Chapter 20 - Relations with the judiciary

The parliamentary commission of inquiry

The new inquiry took the form of a parliamentary commission, that is, a commission operating similarly to a royal commission but established by statute and reporting to the two Houses of the Parliament. As was noted above, the expression “parliamentary commission” came into use when the Senate was moving towards its first inquiry and there was some contemplation of appointing commissioners to conduct the inquiry on behalf of the Senate. The bill to establish the Commission was brought in and speedily passed by both Houses. The legislation was drafted to make it clear that the Commission was a body established by Parliament for the purpose of advising Parliament in the exercise of its constitutional responsibility. The Commission was to consider all outstanding allegations against the judge, to formulate those it considered worthy of investigation in precise terms and conduct a hearing of the evidence in closed session. The Commission was then to report to each House its findings of fact and its advice as to whether the judge had been guilty of misbehaviour within the meaning of the Constitution. Three distinguished former Supreme Court judges were appointed as the Commissioners.

The Act precluded the Commission from examining the issues dealt with in the trials of the judge except for the purpose of examining other issues. Unlike the second Senate committee, it was empowered to compel the judge to give evidence if it came to the conclusion that there were matters which he should answer. It was to admit only evidence admissible in court, and it was given access to the documents of the two Senate committees and to certain material held by the National Crime Authority. It was to hear evidence in private, and to report to the Houses only such evidence as it thought necessary to support its findings and conclusions.

Questions about the constitutionality of the Houses appointing a Commission to advise them in this way were again raised. Mr Justice Murphy’s reaction to the establishment of the Commission was to bring an action before his fellow judges of the High Court to have the Commission stopped. The High Court, however, unanimously rejected the application for an injunction to restrain the Commission, and deferred hearing arguments on the question of the validity of the legislation establishing it (Murphy v Lush 1986 65 ALR 651). Mr Justice Murphy subsequently abandoned the attempt to have the Commission declared unconstitutional.

The establishment of the Commission once again took the matter out of the hands of the Houses of the Parliament, and it was expected that the report of the Commission would finally resolve the question of whether Mr Justice Murphy had engaged in any conduct warranting his removal.

In early August 1986, when the Commission had concluded its initial inquiries and was about to start taking evidence on a number of specific allegations, it was revealed that Mr Justice Murphy was suffering from terminal cancer and had only a short time to live. He announced that he did not intend to cooperate with the Commission any further, and the Government indicated that it would introduce legislation to wind up the inquiry. The Parliamentary Commissioners presented a special report to the Houses indicating that they had intended to hear evidence on a number of specific matters, that this process would take a considerable time, and that, in view of the judge’s condition it would probably not be possible to conclude the inquiry consistent with the requirements of natural justice, which dictated that the judge be present during the hearing of evidence.

A bill to repeal the Act establishing the Commission, and to provide for the disposal of the large volume of material which the Commission had collected, was the subject of some disputation. As originally drafted it would have provided for the perpetual suppression of all material before the Commission and for heavy penalties for any person who revealed any matters placed before the Commission. It was amended in the Senate, however, to provide for the release of material after thirty years and for penalties only for persons associated with the Commission who revealed its deliberations or documents. Even so the bill was criticised as being unduly restrictive. The Presiding Officers were given the custody of the documents of the Commission, which were placed in the archives under conditions of high security.

Before it ceased to exist, the Commission presented another report to the Houses on 21 August 1986 (PP 443/1986). This consisted of the findings of the Commissioners on the question of what constitutes misbehaviour within the meaning of the Constitution. In detailed and closely argued findings, all of the Commissioners rejected the view of the Solicitor‑General that misbehaviour could be constituted only by misbehaviour in the performance of judicial duties or conviction for a criminal offence. All of the Commissioners supported the opinion of the counsel to the first Senate committee, that misbehaviour consisted of conduct which, in the judgment of the Houses, indicated unfitness of a judge to continue in office. It is expected that these findings will carry great weight in any future deliberations relating to section 72 of the Constitution.

The last attempt to investigate the judge’s behaviour thus ended. The prognostications of the judge’s physicians, which had been presented to the Commission and to the two Houses, proved only too accurate, and in October 1986 the judge died, leaving the questions as to his conduct unresolved. Early in 1999 there were press reports claiming that relevant evidence had been withheld from the Senate committees and the Commission, but no further investigatory action was taken.

If a case arises in the future which causes the Houses to consider action under section 72 of the Constitution, it is likely that the Parliamentary Commission of Inquiry of 1986 will be looked to as a precedent. As this chapter has suggested, that body, apart from the question of its constitutionality, had serious defects, particularly the provisions for hearing evidence in private and for withholding evidence from the Houses. Those features of the Commission should not be followed in any future cases.

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