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Tuesday, 29 April 1980
Page: 1939


Senator CHANEY (Western AustraliaMinister for Aboriginal Affairs) - This matter has now been debated for about three hours. The debate has extensively canvassed the facts which were brought forward by Senator Evans and which were largely repeated by Senator Button in his speech in support of Senator Evans and in support of the motion. The Government, both in this chamber and in the debate that occurred in the other place, has made clear its attitude to what has been brought forward. It might be helpful to try to take some of the elements of this debate and deal with them in what is understood by the Senate to be the last speech on the subject this evening. Senator Evans started by saying that there were issues at two basic levels. I do not purport to quote him exactly, but he suggested that one of the basic levels was that the Chief Justice was engaging in business activity. The second basic level was a situation in which there was a conflict of interests. Very early in his speech he brought out those two areas as the key areas of concern.


Senator Cavanagh - He said there could be a conflict of interest.


Senator CHANEY - I thank the honourable senator. That is a more accurate presentation of what Senator Evans said. The fundamental approach of the Government which has been illustrated by Senator Carrick in this place and by speakers in the other place is that firstly Sir Garfield Barwick has demonstrated that he had no proprietary interest in the matters which involved this company or the shares and land that had been held by it. Secondly, there is no evidence or suggestion of bias or conflict of interest in the position in which the Chief Justice found himself. It is on those fundamentals that there may be some difference between the Government and the Opposition.

I have some sympathy for Senator Chipp 's suggestion that he has tried to approach the matter with common sense- I think he used that expression- but that approach left him in a dilemma. I think it would be helpful to look at what we are dealing with in the motion before the Senate. We are dealing with a situation which concerns an individual who had a career at the Bar in Australia which took him to being probably the most prominent barrister in Australia. On all the reports which I have heard and on the basis of what I heard of him when I was a law student, he was probably the most notable legal counsel in Australia to the time that he went into politics. He had a relatively short political career in which he held a number of ministries including the post of Foreign Minister which he held at the time he was appointed to the High Court in 1 964. This motion revolves around his participation in a company established in about 1946. We do not have the actual date of incorporation before us, but the earliest date which appears in all the material put before us by Senator Evans is 1946. It appears that was the approximate time at which the company was formed. We have a clear picture of a very successful barrister who formed a family company in 1946. He was its governing director, although not a shareholder in the company, from 1946 until 1974. Of course, for 18 of those years he was not on the bench. He was either a practising barrister or a politician.

We have Sir Garfield Barwick 's explanation as to why that company was formed. It seems to me that the explanation fits in with not only the great mass of material which has been put before the Senate by Senator Evans but also with the broad facts which we all know about Sir Garfield Barwick. I do not want to quote from the letter at length because I think the Senate would like to see this matter dealt with. It contains a straightforward explanation of what Sir Garfield Barwick was doing. I paraphrase part of that letter. He said that as a young man he formed the company to benefit his two children during his lifetime and after his death. With the exception of a relatively small shareholding taken by his wife for a purpose which he mentioned later in the letter the children have been the sole proprietors, legally and beneficially, of shares of the company and therefore of all its assets. Sir Garfield Barwick set out to look after the interests of his family using the structure of a company to do so. The letter stated:

I have never had any proprietary interest, legal or beneficial, in the company or in any of its assets. I have never derived any income, nor any personal advantage in taxation, from the existence or the activities of the company . . . The company was never a trading company and confined itself to investment in land and shares in companies.

Many successful barristers have become members of Parliament. Most of them have done so with some assets behind them. I suppose that in all cases, they have invested those assets in some way. Whether they have used a company or some other form of property holding is a matter which has seldom, if ever, been investigated or queried. All men who have gone to the bench from the High Court have had successful careers. Many of them would have had assets. We have a clear picture of a Chief Justice who has held his assets on behalf of his children, not himself, in a way which is quite usual and standard. Sir Garfield Barwick continues his letter by saying that in 1 974 his attention was called to the fact that he retained control of the company, although previously in the letter he had indicated that his degree of involvement had fallen away. He said:

I then formalised the situation which had developed and resigned from the directorate of the company.

Again what Sir Garfield Barwick says in that letter is utterly consistent with the material put before the Senate by Senator Evans. Take, for example, the evidence with respect to land sales by Mundroola Pty Ltd. We find that there are land sales which go from the 1 940s when Sir Garfield Barwick was a practising barrister, through to the 1970s. That is shown in table 6. There is a separate list, table 8, showing when Sir Garfield Barwick signed documents. We find that he signed documents from the 1940s through to the late 1960s. Presumably all other documents relating to the transactions which Senator Evans has put before the Senate have been signed by other parties. I mention that to show the normalcy of the situation and the fact that what Sir Garfield Barwick says is consistent with the great mass of material which has been put before the Senate.

This scenario is quite important. We have a highly successful barrister- probably the most notable in Australia- who has an equally successful but short political career. In the early part of his career he sets up a company not for the benefit of himself but for the benefit of his children, with very limited participation by his wife. That continues and he divests himself ultimately of any participation in the company at all. That seems to me to smack of normalcy and to smack of a pattern which would have been followed by many people who, although perhaps not quite in Sir Garfield Barwick 's notable position in law, were in his general position in terms of income earning ability and so on.

We now come to 1980. Two complaints are brought before the Senate. As I have said, we have the complaint of a judge engaging in business activity and the suggestion that there may be pecuniary interests in conflict with his duty. There is the suggestion that there may have been a conflict of interest and perhaps bias in cases which were heard by the Chief Justice. If one examines the material which is before the Senate and examines those two propositions, the Government's view that this is a matter which does not require investigation becomes quite clear. In dealing quickly with those two points, I would like also to touch on a third point raised by Senator Chipp concerning the mechanism of a parliamentary inquiry which is suggested by Senator Evans. I suggest that that is not an appropriate way even if one thinks that Senator Evans's prima facie case, as he put it, is established. It is not an appropriate mechanism which should be adopted.

With respect to the interest of Sir Garfield Barwick in these matters, I think that however his letter might be described by Senator Chipp, it speaks for itself. It makes clear that he had a managing role in what was his family investment. Even the material read by Senator Evans and repeated by Senator Button from a law book on the question of the judiciary makes it clear that a judge is entitled to have his personal investments. As I have indicated earlier in my speech, the way in which these investments have been held by Sir Garfield Barwick, not on his own behalf but on behalf of his children, is a perfectly normal and usual situation. Sir Garfield Barwick has declared that he has no interest in the company and hence no pecuniary interest. We also have the opinion of the Solicitor-General, which already has been quoted extensively. Although that opinion is denigrated by the Opposition it is in the clearest possible terms. I suppose it might have been regarded as more notable had it gone over more pages, but the fact is that Mr Byers, the second law officer of the Commonwealth, has said that no question of direct or indirect pecuniary interest arises. That is an opinion on which the Government puts considerable weight.

I wish to raise a number of matters with respect to the question of bias. This is one of the central possibilities raised by the Opposition. Firstly, there is the central point that there is no pecuniary interest involved. In those circumstances it is difficult to sustain any question of bias. Even if one were to suggest that there was a pecuniary interest, I ask the Senate to consider the relative insignificance of what is involved. Senator Evans has put before the Senate a whole series of statements of assets and liabilities, and I have had some difficulty in deciphering some of them because the copies are not very good. It would appear to me that the net worth of the company is shown in the order of half a million dollars over a considerable period. That is the worth of the company in both land and shareholdings.

It is interesting to look at the list of cases in table 1 1 which has been submitted to the Senate by Senator Evans. We find that the Brambles Construction Pty Ltd case was heard in 1965 when $10,000 worth of Brambles shares were held by Mundroola Pty Ltd. At the time of the CSR Ltd case in 1967, the company held about $4,000 worth of shares. The Ampol Petroleum Ltd case was held in 1971 when it had about $22,000 worth of shares; the Brambles case in 1972, when it held $22,000 worth of shares; the Brambles case in 1976, when $28,000 worth of shares were held. By 1976 Sir Garfield Barwick had formally ended his connection with the company as a director; he had never had a connection as a shareholder. The Brambles case in 1977 was heard at a time when there was a shareholding worth some $21,500. They are relevant figures because, after ail, we are looking at this objective test of what the fair-minded man would think. Here we have a tiny proportion of this company's assets involved in the companies concerned in these cases. I suggest that it would require a very unfair-minded man to suggest that these considerations would weigh with the Chief Justice in the consideration of a case.


Senator Evans - You say that the amount involved is the test?


Senator CHANEY - I think that that is quite relevant. The fact is that in a company which has a substantial asset basis these are relatively small investments and not matters of enormous moment. In. any event, quite apart from that one can look at the participation of the Chief Justice in these cases. I will not cover the ground which has been covered fully by my colleague Senator Carrick, who has pointed out that all these cases involved a multiplicity of judges. The majority of these cases went against the companies in which there is supposed to be this interest. The general position is that on only two occasions in cases involving companies in which the Barwick company has a shareholding was the relevant company successful. In each case, Sir Garfield Barwick was but one in a multiplicity of judges.

There were many complaints during the debate that in some ways Sir Garfield Barwick and /or the Prime Minister (Mr Malcolm Fraser) were trying to impose a subjective test as to what is bias and what would be seen to be fair. In fairness to the Chief Justice, it should be drawn to the attention of the Senate that on the second page of his letter he refers to his own attitude. He says:

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. I cannot and do not believe that a fair-minded person, knowing the facts as I have indicated them, would in ali honesty have entertained any doubt of my impartiality . . .

I do not quote that letter any further; I merely draw the Senate's attention to the fact that he, like Mr Byers, goes on to deal with the essentially objective nature of the test which is to be applied. The Government does not believe that there is any suggestion of a pecuniary interest on the part of the Chief Justice, or of bias or a possibility of bias on his part. In those circumstances it clearly resists the motion which has been put forward by the Opposition.

Senator Evanshas put a case in low key, in the tone which he adopted, and he has been congratulated by Senator Chipp on the case he put. I suggest to the Senate that whilst he did put a case in low key, in the tone which he adopted, he put forward a suggested remedy which I regard as something less than low key, something from which certainly I would resile whatever view I took on the earlier issues I have mentioned. I substantially agree with those parts of Senator Chipp 's comments in which he doubted the efficacy or the propriety or a parliamentary inquiry into such a matter. I draw attention to paragraphs 6 (e) and 6 (f) of the proposed resolution. 1 also draw the Senate's attention to the fact that Senator Evans is not merely seeking an inquiry into Mundroola Pty Ltd. He draws a much wider bow. As stated in paragraph 6 (f) he wants a select committee to report on:

The extent to which the Chief Justice has engaged in business otherwise than in association with Mundroola Pty Ltd or been associated with other business institutions as a director, trustee or adviser;

So we would have a fine fishing expedition. Paragraph 6(e) states that a select committee report on: the extent to which the Chief Justice heard and adjudicated matters involving questions of law in taxation, real property, company law and other areas of relevance or potential relevance to the conduct of business activities by Mundroola Pty Ltd;

We have a request for what I regard as a fishing expedition on the part of a parliamentary committee. I suggest that that is a totally inappropriate way to tackle a very serious matter. I also draw attention to the very odd contribution made to the debate in the House of Representatives today by Mr Hurford by way of interjection.

The Hansard record shows that while Mr Ellicott was speaking Mr Hurford suggested that the Labor Party Executive had not even approved what Senator Evans put before the Senate. Mr Ellicott said:

I cannot believe that such a potentially serious motion would have been moved in relation to the Chief Justice of Australia unless it was done with the full consent and approval of the Labor Party Executive.

Mr Hurfordinterjected:

I can tell you it was not.

I think two matters ought to give the Senate cause for pause. Senator Evans in low key drew attention to the fact that in the Senate the Chief Justice had been subjected to a lot of criticism on two counts; one concerned the High Court and the second the events of 1975. I suggest that when one bears in mind that statement, the interjection of Mr Hurford and the general unsuitability of the broad brush inquiry that is proposed one sees that the matters mentioned in the motion are not an appropriate course of action for the Parliament. Therefore, the motion should be opposed by the Parliament. I put that view on behalf of the Government. In accordance with the arrangements made as to the extent of the debate, I move:

That the question be now put.

 

 

Question resolved in the affirmative.

Question put-

That the original motion (Senator Evans's) be agreed to.







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