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Monday, 10 September 1984
Page: 730


The PRESIDENT —I table a letter dated 10 September 1984 which I have received from the Director of Public Prosecutions, Mr Ian Temby, QC, concerning resolutions passed by the Senate on 6 September 1984. With respect to Mr Temby's comment in the first paragraph of this letter, I am advised by the Clerk that copies of the resolutions were forwarded by hand to Mr Temby's office on Friday, 7 September. With the concurrence of the Senate, the letter will be incorporated in Hansard.

The letter read as follows-

10 September 1984

Senator the Hon. Douglas McClelland,

President of the Senate,

Parliament House,

CANBERRA.

My dear Mr. President,

I refer to the resolutions passed by the Senate on 6 September. No formal notification has been received in relation to them, but I am aware of the terms of the resolutions by perusal of Hansard.

I see some difficulty in the proper performance of my role by reason of the terms of the resolutions. It seems appropriate to give early advice to the Senate, through you, as to my perception of the situation.

Let me say at the outset that an important role of the Office of D.P.P. is to assess materials containing allegations of Federal criminality and decide what steps, if any, should be taken in relation to them. That will be done whatever the source of the materials might be. And if one of the great Houses of Parliament resorts to my Office for an opinion as to Federal criminality on the basis of materials containing such an allegation, there will be a response which is as prompt as the circumstances permit. It is always possible that further investigation might be necessary in order to reach a concluded view, and in such a situation the matter would ordinarily be sent to the Australian Federal Police for the purpose. My Office does not have, and does not seek, an investigative capacity.

It is one thing to decide upon a course of action on the basis of known materials which are the best available or likely to become available: that may be described as the fixed position. It is quite another thing to decide whether the laying of charges is justified if additional materials which may be of relevance to the question are in the course of being obtained. That would mean that any opinion given might become invalidated quite quickly, and it seems quite inappropriate to undertake the exercise in such circumstances of change.

Accordingly, if and when I am formally requested to give an opinion in relation to the first motion passed (Senate Hansard for 6 September, pages 528, 578 and 584) I will respectfully decline to do so until the Select Committee on Allegations Concerning a Judge has taken such evidence into the allegations as might touch upon the question of criminality. It would then be for the Senate to decide whether further materials should be sent to my office. If the Select Committee decided not to take evidence until I had provided it with a report, I would be prepared to assist in that way. However I must say that my clear preference is for there to be no report made until the best available material touching upon questions of possible Federal misconduct have been gathered and made available.

The Attorney-General enquired of my Senior Deputy some two weeks ago whether an opinion could be provided if materials were referred to my Office by the Senate, and he was told that would be done, and promptly. A period of 10 days after receipt of materials was mentioned, in the knowledge that the matter is one that should receive priority, and assuming that further investigations would not be necessary. The soundness of that assumption could not be known until the materials were received. Now it is known that the Senate has set up a Select Committee to take evidence, it seems to me to be a pointless exercise, and put my Office in a most invidious position, if we are required to undertake an exercise in parallel to that which is to be performed by the Select Committee. In particular any conclusion reached would of necessity be tentative and might have to be changed on the basis of materials subsequently referred.

I hope that Honourable Senators generally will understand that it is my desire to assist, but I respectfully suggest assistance cannot be best given in the manner contemplated by the two resolutions when read together.

Your faithfully,

IAN P. TEMBY

Reference to Select Committee on Allegations Concerning a Judge