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Wednesday, 8 February 2017
Page: 271

Senator BACK (Western Australia) (12:45): We all know in this place that those of us in parliament are, quite rightly, the subject of full accountability and transparency. My contribution today, unfortunately, reflects the fact that I do not think the same standards are being applied to Australia's judiciary. I am very concerned about this, and I want to draw it to the attention of the chamber.

I will conclude my comments with a reference to the Nagle case in the High Court of Australia between the Rottnest Island Authority and Nagle in the 1990s, but I want to lead off this discussion with the regrettable incidents that led to the Lindt cafe siege on 15 December 2014. The gentleman involved, Man Monis, had been the subject of the courts: in 2009, the New South Wales court, because he had been writing letters to the families of deceased soldiers and others; in 2011, the Court of Criminal Appeal in Sydney; and in 2014 he goes to the High Court of Australia on a postal service related matter. In May 2014, the man is granted bail by Magistrate Joan Baptie in New South Wales, despite her acknowledging that he may endanger the safety of victims, individuals and the community and that he may interfere with witnesses or evidence. She grants the man bail because she thought there were 'significant flaws in the Crown's case'. In October 2014, this man is again charged, this time with 40 sexual assault charges against six women. He applies for bail; Magistrate Dorelle Pinch gives him bail. He is due back in court on 12 December, which is deferred to February 2015. In the meantime, he causes the Lindt cafe siege and the death of two innocent people.

I go to 2 November 2016. In Queensland, Magistrate Trevor Morgan is in the Pine Rivers judiciary. Three young women are apprehended on the roof of the office of the Minister for Immigration and Border Protection, Peter Dutton. This is the magistrate's comment to them in finding them guilty:

… if one of my daughters was caught doing like you did, I'd probably be very proud of her.

He fines them $100, despite more than $10,000 of legal and police costs. What happens on 29 November, two weeks later? At least one, if not more, of those young women are down here in Parliament House vandalising furniture and disrupting question time in the other place.

I go to the Gargasoulas incident in Bourke Street in Melbourne, on 20 January. Again, this is not an incident I want to speak about in great detail. What do we find there? This gentleman, with a long history of domestic violence, had been granted bail over and above the pleas and objections of the police. He was due to appear in court on that same day, 20 January, but what did he do? We all saw it, so I will say it: he allegedly committed a heinous crime in which, to date, six people have been killed.

Only the other day, when I was in Queensland for a Senate hearing, I heard about the tragic death of Teresa Bradford on 31 January, only a week ago. In November 2016, her estranged husband is placed into custody because of what would be alleged to be a horrific attack on her, and yet, in the middle of January, the gentleman is granted bail, again over the urgent pleas of the police. She is not warned of the fact that he has been let out on bail. On 31 January she is murdered and he suicides in front of their four children.

I ask the question: what is bail all about? The act instructs the court to start with the presumption that an accused person should be granted bail unless there is a justified reason to refuse it. What might the reasons be? The nature and the seriousness of the crime; the character of the defendant; past criminal record; association; ties with the community; the defendant's record in regard to previous commitments to bail; the strength of the evidence—where are the words relating to the victim in all of this and in the cases that I have referred to?

Nagle was a most interesting case, and it led to the rewriting of public liability practice in this country. In 1977, Mr Nagle was an employee at Rottnest Island in Western Australia. As you, Senator Sterle, would know as well as I do, there is a place called The Basin there. Tens of millions of people have swum at The Basin; it is probably the safest spot to swim. The man goes to The Basin on a Saturday morning. Instead of going straight into the water he walks 50 metres over sharp rocks and dives into the water and comes out a quadriplegic. It was absolutely tragic, and I am not suggesting the Australian community should not support him. I was the chief executive at Rottnest Island when he brought an action against the island authority on the public liability basis that there should have been a sign to say there were rocks. You know, as I know, the island is a rock—as Senator Cash also well knows. We won the case in the Supreme Court in 1989. There was an appeal to the appeals court in Perth. We won that in 1991, and yet it went to the High Court of Australia in 1993 and it was lost. I begged and pleaded to be allowed to be a witness before the High Court of Australia, as the chief executive of the island authority, and was not allowed to do so. So we went from being zero per cent culpable to 100 per cent culpable in that case. It cost the island authority millions of dollars in legal costs and in the public liability space, and it changed things completely. It is the reason why playgrounds were pulled out of schools and removed by local governments around Australia—because, on the basis of the Nagle case, public liability payments were made. The then governor of the state, Sir Francis Burt, a person known to Senator Cash and her family, had been the Chief Justice of the Supreme Court. He said to me, 'Chris, I'll tell you two things. Firstly, it will be seen as the worst judgement in the history of the High Court. Secondly, it won't help you, but over time they will pull out the planks in the platform.'

I was talking on one occasion to retired High Court judge Sir Ronald Wilson as we walked along the Canning River in Mount Pleasant, and I said to him, 'Sir Ronald, if you were still on the High Court of Australia, we wouldn't have lost the case.' And he said, 'Chris, why would you say that?' I said, 'Because the information available to me, Sir Ronald, is that the justices of the High Court took the basin at Rottnest to be akin to the gap in Sydney, and in their minds' eyes you would obviously expect signs at the gap in Sydney.' He said to me, 'That can't be right.' I happened to be walking with him again some weeks later and he drew my attention to that conversation. He said, 'I've actually made some inquiries, Chris, and do you know you were right?' He said, 'I'm not saying the judgement swung on that, but in the minds' eyes of those justices from the eastern states of Australia, the basin was like the gap in Sydney.'

And so we had a circumstance then where not only did we go from being zero per cent culpable to 100 per cent culpable, but the High Court got it wrong. But there is no right of appeal to the High Court of Australia. And, as I said, we were not allowed to appear as witnesses. We were not allowed to present evidence. The very first movie ever made in the state of Western Australia was that of people swimming at the basin. The concept of putting a sign on a limestone rock called 'the island' saying 'there might be rocks here' is a nonsense. The sign, for example, might not be illuminated at night; it might not be able to be read by people who cannot read English; it might be too high for children, or too low for others.

It did interest me, incidentally, that witnesses were permitted only the other day when the matter of our past colleague former Senator Bob Day was dealt with in the High Court of Australia. Then former Senator Anne McEwen had a representation of witnesses to the High Court of Australia. Our QC at the time was Michael Murray QC, who went on to become, if I am not wrong—through you, Chair, to Senator Cash—a Supreme Court judge himself. Michael Murray said to me in preparing for the case, 'Tell me why you cannot comprehend that this man has either made a mistake or that he should have known that he was amongst rocks.' I said to him, 'Michael, if I was walking across Subiaco football oval I might reasonably expect to be hit on the head by a football, but I wouldn't expect to be hit by a train. And yet if I walked over sharp rocks barefooted'—which I have done incidentally—'for 50 metres, it must surely be in my mind's eye that I am amongst rocks.' The judiciary needs to be far more transparent and far more accountable.

The ACTING DEPUTY PRESIDENT ( Senator Sterle ): It saddens me to tell me your time has expired, Senator Back.