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Tuesday, 23 April 1985
Page: 1388

Senator GEORGES(5.55) —I was not present at the time the proposition was put before the Senate, but I have become familiar with the debate. I am indebted to the Minister for Resources and Energy, Senator Gareth Evans, and to Senator Durack for their comments. Mr President, you might recall that I was concerned to the point where I approached you on this matter. On reading the transcript of the Murphy case, I was surprised to see that the Senate had authorised a Mr Simos to appear before the court to protect the privilege of the Senate. You explained to me that, on advice, you thought that it was necessary for this to be done. I still have considerable reservations about that decision and, for that reason, I am attracted to Senator Missen's motion. I am attracted to it because our counsel has intruded into the court in such a way that the defence of the person accused has been hampered. I do not think it was the intention of the Senate to do that. I think the intention of the Senate was to inform the court of the position of privilege and the position of evidence given before a Senate committee. If we read the transcript we find that, in effect, Mr Simos on behalf of the Senate constantly entered into argument and debate as to whether or not privilege pertained. In my view the defence was seriously hampered. It is a serious charge that is before the court, and a person on a criminal charge is now hampered by counsel appearing on our behalf to protect the privilege of the Senate. It was on his judgment that he intruded time and again. In my view, that hampered the defence of the person concerned. For that reason I have a view similar to that of Senator Missen.

In spite of the statement that the Senate cannot unilaterally take a position on this matter, I think the Senate can at least make a decision to withdraw its counsel, having advised the court, and allow the matter of privilege to be determined by a magistrate or a judge. He can determine, on the objection of the prosecutor or the defence, whether certain evidence should be allowed, whether it is adduced or other evidence. Even if the Senate decides not to allow the evidence to be used by the court in a more direct fashion, I believe that the Senate ought to take the view that its counsel should be withdrawn.

As far as the Murphy case is concerned, I know that there are difficulties and that the matter is still before the court. Let me just point out that heavy weight was put on the fact that Mr Briese's evidence was not contested. If it had been contested before the Committee we would not be so far down this sorry path. A matter that exercises my mind is that it was almost at the point of that evidence being contested. Senator Haines and Senator Tate would know just how close, on the Friday before the Committee wound up, we were to that evidence being contested. As it happened-I will not go into the details-it was not contested. We now have Mr Briese's evidence before the court being defended a second time by the Senate through Mr Simos. In my view, that was an unfair intrusion by the Senate. If the matter had come before the Senate for approval to provide counsel on behalf of the Senate I would have objected. We are not clear who Mr Simos represents before the court. On the first day he represented the Senate, according to the transcript; on the second day apparently he represented himself, as a friend of the court; and on the third day he represented you, Mr President.

It is difficult to cut through this confusion but I come back to the fact that the defence of a person on a serious charge has been materially affected by the decision to provide counsel on a continuing basis before the court who can intrude at will. My view is that if we cannot allow the evidence of a committee to be presented because of the points that Senator Evans and Senator Durack have raised, we ought to consider further whether we should continue to have expensive counsel before the court and interfering with the process of that court.

Senator Chipp —The magistrate does not have to accept his advice or submissions, does he?

Senator GEORGES —No; nevertheless if someone was continually raising points of privilege it would have, shall we term it, a destabilising effect-I might even say a demoralising effect-on the defendant.

Senator Gareth Evans —Mr Temby claims it is destabilising for the prosecution, too.

Senator GEORGES —If it is destabilising for the prosecution it would certainly be destabilising for the defence and for that reason we ought to get counsel out of there as quickly as possible. Perhaps it is too late.

Senator Gareth Evans —You may be right about that; it is still a matter for separate debate and it is still on the Senate Notice Paper.

Senator GEORGES —I am raising it now but I might accept Senator Evans's point that there is no way in which the Senate can unilaterally make a decision on it.

Senator Chipp —You have raised a good point but that is not the point Senator Missen raised.

Senator GEORGES —I am inclined towards Senator Missen's arguments. I may be influenced by what I feel about this matter. I can say, since there is no party position on this, that if it comes to a vote I will be voting with Senator Missen.

Senator Gareth Evans —That is a sentimental vote, it is not a rational one.

Senator GEORGES —We sometimes come to a better conclusion if we are sentimental rather than rational, and that is advice that Senator Evans ought to take. So often he puts forward a good legal argument and the result is disastrous for someone. That goes for most lawyers. Let a little bit of sentiment exercise itself in this place. It should be taken on board that we do not need this expensive and sophisticated counsel who is supported by junior counsel and briefed by solicitors, all of whom must be costing us a packet. We certainly do not need such a continuance of this Senate's representation. Let me get back to the fact that both charges are extremely serious and the defence of those two people ought not to be impeded in any way. Therefore I am inclined to believe that the argument of Senator Missen, which was as well put as the argument of Senator Evans and Senator Durack, is worthy of support.