“Some Time” Before Decision on Secret Lionel Murphy Records

After a thirty year wait, historians, lawyers, journalists and the general public will have to wait “some time” more before knowing whether they can have access to allegations put before a Parliamentary Commission of Inquiry in 1986 into the conduct of former High Court justice, Lionel Murphy.

By the time it was wound up in September 1986, the Inquiry had distinguished at least fourteen separate allegations against Murphy.

With only the President of the Senate and the Speaker of the House of Representatives permitted to have access to this material until now, they have authorised the Clerks of their respective chambers to see the material so they can provide advice.

The conditions imposed by statute in 1986 mean that even the Clerks have to wait until the 30 year secrecy provisions expire on Sunday before getting access.

Coming after a series of inquiries, a criminal trial resulting in a conviction, a successful appeal, and a subsequent retrial resulting in acquittal, the Parliamentary Commission of Inquiry (PCI) was established by an Act of Parliament in May 1986, and constituted three retired Supreme Court judges, to examine Murphy’s fitness to continue as a justice of the High Court, and, whether his conduct met the threshold of “proved misbehaviour”, warranting removal by the Parliament under section 72 of the Constitution.

In particular, the PCI was to consider specific allegations against Murphy made by a member of the Australian Federal Police as well as matters that may have been put forward in a secret volume of the report of the Stewart Royal Commission into Alleged Telephone Interceptions.

The guide to Senate procedure, Australian Senate Practice (Twelfth Edition), later summed up the PCI’s task as to:

“consider all outstanding allegations against [Murphy], 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.”

Murphy launched a constitutional challenge to the PCI, but other events were to overtake this. After a period of not sitting on the bench, Murphy returned on 1 August 1986, to announce that he had terminal cancer, and that he did not expect to live long. (Indeed, he would die within three months.)

On his return to the bench, he noted that between 15 and 30 July, the PCI had put to him:

“… a number of purported allegations. In my view they are either untrue or do not constitute misbehaviour.”

According to the rulings of two of the Commissioners as to the meaning of “misbehaviour”, which were tabled in the Parliament on 21 August 1986, by the end of July the PCI was inquiring into fourteen separate allegations levelled against Murphy.

On receiving evidence of Murphy’s illness, the PCI noted that it would be unlikely to complete its inquiry before March 1987, and that in the event of Murphy being prevented by illness or death from answering the allegations before it, it would not be able to afford him natural justice.

In response, the Government introduced the Parliamentary Commission of Inquiry (Repeal) Bill 1986to wind down the PCI, and bring an end to its inquiry. With amendments, it passed in September 1986.

The repeal legislation dealt with the retention and handling of documents taken into the possession of the Presiding Officers upon the PCI being wound down. It divided the material into two classes: Class A, being documents concerning Murphy’s conduct, and Class B, concerning the meaning of “misbehaviour” and anything else that did not fall within Class A.

As originally drafted, the Bill would have had the effect of forever limiting access to the Class A documents to the Presiding Officers, with no prospect of release. It would be an offence to disclose the allegations made against Murphy, with the prospect of a fine of $5000 and/or up to six months imprisonment for an individual, and a fine of up to $100,000 for corporations.

However, the Government in the Senate introduced an amendment to this provision, which resulted in the situation where the written authority of the Presiding Officers would be required to access these documents “after the end of the period of 30 years after the commencement”.

As the date of commencement of the Act was 25 September 1986, this leaves open the possibility of access from 26 September 2016.

Earlier this month, I wrote to the Presiding Officers to inquire as to whether any procedure was in place as to the manner in which an application for access to the Class A documents should be made and the grounds for determining any such application, or alternatively, whether there would be any process for the proactive release of the documents.

In a letter dated 19 September, 2016, the Clerk of the Senate, Dr Rosemary Laing, and the Clerk of the House of Representatives, David Elder, replied by advising that:

The Presiding Officers have authorised the Clerks of the House of Representatives and the Senate to access Commission records for the purposes of providing advice to assist in responding to future requests for access to the records. As you are aware, this initial examination of the records cannot proceed until after 25 September 2016.

As there is a considerable volume of material that could be of a sensitive nature, the task of reviewing, advising and determining appropriate arrangements for access to the records will take some time.

The Clerks have undertaken to contact me once the Presiding Officers have made determinations in respect of the PCI records.

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