 50 years of public integrity. If I might state the absurd, Jack the Ripper had a record of 25 years of public integrity before he was found out. That he had had that prior record of public integrity was no defence to allegations made against him and argued before a court. Indeed, closer to home, only today a former Minister and a member of this Parliament who has had a long record of public integrity was committed for trial. It was felt appropriate, in spite of that long record of public integrity, that there should be an inquiry by the court into allegations made against that parliamentarian. All that has been stated in Senator Evan's motion is that a number of suggestions and allegations have been made and that it is a proper matter to be dealt with by a committee of this Parliament.

Of course, the response of the Government has been quite extraordinarily over-reactive when one considers the restraint and care of Senator Evans 's motion. Before Senator Evans came into the Senate to put his argument as to why there should be such an inquiry, the Prime Minister (Mr Malcolm Fraser) decided to pronounce on the arguments which he had not even heard. Tonight Senator Carrick again applied all sorts of tests which must have been invented before Senator Evans 's argument was put. For example, he ascribed to the test of what one might call retrospective credibility. Senator Carrick says that a judge when trying to decide what to do should go back and look at decisions in previous cases, that he should look at the results of cases and see in what way the majority of decisions went, and that therefore a retrospective pronouncement could be made that a judge should not have disqualified himself from a case. Of course that is an extraordinary argument which dealt with an issue which in a sense had not been put.

I want to refer at the outset of my remarks to the comments made by the Prime Minister in his attempt to sweep this matter under the table, as I said before, even before the nature of the matter was revealed to the Parliament. I will refer to the statement in some minor detail. First of all I draw attention to a number of matters which seem to me to be matters of factual error. The Prime Minister said:

I draw the attention of the House particularly to the fact that the Chief Justice's letter states categorically that he has never had any proprietary interest, legal or beneficial, in Mundroola Pty Ltd, orin any of its assets-

That allegation made by the Prime Minister is a very bold one. It is a statement of fact. But I do not know what it purports to answer. In fact it is not answering any allegation that has been made. All of the arguments put by Senator Evans are based on documents and records of the New South Wales Corporate Affairs Commission. Not once in his comments did Senator Evans suggest that Sir Garfield Barwick had a proprietary interest in the Mundroola company. So, the Prime Minister lumbers into the action and knocks down the argument- an argument which was never put by Senator Evans- that Sir Garfield Barwick had a proprietary interest. That shows the absurdity of the Government's position on this issue and how prepared it is to deal with the real issues as distinct from the shadow about which it is so nervous. Nothing in the Prime Minister's statement deals with the substance of argument which he had not heard. Of course he could not have done so. Even the Prime Minister, with all the great foresight which has been attributed to him on other matters, such as foreign affairs, could not divine the nature of the argument to be put by Senator Evans. In spite of that incapacity, the Prime Minister, before he had even heard the argument, dealt with it and said: 'It is quite wrong. Sir Garfield Barwick assures me that he never had a proprietary interest'. That has never been alleged.

In his statement the Prime Minister said that Sir Garfield had assured him that Mundroola was merely a family company. I suppose that the notion of a family company is likely to bring moisture to the eyes of the average Australian. If one looks at the shareholding and directorship of the Mundroola company one sees that it is not in any respect a family company. It is a company in which one of the directors and two of the shareholders- indeed the principal shareholder -are in fact businessmen. Mr Ross Barwick is a businessman and director of a number of other companies and Mr Thompson is, of course, a professional businessman in the sense of being a professional director of a large number of companies. To describe Mundroola as merely a family company is to deal, with the greatest respect, lightly with the facts. The Prime Minister, in another passage of this statement dealing with spooks with which he was prepared to shadowbox, even though he had not heard anything about what was to be said, went on to quote Sir Garfield Barwick as follows:

I am certainly quite sure that no decision of mine has been in the least influenced by the fact that Mundroola Pty Ltd had any shares in companies in litigation before the Court.

That is a classic statement of what one might call the subjective test. But the test of judicial propriety in these matters is not a subjective test; it is a objective test. I will come back to that matter at a later stage. What we have is a judge passing judgment on himself about his state of mind when of course the legal authorities, the law, essentially provides that the test is an objective one, not one for determination by the judge.


Senator Chaney - His letter goes on to deal with that aspect.


Senator BUTTON -I am coming to that. Further on the Prime Minister says, as a matter of Fraser judgment, that there is no suggestion that the Chief Justice has broken the law. I am concerned to find out what the Prime Minister is worried about if he can make such a confident statement. The statement goes on to deal with the bank nationalisation case and purports to state what that decided in relation to judicial disclosure.

Of course, Senator Carrick was totally bemused by the interjections which were made here tonight about our knowing what happened in the bank nationalisation case. We know what happened in that case because the judges of the High Court of Australia who were concerned disclosed their interests. It became a matter of public record that a judge's wife in one case and a relative in another case had shareholdings in a company which was the subject of litigation. That is the distinction which Senator Carrick seems to have failed to grasp. From there the statement goes on with pronouncements on the law by the Prime Minister and suggestions about the way the matter should be treated. It deals with the question of conflict of interest in the case of shareholdings of a company. It does not, of course, deal with the hub of the Bowen Committee report which relates to directorships. On page 5 the Prime Minister, having referred to some cases, stated:

There is no evidence that any of these cases was in any way affected by the interests held by members of the Chief Justice's family.

Again, a judgment was made before hearing any words from Senator Evans and before anything was said by way of allegation. There are similar statements throughout the remainder of the statement. It concluded:

We have considered the matter seriously -

That is the Government- and find no basis . . . that any conflict of interest situation exists or existed.

The Prime Minister said that no case has been presented for the establishment of a joint parliamentary committee or a parliamentary inquiry. Of course that was absolutely right. No case had been presented for the establishment of a joint parliamentary committee or a parliamentary inquiry at the time the Prime Minister made this statement. The Prime Minister's statement was said to be supported by an opinion from the Solicitor-General, Mr Byers. It is often said that a lawyer's opinion can be very much determined by the facts which have been put to him. It can almost be said that if you ask a silly question you get a silly answer. I am not saying that in connection with Mr Byers' opinion, but it is quite an extraordinary opinion from the Solicitor-General not only for its brevity- which I suppose is intended to be the soul of wit; it does have a certain funny quality about it- but also because of the actual content of it. The Solicitor-General dealt with issues which he had not heard about. He began by saying that questions have been raised as to the propriety of the Chief Justice. He might have said that some questions have been raised but not all of them by any manner of means and that he would give a second instalment of his opinion at a later date.

The Solicitor-General was able to say, apparently with confidence, that Sir Garfield Barwick had no interest at all in Mundroola 's assets although it seems that the company owned the house that he lived in. Of course that goes- I will refer to it in a moment- directly to a question of possible pecuniary interests. At a later stage he said that no bias was suggested. Who was he talking about when he made that statement? On the second page he referred to the Bowen Committee of Inquiry in a manner which is quite contrary in its purport to the way in which Senator Carrick cited this passage. He took it upon himself to decide that it is a family company, a matter which I think a parliamentary committee should examine. Then he stated:

The New Code of Judicial Conduct adopted by the American Bar Association -

States what a judge may do- but should not serve as an officer, director, manager or advisor of any business.

The Bowen report is to like effect. That is the substance of the Solicitor-General 's opinion which goes very little of the way towards supporting the statement which was made by the Prime Minister. The Government's case in this matter has been developed in a couple of ways. We have an opinion from the Solicitor-General- a scrappy opinion, based on no particular knowledge of the facts because it could not have been. Then we have the statement by the Prime Minister. Then we have an argument put in the House of Representatives tonight by Mr Ellicott- the sort of family hit man for the Chief Justice- dealing with arguments which had not been put at any stage. The final conclusion to be drawn from it all is that the Government has made its judgment on this issue and that it is not a question for Parliament to deal with because the Government has made a decision. I remind honourable senators again that Senator Evans' notice of motion called for a parliamentary committee to look into this question and did not leave it as a matter of decision by government. It goes to this question of the authority of Parliament in relation to matters of public concern.

It is instructive to examine this Government's record on this whole question of pecuniary interests and the examination of those questions by the Parliament. In 1975 a committee of the Parliament unanimously laid down a set of rules in relation to the pecuniary interests of members of parliament. The committee embraced in its membership members of the Parliament from the Liberal Party of Australia, the National Country Party of Australia and the Australian Labor Party. Since that report was tabled in the Parliament nothing has happened about the pecuniary interests of members of parliament. There have been all sorts of allegations about pecuniary interests of various members of parliament. A number of members of this Parliament have skated on the thin ice between public duty and private interests. It sounds like a roll call of Cosa Nostra when one reads out their names. In those five years, with all these matters coming up, nothing has happened. The Fraser Government moved very quickly to reject the unanimous findings of a parliamentary committee and to establish instead a committee under Sir Nigel Bowen to look at this question.

Of course the findings of that committee have not yet been the subject of debate in the Parliament. One wonders at the undue sensitivity about these pecuniary interest questions. One suspects that deep down it is felt by some members on the Government side that it is easier for a camel to go through the eye of a needle than for a rich man to get into the House of Representatives, and therefore it is absolutely necessary that these matters should not be disclosed. This is a subject of legitimate political debate in many countries and, of course, it should be a subject of legitimate political debate here. There are many people in this Parliament and many people involved in public life in Australia who believe that the interests of the Parliament and of public life as a whole would be served by full and frank disclosure regarding these matters. But that has not happened.

It is in the context of that history that the Government before it even has heard any arguments or allegations, says: 'No. In the terms of the motion; we are not concerned about any of these issues. We do not notice any of these allegations about the Chief Justice'. That is the way in which Senator Evans' motion is moved. He proposes that, noting certain facts and expressing concern about certain matters, we should set up a committee of this Parliament to examine those matters and to decide, firstly whether those matters which we have noted as matters of fact are matters of fact secondly, whether those matters about which there is concern are properly matters of concern or, thirdly whether there is no substance in any of those allegations at all. That is the character of the notice of motion. That is the way in which it is being treated by the Government in the course of this debate- an extraordinary performance, an extraordinarily over-reactive defensive performance, all understandable in the light of the Government's general record on these issues.

I refer briefly to the main clauses of the notice of motion again to remind the Senate of an argument which was lost and not adverted to, of course, in the conduct of Senator Carrick 's contribution to this debate. I remind senators of the now frequently-quoted views of the Bowen Committee of Inquiry which, of course, was not specifically asked to look at the question of standards of holders of judicial office. But it is instructive to note that in setting up the Bowen Committee of Inquiry it was suggested by the Prime Minister in a statement quoted on page 1 of the Bowen report:-

They will be asked to examine whether or not a register under judicial supervision should be instituted and maintained in such a way that, in the event of allegations of impropriety or on the judge's own initiative, it will allow for expeditious and proper judicial examination of such allegations.

What the Prime Minister was concerned to do in setting up the Bowen Committee of Inquiry was to reject the appointment of a committee of this Parliament and its report making recommendations about the pecuniary interests of members of Parliament, saying: 'No, a report of a committee of the Australian Parliament is not good enough for us, the Fraser Government, on this issue '. Or perhaps one can read between the lines and say: 'A report of a joint committee of this Parliament is getting a bit close to the bone for members of the Fraser Government and is accordingly not good enough for the Government. So it will not have that report of the committee of the Parliament. Instead it will have a judicial inquiry conducted by its erstwhile colleague, Mr Justice Bowen, and others'. So the Parliament was rejected, and a judicial inquiry into the pecuniary interests of members of Parliament, amongst others, was set up.

In the matter now before the Parliament, the Fraser Government, in a sense, is saying exactly the opposite. It is saying: 'No. Allegations raised about a member of the judiciary, allegations which are raised in a very low key manner'- if I can put it that way- 'are not for a committee of this Parliament to look at'. These are matters which can be resolved by a letter from somebody against whom the allegations are made. So rather than have a committee of the Parliament look at the matter, we rely on the person against whom the allegations are made, to say: 'Not guilty', and the Parliament is therefore debarred from considering the matter. It is an extraordinary way of handling this matter in view of the circumstances in which the Bowen committee was set up.

In the opening paragraph of the motion, the principal finding of the Bowen committee on the question of public duty and private interest is set out. It is now accepted that judges should not engage in business or in any way be associated with business institutions- for example, as director, trustee or adviser. It says nothing, of course, about the circumstances in which a judge says that it is not a business; it is a family company. Is this not a matter which should be inquired into by a parliamentary committee? It is as though there is some sort of qualification on the rule in the specific case, but there is not.

The remaining paragraphs set out in detail the precise points with which we are concerned. Particularly, I refer to paragraph 6 (j) where it says, in essence, that the Parliament must consider this matter and whether it should legislate in relation to these sorts of matters, as other Parliaments have seen fit to do. The first paragraph of the motion sets out in brief form the public duty. It is to the question of public duty that I will return in a minute. It sets out the standard of conduct found and prescribed by the Chief Judge of the Federal Court. The question is: Has the public duty been complied with? What does the Parliament say about that? The Australian Parliament is being asked tonight to set up a committee to look at the question whether the public duty has been complied with. What does the Parliament say in answer to that question? Through the mouth of Senator Carrick, it says: The Government does not want to think about it. It is not a matter for the

Parliament to consider. It is not a question worthy of serious examination. The Government has decided. The Government has an extraordinary record in relation to these matters.

If there is a suspicion that the Parliament should inquire, the Parliament should inquire and clear the name of the Chief Justice and put the question beyond doubt. That is something which the Government is declining to do. In paragraphs 2, 3 and 4 of the motion, the substance of the case has been set out with great clarity by Senator Evans, but I remind the Senate of the essential points. Sir Garfield Barwick was appointed Chief Justice of Australia in 1964. If we take that appointment as a relevant date, it is without doubt that he was a director of a company for a decade until, according to returns filed yesterday in the New South Wales Corporate Affairs Commission, 31 December 1974. During that decade, if we leave aside any other prior or subsequent transactions in which the company might have engaged, Mundroola Pty Ltd was involved in 13 land purchases, 54 land sales, a total of 57 land transactions, and 45 land transactions in which the Chief Justice of Australia was a signatory of the instrument of transfer on the transfer documents. The company, during that period, was trading in land. Secondly, the company was engaged in a number of other business transactions. Table 3 sets out the balance sheets and profit and loss accounts on the record of the New South Wales Corporate Affairs Commission. Table 10 sets out the shareholdings of Mundroola Pty Ltd and identifies the periods in which those shareholdings existed in respect of the company. At all those times the Chief Justice of Australia was both governing and managing director of the company. As governing director and managing director of the company he was in breach of the Bowen rule- if I can call it that- as laid down by the Bowen Committee of Inquiry.

Of course, there were some other consequences of the Chief Justice's directorships during those periods. Until Monday last, no returns had been filed by the company Mundroola Pty Ltd since 1973. Firstly, one wonders what circumstances or events prompted the filing on Monday of this week of returns of the company whose previous set of returns filed as required by the law in New South Wales showed the governing director as being the Chief Justice of the High Court of Australia. That fact is shown in the records of the New South Wales Corporate Affairs Commission. They were the only documents on record, as required by law, in the Commission from 1973 until Monday of this week. It was an extraordinary circumstance that those returns were suddenly filed on Monday.

Secondly, on the basts of the returns filed on Monday it is clear that until 31 December 1974 the Chief Justice of Australia was governing director of Mundroola Pty Ltd. In respect of the year 1974 Mundroola Pty Ltd was fined for not filing returns. This may be said to be a technical breach of the law. One might say that it is a technical breach of the law in which the highest judicial authority in Australia should not be involved. Having been involved in respect of the year 1974, one would have thought that the highest judicial authority in Australia would have taken care to see that, in respect of the company of which he was the governing director on the records in the Corporate Affairs Commission, a series of other offences did not take place in subsequent years. That did not happen.

In March 1978, Mundroola Pty Ltd appeared before a court in New South Wales in relation to offences under the Companies Act of New South Wales. A Mr Ross Barwick appeared for that company. According to reports, which ought to be investigated by a committee of this Parliament, he explained the failure to file returns since 1973. The explanation offered as part of the reason for the failure to file returns was that the returns could not be filed because one of the directors was overseas. I do not know what relevance that had. I do not know who the director was. I do know that Sir Garfield Barwick did not sit in the High Court in the relevant month. He was reported to be in London. The question arises whether he was the relevant director. The requirements of the New South Wales Companies Act are quite simple. It states that two directors must sign returns. According to all the returns that have been filed, two directors were presumably in Australia at the time. One wonders why that explanation was offered in March 1978- that the returns could not be filed immediately because one of the directors was overseas.

The situation was explained in 1978, but the returns, in fact, were not filed until Monday of this week. In relation to any ordinary citizen that is a matter which entitles people to ask the question: Why? In relation to the highest judicial office holder in Australia it surely entitles a committee of this Parliament to ask the question: Why? The last documents on the public records of the Corporate Affairs Commission, as I have said, showed the Chief Justice of Australia as being the governing director of that company. One might ask: What is the purpose of company law which provides that companies file returns? The purpose of company law which so provides is surely a matter of openness so that people in this community, who want to know with whom they are dealing in business transactions, can go to the records of a body such as the Corporate Affairs Commission and find out by examination of the public record with whom they are dealing. They can find out and in so doing nobody, in theory, can hide behind- I adopt a judicial phrase- the corporate veil. Nobody can hide behind the corporate veil and be seen or not be seen in relation to particular transactions. That is the purpose of the company law provision. It is a public interest provision in respect of which a judge should not be in breach. It is a matter of concern which should be examined by a committee of this Parliament.

It may be argued that that is not important and does not matter at all. Imagine the hypothetical situation of a small manufacturer of perishable, seamless, whaleskin boots or some such thing, who is fined under the corporate affairs legislation for not filing a company return. By dint of being aggrieved by the way in which the court handles the matter, he finds himself in the High Court of Australia on appeal after having been fined for not filing company returns. When he gets to the High Court of Australia he looks up at the bench and sees people saying: 'Nudge, nudge, wink, wink. This is not a very serious offence. We can deal with this one lightly because, after all, the boss has been involved. We can deal with it in a light sort of way'. I know that is putting it in a flippant way but that is, of course, true. That is the principle involved. It is a matter of confidence in the impartiality of the judiciary and the belief that the judiciary is above all this sort of thing; we can go to the courts with absolute confidence that the matter will be dealt with on its merits and we will not run into the possibility of having the matter dealt with by somebody who has been involved in an offence of this kind- technical breach as it may be said to be. Of course, that is the important matter relating to the records of this company, Mundroola Pty Ltd, which again I say should be investigated by a committee of the Parliament.

In points three and four of the Notice of Motion questions relating to the shareholdings in the company are again set out with care, all of which are dealt with in document 10 which has been tabled by my colleague Senator Evans. These are matters relating to the co-directorship in the Mundroola company of Mr Thompson, at one stage with Sir Garfield Barwick, and subsequently with other members of the Barwick family and as a shareholder throughout. It is clearly arguable in our view- Senator Evans put this view in greater detail- that on the record, on the basis of the documents which are available, the Chief Justice of Australia adjudicated in matters without disqualifying himself or disclosing the nature of his interest in these companies. That is the allegation. The substance of the allegation is the matter of non-disclosure.

I again come back to the point which Senator Carrick seemed to miss completely, that is, the banks nationalisation case. Whatever was decided in that matter, the judges said that it was important for people to have confidence in their deliberations. At the beginning, they disclosed their interests- a practice which anybody who has been in the legal profession will be familiar with- in relation to judicial proceedings. Judges follow that practice. They disclose the nature of their interest in such matters. Of course, time and again, the reaction of counsel appearing in cases is: 'Well, we are quite satisfied that you should proceed with a hearing of this case. You have disclosed your interests and we feel it is appropriate that you should proceed '.

We are expressing concern that these circumstances may have involved conflict which tends to imperil public confidence in the administration of justice'. The test is one of public confidence, lt is not a question of the retrospective view of Senator Carrick. It is not a question of the views of the Prime Minister. They are no better interpreters of public confidence than anybody else. The test is one of public confidence. A retrospective test of bias cannot be applied, which is what the Minister has sought to do in the course of this debate. One cannot look at cases some 10 years later and say: 'He cannot have been biased in that one, that one and that one because the decision went the wrong way'. That is not the point. The point is that the interest should have been disclosed in the interests of public confidence. It is for those reasons that we have suggested the appointment of a joint committee to inquire into these matters and examine them with great detail.

I wish to refer to a few other matters. They relate to the duty which we say the Parliament should examine, and the possibility that that duty has not been adhered to in the case in question. We have heard a lot from this Government on the duties of members of parliament and on the standards which the Fraser Government expects from the community, members of parliament and Ministers in the Government. Senator Withers paid a very high price under the high standards which are laid down by the Prime Minister for others. The Prime Minister described these standards as matters involving confidence which is fundamental to Australian democracy. He is supported by eminent judicial authorities in the matter with which we are concerned, the standards relating to judges. The confidence in the judiciary has to be in a sense similarly fundamental to Australian democracy and similarly fundamental to the ordinary man in the street. As the Prime Minister has said on other occasions those standards have to be upheld even though the cost can be and is sometimes high.

I shall refer to how some of those standards have been laid down in England. I have already referred to the latest standard that has been laid down in Australia by the Bowen Committee of Inquiry. In an early case in 1906, Grantham's case, the judge observed:

If a judge steps down into the lowest sphere to make little partisan speeches, he is open to our criticism as any man in the street.

There is a reference to lowering the dignity of the bench. In another case which is cited in the 1922 Law Reports, Lord Dunedin had a similar view and an important point to make which is relevant to the conduct of the present debate. He said:

The 'public' whose opinion should matter to the judge is not persons like the Lords of Parliament, but the man in the street.

It is a test which of course has been restated on a variety of occasions, particularly by Dr Shetreet in the book which has already been referred to on a number of occasions by Senator Evans. I want to read one or two passages from that book which I think are vitally relevant to the question now before the Senate. Relating to judicial business activity Dr Shetreet has this to say:

I the area of business activities the stricter approach is generally followed. Except for personal investment in stocks, property, or commodities, a judge cannot engage in any business or indulge in any financial dealings. Nor can he associate himself in any manner with business institutions.

On the question of serving as directors or officers of companies the same author has this to say:

Judges do not serve as directors, officers, trustees or advisers for a company whether public or private, nor do they otherwise associate themselves with any business organisation.

That is a very similar comment to the one made by the Bowen Committee of Inquiry. He continues:

Today it is firmly established and clearly understood that no one holding full-time judicial office at any level may hold directorships or partnerships on any commercial undertaking whether public or private. He must be, and be seen to be, aloof from any contact with any other gainful occupation. The tradition of the judiciary excluding any full-time judge from any business activities or association with business organisations is enhanced by the traditions of the Bar against a barrister's engagement in trade and business activities or in supplementary occupations inconsistent with his practice at the Bar or which may adversely affect the reputation of the Bar. la a later passage in his book Shetreet cites an example which he says:

.   . demonstrates how strict are the English practices and traditions of business activities of judges.

He cites the following case: . . the mother of a judge was conducting a family business when she suddenly died. In connection with that business there arose a need of a cheque to be signed for a member of the family. The only two eligible persons were the judge and a young boy. The judge, according to the best traditions, went to the Lord Chancellor's office to ask whether it was possible for him in the unusual circumstances to sign a cheque. To his surprise the answer was firmly in the negative. A second look at this case reveals a wise policy of no exceptions for once you crack the wall, it is difficult to keep it strong.

That is a statement which, with the utmost humility, I commend to the present Government. At page 325, the author says:

One important feature of English judicial ethics is that, except for royalties from books, dividends from shares, rent from property he owns, and reasonable honoraria and expenses for lectures, a judge may not receive any remuneration other than his judicial salary. This is not left to the discretion of the judge.

That goes directly to the question which Senator Evans raised- the possibility of pecuniary interest through the Chief Justice's association with Mundroola. The Chief Justice of Australia, as I understand it, receives a salary of something like $70,000 a year and a very substantial pension entitlement. I do not single him out, but he happens to be the example with which we are concerned. The historic justification of high judicial salaries and pensions is that judges should be above the events of the market place, should be remote from the day to day commerce of the market place and should not in any sense be tempted by involvement in business activities of any kind or be tempted to incur income additional to their salaries, as Doctor Shetreet points out. We think that an appropriate matter for an inquiry is whether, as a governing director of Mundroola living in a house owned by Mundroola, the Chief Justice has a clear pecuniary interest. I wonder- I do not know- whether the Chief Justice pays rent to Mundroola for living in that house or whether it is a house which is provided for him by the company. I wonder who pays the rates for the Chief Justice's house, Mundroola being the owner of the house. Does the Chief Justice pay the rates or does he have a pecuniary interest in not paying the rates on the house in which he lives, which is owned by the company in question.

These questions are important ones which go to the whole test of disclosure of interest or potential interest which I think should have been dealt with by the Government in a more appropriate manner than the circumstances which have emerged so far in statements from the Prime Minister and the

Leader of the Government in this place. Similarly, of course, we should ask who the loans made by Mundroola Pty Ltd were made to- they appear on the record of the Corporate Affairs Commission of New South Wales- and who the directors fees were paid to during the period in which the Chief Justice was a director of this company. Those questions legitimately go to the matter of pecuniary interest. They are questions which are important.

The only other question I want to raise is a general one. It relates very much to the authority which I just cited, namely, that a judge should not be in receipt of income from any source other than his judicial salary. I mentioned the exceptions a moment or two ago in the passage from which I quoted. Surely it is unfortunate that a judge who has expressed with such vehemence particular views about particular subjects should happen to be a judge who has a long record of involvement in a company which is involved in business transactions. There has been a lot of criticism, as people know, within the legal profession of the decision in the so-called Curran case. On a number of occasions the Chief Justice has expressed his view in very strong terms about the use by people of the expression 'tax avoidance'. Let me refer to one example. In a recent case Sir Garfield, as presiding judge, when speaking to counsel who used the words 'tax avoidance', said: Look, you cannot call this "tax avoidance". If there is not tax to be paid, it has not been avoided, has it? It is a perjorative expression intended to appeal to the emotions rather than to reason and logic'. I do not want to enter into the legal merits of that argument. Of course, it is a very semantic view which the learned Chief Justice takes. It is a view which was described I think by Lord Denning some years ago when argued by Sir Garfield Barwick, as counsel before him, as a very new view of these types of tax provisions. It is a view which has, of course, intruded into a number of judgments of the High Court. All I say in a general sense is this: What a pity it is that a judge who argued that view for a long time- he put it forward to counsel in judgments; those views- have been the subject of a lot of debate within the legal profession- did not take the utmost care to see that he was not involved in any way with a company which was trading in land and shares at a number of relevant times in the course of that judicial career. It goes to the matter which I raised a few minutes ago, namely, whether a judge should receive income or pecuniary benefit from any source apart from his judicial salary if we want to abide by the highest standards in this country in relation to these matters.

I said earlier that some of us in this Parliament regard this as an important question. The interests of public life and the interests of this Parliament would be best served by a much fuller and franker approach to disclosures of these matters. The Scandinavian democracies do not seem to have tottered over the brink in terms of their moral fibre, their efficiency or their essential democracy, because they have the highest standards in these matters. As I said, there seems to be a dreadful nervousness in the Parliament of this country which makes the laws in relation to these matters. The American Parliament has seen fit to make laws in relation to such matters.

The question raised in the motion moved by Senator Evans is whether this Parliament should, after conducting an investigation into all these questions, see fit to make laws. Senator Evans in his motion has virtually said: 'Look, there are a number of matters here regarding the conduct of the Chief Justice of Australia which ought to be considered by the national Parliament of this country'. Senator Evans has not pre-judged the decisions on any of these matters. What he has said is that there is a case for saying that they ought to be investigated in the interests of the integrity of public life in Australia. The Government's response to that is simply to say: 'No. It is not of any concern to us. We are not concerned about these allegations. We do not note any of the things that Senator Evans notes in his motion. We are, as it were, the Lord Nelsons of the parliamentary system of the world. We clap our glass to our sightless eye; damned if we can see anything in these matters which Senator Evans notes. We are not concerned about any of them.' The sadness about it all is this Government's lack of concern. It has a sorry record of lack of concern about these matters. If we go back a number of years we find that this Government has a sorry record of lack of concern- one which has been punctuated by a variety of instances which makes one very suspicious about that lack of concern. I am worried by any group of people which says: In a democratic society this is not a matter which should be looked into. It is not a matter for inquiry by the Parliament or by anybody else '. I think that any group of people which puts itself in that position looks a bit spooky. It looks as though it has something to be concerned about, something to hide. That is what I find is sad in the Government's attitude to what is a reasoned, sensible and a very practical solution to a difficult problem set out in the motion moved by my colleague Senator Evans.







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