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.
Previous page | Contents | Next page
Website feedback: web.senate@aph.gov.au
Last reviewed 2 February 2010 by the Senate Web Administrator
© Commonwealth of Australia
Parliament of Australia Web Site Privacy Statement
Images courtesy of AUSPIC
|
