Page 333 - Week 01 - Thursday, 14 February 1991
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Mr Speaker, there are two limbs to the reaction so far as the Government is concerned in this matter. The first is that there has to be a proper balance between the separation of our role and that of the judiciary. As you have rightly pointed out, Mr Speaker, from House of Representatives Practice, actions which may bring into disrepute the relationship between the legislature and the judiciary are issues of very great concern to any parliament.
Parliaments jealously protect their rights and, of course, there are comparable restrictions on the judiciary. None of us, for example, can be arrested and detained by court order within the precincts of this house. Equally, the courts expect that we will not invade their province during continuance, at or about the commencement of a proceeding. Of course, Mr Speaker, action in this matter commenced in the courts of New South Wales and the matters outlined at page 491 of House of Representatives Practice are engaged. The quite proper reaction of the house should be to observe the sub judice convention. It is what it says; it is a convention; it is a self-imposed rule of restraint. It should be one that we adopt here this afternoon on this matter.
At the other end of the spectrum there is equally a matter that all members should consider, and that is that behind the structure of an ordered society is the working of the courts and those who appear before them. Those who appear before a court are barristers and solicitors. They all are regarded as officers of any court in which they appear. Their function is to aid the evolution of justice. Those officers, themselves, must be able to deal candidly and freely and lawfully with their clients, and that raises the notion of legal professional privilege. As I understand it, this is a major issue as well in the proceedings before the court in New South Wales.
Mr Speaker, the Assembly has to respect the structure of the judiciary. Underpinning the judiciary is the right of fearless advocacy and that cannot occur when privileged communications between solicitor and client are made available across the floor in a contested situation. Members here would be loath, for example, to allow into the record the secret recordings of a confessional. That would be found repugnant, whether or not we are religious, except for a situation where the events in a confessional are themselves criminal.
At this stage there is no evidence available to this house that the matters in issue before the courts in New South Wales engaged not only the questions Mr Moore puts about the public interest in that banker/borrower relationship but also the other issue, if there is substance to Mr Moore's allegations, or Mr Moore's implications from his statement, that there is something untoward in the relationship between Westpac and its lawyers.
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