The first Senate committee
Late in 1983 and early in 1984 two newspapers published what they claimed were transcripts of tape recordings of telephone conversations which had been illegally intercepted and recorded by members of the New South Wales Police Force. The newspapers claimed that the transcripts revealed the activities of persons associated with organised crime. Most of the parties to the conversations were not identified by name, but one of them was referred to as “a senior judge”. Included in the published transcripts were conversations between the judge and “a Sydney solicitor” who was alleged to be associated with leaders of organised crime. The judge was subsequently identified as Mr Justice Murphy, a justice of the High Court, former senator, Leader of the Labor Party in the Senate and Attorney‑General in the Labor Government of Mr Whitlam.
Demands for an inquiry into the matters revealed in the alleged transcripts were immediately made by the Opposition. The Labor Government took the view that no inquiry was necessary, on the basis that the transcripts had not been authenticated and the conduct of the judge revealed by the transcripts could not amount to misbehaviour within the restricted meaning expounded by the Solicitor-General and adhered to by the government (see above). The Opposition Liberal-National parties and the Australian Democrats, who together held a majority in the Senate, took the view that an inquiry should be held into the conduct of the judge. Their preference was for a royal commission or other non‑partisan quasi‑judicial tribunal to conduct the inquiry, but the government refused to appoint such a body, and it is very doubtful whether it could constitutionally do so except by statute. Against the wishes of the government, the Senate therefore appointed on 28 March 1984 a select committee, which was called the Select Committee on the Conduct of a Judge.
The committee was required to report upon the authenticity of the alleged transcripts which, together with some tape recordings, had been provided by one of the newspapers to the Attorney‑General, and upon whether the conduct of the judge as revealed in the materials constituted misbehaviour which could amount to sufficient grounds for his removal.
The resolution appointing the committee contained a number of unusual features. The committee was enjoined to take care to protect the privacy, rights and reputations of individuals, and to protect from disclosure the operational methods and investigations of law enforcement agencies (there were police investigations on foot into the tapes and transcripts). Witnesses before the committee were to be given notice of the matters proposed to be dealt with during their appearance and an opportunity to make submission in writing before appearing, and were entitled to be assisted by counsel.
The committee determined for itself guidelines for proceedings, which elaborated upon and supplemented the matters contained in the resolution of appointment. These guidelines contained the following major provisions.
The committee was to meet in private unless it made a determination that it was necessary to meet in public, and evidence given in private session and material submitted to the committee were not to be published except to persons associated with the inquiry.
Witnesses were to be notified of their rights under the Senate resolution, and were to be informed in writing of the nature of any allegations made against them and of particulars of the matters on which they were to be heard.
Witnesses were to be allowed to consult counsel during their appearance and counsel could make submissions to the committee.
The committee would accede to any request by a witness for evidence to be heard in private, unless it made a definite determination that it was necessary to hear the evidence in public.
Witnesses were given the right and the opportunity to object to any questions, on grounds including irrelevance and self‑incrimination, and procedures were laid down for the committee to consider and determine such objections.
The committee appointed, with the approval of the President of the Senate, counsel to assist it. The committee’s counsel advised the committee, participated in its deliberations and attended during the questioning of some witnesses, but did not put questions to witnesses. All of the hearings of the committee were held in private session.
When it had taken evidence in relation to the tapes and transcripts and matters purportedly recorded in them, the committee indicated to Mr Justice Murphy that it wished to hear evidence from him on a number of matters, and invited him to appear before it. He was not summoned. The question of whether the Senate or its committees could summon a High Court or any judge (see above) had been the subject of some discussion, without any conclusion being reached on the matter.
The judge’s response to the invitation raised the major procedural difficulty of the committee’s inquiry. The judge claimed all of the rights of an accused person in a criminal trial, including the right to be notified of a specific charge, the right not to give evidence if he so chose, and the right, before making that decision, to have all the evidence heard in the presence of his counsel and to have his counsel cross‑examine witnesses. It was not within the power of the committee to allow the cross‑examination of witnesses by the judge’s counsel, or, indeed, to allow the examination of witnesses by any counsel. The standing orders of the Senate provide that witnesses before Senate committees are to be examined by the members of the committee; witnesses could not be examined by counsel except with the explicit authorisation of the Senate, and the Senate had not given that authorisation in the resolution appointing the committee. Had the committee wished to accede to the judge’s demands, it would have had to go back to the Senate for an enlargement of its powers.
As it turned out, this was not necessary. The committee took the view that it was engaged in an investigatory inquiry, analogous to the inquiries undertaken by a prosecuting authority to determine whether a prosecution will be commenced. The committee considered that only if it determined that the evidence so warranted should it recommend to the Senate that there be a formal hearing of the evidence, with the rights of an accused person extended to the judge.
The judge declined to give evidence, but gave the committee a written statement on the evidence which it had received. His counsel made submissions to the committee on its evidence and on matters of law.
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