31st Parliament · 1st Session
The PRESIDENT (Senator the Hon. Sir Condor Laucke) took the chair at 3.5 p.m., and read prayers.
The Acting Clerk- Petitions have been lodged for presentation as follows:
To the President and Members of the Senate in Parliament assembled the petition of the undersigned citizens respectfully showeth:
That there is an urgent need to ensure that the living standard of pensioners will not decline, as indeed, the present level of cash benefits in real terms requires upward adjustment beyond indexation related to the movement of the Consumer Price Index, by this and other means your petitioners urge that action be taken to:
Taxation relief for pensioners and others on low incomes by:
And your petitioners as in duty bound will ever pray. by Senators Peter Baume, Evans, Dame Margaret Guilfoyle (2 petitions) and Lewis.
To the Honourable the President and Members of the Senate in Parliament assembled.
The petition of the undersigned citizens of Australia respectfully showeth:
That the National Women’s Advisory Council has not been democratically elected by the Women of Australia;
That the National Women’s Advisory Council is not representative of the women of Australia;
That the National Women’s Advisory Council is a discriminatory and sexist imposition on Australian Women as Australian men do not have a National Men’s Advisory Council imposed on them.
Your petitioners therefore pray:
That the National Women’s Advisory Council be abolished to ensure that Australian women have equal opportunity with Australian men of having issues of concern to them considered debated and voted on by their Parliamentary representative without intervention and interference by an unrepresentative ‘Advisory Council. ‘
And your petitioners as in duty bound will ever pray. by Senators Button, Evans and Primmer.
- Mr President, my question is addressed to you and arises out of a debate held last Wednesday night following a question I asked about the resignation of Mr Stewart Harris from the Parliamentary Library and the concern which some honourable senators expressed in this place. At that time you said that you would consider the matters raised, would conduct an investigation and would report to the Senate. Have you considered the matters raised and when will you report to the Senate?
– I inform you, Senator Grimes, that, as I then undertook to do, I am making further inquiries and investigations and am consulting Mr Speaker. At this point, I have no firm reply for the honourable senator, but I shall reply when I am in a position so to do.
– I wish to ask you a supplementary question, Mr President. I put it to you that in your reply serious accusations were made about the conduct of the officer of the Parliamentary Library. I believe that any delay in this matter is an injustice to the gentleman concerned. May we have an indication when such a reply will be forthcoming?
– I think it would be inappropriate for me to comment further to the Senate until the facts which I am seeking have been ascertained.
-Has the Minister for National Development and Energy noted the rising interest of informed observers in the fact that the recent oil flows discovered in the Cooper Basin, whilst small, are shaping up as a whole as constituting a considerable oil field which is similar to the very large Alberta oil fields in Canada? Is it likely that such a field may not be brought into production unless a liquids scheme is associated with a major petrochemical operation such as that outlined in the Redcliff proposal?
– I think everyone has been particularly interested in what appear to be more promising developments in the Cooper Basin. The area has been long thought to be one of promise for discoveries of gas in particular and possibly moderate quantities of oil. Such discoveries would be good indeed. As I understand the Redcliff proposal it is that out of the liquids and gases from the Cooper Basin ethane, as distinct from liquefied petroleum gas, should be stripped. The ethane would be combined with salt, the two chemicals that are necessary to produce petrochemicals.
I think it is a basic need for the setting up of a Redcliff petrochemical company that there be the capacity to produce ethane. I am not able to say what other markets would be available should a Redcliff petrochemical company not be set up, but I believe the proposed development of the liquids from the Cooper Basin will find significant ready markets. In any case, I believe the future development of South Australia, as a result of the development of the Cooper Basin and projects such as Redcliff and Roxby Downs in particular, is now quite exciting.
– I refer the Minister for National Development and Energy to a question I asked him yesterday about the job multiplier effects of mining and energy development. In the course of the answer the Minister said that the Government was aiming to persuade other countries that it might be advantageous for them to combine energy and minerals in Australia, thus creating new industries. He also said that there had been a very sympathetic response by overseas corporations in that regard. Which corporations have been approached and in which industries? Have any definite proposals emerged? In other words, will the Minister be more specific on the matters he mentioned in answer to yesterday’s question?
-I said yesterday that the Government is keen that the combination of cheap energy and minerals in Australia should be put to work, as far as possible, to create industries which would be capable of expanding job opportunities. During the recent visit of the Japanese Prime Minister to Australia, our Prime Minister, the Deputy Prime Minister and I pointed out vigorously to Mr Ohira that it would be desirable for Japanese interests to undertake such activities. It will not have escaped Senator Button’s attention that a whole series of alumina smelting undertakings are in the course of development in Australia.
– Cheap electricity, that is all.
- Senator Primmer interjected: ‘Cheap electricity, that is all’. It is true that in Australia we produce electricity at a cost, on average, of 1.5c a kilowatt hour which is cheaper than elsewhere. The main thing is that when it combines with the product and produces the aluminium we get the world price for that metal. Along the journey, through company tax and other taxes which are paid and the employment which is created, the Australian people will share in the real resources.
Opposition senators interjecting-
– I am very sorry that the Opposition is apparently opposed to the development of Australia by great corporations which will produce jobs and wealth for Australia and will produce taxation revenue to pay for the social services and the health and education benefits that are so vitally needed. The inquiries are coming from many countries and corporations at the moment. I have no doubt that they will emerge and be notified in due course.
-I wish to ask a supplementary question. My question was directed to Senator Carrick ‘s answer yesterday in which he said:
There has been a very sympathetic response from overseas corporations.
In elucidation of that answer, today we have been told that the Minister and others made suggestions to Mr Ohira, and that is about all. I want to know what is the sympathetic response and from which industries has it come, because that is a matter of vital concern to Australians, as the Minister will appreciate.
– I am sorry that my outlining of, for example, the huge growth of the aluminium industry escaped Senator Button. Let me remind the Senate of hard facts. Australia is producing and exporting something like 280,000 tonnes of aluminium a year. Within three or four years we expect to be exporting 1.3 million tonnes of aluminium. They are the hard facts of the expansion. At $ 1 ,200 to $ 1 ,400 a tonne, those exports will clearly provide immense wealth to the Australian people. It cannot escape the attention of those who seek to know that, day by day, there is evidence of new seekings.
– Name some.
- Mr President, sometimes I think that you should name some. Those who read the financial news will know that the development of the coal industry in Australia is facing a prodigous future. Exports of steaming coal now total something like 8 million tonnes a year and it is foreshadowed that in the years immediately ahead that figure will move into the region of 35 million tonnes a year, and beyond, in the decades ahead, to something like one hundred million tonnes a year. I have named some.
– My question is directed to the Minister representing the Minister for Science and the Environment. Has the Geneva-based International Standardisation Organisation appointed Australia to head an international committee to develop standards for solar energy equipment? What duties will this committee undertake, and how wide will the scope of the committee be?
– I am very pleased to be able to confirm, as Senator Neal has suggested in his question, that Australia has been appointed to provide the secretariat of the International Standardisation Organisation Technical Committee on Solar Energy. That has happened because Australia’s national standards body has more experience in preparing solar energy standards. I hope that the jeering from the other side is not directed at the very fine achievements of Australian scientists in this field.
The duty of this Committee is to prepare international solar energy standards. That will involve working on the terminology which is to be used in assessing performance, on the standard methods of test to determine thermal performance and to enable equipment to be rated on a basis that will allow ready comparisons, and on the basic technical specifications for safety and durability in the design, construction and, if appropriate, installation of solar equipment.
Australia’s activities in this area are well known to honourable senators. They would know that in various areas, in particular solar heating, Australia is in a leading position. The work here will be co-ordinated with that of the International Energy Agency, of which Australia is a member.
The scope of the Committee is limited. It is restricted to thermal applications of solar energythat is, heating, cooling and air-conditioning; non-thermal applications such as the generation of electricity and water desalination, as well as high temperature applications in chemical reactions, are not included as they are not yet established on a commercial basis. I do not know whether the Senate has been able to hear over the Opposition taunts in this matter, but I would like to say that the Government is delighted that Australians working in this field have been internationally recognised. It is something from which we all ought to take great pleasure.
– I direct a question to the Minister representing the Minister for Foreign Affairs. The Minister would know that over five years ago Senator Wright, a Tasmanian senator who at that time was Minister representing the Minister for Foreign Affairs, said that any breakup of Yugoslavia would help the Soviet Union. I do not think that Senator Wright was a man of the Left. If the Minister read yesterday’s Press utterances he would know that certain minority groups in the Croatian movement have indicated, wittingly or unwittingly, that they will be lackeys of the Soviet Union to help to destroy Yugoslavia. Does the Minister believe that that is an Australian attitude? Will the Minister or the Attorney-General invoke the provisions of the Crimes Act against these neo-fascists?
-I did not see the article. Perhaps Senator Mulvihill will direct it to me. Those who know the history of Yugoslavia from the war years will recall that some five or six different groups- Croats, Serbs, Macedonians, Slovenes, et cetera- were brought together into an uneasy nation, and they will know that there has been a strong attempt by individual races of people there to assert their own individuality ever since. There are as many reasons as there are people involved. I am not aware that the people who are asserting their desire for freedom can be branded as fascists, or that they can be branded as communists. If there is any evidence of an organisation of people acting against Australia and breaking Australian laws I would certainly be happy to act on it. I invite Senator Mulvihill to give me the information.
– I wish to ask a supplementary question. I give credit to Senator Carrick for trying to have Fabian Lovokovic excluded from his party. Yesterday Fabian Lovokovic came out with the statement I have mentioned and the group to which I referred besieged the Sydney embassy of our powerful ally, the United States. I put it to Senator Carrick that the Government has clamoured for assistance for the United States and that these people are attacking the United States.
-If Senator Mulvihill can give me information which shows that the gentleman he named, Fabian Lovokovic, or any other person is acting against Australia’s laws or interests, I would be happy to have the matter studied.
– My question, which is addressed to the Minister representing the Prime Minister, relates to the Prime Minister’s speech at the launching of the World Conservation Strategy on 6 March 1980. In concluding his speech at the launching the Prime Minister said:
On behalf of the Australian Government, and all Australians, I pledge support to what the document properly calls ‘a more focused approach to the management of living resources’.
While welcoming the recommendations expressed in the strategy, I ask the Minister: What steps does the Government intend to take in studying the ways and means of implementing the Strategy? In particular, will a national conference, such as that proposed by the Australian Conservation Foundation, be convened to discuss the implementation of the Strategy? Does the Minister agree that the adoption by Australian governments of the approach recommended in the Strategy could result in a considerable upgrading of our conservation policy? If so, will he assure the Senate that the proposals in the Strategy will be set as a priority task for the Government?
-As I understand it, the Minister for Science and the Environment has put the World Conservation Strategy to detailed study. As Senator Missen will be aware, the document is long and complex and a good many of its recommendations are for State governments to evaluate. The Commonwealth has already taken decisive and substantial action in the field of conservation. It has acted to preserve the Great Barrier Reef from oil drilling and has banned whaling and the importation of whale products. The Government has proclaimed the Kakadu National Park, which is destined to be one of the world’s truly great national parks, and has announced its intention to nominate the park for inclusion on the world heritage list. The Government has moved to stop mining on Fraser Island, the world ‘s largest sand island, and has acted to support the establishment of the World Wildlife Fund in Australia. That Fund, together with the United Nations environment program, has assisted the International Union for the Conservation of Nature and Natural Resources to produce the World Conservation Strategy.
I assure the Senate that the proposals contained in the Strategy are of particular significance to the Government. When the Government has had the opportunity of assessing them in greater detail, I expect that an announcement of Government initiatives in relation to the Strategy will be made. That announcement will, of course, take into account the request by the Australian Conservation Foundation that a conference be convened to discuss the implementation of that Strategy.
– My question is directed to the Minister representing the Minister for Foreign Affairs and follows the question asked by Senator Mulvihill. In the event of Croats or people who were born in Yugoslavia being found in some way to have contravened Australian law, is it the Government’s intention that they will not be permitted to demonstrate or to express the views that they have in respect of the matter raised by Senator Mulvihill?
-Senator Wriedt would know that in this democracy and under this Government people are allowed to express views, even if those views are not ones that are normally tolerated. There will be no opposition at all to the expressing of views. That is a fundamental situation. I do not know who are the people referred to by Senator Mulvihill. I hesitate to give particular names and say that they are Croats. The overwhelming majority of Croatians in Australia are magnificent citizens of Australia. So are the majority of Serbs, Macedonians and Slovenes. It is very dangerous indeed for us simply to give racial names to people. I have asked Senator Mulvihill to give me the information. If there are breaches of law, the people involved, like any residents of Australia, will be subject to that law.
– I ask a question of the Minister representing the Minister for Transport. It follows my question yesterday that pointed to the very serious differences in air fares on the Darwin-Singapore route between those charged by Qantas Airways Limited and those calculated from the normal domestic air fare formula. I now refer to a newspaper report that Qantas is seeking a subsidy to provide a Hobart to Christchurch air link. Is it true that TransAustralia Airlines and Ansett Airlines of Australia were prepared to provide that service between Hobart and Christchurch months ago at their own risk, in other words at no cost to the taxpayer? Does the request by Qantas for a subsidy indicate that Qantas is inefficient when compared with TAA and Ansett even though Qantas has the benefit of duty free fuel and supposedly more efficient wide bodied aircraft?
– I am aware that there have been discussions and propositions for a direct flight between Tasmania and New Zealand but I do not have all the detail which is sought by the honourable senator in his question. I will ask the Minister for Transport to provide a reply.
– I ask the Leader of the Government in the Senate: Has the Government noted the attempts by A. G. Campbell Pty Ltdone of the major New South Wales companies involved in the wholesale grocery trade- in advertisements, newspaper statements and through the stock exchange, to resist its takeover by its principal competitor, Davids Holdings Pty Ltd? Is the Minister aware that this takeover would establish a monopoly of food wholesaling in New South Wales to the detriment of small retailers and consumers and would mean fewer job opportunities in the industry? What legislative proposals does the Government contemplate to stop this market concentration which would inevitably lead to higher prices for food products?
-I have not had any reason to note the attempted takeover that Senator Gietzelt referred to, nor do I know that if such a takeover occurred there would be a monopoly of food wholesaling. I am aware that there had been a growing tendency to a reduction in numbers of food wholesaling distributors. I think the matter is one specifically for my colleague, the Minister for Business and Consumer Affairs. I know that he is not here and I acknowledge that that is the reason that the question was directed to me. The question may also come within the Attorney-General’s responsibility whom I also represent at the moment. I will direct the question to the Minister for Business and Consumer Affairs and to the Acting Attorney-General in another place and invite any study and comment that they may care to give.
– I direct my question to the Minister representing the Minister for Primary Industry. Is progress being made with the development and implementation of carcass classification in Australia? Is the Minister satisfied with the current trials? Is there now a general assistance with the development of the scheme, or is there evidence of concerted obstructive tactics to prevent or to delay implementation?
– Carcass classification is a most important area of development in the Australian meat industry because of its relevance to price stability and to pricing systems. Steady progress is being made in this area. Some 26 meatworks in Australia are involved, in a voluntary capacity, in carcass evaluation by a manual method, and further trials in other meatworks are to start in the very near future. These trials are aided by moneys from the $6m Commonwealth contribution to the classification fund. The Australian Meat and Livestock Corporation is carrying out observations in this area and seeks very soon to identify which is the better of the two systems of automotive classification and, of course, is keeping its mind concerned with the economic efficiencies of the methods involved. There is a great deal of excellent cooperation in the field of classification research and, indeed, in Western Australia something like 70 per cent of the meatworks are involved in this function.
– My question is addressed to the Leader of the Government in the Senate. In view of the grave international situation, and taking into account the statement by the Minister for Defence that Australia is a prime nuclear target, will the Government consider evacuating all but the most essential personnel from areas that would be devastated by nuclear devices in the target areas of North-West Cape, Pine Gap and Omega in Gippsland, Victoria? Is the Government considering, as a matter of urgency, provision of shelters, proof against nuclear blast and fall-out, for the populations of the capital cities of Australia?
-I do not know the circumstances of the quotation that Senator Melzer made. It is quite clear that any country is within the reach of nuclear missiles, and any part of Australia would be within that reach. I have, therefore, no knowledge of the circumstances that the Minister referred to in that statement. I imagine that it would not be simply selective targets like a Pine Gap or an Exmouth Gulf, but anywhere that people might assemble together in terms of a defence effort would be vulnerable. As to the second part of the question, the construction of shelters would be a matter for my colleague, the Minister for Defence, in another place and I will refer it to him.
– My question to the Minister representing the Minister for Finance follows a question asked by my colleague Senator Bonner yesterday. I refer to an article in yesterday’s Australian in which the Premier of
Queensland was reported to be advocating a three-year taxation reprieve for drought-affected primary producers in Queensland. Would the Minister agree and, if so, would she be prepared to point out to the Premier, that: Firstly, many, if not most, of the primary producers affected by drought will not be paying taxation and therefore will not receive any benefit from a taxation freeze; and, secondly, the well-established cooperative arrangements between the States and the Commonwealth for disaster relief loans at low interest rates are of much greater benefit to drought-affected primary producers? Would she also be prepared to point out to the Premier that there are many initiatives which his Government can take which will be more effective than a taxation freeze?
Senator Thomas has raised a number of questions which are directed to the Minister for Finance. If I could make a general comment I would have to say that it would hardly be more than speculation to say what proportion of drought affected farmers would pay tax during a three-year period. The circumstances of individual farmers could vary a good deal in that time.
However, it could be expected that farmers would be less likely to benefit from tax concessions when their income is affected by drought. Assistance of the kind provided by the Commonwealth under the present natural disaster relief arrangements, which provide for money to be in primary producers’ hands at the time of the drought rather than in some future year, offers more timely and generally more available assistance to those producers who are seriously affected. I believe other information was given in answer to a question yesterday.
I note that the third point in Senator Thomas’s question was that I should point out to the Premier of Queensland certain matters that could come within his responsibility. I will see what comment the Minister for Finance wishes to make on that suggestion. I feel that in the answers given yesterday and today on this matter we have adequately covered the points raised.
– My question is directed to the Minister representing the Minister for Home Affairs. Has not the National Library of Australia suffered from the fact that it has a more powerful neighbour by the lake, which neighbour has, in recent years, vied with the National Library for funds? Is it not a fact that while the High Court of Australia has been able to extract ever-increasing sums from the Governmentapproximately $49.2 m at the last count- the National Library now has 50 fewer staff than it had five years ago, thus leaving a huge backlog of books and manuscripts to be catalogued? Does not he and the Government see this state of affairs as most unsatisfactory? Will he ask the Minister for Home Affairs to take action to rectify this backlog of cataloguing at the National Library?
– I am certainly aware that the National Library of Australia is of great value and is a great asset. I am not able to indicate to the honourable senator whether the amounts of money available for expenditure referable to the National Library are in some or in any measure governed by the expenditure on the High Court of Australia. I agree with the honourable senator that the development of the National Library is a matter of prime importance. As to its capacity to develop financially, I shall certainly refer the honourable senator’s question to the Minister for Home Affairs and provide him with an answer.
– I direct a question to the Minister representing the Minister for Transport. By way of a very brief preamble, it would be true to say that the people of the Northern Territory are getting heartily tired of the machinations of the domestic airlines and their attitude in regard to cancelling and rescheduling their jet services to late night flights, particularly those to Darwin, which in some instances affect Alice Springs, during school holidays and holiday weekends. Is it a fact that once again, with holidays occurring, people of the Northern Territory will in some cases be reduced to using Fokker Friendship services, which aircraft have a small capacity, and that Territory citizens will be forced to travel between the hours of midnight and 6 a.m., when curfews are lifted in southern States? Will the Government intervene in regard to this rescheduling as it forces Northern Territorians into late night travel which is as unacceptable to them as it would be to seaboard dwellers?
– We have been putting up with that for years.
– I can understand the feelings which lie behind the question asked by Senator Kilgariff and which are underlined by an interjection from a Western Australian senator opposite, who points out that people in Western Australia put up with some very inconvenient scheduling for roughly the same reasons, namely, that the curfew arrangements at other airports mean that there are flights in and out of Perth at what I can only describe as quite ungodly hours. That is a matter of considerable personal inconvenience to many travellers and to many honourable senators and members of the other place who have to travel either from the Northern Territory or from Western Australia. The difficulty faced by the airlines is that at times of peak demand, particularly around school holidays when there are many additional travellers, the airlines have to look to getting maximum use of their aircraft. This means that they are rearranging schedules to ensure that they get maximum capacity on all routes. The only alternative to the sort of rearrangement which the honourable senator has raised is for the airlines to have considerably greater capacity, which would enable them to cope with the busier periods. But that extra capacity would be idle during the less busy periods.
Bearing in mind the real concern expressed in this chamber about air fares, particularly by senators from Western Australia, the Northern Territory and north Queensland, I think all honourable senators will agree that we cannot expect the airlines to create a lot of excess capacity just to meet particular peaks in travel. So it appears that there will be some continuing inconvenience for those of us who come from more remote parts of Australia. The best hope I can offer the honourable senator is that there will be substantial rearrangements of airline scheduling over the next few years because of the large reequipment programs which have been announced. Trans-Australia Airlines is to be reequipped with Airbuses and Ansett Airlines of Australia has recently announced a very large reequipment program with various Boeing aircraft. That program will change the shape of the airline business in Australia considerably. It is to be hoped that some of the inconveniences about which Senator Kilgariff understandably complains on behalf of his constituents will be removed by those very substantial advances in equipment over the next year and a half to three years.
-I ask the Minister for Social Security: Is it practice for the Department of Social Security to pay a full pension pending a decision by a Social Security Appeals Tribunal when an appeal has been lodged against a reduction in pension? When an invalid pension has been granted at less than the full rate, is it practice for the full rate not to be paid pending the decision of the Social Security Appeals Tribunal in an appeal against the reduced rate?
I will need to seek some advice on the details of the matter raised by Senator Colston. I will see that he is advised without delay.
– My question is directed to the Minister representing the Minister for Transport. It concerns today’s newspaper accounts of the meeting by Qantas Airways Ltd stewards through the agency of the Flight Stewards Association of Australia relating to incidents which have occurred with passengers being drunk on internationalflights. Will the Minister undertake to have obtained from Qantas a verification of the accuracy of the events as set out in the newspapers? Will he seek from Qantas information on any other events in which violence or abuse directed towards passengers or staff was related to alcohol abuse in flight? Will he ask Qantas to indicate whether it has any strategies, not only for minimising abuses but also for preventing abuses of the basic rights of air passengers to fly without threats of abuse or violence on our national carrier?
– I have seen the newspaper report out of which this question arises. I think Senator Baume is properly concerned about the comfort of passengers who have been inconvenienced by the alleged incidents. I undertake to seek from Qantas verification of the reports and to ask it to report on any other incidents which have not been complained of. I will seek information on whether Qantas has a strategy. The airline may be able to supplement the usual in-flight reading with copies of Senator Baume ‘s committee report on an intoxicated society, which I can assure honourable senators who have not read it is enough to put anyone off the grog forever.
– My question, which is addressed to the Minister representing the Treasurer, deals with concessions for drought affected farmers which was raised in the Senate yesterday by Senator Bonner and again today by Senator Thomas. I ask: In view of the Minister’s admission yesterday in reply to a Dorothy Dix question by Senator Bonner that tax concessions for drought relief are of no benefit to those not receiving incomes, does he agree that the tax concessions announced by the Prime Minister on 14 April, ostensibly for drought relief, are of no benefit to those farmers so badly affected by drought that their incomes are severely reduced?
– There was no Dorothy Dix question from Senator Bonner to me yesterday. There was no reply by me to the effect claimed by Senator McLaren. I reject the conclusion that Senator McLaren draws. The fact of the matter is that the rural industry of Australia is very happy with the drought relief measures announced by the Government.
– I wish to ask a supplementary question. The Minister has just said there was no reply to the effect that I indicated. I refer him to page 1082 of Hansard. When talking about drought relief assistance, in answer to Senator Bonner, the Minister said:
This assistance, unlike tax concessions, would still be available to those not receiving income . . .
The Minister has admitted, as appears in the Hansard record, that tax concessions are of no value to farmers who are not receiving an income. They were his own words.
-If Senator McLaren looks at my reply today, what I said was that in fact there was no Dorothy Dix question, nor was there as such. My reply as it appears in Hansard is consistent with my statement that the drought relief measures are of considerable benefit virtually to all farmers who are suffering from drought.
– I do not think this is the appropriate time to take a point of order. I intend to seek permission of the Senate to make a personal explanation later. I will ask my question now and pursue that course of action later.
– You may make a personal explanation at that time.
– My question is directed to the Minister representing the Minister for Health. I draw the Minister’s attention to a recent report that an American orthopaedic surgeon, Dr Kingsbury Heiple, has perfected a technique of implanting artificial finger joints on the hands of patients suffering from arthritis and injuries and unlike prosthetic devices that merely separate arthritic or damaged joints, these new artificial joints are stable, strong and comfortable. I ask: Is the Minister aware of this technique? Is it available in Australia to sufferers of arthritis? If it is not available, will the Minister’s Department investigate the matter, thereby increasing the quality of life, particularly for elderly persons suffering from this crippling complaint.
I will need to refer this matter to the Minister for Health. 1 am not aware that he has knowledge of the procedures that were mentioned by Senator Bonner. If Senator Bonner can give further information I will ensure that it is referred to the Minister for Health to determine whether there is any way in which we can give further assistance to Australians in these matters. At present I have no information on the matter.
-I ask the Minister representing the Treasurer. Can he say what benefit does accrue to a farmer affected by drought whose income does not reach the taxable level?
– There are probably a number of benefits. I will take the question on notice and ask the Treasurer to prepare a reply.
-I ask the Minister representing the Minister for Transport: Is it a ‘ fact that while airlines are seeking to lower their discount fares they are continuing to apply for increases in ordinary fares? If this is so, is the Government concerned about this apparent anomaly and its bias against regular travellers?
-I do not have detailed knowledge of the economics of discount fares as against normal fares. I assume from the arrangements which have been entered into by the international airlines that there are substantial economic advantages in having advance noticeindeed, advance payment- of flight bookings. I assume that the push in this direction by the airlines is in line with their economic interests. However, I will ask the Minister for Transport to examine the proposition contained in the question asked by Senator Watson and to let Senator Watson have a more authoritative reply.
– My question is addressed to the Minister representing the Minister for Foreign Affairs. I refer to a news item which appeared in today’s Australian in which the President of Iran ‘s Central Bank is reported to have said that Western trade sanctions would have no effects on Iran because Iran would strengthen its trade links with the Soviet Union. Will the Government carefully consider that point of view and especially assess whether the
United States Government’s present policy towards Iran is appropriate? Is it advisable for the Australian Government to follow the United States Government’s example? Will the Government now consider adopting different policies, which certainly are possible, such as using its good offices towards the holding of a summit conference between the United States of America and Iran so that they may resolve their differences?
– I have not seen the statement in the Press which was referred to. I will seek it out and study it. My understanding is- I think I am right- that the United Nations indicated that certain sanctions should be taken in this regard; that in fact this is not simply an idea of the United States but of a wider comity of nations which believe -
– Not the United Nations. Come on! For heaven’s sake, get your facts straight.
– If I am wrong, I will seek out the information and correct what I have said. Not only America but many countries, individually and I think collectively, have believed that sanctions should be applied, particularly in the non-food area. Continuous dialogues are going on between Australia and America and other countries, all aimed at holding discussions, all aimed at seeking solutions. I will refer Senator Mason’s question to the Minister concerned.
– I wish to ask a supplementary question, Mr President. I press the final part of my question. Will the Government consider using its good offices towards the holding of a summit conference- and I mean a summit conference- between the United States and Iran so that they may resolve their differences?
– I said that I would direct that part of the question to the attention of the Minister for Foreign Affairs.
-Can the Minister representing the Minister for Transport say whether Qantas Airways Ltd is giving consideration to undertaking international flights out of Adelaide? Is the Minister aware also of the interest that has been demonstrated in South Australia by the Minister for Tourism, Mrs Adamson, and the Premier in this prospect as it would be of great significance to the tourist industry in South Australia? Can the Minister also inform me whether an approach has been made to the Commonwealth Government, either by Qantas or by the South Australian Government, with respect to the upgrading to international standard of facilities at the Adelaide Airport?
– I understand that some submissions have been made to the Government relating to the possibility of operating international flights out of Adelaide. It does not surprise me that Mrs Adamson, who is a woman of great vigour and a new Minister in South Australia, should take a very positive interest in any such suggestions. The question of operating international flights out of Adelaide Airport would involve, I think, some upgrading of the terminal, not only to ensure better standards but also to provide the required facilities for international arrivals and departures. As far as I am aware, no decisions on this matter have been taken. However, I will ask the Minister for Transport to let Senator Jessop have more detailed information about any proposals which might have been put to the Government.
– I direct to the Minister representing the Minister for Immigration and Ethnic Affairs a question relating to matters raised in an article written by Mr Frank Cranston appearing in this morning’s Canberra Times. In the course of Mr Cranston’s article, he refers to the case of Mr Le Duy Phuoc, a Vietnamese resident of Canberra. Apparently his case is typical of that of a number of other people in a similar situation. Apparently Mr Phuoc some five years ago was informed by the Australian Government that permission would be granted for him to bring his wife and children to Australia as immigrants, subject to a satisfactory health examination. Subsequently, owing to the attitude of the Vietnamese Government authorities in Saigon, it was impossible for a health examination to be made of members of Mr Phuoc’s family and they have not been able to migrate to Australia in accordance with the rules set down by the Australian Government. In view of the fact that a permit to migrate to this country is granted to other people with some alacrity, including other people from Vietnam who have ‘ not gone through these channels, will the Government consider, as is suggested in Mr Cranston’s article, the possibility of allowing people in instances such as this to enter Australia subject to their being in quarantine for some period after their arrival? I suggest to the Minister that it is extremely unfair that somebody who is prepared to go through channels in this way is being inhibited in bringing in his family because of his own insistence on carrying out the Australian Government’s requirements.
Senator Dame MARGARET GUILFOYLEI will refer to the Minister for Immigration and Ethnic Affairs and, possibly, to the Minister for Health the matters raised. If there is a specific request in the question I will see that attention is given to it. I will also see what information can be given by the Ministers concerned as soon as possible.
– My question is directed to the Leader of the Government in the Senate. Is it not a fact that for most producers in the animal industries in the more arid areas the first year of drought is usually the one with the highest income, mainly because sheep graziers not only have a full wool clip in that year but also are forced to sell stock and cattle producers are forced to sell many more cattle than would otherwise be the case? Is it also a fact that because of the provisions of income equalisation deposits and income averaging most graziers are able to offset tax under existing Commonwealth taxation provisions?
– My understanding is that both the statements made by Senator Maunsell are facts.
– My question is directed to the Minister representing the Prime Minister. Is it a fact that the changed taxation allowances for the purchase of pumps and reticulation equipment announced on 14 April by the Prime Minister will provide for a Pitt Street farmer with a constant income of $50,000 a year a tax subsidy or saving equal to 90 per cent of the investment over a five-year period and equal to more than 73 per cent of the investment in the first year? I ask the Minister whether he knows that at the Victorian Farmers and Graziers Association Conference last week the Prime Minister stated:
The current demand for water supply equipment is extremely high.
If that is so, does the Minister expect the Prime Minister’s concession to Pitt Street farmers to induce demand-pull inflation for this equipment?
– The Government’s drought relief measures do not distinguish between Pitt Street farmers or any other farmers. They relate to farmers. I find it quite extraordinary that an attempt should be made at distinction in this regard.
– You go and ask the real farmers.
– If I ask the real farmers they will acknowledge the great benefit that this Government is bringing to them in terms of agricultural assistance. They will also understand that every time a new benefit to real farmers is announced there is a constant sneer from the Labor Party and a constant opposition to assistance to real farmers. I do not know whether the figures are right. I will bring them to the attention of the Treasurer and seek his comment.
-Is the Minister representing the Minister for Science and the Environment aware of criticism by Professor Lance Endersbee, Dean of the Faculty of Engineering at Monash University, that Australian technological development has lost ground over the last 10 years compared with other industrial nations? In view of the widespread concern about Australia’s technological development, when can the Senate expect a response by the Government to the report of the Senate Standing Committee on Science and the Environment on industrial research and development?
– I am aware of the claim by Professor Endersbee. No doubt I received the same magazine as the honourable senator- it was probably sent to all honourable senatorswhich contained Professor Endersbee ‘s remarks on taking up the presidency of the Institution of Engineers. I read the passage to which the honourable senator refers. I will ask the Minister for Science and the Environment to let me know what progress has been made with respect to a response to the Senate committee report, it being accepted that the area of technological development is of great importance to this country.
– I ask the Minister representing the Minister for Education whether it is a fact that the Government has had before it for at least 1 8 months a proposal from the University of Tasmania to establish a special study centre for marine and Antarctic sciences. Is it also a fact that the project accords with the Callaghan inquiry recommendations and has been the subject of extensive favourable discussions with Professor Karmel? Having had a term of office in the Education portfolio, does the Minister acknowledge that consideration of the matter within the bureaucracy has been exhausted and a decision is now required? When will the Government announce its long-delayed response to this important and worthwhile proposal?
– Since the matter demands the day to day knowledge of the present Minister for Education, I will bring it to his attention and seek his reply.
– My question is directed to Senator Scott, as Minister for Special Trade Representations and Minister representing the Minister for Primary Industry. Is is true that the Australian Government has made clear to the representatives of the Australian wool industry that it would be inappropriate for Mr David Asimus to visit Moscow next month, whether as Chairman of the Australian Wool Corporation or as Chairman of the International Wool Secretariat? Is it true that the two Australians, Mr Asimus and Dr Booth, will not now be going to the Soviet Union? Will the Government follow up this matter by reviewing the guidelines which apply to exchanges between Australia and the Soviet Union so as to ensure that there is an effective boycott on all such visits until the Soviet troops are withdrawn from Afghanistan?
– I am aware that in the Press this morning there appeared a statement indicating that Mr Asimus has seen fit not to undertake the visit he intended to make to the Soviet Union with Dr Booth. I am not aware of any instructions or urging that may have been put to Mr Asimus. I assume that he made his decision, along with the body he represents, having taken notice of the attitudes of the Australian community and the Australian Government.
– No one is suggesting that he has been pressured.
- Senator Wriedt says that no one suggests that he has been pressured. That is exactly what I am saying now. I am suggesting that Mr Asimus took his decision of his own free will, of his own accord, because it seemed to be a sensible attitude to take to the impending visit. Effective boycotts on trade or anything else are constantly in the view of the Government and constantly of concern not only to the Government but also to the whole Australian community. Anything that could be seen to be in reality an effective boycott would be a responsible protest against the Russian invasion of Afghanistan.
-I remind the Minister representing the Minister for Foreign Affairs of an answer he gave yesterday in the Senate to
Senator Evans concerning the granting of political asylum to an East German dancer. In that answer, it is said: . . the grounds on which Miss Giersch has based her application are amongst the strongest of any recent application for asylum.
Were those grounds referring to the personal danger that Miss Giersch may be subjected to, or claims she may be subjected to, should she be returned to East Germany? In an answer given yesterday concerning the case of Mr Aziz, who was also seeking refugee status in Australia, it was stated that Mr Aziz claims that he also will be at great personal risk if he is forced to return to Iraq. Yet he still has to go on arguing his case for refugee status to be granted to remain in Australia. What is it about Mr Aziz’s application that is preventing the Government from treating him in exactly the same way as it has treated Miss Giersch?
-In both cases the answers that I gave were provided by the Department and the Minister for Foreign Affairs upon reference by me. I think that the reference to ‘strongest grounds’- I am seeking to find the answers in Hansard to satisfy my recollectionwere the words used by the Department in its recommendation to the Foreign Minister and were not the Minister’s own words. I do not know the nature of those strong grounds. I will ask the Minister to study that aspect and to reply. I think the answer stated that the Minister was not aware of an application for asylum by Mr Aziz. I understand that if he were to approach the Minister his situation would be considered. If there is particular information that should be known about Mr Aziz which is not available at this moment and which Senator Wriedt will let me have I will bring it to the attention of the responsible Minister.
– I wish to ask a supplementary question. Is it not a fact that Mr Aziz has been trying for months to remain in Australia because he fears for his life if he is deported to Iraq? That is well known and established public knowledge. Is it not also true that Miss Giersch was granted political asylum within a matter of hours of applying for it on the grounds of the risk to her personal safety if she were returned to East Germany? Why is the Government acting in one manner in the case of the girl from East Germany and obviously and plainly differently in the case of Mr Aziz?
– The answer I gave yesterday, which came from the Minister for Foreign Affairs, indicated that whereas Miss Giersch applied for and was given political asylum, the Foreign Minister was not aware of any such application by Mr Aziz. That is the answer to that question. Indeed, if it is true that Mr Aziz has been seeking residence in Australia, no doubt his application will have been made through the Department of Immigration and Ethnic Affairs. I will direct that aspect of the question to the Minister for Immigration and Ethnic Affairs and seek his response.
-On 23 April Senator O ‘Byrne asked me whether Australia would press for the inclusion of the use of herbicides in the list of prohibited methods of warfare. This question is directly relevant to negotiations on a convention prohibiting chemical weapons which are currently taking place in the Committee on Disarmament and between the United States and the Soviet Union. Both forums have before them the issue of the scope of any prohibition, namely, whether it should extend to non-lethal agents and what the definition of lethality should encompass. The United States and the Union of Soviet Socialist Republics agreed last year, and reported to the Committee on Disarmament to the effect, that there should be a ban on the use of super-toxic lethal chemicals and that certain chemicals should be permitted for non-hostile purposes and that chemicals should be separated by toxicity criteria. The Committee on Disarmament is expected to consider this question initially in a working group when it reconvenes for its second session this year on 12 June. Australia supports the concept of using toxicity criteria which has not been the subject of contention in preliminary consideration of chemical weapons in the Committee on Disarmament but will look seriously at any alternative approaches to defining the scope of a chemical weapons ban.
-by leaveDuring Question Time Senator McLaren, in asking a question of Senator Carrick, claimed that I had given a Dorothy Dixer to Senator Carrick yesterday in a question that I asked concerning drought concessions to graziers in Queensland and the Queensland Premier’s statement reported in the Courier-Mail. He was quoted as having asked the Federal Government for tax concessions for graziers in drought-stricken areas in many parts of Australia. Never before in my life have my honesty and integrity been in question. It seems passing strange that the biggest mouthed and loosest tongued senator in this chamber, who constantly uses the privilege of this chamber to denigrate people outside, decided today to launch an attack on me. If Senator McLaren had taken time to read the question in its entirety, he would have realised that whilst I supported the Premier in his asking for tax concessions for graziers and people who are afflicted by drought, I also have become tired of Premiers and State governments continually asking for support from the Federal Government.
– Do not debate the matter.
- Mr President, I raise a point of order. I believe the words of Senator Bonner in abusing Senator McLaren have nothing to do with any misrepresentation that he has presented to the Senate. I ask that he be required to state where he has been misrepresented so that it may be corrected and leave it at that.
– When misrepresentation is claimed no new material may be introduced and the matter must not be debated. Explain where you personally have been misrepresented, Senator Bonner.
-Mr President, with all due respect, I was referring to the question that I asked yesterday that was claimed to be a Dorothy Dixer. I was explaining, how this question could not possibly have been a Dorothy Dixer. Whilst I asked the question concerning tax relief I, like many honourable senators here, am tired of the State governments and Premiers asking the Federal Government to do something when they are shirking their own responsibilities.
- Mr President, with due respect, Senator Bonner is compounding his sins. I believe he should be sat down.
- Senator Bonner may briefly refer to the fact that he has been misrepresented and that he was charged with asking a Dorothy Dix question. That is where his explanation of the misrepresentation should finish. It is his statement which the Senate accepts as the fact.
– I thank the Senate and I thank you, Mr President, for this opportunity.
-by leave- Mr President, I claim to have been misrepresented by the same question asked by Senator McLaren in which he implied that I was not a supporter of the taxation concessions announced by the Government recently. In no way did I imply that in my question. I was trying to make the point that the taxation concessions encourage people to make provisions against drought; they are not of so much assistance when people are suffering from drought.
-by leave- I claim to have been misrepresented. In answering a question from me today, Senator Carrick claimed that we- the Australian Labor Party, which obviously includes me- sneer at every Government measure which assists farmers. That is a gross misrepresentation of our position. I have been very critical of the tax measures announced by the Prime Minister (Mr Malcolm Fraser) on 14 April, ostensibly as drought relief.
- Mr President, was Senator Carrick ‘s statement directed specifically to Senator Walsh, or to a party? I submit that if it was directed to a party then it is not appropriate for Senator Walsh to make a personal explanation.
– On the point of order, Mr President, I distinctly remember Senator Carrick saying that members of the Labor Party sneer. Senator Walsh and I are members of the Labor Party and I believe that Senator Walsh has every right to claim in this case to have been misrepresented.
-Misrepresentations should be of a nature that can be objected to on a personal basis but, if you claim that it is a personal reflection on you, or -
– I do, Mr President. It was in answer to a question from me. Senator Carrick said that members of the Labor Party sneer at every Government measure which assists farmers. That is not true. I have been very critical of the taxation measures announced, ostensibly as drought relief measures, by the Prime Minister on 14 April. I have been critical of hem on several grounds: Firstly, as across-the-board measures, they apply to drought-affected areas and non-drought affected areas alike; secondly, like all taxation deductions, they provide the greatest benefits for those people with the highest incomes and, in this instance, they will provide huge handouts to farmers not affected by drought who have large off-farm incomes, generally known as Pitt Street farmers. For example, for -
– I take a point of order. Senator Walsh is now debating the issue and is going far beyond a personal explanation.
– You must not debate the matter, Senator Walsh. It is a matter of explaining where you were misrepresented, and that is all.
– That is what I am trying to do, Mr President. I am explaining why we have opposed the measures, which are not the reasons stated by Senator Carrick. The degree of this huge handout to people with off-farm incomes is apparent by the fact that 90 per cent of the investment in some circumstances will be paid for by the taxpayer. It is a 90 per cent handout to people with incomes of $50,000 who are not affected by drought.
– I rise to take a point of order. It is based on the same ground as my earlier point of order.
– Order! A point of order has been raised. You must not continue in that vein. You are debating, Senator Walsh. I call Senator McLaren.
-by leave- I claim to have been misrepresented by Senator Carrick. Therefore, I make the following personal explanation: In answer to a question today, Senator Carrick, as he has done on many other occasions, accused members of the Labor Party, of which I am proud to be a member, of continually sneering at the farming community. Unlike his answer to Senator -
– I indicate to you, Senator, that the misrepresentation must be a personal reflection, not an in toto misrepresentation.
– I take it as a personal reflection because, as an ex-primary producer and as the current secretary of the Federal Parliamentary Labor Party -
– I raise a point or order. Once you have made a ruling, Mr President, objections taken must be taken in writing. You have made an order on this matter, and Senator McLaren -
– I have been trying -
– On the same point of order, the point of order taken by Senator Baume is exactly the same point of order that he took against Senator Walsh, and you, Mr President, allowed Senator Walsh to laimclaim that he was misrepresented and to make his explanation. I would find it extraordinary if, on the same point of order, you prevented Senator McLaren from doing so. I realise the difficulty that Senator Baume is in because of the criticism his own side is getting from these personal explanations. But, to be consistent, if you allow Senator Walsh to make his personal explanation, Mr President, you must allow Senator McLaren to make his personal explanation.
– Order! I point out to you, Senator Grimes, that Senator Walsh recalled the question that he asked and he was personally misrepresented, so he claimed. That is different from the in toto situation to which I referred. We could go on for ever in this way. There has to be a personal reflection. If you asked a question, Senator McLaren -
– I did, on the same matter.
– You asked a question?
– I asked a question.
– I am sorry. You may continue.
- Mr President, I asked a question this afternoon- perhaps you did not hear me- of Senator Carrick in relation to an answer that he gave yesterday, and then Senator Bonner claimed that I misrepresented him. Senator Carrick, in reply, went on to say that members of the Labor Party are continually sneering at the farming community. What I was going to say was that, as a primary producer immediately before I was elected to the Senate, and as the current secretary of the Parliamentary Labor Party Resources Committee, which covers primary industry, I take it as a complete misrepresentation to say that I, as a member of the Labor Party, am continually sneering at the farming community. I say to you, Mr President, and to the Senate, that a perusal of Hansard will reveal that the members of the Labor Party in this chamber and in the other chamber have continually supported the genuine farmers of this community as against the Pitt Street farmers of this nation. We will continue to do so.
– In accordance with the provisions of the Audit Act 1901, 1 present a report of the Auditor-General dated 28 April 1980 upon audits, examinations and inspections under the Audit Act and other Acts.
I am advised by the Auditor-General that it is not appropriate- indeed, it would be a precedent- until the investigation is completed, for that correspondence to be tabled in the Parliament. That is the advice that I have received.
The matter was taken up by Senate Estimates Committee A on Monday of last week, 2 1 April, when the First Assistant Auditor-General was asked:
Does the Auditor-General give advice to the Minister on whether reports should or should not be tabled?
Mr Taylor replied:
As far as I am aware, the Auditor-General merely reports to the Minister.
He was then asked:
You are not aware of any case where the Auditor-General recommended to the Minister that a report should not be tabled?
Mr Taylor replied:
I am not aware of any such case.
Bear in mind that the Minister had stated a few days before that such advice had been tendered to him by the Auditor-General. Mr Taylor was questioned again:
Are you aware that the Minister for Primary Industry stated last Thursday that he had been advised by the Auditor-General not to table the report on Asia Dairy Industries?
Mr Taylor replied:
I did read Hansard. I am not aware that such advice was given by the Auditor-General.
There still has been no explanation of this matter offered by the Minister for Primary Industry.
No Motion or Amendment shall anticipate an Order of the Day or another Motion of which Notice has been given.
Standing Order 4 1 9 states:
No Senator shall . . . anticipate the discussion of any subject which appears on the Notice Paper:
Senator Walsh has a notice of motion on the Notice Paper which is listed as No. 3 under General Business. Order of the Day No. 263 relates to the same matter of Asia Dairy Industries. Therefore, it is a matter which is being anticipated in debate at this stage. The position is quite clear.
The principal matters arising from the audit were summarised in my 12 November 1979 Report. Th”. Minister has since advised that remedial action has been taken in respect of many of the deficiencies in financial and managerial control of the company to which his attention has been drawn. He also stated the scope and nature of any further action was still under consideration.
Having moved a motion that the Senate take note of this report, surely matters which are directly mentioned in that report are matters which should properly be discussed pursuant to that motion. Obviously the paragraph which I have quoted provides scope for a great deal of further inquiry. It is stated that action has been taken by the Minister for Primary Industry. He has not reported to Parliament on what action he has taken. That is one of the many questions which arise directly from the passage I have quoted. I submit, Mr President, that the debate should be allowed to proceed.
It is also up to the Minister to explain the contradiction between the answer that he gave in the House of Representatives, I think on 17 April, and the information given in response to the subsequent questioning of the First Assistant Auditor-General on 21 April. It is appropriate that the Minister be asked these questions: Does he stand by his statement that the AuditorGeneral advised him in that way? If so, how, when and in what form was that advice tendered? Was it tendered in oral or written form? If it was written, will he table the letter? If it was not the Auditor-General who gave such advice but some assistant to the Auditor-General or some other member of staff of the AuditorGeneral’s office, which member of the staff was it? If the Minister stands by the statement he made on 17 April who from the AuditorGeneral ‘s Office gave him that advice if it was not the Auditor-General? When was that alleged advice given? How was it given? Was it given orally or in letter form? If it was given in the form of a letter, let the Minister table the letter.
This matter has been exposed for a week. For a whole week we have heard nothing from the Minister. Not only does he show his contempt for the Parliament in not disclosing to the Parliament action which the Auditor-General says has been taken by the Minister pursuant to his reporting of irregularities within the company, but the Minister then compounds that offence by giving absolutely no explanation to the Parliament why he made that statement on 1 7 April and how it was that that statement was contradicted by an officer of the Auditor-General’s Office on 2 1 April. There was a time in this Parliament when a Minister who was in the position which the Minister for Primary Industry is now in would be expected to resign. Indeed there was a time when he would not be asked to resign. It would not be necessary for him to be asked. The Minister would either give a satisfactory explanation of his conduct and his statements in the Parliament or he would resign automatically, without being asked. Since the Fraser era commenced those sorts of standards no longer apply. It appears that Ministers, to get themselves out of difficult positions, may say in answer to questions anything that comes into their heads. That information can be subsequently contradicted from official government sources. Under Fraser rules the Minister is not obliged to give any explanation for his conduct.
The final point I make is that any member of the Government parties who is prepared to accept with equanimity this state of affairs obviously has no respect either for the Parliament itself or for his membership of it. This matter demands answers, and it demands them now, from the Minister for Primary Industry or from his representative. I again throw down the challenge which I made last week for the representative of the Minister for Primary Industry or the representative of the Prime Minister (Mr Malcolm Fraser) to explain away the repeated inconsistencies and contradictions by the Minister on this matter. I seek leave to continue my remarks later.
Leave granted; debate adjourned.
Senator CARRICK (New South WalesLeader of the Government in the Senate)Pursuant to sub-section 12d (5) of the Remuneration Tribunals Act 1973, I present a copy of a determination and report of the Academic Salaries Tribunal in relation to the rates of salaries of academic staff employed on a part time basis. The Tribunal has determined that salary rates shall be increased by 4.5 per cent with effect from 4 January 1980.
Motion (by Senator Rae) agreed to:
That leave be given to introduce a Bill for an Act to amend the Wireless Telegraphy Act 1 905.
Bill presented, and read a first time.
Standing Orders suspended.
Motion (by Senator Rae) agreed to:
That the second reading of the Bill be made an order of the day for the next day of sitting.
Bill received from the House of Representatives.
Ordered that the Bill may be taken through all its stages without delay.
Bill (on motion by Senator Carrick) read a first time.
That the Bill be now read a second time.
I seek leave to incorporate the second reading speech in Hansard.
The speech read as follows-
A central purpose of this Bill is to provide for the continuation of the operation of the Wool Market Support Fund and the floor price mechanism. The Fund has been contributed by wool producers through a 5 per cent levy on gross sales of shorn wool. It was designed to absorb any losses on the wool reserve price scheme. The Bill also provides for the making of progressive refunds of levy contributions on a first-in-first-out basis, starting with 1974-75, after the credit balance in the Fund reaches agreed satisfactory levels. Provision is being made also for the automatic appropriation in future of a dollar for dollar government grant to match expenditure of wool producers’ contributions to annual wool research programs. This will place the funding of wool research on the same basis as other rural research schemes.
A restriction in the Wool Industry Act, which prevents the pre-purchase marketing costs of the Wool Corporation being brought into the Corporation’s profit and loss accounts is being removed. The replacement of the Australian Wool Industry Conference by the Wool Council of Australia is being recognised by appropriate amendments to the principal Act. Under the currently established arrangements for the operation of the reserve price scheme at wool auctions, it has been necessary to extend enabling provisions in the Wool Industry Act and the several associated wool tax Acts each year. The general authority for reserve price operations was provided in 1970, but the arrangements for the absorbing of any losses on the scheme through the Market Support Fund were introduced only in 1974 with the adoption of the floor price policy.
The reserve price arrangements embodying the floor price element are established and accepted, both in Australia and internationally, as a permanent feature of the marketing of Australian wool, and it is appropriate that the enabling legislation be placed on a continuing basis. This has the full support of the wool industry. Twice during the past decade, the scheme came under heavy testing when wool demand became severely depressed, and I do not believe that any member of this chamber would wish to suggest that the scheme has performed to date otherwise than in the most successful fulfilment of its intended role. Indeed, had the scheme not been operating during the 1970s, the consequences would have been disastrous for the wool industry. Apart from the price stabilisation advantages to producers, wool users have become enthusiastic over the floor in the market. The decision to provide for progressive refunds to wool producers of their past contributions to the Market Support Fund has been made in the light of strong requests from the Wool Council of Australia.
The primary purpose of the Fund, which was established in September 1974, is for it to absorb net losses on the reserve price scheme. It is contributed by wool producers via a 5 per cent tax on the proceeds of all shorn wool sold. As a result of the most successful management of the scheme, the Fund presently has a balance of more than $300m. The Fund is now reaching a healthy balance having in mind any future calls on it for wool purchases. The Government has acted upon strong representations from wool producers that the time has come to provide the machinery arrangements for returning to producers their early contributions to the Fund, whilst continuing arrangements to maintain the Fund at a safe level appropriate for its purposes.
The approach proposed by the Wool Council of Australia, and accepted by the Government, is for the ‘revolving’ of the Fund. This will take place when the Minister for Primary Industry, with the agreement, in writing, of the Wool Council of Australia, makes a declaration specifying a year of levy contribution to be a period in respect of which refunds will be made. The balance in the Fund must have reached a satisfactory level; the Council has in mind at the moment, a minimum balance of $350m. The 5 per cent tax borne by the wool growing industry in a specified earlier year or years will be refunded to wool producers who contributed wool tax to the Fund in that year. The Council has agreed that the collection of wool tax at the rate of 5 per cent of sales is to continue so as to maintain the Fund at a desired level.
I turn now to the principal provisions of the Wool Industry Amendment Bill. Clause 6 of the Bill adds to the purposes for which money in the Market Support Fund may be used, by including the payment of refunds to wool producers and the administrative costs of making the refunds. This clause also constitutes the Fund on a continuing basis, and authorises all wool purchase expenses of the reserve price scheme to be brought into the reserve price scheme profit and loss account. Clause 7 authorises all marketing costs of other wool trading by the Australian Wool Corporation to be brought into the Corporation’s general wool marketing profit and loss account. Clause 10 introduces a new part, Part IIIA, into the Wool Industry Act, to provide the arrangements for the making of refunds to wool producers from the Market Support Fund.
The detailed provisions, necessarily, are extensive, and it will be necessary to promulgate further procedures by way of Regulations. It is essential that the entitlements and procedures are clear and firm, as the refunds will relate to annual tax contributions currently of some $60m with entitlements including tens of thousands of wool producers.
In outline, the refund arrangements will operate in the following way. Decisions will be made by the Minister for Primary Industry, with the agreement in writing of the Wool Council of Australia, as to when refunds of specified years ‘ tax payments are to be made; that means there will be a right of veto by either party.
In general, the returns are intended to go to the wool producer. Repayments will be by two avenues: Brokers and dealers registered with the
Commissioner of Taxation to remit wool tax, will bulk-bill the Wool Corporation for the amount necessary to make the individual refunds to which their clients are entitled. This avenue is expected to cover above 90 per cent of amounts to be refunded. Wool producers who do not receive refunds in this manner will claim directly on the Wool Corporation, which will settle claims directly with those claimants. Provisions have been included for dealing with circumstances of bankrupt estates, deceased persons, defunct companies and so on. Amounts to be refunded to individuals, in the majority of cases, will be identified with the aid of sales documentation, which records amounts of tax deducted at the time of a sale. Methods of determination of the amount refundable will be specified in regulations.
As agreed with the Wool Council of Australia, a minimum amount refundable of $25 for each wool transaction is being specified, but provision has been included for some other amount to be prescribed by regulations in the event that practice proves an alternative amount to be more appropriate. It is further provided that where brokers and other persons registered for the purposes of wool tax collection have- as is normal practice- accounted for the sale of a producer’s wool in a single account which itemises the various lots involved, eligibility for a minimum refund will be determined on the total proceeds covered by that account rather than on separate lots. Refund amounts paid by the Wool Corporation for payment to claimants by registered persons must be held in trust by the registered persons until paid out. In the meantime, the money may only be used in prescribed ways, and any income earned paid to the Wool Corporation.
Penalties have been provided for improper actions, and false claims and statements in connection with the refund scheme. Information necessary for the proper and efficient operation of the scheme by the Wool Corporation is being required to be provided to the Corporation, and provision has been made for the meeting of costs incurred by registered persons in making repayments, in accordance with principles to be approved by the Minister. Importantly, provision has been included for claimants to take to the Administrative Appeals Tribunal appeals against decisions by the Wool Corporation on eligibility of persons for refunds, or on the amount refunded.
Clauses 1 1 and 12 provide the enabling authority for the future matching by the Government, on a dollar for dollar basis, of wool producer tax contributions for wool research, when those contributions are actually expended on research. The existing Act provides that the Government appropriate annually the amount it contributes to wool research. As research funds continue to flow for some months after the end of a fiscal year, some overlap of the new and old legislation will occur. Thus it has been necessary to identify in the reserves of the Wool Research Trust Fund amounts now in the reserve which are to be regarded as producer and government funds respectively for this purpose and are not matchable when spent. All new grower contributions after 1 July 1980 will be eligible for matching by government funds where expended. In the intervening period, when adequate funds for research projects have not been accumulated, the old reserves of the Fund may be used. As a complementary measure the Wool Tax Acts will be amended to enable a specific rate of tax to be prescribed for wool research. Bills to effect this change will be introduced immediately after the measures which are the subject of this speech.
The general effect of these amendments is to place the funding of wool research on the same basis as the funding of other rural research, and to enable a specific proportion of wool tax income as approved by the Parliament to be directed in future for wool research in lieu of the current procedure of annual determinations by the Minister for Primary Industry. This Bill sets out the new provisions in a logical sequence and in simple form. Accordingly, I have restricted this speech to the principal elements of the Bill. The wool industry has been well briefed on the broad proposals and the Committee stage debate will provide an opportunity for more detailed explanations should this be required. I commend the Bill.
Debate (on motion by Senator Georges) adjourned.
WOOL TAX (Nos 1 TO 5) AMENDMENT BILLS 1980
Bills received from the House of Representatives.
Ordered that the Bills may be taken through all their stages without delay.
Suspension of Standing Orders Motion (by Senator Carrick) proposed:
That so much of the Standing Orders be suspended as would prevent the questions with regard to the several stages for the passage through the Senate of the Bills being put in one motion at each stage and the consideration of such Bills together in the Committee of the Whole.
-We desire to take separately each motion for the first reading of the Bills, as they are money Bills. At the same time, the Opposition does not want to inhibit the Senate from taking the Bills together at the second reading stage. Therefore, I wish to move as an amendment to the motion for the suspension of Standing Orders:
After the words ‘at each stage’ insert ‘except the first reading’.
Senator CARRICK (New South WalesMinister for National Development and Energy (4.50)- If the Opposition desires to use the first reading stage of these Bills for its own purposes, we accept that.
Amendment agreed to.
Motion, as amended, agreed to.
Motion (by Senator Carrick) proposed:
That the Bill be now read a first time.
Debate (on motion by Senator Georges) adjourned.
Motion ( by Senator Carrick) proposed:
That the Bill be now read a first time.
Debate (on motion by Senator Georges) adjourned.
Motion (by Senator Carrick) proposed:
That the Bill be now read a first time.
Debate (on motion by Senator Georges) adjourned.
Motion (by Senator Carrick) proposed:
That the Bill be now read a first time.
Debate (on motion by Senator Georges) adjourned.
Motion (by Senator Carrick) proposed:
That the Bill be now read a first time.
Debate (on motion by Senator Georges) adjourned.
– I bring up the report of Estimates Committee A on the particulars of proposed additional expenditure for the service of the year ending on 30 June 1 980, together with the Hansard record of the Committee ‘s proceedings.
Ordered that the report be printed.
Senator MARTIN (Queensland)- by leave- I understand that it is unusual for statements to be made when reports of Estimates committees are tabled as the reports of the committees are able to be debated at a later stage. Estimates Committee A considered it important that I should make a brief statement in relation to a matter which arose during its deliberations. The Committee believes it points up something of general concern to the Senate in the operation of Estimates committees. As you will be well aware, Mr President, Estimates Committee A considers the estimates for the Parliament. This year it struck a problem in relation to the Parliamentary Library. I should like to say to the Senate at this stage that the Committee very much appreciated the real co-operation we received from you, Mr President, and we understood your personal difficulty in relation to questions that were asked concerning the Parliamentary Library.
In attempting to obtain information about the possible moving of part of the Library from Parliament House to the Hotel Kurrajong, as is generally rumoured and believed will happen in the near future, the Committee raised issues which are central to the very operation of Estimates committees. Estimates committees have been operating for some years now. I believe they have proved themselves in many ways. Nevertheless, we have been aware for some time that there are serious limitations on the operations of Estimates committees. The matter which arose in relation to the Library seemed to the Committee to crystallise those serious limitations. The Committee has sought to comment briefly and has made some specific recommendations on how the matter should be proceeded with. I will not repeat what is contained in the report because it is an easy report to read. Honourable senators will readily understand the thrust of the report.
– ‘Feathers’ would have trouble reading it.
– He is a member of the Committee. Honourable senators will easily see what the recommendations and their implications are. I outline briefly what they are. For some time the Senate and Estimates committees in particular, have been concerned about the use of the funds from the Advance to the Minister for Finance. Estimates Committee A was informed by you, Mr President, that you hoped that as soon as a decision in relation to the Parliamentary Library was made funds would be available from that advance to enable whatever decision was made to be carried out. Shortly I will seek leave to have incorporated in Hansard a table relating to the growth of the Advance to the Minister for Finance vote in appropriation Acts from 1969-70 to 1979-80.
I outline briefly that, in 1969-70, the total of the Advance to the Minister for Finance was $40m, representing 1.2 per cent of the total appropriation for the year; and for 1979-80 the total was $6225m, representing 2.03 per cent of the total appropriation. General concern has been felt about the growth of that fund. To call it growth of a petty cash fund is to understate its potential. I think that a very real concern has been felt that on occasions the use of that fund would enable governments to escape proper scrutiny by Parliament, certainly of particular types of estimates of expenditure. A report from the Senate Standing Committee on Finance and Government operations on the subject of the operation of the Advance to the Minister for Finance is before the Senate. That report has not yet been commented on by the Government and has not yet been debated in the Senate. We do not seek to anticipate that debate. Nevertheless, the report is an important one. It indicates that the Senate previously has thought the matter very important. Estimates Committee A was one of the committees which referred the matter to the Senate Standing Committee on Finance and Government Operations.
The second issue raised in our consideration of the estimates for the Library was that of expenditure spread, which has caused great frustration to
Estimates committees. It is possible, when looking at expenditure on a particular project, that the actual total expenditure may be spread either over a number of departments or between sections of a department. The mechanical functioning of Estimates committees does not enable the committee concerned properly to scrutinise expenditure on a specific project, even when the estimates are available. That process becomes particularly difficult when the expenditure is spread over departments. It was only through your co-operation, Mr President, and the cooperation of the witnesses from the Joint House Department and the Parliamentary Library that we were able to scrutinise as much of that subject as we did in the Committee hearings.
A major inhibiting factor in Estimates committees relates to the Senate resolution of appointment and also Standing Order 36AB, which envisages Estimates committees as committees which are brought into functioning only twice a year. The report puts forward a view on how the Standing Orders ought to be considered and proceeded with. I think that the implications will be clear to honourable senators in terms of the possible extension of the functions of Estimates committees, extending the effectiveness of their scrutiny and, with it, making some consequent, probably quite radical, changes in the actual operations of the committees. Estimates Committee A believes that its recommendations and what potentially could flow from them are necessary to the functioning of Parliament. We believe that it is necessary at this time to examine the future role of Senate estimates committees to enable them to give effective parliamentary scrutiny to proposed and, in the case of Advance to the Minister for Finance matters, past Government expenditure. I will cease my brief statement at this stage. I seek leave to have incorporated in Hansard a table relating to the Advance to the Minister for Finance.
The document read as follows-
-by leave- Senator Martin already has mentioned briefly one of the matters which I wanted to raise at the tabling of the report of Senate Estimates Committee A. I did discuss with the Committee the advisability of including in the report a recommendation of mine that both the Joint House Committee and the Library Committee should come under the jurisdiction of a legislative and general purpose standing committee so that both Committees would be responsible to the Parliament. In my view, if that were done it would save a lot of heart-burning for the Presiding Officers.
We are now informed that in recent times, although members of both Houses of Parliament are elected as members of both the Joint House Committee and the Library Committee, those Committee members operate only in an advisory capacity, which somewhat hamstrings the Committee members in their attempts to pursue matters which we rightfully feel we ought to be able to pursue. I put to the Senate the proposition that consideration ought to be given to bringing both those committees under the jurisdiction of a legislative and general purpose standing committee so that the Library and the Joint House Department are made answerable to the Parliament with respect to all of their activities. I take the matter no further at this time.
Another matter I wish to raise arises from a statement made today by the Leader of the Government in the Senate (Senator Carrick), when he was able to quote from this report when referring to Asia Dairy Industries (Hong Kong) Ltd. I do not have a copy of the full report, which would contain answers given to questions asked by Committee members. However, nowhere in the document I have is Asia Dairy Industries mentioned. There is mention of an AuditorGeneral’s report. I was present at the Committee meeting when the report was compiled yesterday. Nowhere in it is any mention made of Asia Dairy Industries. I am at a loss to understand how the Leader of the Government could come into the Senate and, on a point of order, state that Senator Walsh had pre-empted the tabling in the Parliament of information contained in the report, when the members of the Committee were not aware that any such thing had happened.
I checked with the Chairman of the Committee, Senator Martin, and she was unable to tell me whether in fact she had received a letter dated 24 April from the Auditor-General ‘s Department, referred to by Senator Carrick. I certainly do not have a copy of such a letter. Senator Martin told me that I ought to check with the Committee Secretary. I have not had an opportunity yet to leave the Senate to check with the Secretary whether he has received a copy of such a letter. I am not aware even whether a copy of such a letter is embodied in the report which now has been tabled because, although I am a member of that Committee, I am not in receipt of a copy of the report. All I have is an extract of the report, part of which was read to the Senate by the Chairman of the Committee. I will confine my remarks to what I have said already. No doubt I will have more to say about the matter in the Committee of the Whole when we debate the report of Estimates Committee A.
– I move:
I say by way of explanation that the draft report will be considered by Estimates Committee B when the sitting of the Senate is suspended for dinner. I hope the report will be presented this evening.
Question resolved in the affirmative.
-I bring up the report of Estimates Committee C on the particulars of proposed additional expenditure for the year 1979-80, together with the Hansard record of the Committee’s proceedings.
Ordered that the report be printed.
-I bring up the report of Estimates Committee D on the particulars of proposed additional expenditure for the year 1979-80, together with the Hansard record of the Committee ‘s proceedings.
Ordered that the report be printed.
Senator TOWNLEY (Tasmania)-by leave -At the outset, I must say that I agree with all that Senator Martin said about financing through the Advance to the Minister for Finance. During the examination by Estimates Committee D of the estimates for the Department of Transport, it was revealed that the amounts shown under many items had not been finalised at the time of the presentation of the particulars of proposed additional expenditure. In relation to the items in question, the Department had stated that a lesser amount than it sought had been made available by the Government subject to further review. I seek leave to have incorporated in Hansard particulars concerning about eight items of estimated expenditure.
The document read as follows-
The Committee draws the attention of the Senate to the following matter:
DEPARTMENT OF TRANSPORT-ESTIMATES
During the Committee ‘s examination of the Estimates for the Department of Transport it was revealed that the amounts under many items had not been finalised at the time of the Tabling of the Particulars of Proposed Additional Expenditure. Under the items in question, the Department had made a statement that a lesser amount than it had sought ‘had been made available by the Government subject to further review’. Details are as follows:
The Minister for Finance has written to the Committee (see Annexure A) saying, among other things, that the Advance to the Minister for Finance will be used to make up extra amounts which may be agreed to after further discussions between the Ministers.
The Committee is of the opinion that:
it is desirable that estimates of amounts to be spent by Departments should be settled by the time Appropriation Bills are introduced into the Parliament, and
the Advance to the Minister for Finance should not be used to cover any expenditure which is acknowledged to be outstanding at the time of the introduction of the Appropriation Bills in cases such as the one under report.
The Minister for Finance has acknowledged that the Government has not finalised these Estimates according to its own time-table. As a result, the Estimates are incomplete. The Committee gives notice that it will not proceed to the consideration of unresolved and incomplete Estimates in the future.
The Committee is also concerned at another matter which arises out of the Department of Transport’s estimates, and which relates to the proper functioning of the Department.
The Department has a vital role in co-ordinating transport in Australia, especially in relation to air safety. As outlined above, the Government has not provided the funds the Department has said it requires to properly carry out its work.
The Committee invites an assurance from the Minister representing the Minister for Transport, during consideration of Appropriation Bill (No. 3) 1 979-80 in Committee of the Whole Senate, that the Department’s activities, especially in relation to ensuring the safety of the travelling public, will not be adversely affected by lack of funds.
-The Minister for Finance (Mr Eric Robinson) wrote to the Committee saying, among other things, that the Advance to the Minister for Finance will be used to make up extra amounts which may be agreed to after further discussions with the Minister. The Committee was of the opinion that it is desirable that estimates of amounts to be spent by departments should be settled by the time the Appropriation Bills are introduced into the Parliament and that the Advance to the Minister for Finance should not be used to cover any expenditure which is acknowledged to be outstanding at the time of the introduction of the Appropriation Bills in cases such as the one under report. The Minister for Finance has acknowledged that the Government has not finalised these estimates according to its own timetable; as a result, the estimates are incomplete. The Committee gives notice that it will not proceed with the consideration of unresolved and incomplete estimates in the future.
The Committee is also concerned at another matter which arises out of the estimates of the Department of Transport and which relates to the proper functioning of the Department. The Department has a vital role in co-ordinating transport in Australia, especially in relation to air safety. As outlined a moment ago, the Government has not provided the funds the Department has said it requires to carry out its work properly. The Committee invites an assurance from the Minister for Aboriginal Affairs (Senator Chaney) who represents the Minister for Transport (Mr Hunt) during the consideration of Appropriation Bill (No. 3) 1979-80 in the Committee of the Whole that the Department’s activities, especially in relation to ensuring the safety of the travelling public, will not be adversely affected by a lack of funds.
-I bring up the report of Estimates Committee E on the particulars of proposed additional expenditure for the year 1 979-80 together with the Hansard record of the Committee ‘s proceedings.
Ordered that the report be printed.
-I, bring up the report of Estimates Committee F on the particulars of proposed additional expenditure for the year 1979-80 together with the Hansard record of the Committee ‘s proceedings.
Ordered that the report be printed.
Senator KILGARIFF (Northern Territory) -by leave- I support the remarks of honourable senators, particularly those of the Chairman of Estimates Committee A, Senator Martin, in relation to the Department of Finance and other matters. I draw the attention of honourable senators to that section of the report of Estimates Committee F relating to exchange rate fluctuations and the framing of additional estimates of the Department of Finance. The report of Estimates Committee F has been tabled. Its comments on matters that have arisen during the hearings of the Department of Defence, the Department of Trade and Resources and the Postal and Telecommunications Department are selfexplanatory. The Committee believes the criticisms and suggestions should be noted.
Personally, whilst I believe the Senate Estimates committees have functioned well and have carried out their responsibility diligently, the time has come when the role of the committees should be reviewed to bring about a continued oversight from year to year and the following of expenditure on certain projects throughout the financial year and their overlap into future financial years. With the added responsibility, I believe the Estimates committees would bring to the Senate more comprehensive reports on the activities of Federal departments within the scope of each committee’s responsibilities.
-by leave- I am not a member of Estimates Committee F, but I participated in one of its hearings. I have not had an opportunity to see the report so I do not know whether it mentions the matter which interests me. During the hearing I asked questions about a television program called Countrywide, made by the Australian Broadcasting Commission’s rural department, which is in the can. I think that is the expression. It has not yet been telecast. It was the subject of a complaint to the ABC’s management by a Melbourne agricultural journalist, Ronald Anderson. It was asked during the Committee ‘s deliberations whether the correspondence between Mr Anderson and the ABC could be tabled. The Minister for Aboriginal Affairs (Senator Chaney) representing the Minister for Post and Telecommunications (Mr Staley) said that he would take the question on notice. Not having seen the report because I am not a member of the Committee, I do not know whether the matter is mentioned in it. I wonder whether the Chairman of the Committee or the Minister will indicate whether it is mentioned in the report and, if not, what further actions the Committee proposes to take pursuant to that request.
Senator KILGARIFF (Northern Territory) -by leave- The matter that Senator Walsh has brought up is not in the report of Estimates Committee F. I believe the honourable senator had a lot to say on it. As we will debate the reports of the Estimates committees later I thought it would be only fit and right for the honourable senator, if he wished, to pursue the matter during that debate.
The subject matter of this motion is of the utmost gravity. It has not been raised lightly or casually by me or the Opposition. Certainly it is not my intention in anything I say to prejudge any of the issues involved, rather it is to bring to the attention of the Parliament- I hope in a rather moi: dispassionate manner than has been displayed in the debate which has been proceeding this afternoon in the House of Representatives- a number of matters of public record which seem to raise questions which must in the public interest be answered and to propose a means by which they might be satisfactorily answered. I acknowledge that the mere raising of these questions and the calling for the appointment of a select committee to investigate them does in itself necessarily cast something of a shadow on the Chief Justice as it would on anyone in a similar position. I acknowledge, moreover, that it is a shadow which relates to basic questions of integrity and fitness for judicial office.
The situation in this respect is different and goes further than the kinds of criticisms which have been regularly directed at the Chief Justice over the years by a number of commentators, including me, on matters such as the general quality and direction of his judicial decision making, especially in tax cases, his giving of advice to the Governor-General during the 1975 constitutional crisis or his role in contributing to the cost escalation of the High Court building. The present matter concerns behaviour which, on the face of it, is open not to suggestions of misperception of the law or misguided enthusiasm, but rather raises questions about the general administration of justice in this country at the highest level, the impartiality of that system and the public confidence of Australians in their courts.
When the matters the subject of this motion, or at least some of them, first came to my attention and the Opposition’s attention some weeks ago, we considered long and carefully whether they were of sufficient gravity to justify their being made public. As more and more facts have emerged it has become more difficult to resist the conclusion that parliamentary debate and investigation are called for. Now that the Melbourne Age last Saturday has broken the story in the way that it did, without, I may add, any help from me or, to my knowledge, from anyone else on the Opposition side, it appears impossible to resist that conclusion. I say that notwithstanding the statement of the Prime Minister (Mr Malcolm Fraser), incorporating a letter from the Chief
Justice, which has just been put down in the other place. As will, I hope, become clear in the course of my speech, that simply does not address itself to the basic issues that must be resolved in this matter. To the extent that it does, it equivocates on a number of quite crucial and central questions. It might assist Parliament’s understanding and consideration of these matters if I seek leave at the outset to table and to incorporate in Hansard the basic materials on which this motion is based. I seek leave to table a bundle of documents representing the company file on Mundroola Pty. Ltd, as in the office of the Corporate Affairs Commission in Sydney; memoranda of transfer relating to land transactions of Mundroola Pty Ltd; and a bundle of documents being certificates of title and plans of subdivision again in relation to the land dealings of Mundroola Pty Ltd.
– Further, I seek leave to incorporate in Hansard a number of documents which, I understand, are in the possession of the Minister for National Development and Energy (Senator Carrick) and the Minister for Aboriginal Affairs (Senator Chaney), who will be participating in this debate. Those documents are as follows: Table 1 , shareholders of Mundroola Pty Ltd; table 2, directors of Mundroola Pty Ltd; table 3, Mundroola Pty Ltd balance sheets and profit and loss accounts for the years ending 30 June 1973, 1974, 1975, 1976, 1977, 1978 and 1979; table 4, summary of land transactions of Mundroola Pty Ltd; table 5, Mundroola Pty Ltd land purchases; table 6, Mundroola Pty Ltd land sales; table 7, schedule of current land holdings of Mundroola Pty Ltd; table 8, a schedule of Mundroola Pty Ltd documents on the public record, bearing the signature of the Chief Justice; table 9, a schedule of the directorships of Leslie John Thompson while a director of Mundroola Pty Ltd; table 10, the shareholdings of Mundroola Pty Ltd in Brambles, Ampol and CSR; table 11, a table of cases litigated before Chief Justice Barwick, in which the Brambles, Ampol and CSR companies were a party; and an extract from the Bowen Committe of Inquiry on Public Duty and Private Interest, being paragraphs 1 1.4 to 1 1.7 under the heading ‘Holders of judicial office’. I seek leave to have all those documents incorporated in Hansard.
The documents read as follows-
UNIMPROVED CAPITAL VALUE
Residence of the Chief Justice- 133 George Street, Careel Bay
Volume 7330, Folio 52
Lot B in plan lodged with Transfer No. 944 1 464
Registered Owner: Mundroola Pty Ltd.
Valuation Number 7429 (At 20.2.79) Unimproved Capital Value: $36,000
Residence of Ross Garfield Barwick- 43 Memorial Avenue, St Ives
Volume 13438, Folio 189
Lot 6 in Deposit Plan 2007 1 3
Registered Owner: Mundroola Pty Ltd
Valuation Number 18043 (At 4.10.78) Unimproved Capital Value: $37,000
Other PropertiesTwo adjoining properties, Pacific Road, Palm Beach
Volume 6 148, Folio 59
Volume 5967, Folio 24
Lot410andLot411 of Deposit Plan 19651
Valuation numbers 30839 and 30840 (At 29.1 1.78) Unimproved Capital Value: $40,000 and $35,000 respectively.
All information from public records of Register of Titles, and Valuer General’s Department, Chatswood Office, NSW.
SCHEDULE OF MUNDROOLA PTY. LTD. DOCUMENTS ON PUBLIC RECORD BEARING THE SIGNATURE OF THE CHIEF JUSTICE
Mundroola Pty Ltd, Company File 1 9.6.46 - Notice of Situation of Registered Office 19.6.46 - Form 33, Directors Register 2.4.47 - Notice of Change in the Situation of Registered Office 27.6.47 - Equitable Mortgage to Commonwealth
Bank of Australia 9.4.47 - Notice of Change in the Situation of Registered Office 21.9.60 - Notice of Change in the Situation of Registered Office 1967 - Annual Return, List of directorships of L. J. Thompson
12.68- Form C, Annual Return 1968 30.12.69- FormC,Annual Return 1969
Memoranda of Transfer 10.12.47, D.774320; 24.11.47, D.850576; 18.3.49, F.67393; 11.5.51, F.456585; 21.5.51, F.4584U; 10.12.52, F.777442; 2.3.56, G.547735; 20.3.61, H.783942; 18.7.61, H.840606; 16.1.63, J.566149; 29.8.63, J.449760; 2.9.63, J.442569; 6.9.63, J.445573; 18.9.63, J.455403; 6.10.63, J.476065; 23.10.63, J.488658; 8.11.63, J.499564; 22.11.63, J.52295; 3.12.63, J521793; 16.12.63, J.533799; 11.2.64, J582847; 25.2.64, J.588721; 2.3.64, J.591561; 27.4.64, Bar wick Appointed Chief Justice; 12.5.64, J.736593; 15.5.64, J683005; 16.9.64, J.774271; 18.9.64, J.778I40; 2.10.64, J.789762; 21.10.64, J.813274; 2.11.64, J.835682; 2.11.64, J.835683; 4.11.64, J.820780; 6.11.64, J.832702; 11.11.64’, J.824849; 4.12.64, J.849423; 15.12.64, J.859634; 18.12.64, J.865595; 24.12.64, J.886810; 24.12.64, J.875460; 11.1.65, J.880092; 3.2.65, J.9 19889; 11.2.65, J.9384I6; 22.2.65, J.916264; 10.3.65, J.932553; 12.3.65, J.934173; 25.3.65, J.969071, J.976776, J.969072; 15.4.65, J.965307; 25.5.65, K..7316; 2.6.65, K.37673; 9.6.65, K.21033; 4.8.65, K.71235; 6.10.65, K.133844; 14.12.65, K.204531; 7.7.66, K..384295; 4.8.66, K.409663; 23.9.66, K..463352; 17.11.66, K.508464; 15.2.67, K.589662; 22.3.67, K..626715; 12.8.68, L.141756; 5.11.68, L.231369; 6.12.68, L.320433; 2.6.69, L.5 11929; 22.10.69, L.619776; 7.11.69, L.640307; 10.9.69, L.642959; 19.11.69, L.657909.
DIRECTORSHIPS OF LESLIE JOHN THOMPSON WHILE A DIRECTOR OF MUNDROOLA PTY LTD
According to the 1962 Annual Returns Leslie John Thompson a Director and shareholder of Mundroola Pty Ltd was a Director of the following companies:
Ampol Petroleum Limited and Groups
L.P.A. Holdings Limited and Groups
Bowling Centres (Holdings) Limited and Groups
Brambles Industries Limited
Delfin Australia Fund Incorporated
Distillers Company Biochemical (Australia) Pty Limited
North British & Mercantile Insurance Company of Australia Limited
United Distillers Proprietory Limited and Groups
The 1967 Annual Return shows the same companies with the addition of British Australia Investments Trust Limited.
The 1968 Annual Return lists the same companies with the deletion of B. F. Goodrich Australia Pty Ltd.
There is no variation if any of the other Annual Returns for the years 1969, 1970, 1971, 1972 and 1973.
Source: Mundroola Pty Ltd file, NSW Corporate Affairs Commission, Sydney.
SHAREHOLDINGS OF MUNDROOLA PTY LTD IN BRAMBLES, AMPOL AND CSR
1 ) Shares held by Mundroola Pty Ltd in Brambles Industries Ltd.
Brambles Constructions Pty Ltd is a wholly owned subsidiary of Brambles Industries Ltd.
Source: Brambles Constructions Pty Ltd Annual Returns.
Brambles Holdings Ltd is a wholly owned subsidiary of Brambles Industries Ltd (999,996 shares out of 1,000,000). (Source: Brambles Holdings Corporate Affairs file. )
As at 25 March 1980 (the most recent share computer print out) Mundroola Pty Ltd owned 5,425 ordinary snares in share certificate number 1 2284 1 .
Source: Brambles Ltd share registry, Commonwealth Trading Bank, cnr George and Market Streets, Sydney.
On 26.3.71 when Cullen v Ampol Petroleum Ltd was before the Chief Justice for decision, Mundroola Pty Ltd held shares in Ampol Petroleum as follows:
Mundroola Pty Ltd also held $2,000 worth of registered unsecured notes at 7.5 percent interest consisting of 200 $10 notes.
As at 22.1.80 (the most recent computer share print out) Mundroola Pty Ltd owned the following:
Source: Ampol Share registry, Security Share Services, Sydney.
On 28, 29 August 1967 and 17October 1967 whenCSRv Dilley came before the Chief Justice for decision Mundroola Pty Ltd held shares in CSR Ltd as follows:
In 1977 Mundroola Pty Ltd owned 900 fully paid $1.00 shares which increased to 1,750 maximum in August 1978. These were sold in July 1 979. It currently owns no CSR Limited shares.
Note: CSR Chemicals Pty Ltd, in which Mr L. J. Thompson was a Director at the relevant time, is 50.3 per cent owned by CSR Investments Pty Ltd which in turn is 1 00 per cent owned by CSR Ltd.
Source: CSR Limited share registry, CSR Sydney.
Holders of judicial office 1 1.4 Conflict of interest situations involving members of the federal judiciary are currently regulated by the criminal law, by legal doctrine and by convention. 1 1.5 The Crimes Act 1914, s. 34 (b), provides that ‘any person who . . . being a judge or magistrate, wilfully and perversely exercises Federal jurisdiction in any matter in which he has a personal interest, shall be guilty of an offence ‘. The penalty for a breach is imprisonment for two years. 1 1.6 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. The law disqualifies a judge who has a pecuniary interest in one of the parties before the court, although it is accepted that the parties to a case can waive the disqualification. For example, a judge is disqualified if one of the parties is a company and he is a shareholder in it.’ In England, it has been assumed that the disqualification applies whether the shares are the judge’s personal holdings or those of his spouse. However, in the Bank Nationalisation case, where the wife of one judge held shares in one of the parties and another judge was joint holder of shares as a bare trustee for someone else, the judges were not disqualified.2 Judges tend to disqualify themselves in other cases, besides those involving financial interest, for example if as counsel they acted for one of the parties over a long period, or if, as parliamentarians, they were intimately involved with a matter which is now before the court and where embarrassment might be felt by the judge or objection taken by any party. 1 1.7 The Committee considered whether there was need for further rules, such as are contained in the Code of Judicial Conduct for United States judges, which was adopted in 1 973, or those adopted in the Ethics in Government Act of 1978, which require disclosure of income from non-judicial sources, receipt of gifts, and so forth. It 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 and would provide for resolution of the situation if it did.
– In what follows I will isolate the main issues of concern which arise from all these materials and indicate why, on the basis of the law and convention now prevailing, they are of concern. I want to conclude my remarks then by referring to the procedures which appear to be applicable to matters of this kind and to argue that the establishment of a joint select committee is, in all the circumstances, the most appropriate course to take.
The issues of concern arise at two basic levelsfirstly, the mere engagement of the Chief Justice in business activity and, secondly, the conflicts of interest to which that business activity may have given rise. It did appear, at least until last Thursday, that there was a third level of concern which related to breaches of law involved in that business activity. It now appears that annual general meetings of Mundroola Pty Ltd were held on either 30 or 31 December in each of the years 1 974 to 1 979 and that the Chief Justice in fact was not a director of that company after the end of 1 974. Accordingly, I acknowledge that he cannot be held liable for the obvious managerial neglect which has resulted in a series of convictions of that company since that date in respect of failure to lodge annual returns; nor can he be held responsible in any way, presumably, for the proceedings, now discontinued, relating to the striking of Mundroola from the New South Wales companies register.
I turn first to the question of the mere engagement by the Chief Justice in business activity. The starting point here must be the findings of the Bowen Committee of Inquiry into Public Duty and Private Interest which, it will be recalled, was chaired by Sir Nigel Bowen, himself one of the most senior judges in Australia and also one of the more highly respected judges in the nation. It will be recalled that paragraph 11.6 of the report of the Bowen Committee of Inquiry- this is involved in the Notice of Motion- stated:
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,
That statement is not qualified in any way in the Bowen committee report. It purports to be no more than a statement of prevailing convention as distinct from being a matter of constitutional law, criminal law, or any other kind of law. But it does appear to be a convention which has been observed. When the Government tabled the Bowen Committee report in November last year there appeared to be no disposition to retreat in any way from that finding, either in the tabling statement brought down by the relative Ministers in both Houses or in the answer given by Senator Carrick to a question I raised about all this on 23 April. The Government’s position on this whole section on judicial office holders was simply that no specific recommendations were made by the Bowen Committee, therefore it was unnecessary for the Government to take any action. There is no indication of any retreat, or concern that any passage in this part of the report was too broadly stated. Of course, in the statement of the Prime Minister this afternoon, there has been some attempt to qualify this particular absolute statement. In a few moments I will say something more about that.
The facts in this case are such as to lead one unequivocally to the conclusion that the Chief Justice did engage in business activities, certainly as a director. He was a director of Mundroola Pty Ltd, a New South Wales registered private company, from June 1 946. He retained that position after he was appointed Chief Justice of the High Court in 1964. He is recorded as being a director in the annual return for 1973, which it will be recalled was lodged as late as 22 July 1975. It is only now, in the company returns filed last week- on 24 April 1980- that it is disclosed that he in fact resigned from that position of director on 31 December 1974. Clearly, during a substantial period of his tenure as Chief Justice he was a director of that company.
Moreover, under article 3 of the company articles he was- together with his wife, now Lady Barwick- a governing director of that company. In accordance with article 94, his position was such that if there was any disagreement about the conduct of the affairs of the company the matter was to be resolved by him, Garfield Barwick, in accordance with his opinion. Moreover, article 72 provides that he, by virtue of being the eldest male governing director, was to be the chairman of directors of that company. Furthermore, there is a provision in article 101 allowing for the appointment of a managing director of that company, and Sir Garfield Barwick is identified as the manager of Mundroola Pty Ltd in all of the annual returns that were tabled up to and including 1973.
It is clear, then, that certainly so far as the public record is concerned, Sir Garfield Barwick did play an absolutely central role in the direction and management of the company. It was not in any sense a purely formal or sleeping directorship that he had. As a governing director, as the governing director whose opinion was to prevail in any matter of contention, he had in effect the sole control over the affairs of that company and the disposition of its assets.
The impression that one thus derives formally from those documents about the active individual involvement of Sir Garfield Barwick in the affairs of the company is further reinforced by the regular appearance of his signature, as distinct from that of other directors, on a mass of company land transfer and subdivision documents at least up to 1969. A table listing the documents in which those signatures appear has been incorporated as table 8. It is clear, further, that the company in question is not and never has been a mere paper entity. It has operated on a significant scale. It was certainly involved in significant land and share dealings during the period from 1964 to 1974. Apparently it still plays an active commercial role. 1 will be saying something more about that in a moment.
It might be thought that that one sentence in the Bowen report is an insufficient basis on which to criticise this kind of judicial involvement in business affairs, at least for a merely private company. Certainly some attempt was made in the Fraser statement this afternoon to suggest that the Bowen Committee report on this matter had to be qualified and distinctions made in terms of the nature of the business enterprise in question- it being the kind of business which was involved in dealings with the public- and that a company which merely held by way of family investments land and share portfolios ought not to be regarded as subsumed within that particular, and on the face of it quite absolute, statement in the Bowen report. However, I put to the Senate that this attempt to qualify, to modify, to retreat from the absolute quality of the Bowen Committee’s statement on this matter has all the characteristics of a recent invention and not one that is in confcrmity with the received body of opinion on what is conventionally proper forjudges to do and not to do by way of engagement in business affairs. In that respect I will quote a quite extensive passage which deserves quotation in full because it is the best single account in the literature of what those conventions are. I seek to quote from a book by Dr Shimon Shetreet entitled Judges on Trial- A Study of the Appointment and Accountability of the English Judiciary which was published in 1976. It is edited by Professor Borrie of the University of Birmingham and has a foreword by the Right Honourable Lord Justice Scarman who is one of the best known, most distinguished and highest placed judges in the English judiciary. In the course of the foreword Mr Justice Scarman said that this was an ‘admirably thorough’ book and one which approaches and deals with the issues with ‘detached impartiality’. I will quote from pages 333 to 335 of the book. The first passage which deals with business activities of members of the judiciary reads as follows:
As in all extra-judicial activities, business activities Tall into two categories. There are activities in which a judge is allowed to indulge, upon the assumption that he will be careful to avoid undesirable situations, and that if the matter or a related matter came before him judicially, he would disclose his interest and, if necessary, disqualify himself. On the other hand, there are activities which are fraught with hazards and from which a judge is excluded altogether. In the area of business activities the stricter approach is generally followed. Except for personal investments in stocks, property, or commodities, a judge cannot engage in any business or indulge in any financial dealing. Nor can he associate himself in any manner with business institutions.
The following case demonstrates how strict are the English practices and traditions on business activities of judges. 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 by 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 these 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.
There are no recorded cases of difficulties arising from judges’ involvements in business activities, except that of McCardie, J.,
I interpolate to say that his quite extraordinary career in this respect is the subject of very detailed examination elsewhere in this book. The book continues:
There is no practice of periodical financial disclosure filed by the judges, nor has there ever been a need for such. A requirement of disclosure, beyond tax returns, could be viewed as an unnecessary interference with the judge’s privacy.
The passage dealing with the subject of judges serving as directors or officers of companies reads:
Judges do not serve as directors, officers, trustees or advisers of a company whether public or private, nor do they otherwise associate themselves with any other business organisation. This has not always been so. At the beginning of this century judges were more involved in business activities and served as directors and trustees of public companies. Their names, moreover, were extensively advertised. Letters to the editor protesting against this practice may be found in The Times of those days. In 1917 in Parliament, a Member drew attentionto the undesirability of judges in Scotland holding directorships in banks and other concerns.
Today it is firmly established and ‘clearly understood that no one holding full-time judicial office at any level may hold directorships or partnerships in 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’.
The passage on personal investment states:
There is no restriction upon personal investments by judges. As a general rule, they can invest in real property, stocks, commodities, or any other thing they wish. In practice, however, judges will not invest in companies involved in activities which, in the opinion of a significant segment of the public, are immoral or otherwise objectionable, though perfectly legal.
Of course there are a number of possible counterarguments that can be advanced in the present context to the applicability of that long passage which seems without contradiction from any other source that 1 have been able to find to state very accurately the conventions there prevailing.
On the one hand it might be said that the activity of Sir Garfield Barwick comes within the acknowledged exception for personal investments. Perhaps the point being taken is that in modern day practice private companies are often used as the vehicle for such personal investment- no doubt, of course, for taxation reasons. But since it is acknowledged that the Chief Justice is not and never has been a shareholder in the company, it is difficult even to begin to characterise his activity in this way. This is not to say that Sir Garfield Barwick did not have an interest in the company- perhaps a pecuniary interest- such as to raise serious questions about conflict of interests. I will come to that point later on.
Another thing that might be said- this seems to be very much the substance of Mr Fraser ‘s statement in the other House- is that the business activity here in question should be regarded as essentially a private or family matter involving no more than, as it were, the gentlemanly management of the family estate and that it should be regarded as being outside the application of the general rule stated in absolute terms in the Bowen report. However, a number of things can be said against any such argument. In the first place, there is certainly nothing in the Bowen Committee report or in the authority cited and recorded by Shetreet to suggest the applicability of any such distinction. Indeed, the specific example given of the English practice whereby a judge was forbidden by his Lord Chancellor even to sign a cheque in the winding up of the affairs of what was obviously a family concern indicates the contrary.
Secondly, although it is of course true that the wife, son and daughter of the Chief Justice were and are shareholders in the company and to that extent it does partake of the flavour of family enterprise, it is also true that the most substantial shareholder in that company and a director of that company, again right up to the end of 1974, was someone who appears to have no connection as such with the family other than being a close friend and business associate of the Chief Justice. I refer to Mr Leslie J. Thompson whose directorships I will have occasion to refer to again later. I suggest it is difficult to regard this as being purely a family concern when the involvement and the majority shareholding, albeit of only deferred shares, is held by someone who is not a member of the family.
Finally in this respect, there is the question as to the scale and nature of the operation of this company which, in my suggestion, militates against any such reading of it as being merely a family company involved in the management of family investments and the holding of portfolios of land and shares, to quote the Prime Minister’s words. The company, Mundroola Pty Ltd was, and seems still to be, an active commercial venture engaged in the purchase, development and sale of land and significant investment in shares. The land development activities of Mundroola, as revealed by the documents which have been incorporated in Hansard, have not been confined just to the development and subdivision, the selling off over time, of the original family property at Beecroft. Significant new purchases have been made from time to time, including around seven acres altogether of prime suburban development land in 1 3 separate purchasing transactions, from 1 964 when the Chief Justice assumed office until the end of 1 974 when he resigned his directorship.
The total transactions of Mundroola Pty Ltd in this period were of a very significant scale. Purchases amounted to $162,161 and sales of land over that period amounted to 5585,740. A more extended summary of those transactions appears at Table 4 of the documents incorporated in Hansard.
As to the shareholdings and share activities of Mundroola Pty Ltd, it is just not possible to put together anything like a full account of the share transactions of the company over the period, not least because the very first balance-sheet and profit and loss account on public file is for the year ending 30 June 1973. That statement, however, shows that there were shareholdings at cost in that year amounting to $ 1 67,548, representing a market value of $357,880. Since 1973 the company has continued to maintain very substantial shareholdings ranging at cost from as high as $202,046 in 1975, to the lowest at $139,879 in 1977. The character of those shareholdings will be the subject of further comment by me in a few moments. But I think it ought to be noted that the shareholdings in the three companies with which we are most immediately concerned- the Brambles, CSR and Ampol groups- amounted in 1973- this is an approximate figure- to only about $45,000 at market value as compared with, it will be recalled, the total market value of over $357,000. This suggests that Mundroola has held shares at a market value of the order of $3 10,000 in a whole series of other companies, whose identity we are not aware of.
It may be that the land and share transactions to .which I have referred are no more than what one could reasonably expect of a properly managed family investment, new purchases of land and shares being no more than the reasonable investment of the proceeds of the original subdivision. But I simply make the point again, as dispassionately and as temperately as I can, that the facts seem to militate against this reading of the situation. In any event, the point remains that the conduct of extensive and detailed business transactions of this kind seems traditionally to have been regarded as absolutely inappropriate for a judge to engage in. Of course, the reason for this has been the desire to maintain both the reality and the appearance of judicial aloofness from affairs of the commercial and financial flesh.
The point of that traditional prohibition appears perhaps a little more clearly when we move away from the mere engagement in business activity, with which I have been dealing so far, to consider the further important matter with which this motion is concerned; that is, the apparent existence of conflicts of interest of the Chief Justice arising out his participation in those business activities. At the outset, on the subject of conflicts of interest, it ought to be said that perhaps the most fundamental reason for the prohibition on conflict of interest, if such it be, or the prohibition on judges engaging directly in business activity, is that this mere engagement in business activity can so easily give rise to both the appearance and the reality of conflict of interest which in turn, as the Bowen Committee put it, is ruled out by criminal law, by legal doctrine and by convention.
I think it is important to appreciate at the outset of this discussion that it has always been accepted that in these matters the appearance is just as important as the reality and that judges do have a basic obligation to avoid getting themselves into any kind of situation where their impartiality might be seen to be at risk even if, in practice, one can have some confidence that it is not. This point, probably, has been best summarised in the very famous statement or dictum of Lord Chief Justice Hewart in the 1 924 case of R v. Sussex Justices; Ex parte McCarthy. He said:
It is not merely of some importance but of fundamental importance that justice should not only be done but manifestly and undoubtedly be seen to be done.
It is especially important to note that Chief Justice Barwick, in the course of his joint majority judgment along with Justices Gibbs, Stephen and Mason in the case of Re Wation; Ex parte Armstrong in 1976, squarely acknowledged the force of this point. I think it is important to put on record again some of the key passages from that majority judgment in which Sir Garfield Barwick participated. I shall read from page 262 onwards. It 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.
The judgment goes on to refer to the statement that I quoted from Lord Chief Justice Hewart. His statement of principle was recently reaffirmed in that court in the case of Stollery and the Greyhound Racing Central Control Board in another judgment of the Chief Justice in which he makes the point that the ‘reasonable inference of the reasonable man ‘is what counts when one is determining these considerations of impartiality. The judgment continues: . . does go to the heart of the matter, lt is of fundamental importance that the public should have confidence in the administration of justice. If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case they cannot have confidence in the decision.
I repeat the words of Lord Denning, Master of the Rolls, which have already been cited. He said:
Justice must be rooted in confidence and confidence is destroyed when right minding people go away thinking the judge was biased.
The judgment states further: lt would be absurd to suggest that the administration of justice should be less pure in a superior than in an inferior court or that the confidence upon which justice rests is less necessary in the case of the former than in the latter. The rule that a judge may not sit in a cause in which he has an interest has been applied to the most eminent of judicial officers.
There is a reference to the case of Dimes v. Proprietors of the Grand Junction Canal, a 19th century case in which the Lord Chancellor was held to be disqualified from sitting in respect of a company in which he held shares. The judgment continues:
In the same way the rule that a judge may not sit to hear a case if it might reasonably be considered that he could not bring a fair and unprejudiced mind to the decision applies to every court in Australia.
Further on, applying these principles to the circumstances of the Watson case, the court goes on to say:
In the circumstances of the present case, the question is not whether there was a real likelihood that Mr Justice Watson was biased. The question is whether it has been established that it might reasonably be suspected by fair-minded persons that the learned judge might not resolve the questions before him with a fair and unprejudiced mind.
Those passages have very considerable applicability to the present matter, not least, I suggest, because they contain no shadow of a suggestion that what matters is the subjective state of mind of the judge himself. What matters- and it is repeated over and over again in the case law- is the objective impression that would be gained by a reasonably-minded bystander. To the extent that we can have, in the Prime Minister’s statement today, a passage coming from His Honour the Chief Justice, Sir Garfield Barwick, suggesting that what matters is, ultimately- although attention has to be paid to objective standards of reasonable men-the subjective approach of the judge concerned, that proposition just simply does not hold up. I am referring to the quoted passage from Sir Garfield Barwick ‘s letter in which he states:
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.
Again there is the statement from the Prime Minister himself reinforcing the view to the effect that the decision whether a conflict of interests situation arises is one for the individual to make. This, again, is in the nature of, I suggest with all due deference to the gentleman concerned, a recent invention which has no support in the authorities, other than marginal support from what was said in argument in the bank nationalisation case, a matter to which I will come again in a few minutes time.
Against that background, let us look at what the possible conflicts of interest may have been in which the Chief Justice was involved by virtue of his business activities and associations with Mundroola Pty Ltd. There are three kinds of conflicts of interest issues raised by the present materials. The first issue is a quite general one and it goes to the determination by the Chief Justice of the kinds of cases in which Mundroola, by virtue of the nature of its activities, was likely to be interested in the general sense. Secondly, there is the issue of the determination by the Chief Justice of specific cases in which he may be thought to have had a pecuniary interest. Thirdly, there is the matter of the determination by the Chief Justice- again of specific cases- in which it may be thought that there was a real likelihood of bias by the Chief Justice. As to the first point- the determination by the Chief Justice of the kinds of cases in which Mundroola, by virtue of the general nature of its activities, might be thought likely to have an interest in the outcome- let me say this: Mundroola Pty Ltd, as a company investing in land and shares, could reasonably be expected to have a close interest in developments in the law, among other areas, of town planning, of Torrens title, of vendor and purchaser, of tax law, including the operation of 26A of the Tax Act, of stamp duty, of contract, of company law generally, of mortgages, of ratings and of valuations.
Each year in the period 1964 to 1974, the High Court heard and determined, with the participation of the Chief Justice, up to a dozen or more major cases on these various subjects. I am not suggesting- I make this clear- that in any one of those cases Mundroola Pty Ltd stood directly to gain or to loose, or that Sir Garfield Barwick participated in those cases otherwise than on the basis of stating the law as he genuinely saw it to be. But there may be, nonetheless, grounds for thinking- I put this very seriously- that public confidence in the administration of justice is put at risk to the extent that things like this can take place. It may be that considerations of this general kind are best regarded not as conflicts of interest, properly so-called, in any direct sense, but rather as adding extra weight to the traditional prohibition on judges engaging in any form of business activity. In any kind of business activity, whatever its nature, situations are bound to arise where there can be conjecture as to the degree of impartiality with which a judge approaches the resolution of a commercial, taxation or land use problem.
I turn now to the more specific matters. First of all, there is the hearing and determination by the Chief justice of specific matters in which he may be thought to have had a pecuniary interest. The law and conventions governing this matter are very clear. I draw attention, first of all, to paragraphs 11.5 and 11.6 of the Bowen Committee report which have already been incorporated- I will pass on without reading them out- which refer to provisions of the Crimes Act, in particular section 34 (b), which expressely excludes certain kinds of judgments or exercises of jurisdiction entered into wilfully and perversely so as to involve a conflict of interest. Paragraph 1 1 .6 states not so much criminal law but rather general legal doctrine and convention governing the question of disqualification.
Again, Dr Shetreet, in the book Judges on Trial has something quite specific and quite authoritative to say on this matter. On page 309 of his book, he states:
The crux of the problem in cases of interest in the proceedings is the ownership of shares or other personal association with a corporation (e.g., having a bank account). Unless a strict view is taken on the matter, that a judge should disqualify himself no matter how small and trivial his shareholding, the matter does not admit of an unqualified rule. The English practice does not take the strict view and allows a judge to sit when the interest is minor or minimal-
I repeat that:
The English practice does not take the strict view and allows a judge to sit when the interest is minor or minimal provided that he always discloses it. Whether or not the shareholding would be regarded as minor would depend on the number of shares, when compared with the total capital; the amount involved in the litigation; whether the company is a public or private company; whether the judge has shares in the company which is party to the proceedings or in another company which has an interest in it, and how much interest it has in it; to what extent the issue under adjudication would have any effect on his interest. These and other considerations would determine the matter. If the judge’s wife is a shareholder, this is considered in the same light as if the judge himself was a shareholder, and he has to disqualify himself or disclose, as the case may be.
There is no third category in Shetreet providing for non-disqualification and non-disclosure of these matters. He continues:
If he knows about a near relative who is a shareholder, he would equally be expected to disqualify himself or disclose. Similar considerations will apply if a judge held shares as a trustee, if he has a bank account or was otherwise associated with a corporation.
As the judges are very careful to disclose every interest however small, shareholding has not as yet presented any difficulties in England as it has in the United States. A high Court judge said that should a judge sit in a case in which he has an interest without having disclosed the matter, he would have to resign.
There is a mass of case law both in England and in Australia in support of the general proposition that prohibition will lie as a matter of law against a judge who continues to sit in those circumstances. I quoted Dimes v. Grand Junction Canal, and the King v. Sunderland Justices is another case. But the specific point I emphasise, which is a pre-condition to everything that follows, is that, although one can accept that it may well be that the small, trivial or minor character of an interest or the indirect character of that interest may be a ground for the judge continuing to sit on a matter, it is not and never has been regarded as a ground for the judge not to disclose to the parties the existence of that interest.
Although the Fraser statement and the Barwick letter attached to it put down today are at pains to employ- indeed some of the direct language from Shetreet as to the minor character of the transaction and the matters which have to be taken into account in determining whether there is a genuine conflict of interest situation appear- the statement avoids the absolutely fundamental and central question which is not whether, ultimately, after all things have been taken into account, it is proper that the judge should sit, but which is concerned with the disclosure of those interests. I go back to the point with which I began on this matter. What matters is the appearance of justice, not just the fact that justice has been done.
What has happened, in this circumstance, to give rise to concern of this kind? As is now well known, the Chief Justice has participated in a number of cases which involved companies associated with Mundroola or in which Mundroola held substantial shareholdings. Given the time available, I will not now repeat the names of those cases or give any indication as to their subject matter. They are cited in Table II, already incorporated. I do not dissent from anything which has been said about the character of those cases or the results of them which are contained in the Prime Minister’s statement put down today. I simply summarise by saying that there were four cases in the period to the end of 1 974, when the Chief Justice was unequivocally still a director of the company. There have been two cases since that time involving companies of which the Chief Justice clearly was no longer a director but of which, nonetheless, his wife was still a shareholder. There are other matters of concern, to which I will attend in a moment, which arise out of that relationship.
With respect to the shareholding situation which prevailed at the time at which each of those cases were adjudicated, again the materials which have been incorporated in Hansard, in Table 10, fully spell out the position. There was a substantial shareholding involving some thousands of shares, ranging from a minimum of 900 shares in CSR- when the CSR matter was determined in 1967- to 30,000 shares in a matter in 1971 involving Ampol Pty Ltd. There have been other significant shareholdings in various Brambles companies at times when matters involving Brambles companies were before the court. Although 1 have no desire to speculate unduly on matters that are not the subject of public record, I simply make the point that the only case we know about in which a conflict of interest situation may have arisen are those concerning CSR, Brambles and Ampol. As I indicated earlier, as at 1973 some $310,000 worth of shares were held by Mundroola in other companies. It may well be that other situations have arisen in respect of the determination by the Chief Justice of cases involving such other companies. I say no more than that that is a possibility. It is not one I am in a position to make any explicit points about.
The question arises in respect of these matters: Did Chief Justice Barwick have a pecuniary interest- I am talking specifically about pecuniary interest, not just the reasonable likelihood of bias- such that he came squarely within the traditional rules requiring disqualification or, at least, disclosure when such a pecuniary interest situation arises? I emphasise the point about pecuniary interest because there has been some endeavour in the Prime Minister’s statement and in what is said by Chief Justice Barwick to use not the expression ‘pecuniary interest’ but the really rather different expression ‘proprietary interest’ in order to take the matter out of the realm of argument. I am afraid they have not succeeded. Of course, it is acknowledged that the Chief Justice did not have a proprietary interest in the sense of being a shareholder at any material time in Mundroola Pty Ltd.
However, it is at least arguable that he did have or may have had a significant pecuniary interest in that company, nonetheless, as a result of certain other considerations. Those considerations relate to the use and enjoyment of the Barwick family residence which is owned by Mundroola Pty Ltd; the remuneration to directors which is recorded in successive annual reports; and the loans to unnamed directors which are also the subject of very considerable financial exposition in the annual reports of the company. The first possibility of pecuniary interest arises at a very general and indirect level. I put the point quickly that to the extent that the wife, son and daughter of the Chief Justice were beneficiaries of various kinds of largess from Mundroola Pty Ltd, not least their receipt of dividends for their shares, it is of course arguable that the Chief Justice’s outgoings were less in support of his family than they would otherwise have been had that family company arrangement not existed.
At best, that is a very indirect and remote pecuniary interest in the company. I do not make a very strong point about it, except to put it as a threshold consideration that deserves to be taken into account. There are more specific and direct relationships with the company which give rise to a suggestion that there may have been pecuniary interest. I refer to the matter, firstly, of the family residence of the Chief Justice. I will proceed with that matter in the time remaining to me after the suspension of the sitting for dinner.
Sitting suspended from 6 to 8 p.m.
– Before the Senate suspended for dinner I was considering the question of whether Sir Garfield Barwick might be said to have a pecuniary interest in Mundroola Pty Ltd, notwithstanding the absence of any shareholding by him. In that respect might I indicate that the definition of ‘pecuniary interest’ which appears to be accepted by the Bowen committee in paragraph 2.17, and which is based in turn on that specified by this Parliament’s Joint Committee on Pecuniary Interests of Members of Parliament, is in these terms:
It is clear from that definition and indeed on general principles that the concept of ‘pecuniary’ interest is substantially wider than that of ‘proprietary ‘ interest on which both the Prime Minister and the Chief Justice have sought today to rely. On the subject of possible pecuniary interests, the first matter which raises itself for attention is the use and enjoyment by Sir Garfield and his wife of their family residence, originally at Beecroft and since 1969 at Careel Bay, which is on the record as being owned by Mundroola Pty Ltd and is subject to various mortgages entered into in the name of that company.
I acknowledge that these matters are necessarily speculative because there is no evidence one way or the other on the public record, but there are questions which require answer in this respect. First, have Sir Garfield Barwick and his wife paid rent to Mundroola Pty Ltd for their occupancy of that property? There is no evidence in the accounts of the company that any income of this kind was received. If not, the Barwicks would appear to have derived a clear financial benefit from their occupancy of that property. Secondly, who has paid the interest on the mortgages current in respect of that property? Again, the Mundroola accounts are silent on that question, except that it might conceivably be subsumed under the item for net trading profit or loss in each year. If the company did in fact pay the mortgage interest on behalf of the Barwicks, once again it would be apparent that the Barwicks were deriving a financial advantage from Mundroola in that respect.
Thirdly, who has paid the rates and taxes on that property? There is a suggestion at least in the 1973 accounts of the company that rates and taxes have been paid, and it is apparent that some proportion of that might well be attributable to the Careel Bay property. Again if the company has paid that, there would seem to be some clear financial benefit involved for the Barwicks. A further matter of potential pecuniary interest arises under the item of loans to unnamed directors, which appears regularly in the balance sheets after 1973. There is some $90,000 outstanding in loans to directors identified for 1972 and $1 13,000 plus for 1973. Subsequent financial returns do not specifically indicate what, if any, of the proportion of loans subsequently outstanding are attributable to directors in this respect. There may indeed be a breach of the Ninth Schedule of the New South Wales Companies Act. It is perfectly possible, on the state of the accounts at the moment, that Sir Garfield has been in receipt of loans which an analysis of the interest provisions in the balance sheets rather suggests were either low or noninterest loans. If this was so it is a question which requires an answer. Again there would appear to be a probability that Sir Garfield has derived a clear financial benefit from his association with the company. A final matter of potential pecuniary interest which needs to be answered is the matter of some $2,000 a year remuneration to unnamed directors- a regularly recurring item on the balance sheets. Again I simply ask the question: Has Sir Garfield to any extent participated in that largesse? If he has, again there would seem to be a clear pecuniary interest of a relevant kind.
I acknowledge that there is a question which * of all this along the following lines:
Even if Sir Garfield Barwick has a pecuniary interest in Mundroola of the kind I have outlined, is the mere fact that Mundroola has significant shares in other companies which have been involved in litigation before the court enough to bring into play the rules and conventions of disqualification and disclosure which I have outlined, or is this too indirect and remote an interest to count? I acknowledge that there are no cases precisely in point of this respect. I do however note that Shetreet in the passage I have already quoted from on page 309 of his book, specifically refers to this kind of relationship between a company in which a judge is financially involved, and a company which comes before him for litigation, shares in which are held by the company in which he is involved. The suggestion is made that whilst that indirect pecuniary relationship might be something that could be regarded as minor and such as not to justify the judge’s withdrawal from the case, certainly it is a matter which ought to be disclosed. I make the point, if I have not already, that there is no evidence whatsoever that in any of those six cases to which I referred there was a disclosure of any kind.
A further question of pecuniary interest arises in respect of the shareholdings of Sir Garfield Barwick ‘s wife, Lady Barwick, who, it is clear, at all relevant times was a substantial shareholder in the company, possessing some 850 out of 852 ordinary snares issued. In England it is perfectly clear that a pecuniary interest of the wife in this respect counts exactly as if it were a pecuniary interest of the judge himself. I acknowledge that in Australia the position is much less clear and in fact it might be thought, on the basis of the passage in the Bank nationalisation case argument and indeed the further Queensland case of R v. Industrial Court in 1966, that there is no such rule in Australia. However, I make the point in respect to that Queensland case, citing and relying as it does on the Bank nationalisation case, that whilst the court there seemed to be of the opinion that a wife’s interest did not count as a judge’s pecuniary interest, nonetheless it treated the matter as one which raised the question of real likelihood of bias on the part of the judge in question. In the Bank nationalisation case the court regarded it as appropriate that in those circumstances the matter be aired in the court, that there be disclosure of it and that if the j udge were to continue hearing the case there ought to be a declaration to the satisfaction of all parties that he would not be biased in any way as a result of that kind of pecuniary interest. To the extent that the Queensland case does not seem to require even disclosure of that kind, I would suggest that it is inconsistent with the High Court Bank Nationalisation case, is wrong and ought not to be regarded as good law. I regard the essence of the Bank Nationalisation case both on its facts and on the way the matter was dealt with by the court in resolving the problem in that case as certainly requiring disclosure, if not necessarily the subsequent withdrawal of the judge from the case.
The final matter in the context of conflict of interest that must be considered is the area of the conflict which arises not from any pecuniary interest of the judge in question in the companies litigating before him, but rather from other considerations which point to a real likelihood of bias on the part of that judge. The law is perfectly clear that pecuniary interests are not the only basis on which conflicts of interest can be thought to arise. The Bowen committee makes that point perfectly clear in paragraph 1 1.7 of its report. The matter is very squarely put in a famous statement by Chief Justice Blackburn in the English case of R v. Rand when it was said:
Whenever there is a real likelihood that the judge would from kindred or other cause have a bias in favour of one of the other parties it would be very wrong in him to act.
That is a statement of the law which is in fact picked up and adopted by the Chief Justice along with other members of the court in the Watson case to which I have referred. It is clear that the real likelihood of bias does not, on the state of the law, mean any probability in fact that the judge will be biased. The test here, as always, is how confident a reasonably minded observer would be that no question of bias could possibly intrude. That point was again made by Chief Justice Barwick in his own single decision, his one man judgment, in the Greyhound case to which I referred earlier. It is very clearly made by the Master of the Rolls, Lord Denning, in the English case Metropolitan Properties Co. v. Lannon in 1 969, which case was in fact picked up and adopted by the High Court in the Watson case. The law seems to be clear. The question then arises: Are there any circumstances in this situation which give rise to a suggestion of a reasonable likelihood of real bias on the part of the judge.
I do not want to trespass unduly on the time of the Senate. I know I have done that already but I would appreciate a short extension of time. (Extension of time granted.) I appreciate the indulgence of the Senate on this matter.
Are there any circumstances in this matter which give rise to such a suggestion of real likelihood of bias? I suggest that there are three or four such matters. Let me enumerate them very briefly.
The first one is, of course, that Sir Garfield Barwick was a director- indeed, governing and managing director- of a company which had substantial shareholdings in CSR, Brambles and Ampol at the time that the litigation was on foot. As a director he had legal obligations imposed by section 124 of the New South Wales Companies Act and, indeed, by the general law to act at all times in the best interests of his company. I suggest that that consideration alone is sufficient to raise a problem about the possibility of bias in these matters. Secondly, although he was not a shareholder with any pecuniary interest in that sense his wife was at all material times. It is arguable on the authority of the Bank Nationalisation case that this requires both disclosure and a declaration by the judge disavowing the possibility of partiality on his part. There was no such disclosure and no such declarations in any of the six cases to which reference has been made.
The third matter which gives rise, I suggest, to possible bias in this respect is that a fellow director of Mundroola Pty Ltd and indeed a majority shareholder in that company at all material times was Mr L. J. Thompson, then a director of, amongst other companies, Ampol Petroleum Ltd and associated groups; Brambles Industries Ltd, the parent company for a number of the companies which came before the court; and CSR Chemicals Pty Ltd, a company the effective ownership of which was again by CSR Ltd. I suggest that that very close and longstanding relationship with Mr Thompson, to which Sir Garfield refers in his letter tabled in the other place today, gives rise to the suggestion on the part of a reasonably minded observer- or, putting it in Sir Garfield Barwick ‘s own terms in the Greyhound case, a reasonable inference on the part of a reasonable bystander’- that there might be a possibility of something less than absolute impartiality, certainly such as to require a disclosure of the nature of these interests and potential bias to counsel, and certainly also I would have thought such as to require disclosure in open court.
These are the particular matters which I believe give genuine grounds for concern that the highest standards of judicial behaviour may not have been fully or thoroughly observed by the Chief Justice over a substantial period of his tenure on the High Court Bench. It might be thought that the standards I am suggesting are unreasonably high and not such that lesser mortals could reasonably be expected to attain. But the fact remains that the standards we require of our judiciary are higher than might be reasonable to require of anyone else. In that respect I rely on no less a presence than Sir Winston Churchill who, according to Shetreet, said in the House of Commons in 1954:
A form of life and conduct far more severe and restricted than that of ordinary’ people is required from judges and, though unwritten, has been most strictly observed. They are at once privileged and restricted. They have to present a continuous aspect of dignity and conduct.
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, though free from criticism [in Parliament], a far more rigorous standard than is required from any other class that I know of in this Realm.
The Bowen Committee made no recommendation for any extension of the conventional and legal rules which exist to govern judicial conduct because the Bowen Committee regarded the existing pattern of legal doctrine and the convention as sufficiently wide ranging to cover the situation. The Bowen Committee, in paragraph 11.7, stated:
It 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 and would provide for resolution of the situation if it did.
It may be that in the present case the Bowen Committee’s confidence was misplaced and that the normal rules about the non-conduct of business by judges and the disclosure of competing interests have in fact been breached.
I make no suggestion that I have mounted anything other than a prima facie case in everything that I have tried to put on the record this afternoon and this evening. But I regard it as proper and appropriate that there be conducted into these outstanding matters a full inquiry of a kind that only a joint select committee, with all the procedures at its disposal, would allow. Indeed, only such an inquiry would give a full opportunity to the Chief Justice to put on record not just some of the matters which might be thought to bear upon this question, as he has in his letter to the Prime Minister today, but all the matters about which this Parliament and the Australian community must be satisfied before this matter can ultimately be put to rest. I have raised these matters simply in the belief that the public interest compels it. If public confidence in the absolute integrity and impartiality of the judges of the highest court in this land is in any way put at risk by the questions which have been raised here not being satisfactorily answeredand I do not believe they have been answered by either the Prime Minister or Sir Garfield himself in the papers put down today- there is little hope for the long run survival of public confidence in any democratic institution in this country. I commend the motion to the Senate.
-Is the motion seconded?
– I formally second the motion.
– The Government is convinced that no case has been established which in any way suggests a breach of conduct by the Chief Justice and no case -
– That is Barwick judgment.
– Order! Honourable senators listened in silence to Senator Evans. I demand silence now while the Leader of the Government is speaking.
-I repeat that the Government is completely convinced that no facts have been established to suggest any breach of conduct at all by the Chief Justice and no facts have been established to indicate that any inquiry of any kind should be held, much less -
– Another cover-up.
– Order! I ask Senator Walsh to remain silent.
– No inquiry is necessary on the facts suggested, especially the kind of inquiry which has been suggested by Senator Evans in his motion. The fact is that we are talking about a gentleman whose reputation in Australia over a period of 50 years or more in the law is completely unsullied.
– But it is challenged now.
– Order! I ask honourable senators to allow the Minister to speak. We had no interruptions when Senator Evans was making his speech.
– If honourable senators opposite want to set double standards, let them do so. We regarded this matter as being serious enough for us not only to hear Senator Evans in silence but also to give him an extension of time in which to speak. But if honourable senators opposite want to set double standards, it is for the public to judge their conduct. We are talking about a man who for more than 50 years has been pre-eminent in the law of this country, a man who led the Bar at the State and Federal level, a man of high distinction in the law, recognised not only in Australia but also internationally, a man who for some 16 years has been a very distinguished Chief Justice in this country, recognised internationally as such. That is the basic situation.
I pose one question, and let the public ask this question now: As the facts of all these matters have been available now for something like 30 years, why are they being raised now? It would have been possible for Senator Evans, or any of his colleagues, or anybody in public who wished to undertake a search, to have revealed the facts at any stage. The real question to be investigated is: For what purpose has this been done? As we are looking into the minds of fair-minded people, what is the motive? I repeat that in the whole of that time and significantly during the 16 years Sir Garfield Barwick has been Chief Justice, nobody has ever suggested that the man is not a man of massive integrity, of great objectivity of judgment and of impartiality. Those are the facts. The doors of the court rooms were open for people to come in and to make their challenges, as were the doors of the Press rooms, but challenges were not made.
What are the facts? The facts are that many years ago- some 30 or more years ago- like so many, perhaps most, lawyers particularly those who have been successful, Sir Garfield Barwick set out to protect his children during their lives, a decent, wholesome thing to do. He established a family company. That is not to be seen as something wrong; it is to be seen as a method of protecting one’s family, a method which is availed of very widely in this community. It is a completely honourable, completely legal, completely wholesome and completely proper thing for any person, whether he be a parliamentarian or a judge, to do.
I shall now read to the Senate Sir Garfield Barwick ‘s letter, in which he describes those events. Then perhaps I will go on from there. Sir Garfield wrote to the Prime Minister (Mr Malcolm Fraser) in a letter dated 28 April:
My dear Prime Minister,
As publicity has been given to the affairs of Mundroola Pty Ltd, and as political advantage is obviously sought to be made of them and my former connection with them, you should know the following facts.
As a young man, I formed Mundroola Pty Ltd to benefit my two children, both during my lifetime and after my death. With the exception of a relatively small shareholding taken by my wife for a purpose which I will later mention, our two children have always been the sole proprietors, legally and beneficially, of the shares of the company and therefore of all its assets.
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.
With the assistance of Mr L. J. Thompson, a man of high repute in the business world, I managed and controlled the company’s affairs during my children’s minority and for some time thereafter. But the making of returns, including income tax returns, was left respectively to the solicitors and accountant employed by the company. The company was never a trading company and confined itself to investment in land and shares in companies.
As my son progressed in his legal studies, I progressively involved him in the management of the company’s affairs and lessened my own participation therein. Consequently, for some years prior to 1974 I had ceased to be actively engaged in that management. I had decided that my son, in consultation with his sister and with the assistance of Mr Thompson, should completely take over that management.
In 1974 my attention was called to the fact that legally I retained control of the company. 1 then formalised the situation which had developed and resigned from the directorate of the company.
My wife remained as a shareholder and as a director so as to be available to arbitrate between the children in the event of their disagreement about the company’s affairs. She has never actively participated in those affairs and has never had any need to act as arbiter between the children.
Since disconnecting myself from the active management of the company, I have not kept myself informed of the details of its activities and, in particular, of its share portfolio or its movements.
Mention has been made of my being a member of a Full Court deciding cases in which public companies were litigants in which Mundroola Pty Ltd held some shares. It is not suggested, I gather, that my views in any of these cases were in any wise influenced by the circumstance that my children, then adult, were entitled in their own right to shares in the companies concerned: but it is suggested that justice might not appear to have been done in those cases.
Justice is seen to be done if an informed and fair-minded person could not have honestly entertained doubt as to the impartiality of the judge. The identity of the judge, the nature of the issues in the case, the possible effect of their decision and, where shareholding is involved, the extent of the shareholding in question would no doubt all be included in the fair-minded person ‘s consideration. Further, in considering the possible effect of the decision of the case either way upon the rights of a shareholder it would be remembered that it is only in the market value of the shares and the extent of a dividend that the rights of a shareholder are likely to be affected.
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 all honesty have entertained any doubt of my impartiality in the resolution of an appeal, particularly an appeal involving, as mostly they do, matters of legal principle: that is to say, I feel sure that no informed and fair-minded person would have honestly thought that my views might have been influenced by the fact that my adult children beneficially owned shares in the litigant companies. 1 notice that reference is made in the press to the fact of my bankruptcy in the 1920’s, no doubt hoping by the reference to discredit me in the public mind. In those circumstances, I may be permitted to refer to the facts of the matter, something which I have not heretofore troubled to do.
I had allowed a business run by my brother to be conducted in my name because he was then a minor. When the business failed I was legally liable for its debts. The principal creditors were three oil companies. I negotiated with them and asked for time to pay, undertaking to do so as promptly as I could. They refused and preferred to bankrupt me.
Notwithstanding the bankruptcy and my discharge from it, I fully paid out of my subsequent earnings all the creditors of the business and all my own creditors, including my bank, all the moneys formerly due to them, with the exception of the oil companies. I felt no moral obligation to make payment to them, having regard to their choice of my bankruptcy rather than the acceptance of my offer to pay.
You are at liberty to publish this letter or to use its information as you may see fit.
Yours sincerely. Garfield Barwick
The letter makes it perfectly clear that Sir Garfield Barwick, in fact as he said, ‘never had any proprietary interest, legal or beneficial, in the company or in any of its assets’ and ‘never derived any income, nor any personal advantage in taxation, from the existence or the activities of the company’.
I turn to the suggestion that Sir Garfield sat in the High Court on cases in which companies in which his family company had a shareholding came before the High Court. Six such companies were named in the Press. It is fair to say that the corporations are Brambles, CSR and Ampol. To sum up the decisions, in four of the six cases the decisions went against the corporation concerned; in other words, the decisions went against the interests of the family company, however minor those interests might have been. A bench of five judges sat in all the cases, except one in which three judges sat. In five of the six cases the decision was unanimous. In the sixth case the decision was reached by a majority of four, including the Chief Justice, to one, Mr Justice Murphy. In all those cases, the vote of the Chief Justice had no influence at all upon the result.
Let me deal with the cases. The first was Brambles Constructions Pty Ltd v. Helmers in 1966. I pause to say that some 14 years have passed since then. The records of the companies have been available. It has been known that there is a family company called Mundroola Pty Ltd. It has been known that it had shareholdings. Nobody has sought to raise the matter until now. The real inquiry should be into the motives of those who are pursuing this matter at the moment. In 1966 a five-judge bench unanimously dismissed an appeal by Brambles concerning a claim for contribution made against it in respect of a personal injuries award. The case was argued in December 1965. Where could there be an interest by the Chief Justice or his family? The case was dismissed. The Commonwealth Sugar Refining Co. Ltd v. Dilley and others in 1967, some 13 years ago, is another case. A three-judge bench unanimously dismissed an appeal by CSR against an interpretation of the New South Wales company takeover legislation. Cullen v. Ampol Petroleum Ltd in 1971 was unreported but was noted in unreported decisions in 1971. This appeal heard by a five-judge bench, went unanimously against Ampol. It concerned a verdict of $105,000 damages against Ampol for malicious prosecution. In Brambles Holdings Ltd v. Pilkington in 1971-72 a five-judge bench unanimously upheld an appeal by Brambles against a conviction under the Traffic Act in Tasmania. The case concerned the freedom of interstate trade. In Whiting v. Brambles Industries Ltd in 1976 a five-judge bench unanimously allowed an appeal against Brambles. The case concerned workers’ compensation. In Brambles Holdings Ltd v. Federal Commissioner of Taxation in 1977 a five-judge bench by a majority of four to one, Mr Justice Murphy dissenting, ruled in favour of Brambles.
These are the cases in which the Chief Justice is alleged by Senator Evans to have had a lack of impartiality. Yet, his judgments in the majority of these cases went against the interests of his family company. Let us turn to the statement of principles which might guide a reasonable person. As Senator Evans would know, in the banking case the then Dr Evatt, Q.C., sought to argue, as I recall, that two judges, Mr Justice Starke and Mr Justice Williams, should not sit because they had a pecuniary interest and may have had some bias in the case. This was a test case. The Chief Justice laid down principles. The wife of Mr Justice Starke held shares in the Bank of New South Wales. She held a pecuniary interest. Mr Justice Williams had a trusteeship.
– How do you know about that?
– With the benefit of a little time and Senator Button ‘s patience I will read the judgment. It will, of course, be very telling in this situation. Mr Justice Williams was trustee for his sister in some banking shares. I will read from another case reported in the Queensland Law Reporter, which refers to the Latham case. It states:
This test was applied by the High Court in its ruling concerning the position of Mr Justice Starke and Mr Justice Williams in the Banks’ Nationalisation case, reported sub nom. Bank of NSW v. The Commonwealth in ( 1948) 76 CLR 1, but not on this aspect. Lady Starke held shares in one of the plaintiff banks, but Mr Justice Starke had no interest in her shares; Mr Justice Williams was registered as a joint holder of shares in two of the plaintiff banks but he was only a bare trustee of them for his sister who lived abroad and he had no beneficial interest in them. The court’s ruling was pronounced by Latham C.J. in arguendo, as follows- ‘You draw a distinction, do you not- an actual pecuniary interest and embarrassment in hearing the case? For example, if there is any degree of pecuniary interest, however small, a Judge is disqualified from sitting. If, however, there is no pecuniary interest, then it becomes a matter of a question in all the circumstances of the case whether there is any degree of embarrassment which would prevent a fair trial. In neither of the cases mentioned is there any actual pecuniary interest- none. My learned brothers have said that they do not regard the existence of the facts stated as in any way affecting a fair and impartial consideration of the issues in the case. It appears to me that that has to bc accepted.’
By a pronouncement from a very distinguished Chief Justice a clear situation has been denned. That would have been in the knowledge of judges and the Chief Justice over the years. From memory, Sir Garfield Barwick appeared in the banking case. It would have been known quite clearly then that this principle had been established.
– There is a murmur of disclosure’. This is not an argument that there ought to have been disclosure. The decision of the Chief Justice, Mr Justice Latham, in that case was quite clear. It said that if a wife held shares and had a pecuniary interest in a particular case that did not affect the impartiality or the conduct of the husband sitting in such a case. If a judge acted in trust for his sister who had shares that did not affect his impartiality. The situation was absolutely clear. I shall bring the matter up to date. 1 will read an opinion by the SolicitorGeneral of the. Commonwealth, Mr M. H. Byers, Q.C., dated 29 April.
– Read it slowly, it is a very important opinion.
-I can understand that. It states:
Questions have been raised as to the propriety of the Chief Justice of Australia participating in decisions of the Full Bench of the High Court in a number of cases. The court decided legal questions in which one of the parties was a company shares in which were held by Mundroola Pty Ltd. The Chief Justice was a governing director and managing director of that company until approximately 1 974. He had no interest in Mundroola ‘s assets, although it seems that company owned the house he lived in. It is a family company formed and pursued in the interests of his children. Lady Barwick had a small shareholding in the company in order that she might act as arbiter should any difference arise between the children.
No question of direct or indirect pecuniary interest arises. No actual bias is suggested. The only question is whether such facts establish that it might reasonably be suspected by fair-minded persons that the learned Judge might not resolve the questions before him with a fair and unprejudiced mind; Queen v. Watson ( 1976 1 36 C.L.R. 248 at page 264).
I think the answer to this question is clearly, no. I do not think that a fair-minded person would reasonably suspect that an unfair and prejudiced mind would be brought to bear on the resolution of the judicial questions because of the facts I have mentioned. Family companies are the means by which family investments are held and managed. The New Code of Judicial Conduct adopted by the American Bar Association in 1972 states that a Judge’ may hold and manage investments including real estate but should not serve as an officer, director, manager or adviser of any business. The Bowen Report is to like effect.
It follows, therefore, that no question of bias arises.
It is signed ‘M. H. Byers, Solicitor-General’. That is a very significant contribution. I turn to the report of the Bowen Committee of Inquiry into Public Duty and Private Interest. The Bowen Committee looked toward the holder of judicial office and asked whether there was a need to alter any of the rules that are available today. In paragraph 1 1.7 it concluded:
The Committee considered whether there was need for further rules, such as are contained in the Code of Judicial Conduct for United States judges, which was adopted in 1 973, or those adopted in the Ethics in Government Act of 1978, which require disclosure of income from non-judicial sources, receipts of gifts, and so forth. It 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 and would provide for resolution of the situation if it did.
The Bowen Committee said three main things. As to holders of judicial office, it stated:
Conflict of interest situations involving members of the federal judiciary are currently regulated by the criminal law, by legal doctrine and by convention.
The Crimes Act 1914, s. 34 (b), provides that ‘any person who . . . being a judge or magistrate, wilfully and perversely exercises Federal jurisdiction in any matter in which he has a personal interest, shall be guilty of an offence’. The penalty for a breach is imprisonment for two years.
It hardly could be said that it has not been alleged that the Chief Justice wilfully and perversely exercised jurisdiction in a matter in such a way. The Committee went on:
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. The law disqualifies a judge who has a pecuniary interest in one of the parties before the court, although it is accepted that the parties to a case can waive the disqualification. For example, a judge is disqualified if one of the parties is a company and he is a shareholder in it. In England, it has been assumed that the disqualification applies whether the shares are the judge ‘s personal holdings or those of his spouse. However, in the Bank Nationalisation case, where the wife of one judge held shares in one of the parties and another judge was joint holder of shares as a bare trustee for someone else, the judges were not disqualified. Judges tend to disqualify themselves in other cases, besides those involving financial interest, for example if as counsel they acted for one of the parties over a long period, or if, as parliamentarians, they were intimately involved with a matter which is now before the court and where embarrassment might be felt by the judge for objection taken by any party.
To understand the meaning of that one needs to look at other sections of the Bowen report. When it talks of engaging in business, it is very explicit about Ministers of the Crown. That statement, read in context with the report, certainly cannot be read as preventing a judge from being a director of a family company which holds land or a portfolio of shares. I suggest that the type of circumstance to which it is directed is that a judge should not, for instance, be involved in the daily conduct of a business which brings him into contact with members of the public; nor should he be a director, trustee or adviser of a corporation which carries on a business like a retail trading company, an insurance or trustee company, which have substantial dealings with the public. A judge who is merely the director of his family company which owns a portfolio of shares or land is not in this position. I do not think that sentence should be read as applying to such a judge. Certainly, if one goes to paragraph 8.25 of the Bowen report, where it lays down principles for Ministers, which undoubtedly will be equally salutary for judges, that interpretation of mine will come through.
What has happened is that a series of allegations have been made. It is extraordinary that Senator Evans, through his speech, made such comments as: ‘It may be that the family company was quite properly conducted as a family investment. It may be that that is so’. I suggest that if that is his feeling, then to go on a witchhunt is an extraordinary thing to do, and one should look to the location of fair-minded persons. This sort of statement ran right through the speech of Senator Evans. I remind the Senate that Sir Garfield Barwick is a man very eminent in law who has had an absolutely unsullied reputation over a course of 50 years. There has been ample opportunity for people to raise questions of bias or of breaches of conduct over the years if they so desired. I have recited to honourable senators cases that have been quoted in the Press, ranging over something like 15 years, from 1966 onwards. In all these cases there were opportunities to raise these matters if people had wanted to.
– How was anyone to know about them? He did not disclose his interests.
– That is an interesting remark. Senator Evans asks how people were to know about them. They were to know about them by the same kind of ferreting in the decades gone by as has been found necessary for some self-interested reasons today- for exactly the same reasons. The ruling of Mr Justice Latham in the bank nationalisation case is a clear parallel to this matter and gives clear guidlines that Sir Garfield Barwick could act without any breach of conduct or embarrassment if his wife or family had interests in a particular corporation or matter in which he was involved. Here is a clear ruling.
It is fair to say that the Press, which has covered this matter very widely, has never made the slightest suggestion that there was any breach of impartiality by Sir Garfield Barwick, or that there has been any integrity. That should be recorded. The fact is that cases have been presented in the Press and there might have been an inference to those reading the reports that the judge sat in those cases and made self-interested judgments. An analysis of those cases shows that the very reverse is true- that in four out of six cases the judgments were adverse to those of the interests of his family company. In all cases the judgments were either unanimous or had a minority of one, and in no case was his decision the deciding judgment. I have referred to the Solicitor-General. He has been quite explicit in his opinion. He stated:
No question of direct or indirect pecuniary interests arises. No actual bias is suggested.
The Solicitor-General concluded that a fairminded person would think that it would be proper for the Chief Justice to act as he has. I have examined the Bowen Committee considerations and found that they are in parallel.
One has only to address the matters that Senator Evans has put forward, the statement which the Chief Justice has made, the opinion of the Solicitor-General and the evidence before us regarding the relevant cases to say that there is no evidence at all of any breach of conduct or ethics. There is no reason at all to consider that any reflection has been cast upon the reputation of one of Australia’s greatest jurists, one of Australia ‘s greatest citizens. I can only regret that it has been necessary for some people to go on this journey. I ponder at the reason for it.
-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.
– His letter goes on to deal with that aspect.
-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.
– No mere mortal relishes the position where he is wedged between two distinguished lawyers. I find myself in that situation tonight because I am following Senator Button in this debate and Senator Chaney will be following me. I certainly will not deal at length or in any depth with the legal argument that has been put so well tonight. Modestly, I will try to look at the whole national problem from a commonsense point of view. We in the Australian Democrats confess that we find ourselves in a dilemma in relation to this motion. Senator Mason and I have listened to the entire debate. We have listened to every speech but even so we still find ourselves in a dilemma.
This matter concerning the Chief Justice of the High Court has achieved enormous publicity throughout the nation. It is not something, I suppose, that the person who normally goes to the back page of the Melbourne Sun on a Friday to read about the footie teams would absorb with a great deal of relish but certainly every thinking person has read every word that has been printed about this matter over the last few days. What is the situation? It is simply that the integrity of the Chief Justice of Australia is being doubted; there are implications concerning the integrity of the Chief Justice of the High Court of Australia. It is a most serious matter. One could hardly ponder anything more serious. Although I made reference to those people who are not deeply interested in the High Court or the judiciary, let me hasten to add, without paying any disrespect to them, that even though they have not looked into the legalities of this matter I have found in my electorate and from my travels throughout Australia that a very deep and real concern is felt by the ordinary people in relation to the doubts about the behaviour of the Chief Justice of the High Court of Australia.
Without trying to be facetious, I remind the Government of its favourite girl-friend, ‘Laura Norder’. That is at stake here. In a few clubs I have heard this said by ordinary working class people: ‘If the Chief Justice is crook, I am not going to pay my taxes any more’. That is the sort of talk that is going down the line. I am not agreeing with that sort of talk; what I am saying is that we are discussing a most serious matter tonight. I believe and the Australian Democrats believe that the Chief Justice has been indiscreet, that he has been arrogant, that he has been foolish, and that he has bordered on pomposity. I will refer to that again in a moment when I draw honourable senators’ attention to his letter. I regard as bordering on impertinence the writing of such a letter to a Prime Minister and virtually asking that it be incorporated in Hansard.
Having said all that, we are still in a dilemma because of the case that Senator Evans presented tonight. I take a moment to compliment that young man on what I thought was one of the best illustrated, most moderate and most logical speeches that I have heard in the national Parliament in my 20 years of parliamentary experience. I thought it was a superb, non-partypolitical, objective recitation of the facts and the problems. Not once did political nuances enter Senator Evans’s speech. I believe that he must be complimented on that fact.
I ask the Senate, rhetorically: What are we senators asked to do? We are asked to agree to a motion which seeks to set up a committee consisting only of politicians to investigate the behaviour, the conduct, the intentions, the propriety of the Chief Justice of the High Court of Australia. I find difficulty in following Senator Evans along that track. For that reason, reluctantly and for the reasons I have stated, we will vote against the Opposition on this motion. With the greatest of respect to Senator Evans and the Australian Labor Party, I think that they have gone for the over-kill on this issue. Surely they must have known that never in a million years would a motion seeking to have a parliamentary committee investigate the Chief Justice get through the Senate.
I would not be impertinent or rude enough to move an amendment to this motion. It would be bad manners if one were to move an amendment to a motion into which Senator Evans has put so much thought. So, the Government Whip need not have a heart attack; I will not move an amendment, which would open this matter for further debate. But if I were to move an amendment that amendment would be: ‘That all words after paragraph (5) be left out and the following words substituted: “(6) That the Senate views with deep concern the apparent fact that the Chief Justice did not disclose his interest in Mundroola Pty Ltd and the nature of its transactions in the relevant High Court cases on which he sat”. ‘ I am tempted to say that had that motion been facing the Senate tonight more than the Australian Democrats on this side of the House would have voted with the Opposition; a considerable number of caring, deeply concerned Liberals would have crossed the floor and we would have achieved the desired effect.
– I think an honourable senator interjected to say that it was useless.
– No, excuses. You are making excuses now.
– I am not making excuses; I am trying to be practical. The motion before us will be a one day wonder. We have had a good debate today. The matter will be in the headlines tomorrow and the Senate will record the fact that the motion was defeated. If we at least had put on the record something indicating the deep concern of this Senate at the indiscretion, the pomposity, the arrogance and the neglect of duty of the Chief Justice, that could have been sent to the Chief Justice of the High Court of Australia.
– There is not a legal man in Australia who would not condemn the Senate if it defeated this motion.
– It is a matter of judgment. I respect Senator Cavanagh ‘s judgment and I hope he reciprocates. What are we asked to do? We are asked to set up a committee of politicians virtually to put the Chief Justice of the High Court of Australia on trial for what could be alleged to be a criminal offence. To me, that is intolerable. In fact, it goes against the whole concept of the Westminster system, which some honourable senators still hypocritically hang on to. Some claim that the Westminster system still exists in this country. Honourable senators might remember the old argument, the myth, the fable which I still hear people espousing at schools, namely, that the beauty of the Westminster system is the separation of the three tiers of power The judiciary, which interprets the laws; the Executive or the Cabinet, which makes the laws; and the Parliament, which passes the laws. It is claimed that those three tiers are entirely separate. Does any honourable senator deny that that is one of the great myths of our time? Honourable senators who support this motion want a nice mix of those tiers with politicians trying the Chief Justice.
I come back to where I am in agreement with Senator Evans. Let us look at the facts. Senator Evans raised two basic concepts: Has justice been done in the conduct or lack of conduct of the Chief Justice, or has justice been seen to be done? To my knowledge, nowhere in Senator Evans’s speech did he suggest, infer or imply that justice had not been done. With great respect, I thought it unworthy of the Minister for National Development and Energy, Senator Carrick, in his response to imply that Senator Evans suggested that. At no stage did he suggest that. What Senator Evans quite properly developed was the question: Has justice been seen to be done? The test of that is not a subjective test by the Chief Justice or the Prime Minister; it is an objective test by a reasonable observer. In that I thoroughly agree with the Labor Party and Senator Evans. I agree that a fairminded, objective observer at least would have doubts in his or her mind whether justice had been seen to be done.
We might ask why this man. the Chief Justice of the High Court of Australia, was governing director of a company in which, admittedly, he had no shares and his wife had a few shares, but in which his children had assets representing hundreds of thousands of dollars. The company of which Sir Garfield Barwick was the governing director held hundreds of thousands of shares in companies which had cases before the High Court, on which the Chief Justice was sitting. I am not suggesting for one moment- Senator Carrick did not need to prove this because it was not even under question-that the judgment of the Chief Justice was impaired in any way.
Surely in the Senate tonight an unanswerable case has been made that the Chief Justice should have disclosed at least his interest in Mundroola and its transactions. I think that goes to the heart of the matter. But I point out to Senator Cavanagh that it is now a matter of judgment whether that sin’ necessitates the holding of a full-time parliamentary inquiry into the Chief Justice. Senator Cavanagh ‘s judgment is that it does; my judgment is that it does not. I refer in passing to the letter of the Chief Justice, in which he stated:
I have never had any proprietary interest, legal or beneficial, in the company or in any of its assets.
That is absolutely legally correct. But I think the letter is pompous and arrogant because we have a Chief Justice writing a letter to a Prime Minister, making statements which are true legalistically, virtually asking that that letter be put before parliamentarians. Let us examine why the Chief Justice formed the company. Did he not do so to save himself from paying taxes or to save his children from paying taxes? Did he not invest in this company and develop it for legal benefits so that he could not be sued and he would have the legal protection which a corporate entity gives people? Of course he did. One could develop that situation in a commonsense way. That letter made me angry and made any sympathy I had for the man in his present dilemma disappear very quickly. There is no reason why the Chief Justice should not have disclosed his interest in these companies.
I was amused at the two reasons Senator Carrick produced for the Chief Justice not needing to have declared his interest. Senator Carrick referred to the Banks Nationalisation case which related to Mr Justice Starke and Mr Justice Williams. Mr Justice Starke declared his interest in the case. What was his interest? It was simply that his wife had a very few shares in a bank. He felt compelled to disclose his interest. The interest of Mr Justice Williams was simply that his sister held some shares in a bank, as I understand it, for someone else. It was a very slight and almost indiscernible interest. Those two judges felt impelled to disclose their interests, slight though they were, before they felt they could sit on the bench. The present Chief Justice is governing director of a company which is trading in land and shares in other companies. Not only does Mundroola have several shares in those companies but also another director of Mundroola, the Chief Justice’s friend, Mr Thompson, has massive shares in them.
For those reasons the Australian Democrats have great sympathy with Senator Evans and other members of the Opposition. We think they have done a great service to the Parliament in bringing forward this matter, but it is a question of judgment. If there had been a motion to censure the Chief Justice or express concern about his lack of conduct we would have voted for it, but to have a parliamentary committee investigate the conduct of the Chief Justice of the country does not make sense to me and, therefore, we cannot support the motion.
– 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.
– He said there could be a conflict of interest.
– 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.
– You say that the amount involved is the test?
– 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 Evans has 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 Hurford interjected:
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:
Question resolved in the affirmative.
That the original motion (Senator Evans’s) be agreed to.
The Senate divided. (The President- Senator the Hon. Sir Condor Laucke)
Question so resolved in the negative.
– I bring up the report of Estimates Committee B on the particulars of proposed additional expenditure for the year 1 979-80, together with the Hansard record of the Committee ‘s proceedings.
Ordered that the report be printed.
Senator RAE (Tasmania)- by leave- Mindful of the time, I will speak very briefly to the Committee ‘s report. It does reflect what I believe is an attitude within the Senate, more strongly expressed than ever before, that there is a need for change.
– Order! It being 10.30 p.m., under the sessional order I put the question:
That the Senate do now adjourn. Question resolved in the negative.
– I assure the Senate that I will not speak for more than a few minutes. This will enable all the Estimates committees’ reports to be dealt with on the same day. Something is reflected by these multi-party committee reports which come before the Senate. 1 think there is a need for three things. There is a need for the Senate Estimate committee procedure to include that which is not done by the AuditorGeneral, which goes into the area of program evaluation. We should ensure that there is some examination of what is happening in relation to programs, not what is happening in relation to the detail, the minutiae of expenditure, which is often obscured in the way in which the explanatory notes are presented at the moment. I refer to the report of Estimates Committee B. The High Court of Australia is used as an example. We would have to go through the estimates of about four departments to find the detail of the total expenditure.
The suggestion has been made that one of the important steps to be taken is to enable the Estimates committees to follow through the total expenditure in relation to a program and not be confined by the way in which the Executive decides to break up the expenditure between various departments. To enable this to be done and to enable the Estimates committees to be more effective it has been suggested that there should be- the Senate has already agreed to this- a permanent research staff available to the Estimates committees and that the Standing Orders should be altered to enable the Estimates committees to have a permanent, ongoing life to be able to follow through the sort of investigation that is necessary if they are to do the job which was originally envisaged for them.
In a number of Estimates committee reports there has been reference to questions in relation to the Advance to the Minister for Finance. Senator Martin spoke a some length in relation to the report of Estimates Committee A. She referred to the fact that the Senate Standing Committee on Finance and Government Operations has produced a report making certain recommendations about the way in which the Advance to the Minister for Finance should be controlled and supervised by the Parliament. 1 do not do more than refer to that report, to Senator Martin’s committee report and to her statements tonight and say that I believe this is a matter of concern, from what has appeared in the Estimates committee reports, to the whole of this chamber. I do not think that it is good enough for the Government to continue not responding to the Estimates committees which have repeatedly drawn attention to this matter and to Standing Committee on Finance and Government Operations which produced a report relatively early last year in relation to the matter. The Senate is saying that it wants an early response on this question in order to clear up some of the matters which are causing concern. I thank the Senate for the opportunity of concluding my remarks on behalf of Estimates Committee B. The Committee has recommended the approval of the Supplementary Estimates.
Senate adjourned at 10.35 p.m.
The following answers to questions were circula
asked the Attorney-General, upon notice, on 2 1 February 1 980:
Did the Attorney-General’s Department consider in 1975 the establishment of a legal aid office in the Waverley district, in Victoria; if so; (a) what was the outcome of such consideration; and (b) what, if any, is the current status of the proposal?
– The Acting Attorney-General has provided the following answer to the honourable senator’s question:
I am informed that an examination of the records of the Department has failed to disclose any consideration being given by the Department in 1 975 to the establishment of an office of the Australian Legal Aid Office in the Waverley district, that is, the City of Waverley and its immediate environs.
asked the Minister representing the Minister for Immigration and Ethnic Affairs, upon notice, on 16 April 1980:
– The Minister for Immigration and Ethnic Affairs has provided the following answer to the honourable senator ‘s question:
The Minister for Immigration and Ethnic Affairs, Mr Ian Macphee, today announced new initiatives to assist with the settlement of Indo-Chinese refugees in Melbourne.
Mr Macphee said he had approved a grant-in-aid to enable the Indo-Chinese Refugee Association (ICRA) to employ a social worker to deal with the welfare problems of Indo-Chinese refugees. “I have also invited the North Richmond Family Care Centre to apply for funding of up to $5,000 to undertake an inter-cultural project to assist in the settlement of IndoChinese refugees in the North Richmond area. “
Mr Macphee emphasised that the Commonwealth Government was providing a wide range of services to IndoChinese refugees and other migrants around Australia and in the Melbourne area. However public resources were simply not available to meet all the priorities set by community groups. “Our priority expenditure on -a very large scale is to provide intensive English language training and orientation for migrants and refugees”, Mr Macphee said. “These programs are probably the most effective of any being conducted around the world for any refugees. They are intended to assist refugees and migrants to have basic English which can be reinforced by continuation classes and to have a basic understanding of Australian society and the services available to refugees.”
Mr Macphee added that the Commonwealth Government had provided grants-in-aid to several agencies which were intended to enable hosting and friendship activities to be provided for refugees as well as welfare services for them. “The additional grant to ICRA will reinforce those activities and assist that organisation to pursue its very worthwhile activities.”
The Minister added that the Commonwealth Employment Service provided a Vietnamese interpreter for periods each week in the Richmond area and a Vietnamese doctor was available to see the bulk of Vietnamese patients in that area. The Department of Immigration and Ethnic Affairs had continued to provide an officer for a period each week to help settlement arrangements for Indo-Chinese refugees in the Richmond area. All welfare agencies and voluntary bodies involved with Indo-Chinese refugees had access to the Department’s Telephone Interpreter Service. Refugees themselves were instructed on how to use the Telephone Interpreter Service and could make use of its services as needed.
Mr Macphee said that there had been references in the Melbourne press to the work of Mr Thien Do with the North Richmond Family Care Centre. Mr Thien Do was an engineer who had taken a personal interest in providing assistance to refugees. He had been a contract interpreter with the Telephone Interpreter Service until January this year and had been allocated for as least one day a week by the Department of Immigration and Ethnic Affairs to the North Richmond Family Care Centre. He had resigned from the Telephone Interpreter Service in January 1980 to work with the Centre. There had been no commitment by the Commonwealth Government to provide funding to enable his employment with the Centre. In a situation where available resources had to be allocated to provide the best possible service for refugees, it had been determined, after detailed investigation that a grant-in-aid should be provided to ICRA rather than to the North Richmond Family Care Centre. ‘
Regarding (2), the North Richmond Family Care Centre has never been funded by the Department to employ a welfare worker. The question of the non-renewal of a grant has not arisen.
Cite as: Australia, Senate, Debates, 29 April 1980, viewed 22 October 2017, <http://historichansard.net/senate/1980/19800429_senate_31_s85/>.