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Tuesday, 16 October 1984
Page: 1737


Senator McINTOSH —Does the Attorney-General accept the criticism of Mr John Stone yesterday that his and the Government's handling of the Age tapes affair has been quite unsatisfactory?


Senator GARETH EVANS —Mr Stone's comments on the state of the nation are no longer taken seriously, and do not deserve to be taken seriously, by any serious -minded observer of the current Australian political and economic scene. My colleague Paul Keating made that very clear this morning on an Australian Broadcasting Corporation program in the context of Mr Stone's contribution to the economic debate. I suggest that his comments deserve no credence at all in an area in which he can claim no expertise or special knowledge of any kind, but since he does echo in relation to the Age tapes affair sentiments which have been given wider currency recently, let me take the opportunity to explain in a little detail why I and the Government believe our handling of the Age tapes matter has left nothing to be desired.

The critical comments have tended to completely ignore the following: First, the Age tapes transcripts and summaries are, and remain, wholly unauthenticated and, at least so far as the purely written material is concerned, probably unable ever to be authenticated and, whether authentic or not, were clearly obtained in circumstances of massive illegality and privacy invasion. Secondly, to the extent that the Age material raises the possibility of breaches of State law, its investigation must continue to be the responsibility of the relevant State authorities. There is nothing the Commonwealth can do by way of royal commission. The division of law enforcement powers under the Constitution makes that impossible. What the Commonwealth has done is pass special enabling legislation to remove any possible doubt about the legality of the material being dealt with by the New South Wales Commission of Public Complaints. Thirdly , to the extent that the Age material raises questions of possible breaches of Federal law involving Robert Trimbole and his alleged drug trafficking ring, it has been referred to Mr Justice Stewart's ongoing Royal Commission of Inquiry into Drug Trafficking and enabling legislation has, again, been passed to remove any possible doubt about the legality of the material being dealt with by that Commission.

Fourthly, to the extent that the material raises the possibility of other breaches of Federal law, these matters have been the subject of investigation by the Australian Federal Police and review by the Director of Public Prosecutions, and Mr Temby has concluded in his report of July 1984 that 'none of them are worthy of further investigation'. Fifthly, to the extent that the Age material raises questions about the conduct of Mr Justice Murphy, this material was thoroughly examined by the first Senate committee, the Select Committee on the Conduct of a Judge, which reported unanimously to the Parliament on 24 August that it was unable, save for part of the material subject to certain limited acknowledgments, to conclude that the material was authentic in whole or part; and even if the one tape, and the other transcripts and summaries, purporting to refer to the judge were completely authentic, then nothing was disclosed that could amount to misbehaviour under section 72 of the Constitution, whatever interpretation of that section was adopted. The Committee did not divide at all over the Age material, only over the response to Mr Briese's oral evidence given in the course of its inquiry. The Age material, as such, is not the subject of the present second Senate committee inquiry.

To the extent, however, that the criticism of Mr Stone, and others, does extend beyond the Age material to the Government's response to the Briese allegations against Mr Justice Murphy after these came to light in the report of the Select Committee on Allegations Concerning a Judge of 24 August, then this criticism tends to completely overlook the following further points, the key elements of which were spelt out at some length in my statement of 4 September, and which I repeat: First, neither a royal commission nor any other kind of 'independent' inquiry, apart from an ordinary court proceeding, could produce a finding of ' proved misbehaviour' that would be likely to satisfy the requirements of section 72 of the Constitution. Secondly, the Government's proposal to refer Mr Briese's material to the DPP was not in order that he or the police might conduct any further detailed investigation, for which special powers were obviously lacking, but only to enable him to review the existing material, involving some thousand pages of transcript and documents from the first Committee inquiry, to determine whether a basis existed for criminal prosecution. If it did, this was in the Government's view a preferable course to the matter being the subject of trial, as it were, before a parliamentary committee. This course, however, became impracticable when the Opposition and Democrats combined, for reasons of their own, to insist on the material being simultaneously referred to the DPP and the Senate Committee.


Senator Townley —I take a point of order, Mr President. This is obviously a prepared statement by the Attorney which should be dealt with at a time other than Question Time. Many honourable senators would like to ask questions but do not get a chance because of answers like this.


The PRESIDENT —Order! There is no point of order. I cannot direct how a Minister shall answer a question, but I ask the Attorney-General, as I asked all Ministers last week, to reduce his reply as much as is possible.


Senator GARETH EVANS —I will do it as much as is possible, Mr President. Thirdly , the Government has participated-albeit reluctantly-in the second Senate committee inquiry on the basis that we acknowledge that section 72 misbehaviour matters are ultimately ones for the Parliament to resolve. We remain of the strong view, however, that when what is involved is for all practical purposes a criminal trial, involving an allegation of misconduct amounting to a criminal offence, then it is far better for it to be resolved in the first instance by the criminal courts in accordance with the traditional procedures of the criminal law. If a conviction occurred, that would be clearly 'proved misbehaviour' on which both Houses could proceed to an address under section 72; if an acquittal, that should be the end of the matter.

I conclude by saying that the bottom line in all of this remains as I spelt it out in my original statement to Parliament on 28 February:

It is not necessary, and indeed it is quite destructive of some of the very values it is sought to preserve-including in particular public confidence in the executive, legislative and judicial institutions of Government-for every piece of scuttlebutt or tale of scandal to result in a full scale, full length royal commission.

Allegations are constantly made against public figures, and are constantly being disproved or rebutted. While I readily concede that smoke is sometimes accompanied by fire, that is by no means always the case, as has been amply demonstrated over the last 12 months by the conclusions of the Street Royal Commission into the ABC allegations against Neville Wran, the Cross inquiries into the Sinclair and Bottom allegations, and the fate of the allegations made against Mr Justice Murphy in the Sala, Saffron and Moll-diamonds affairs.

The task of any government is to respond quickly, sensitively and decisively when allegations of official corruption or organised crime are made, but also to do so in a way that is appropriate to the circumstances, and does not cause unnecessary and unjustified hurt to individuals or the institutions they represent. That is the way we have responded during the whole course of this extraordinarily difficult sequence of events to date, and how we will continue to act in the future.


Senator Chaney —Mr President, pursuant to Standing Orders I ask the Attorney to table the rope from which he quoted.


The PRESIDENT —Senator Evans has been asked to table the-


Senator Chaney —The rope he is hanging him- self with.


The PRESIDENT —document from which he quoted.


Senator Gareth Evans —I do so with pleasure.