Senator ALSTON (Minister for Communications, Information Technology and the Arts) (3:32 PM) —Clearly there are some very serious issues involved in this matter. I note your statement, and I think it would probably be helpful, given the seriousness of the issues, that you should provide the legal and other authority that underpins your ruling so that we can better appreciate what it is that leads to the conclusions that you have drawn.

I will just deal in passing with the rules of debate, because there seems to have been a bit of emphasis placed on the fact that all imputations by a senator or member of improper motives against any member of either house of parliament or against a judicial officer shall be considered highly disorderly. Senator Faulkner has just given us a classic example of how that is breached on a regular basis, because what he did was to not just say, `Senator Heffernan makes serious allegations, they are hotly contested, the evidence does not support them and therefore they should be rejected,' but he goes further and says that not only is this a personal vendetta, but that Senator Heffernan is parading obsessions as a badge of honour as if it is some kind of public service, and then he accuses him of a political diversion. Now both of those are classic examples of imputations of improper motives. In other words, he is saying that Senator Heffernan is not raising these matters out of a genuine concern to hopefully eliminate but at best reduce—

Senator Faulkner —My words actually stand for themselves.

Senator ALSTON —I have quoted you because I wrote them down. You said, `This is a personal vendetta against homosexuals and he parades his obsessions as a badge of honour as if it is some kind of public service.' And then you went on a little later to say that this was a political diversion. In other words, what you were doing on both of those occasions was to say that he is not motivated by genuine concern for child abuse and its eradication but that on the one hand he is doing it because he sees it as a badge of honour—in other words he is doing it for self-important reasons—and on the other hand it is just a straight, classic political line that he is doing this to distract attention from some other problems that the government have. But in both instances, you are impugning his motives.

It is yet another example of how we should not be so concerned with the rules of debate that we do not look at the wider issues involved. Quite clearly, it would be utterly unacceptable for any member of this parliament to come in here and make sweeping allegations without having carefully thought about the consequences and without having done a great deal of homework to try and establish, to the best of their ability, whether they appear to be accurate. To the extent that all you do is pick up what a lot of people have said to you and say that it sounds plausible, I do not think that is good enough. But to say, as Senator Faulkner did, `without producing a shred of evidence'—I think that was his expression—that is not quite an accurate description of what occurred on this occasion.

Senator Heffernan does seem to have obtained documents or had access to documents because he says `according to correspondence I have received' and he goes on to talk in considerable detail about Comcar records. Those records can be tested in due course. I am simply saying that it is not fair to describe that as `without producing a shred of evidence'. If you are concerned about due process, perhaps one should also be concerned at the suggestion that these Comcar records, which were officially alleged to have been destroyed in the 1990s under the Archives Act, were still in existence in the year 2000 and were refused to Senator Heffernan under FOI. Those in themselves are very serious process issues.

What I am saying is that one should only ever exercise the enormous privilege and, therefore, power that attaches to our positions as a last resort. If I thought for a moment that Senator Heffernan was taking the easy way out and saying, `You know, I could refer these matters to the police or I could make some further investigation but, basically, I'll retail some stories I've heard', I would regard that as totally unacceptable. I do not see evidence that he has done that. It is quite to the contrary: he has been mulling over these issues, their implications and, as Senator Hill said, the wider effect on a number of institutions which people had previously revered and which, if not condemned, now stand seriously challenged for the way in which they have approached these very difficult issues. In circumstances like that, for example, with Justice Yeldham, one is entitled to say that, if one had some substantiating evidence—not merely a rumour— which for one reason or another had not persuaded legal authorities in New South Wales to take action, and one was firmly convinced—in other words, one was genuine in one's concern for the issue—that there was evidence that justified action and it was not being taken, then it may well have averted the ultimate tragedy of Justice Yeldham's actions and their consequences for him and others.

So whilst one has to exercise that responsibility very carefully, we should not simply say whenever anyone stands up under the cover of privilege and makes serious allegations about someone else that they are, by definition, slanderous or unsubstantiated remarks, which is the expression that Senator Stott Despoja used, or a cowardly attack on a respected judge, as Senator Faulkner said. They are clearly matters of the gravest import. They clearly involve very serious allegations. It does not follow that a serious allegation by itself is slanderous, because it has to be shown to be untrue.

What is occurring is a fundamental debate about freedom of speech and the great care with which it should be exercised. But we should not fall into the trap of saying that, if the consequences are very serious or if they relate to a person at a high level of authority, we should not even mention them. If you take that approach, in many ways, you are doing the very sort of thing that has caused Senator Heffernan to become very frustrated with the existing processes. He quotes from the Wood royal commission, where matters were raised and a reference was made to judges. When he asked whether judges would be named—and I presume that could have been done in camera—the answer was to the effect that it could undermine the reputation of the judiciary. The precise words were:

That is a matter of concern because, if the effect of that is to cover people in high places because of fear of undermining confidence in the institution, then no-one would ever say anything bad about anyone in high office, let alone in the parliament. Yet the media and everyone else has a field day on a regular basis trying to expose the real and perceived shortcomings and improper behaviour of a whole manner of people in positions of authority. One has to be conscious of the concern that, in many respects, there may well have been a well-intentioned cover-up at various levels of authority over the years.

I am one of the first to acknowledge that circumstances and community attitudes change, and it is very dangerous, in my view, to judge people by the standards that prevail now and apply those standards to conduct that occurred many years earlier. In many respects, as I think we all know, there is much heightened community concern about these issues that people might have talked about at an informal level many years ago but never thought of in a criminal context. They were at best social issues; they were normally laughed about rather than thought of as issues to be concerned about. It is against that background that one has to be careful to ensure that the presumption of innocence prevails and careful that someone against whom serious allegations are made is given an opportunity to respond to the detail of those matters. But we should not go so far as to say that, by definition, if serious allegations are made against people in high office it is slanderous or unsubstantiated. There has to be evidence to make us feel comfortable that the person making the allegations has done his or her homework and that there is some supporting material. As long as the material is acted on in good faith, I think it is legitimate to proceed down that path but, again, these matters have to be very carefully considered. If Senator Heffernan is exercising that right of last resort when he has exhausted other avenues, it is very important that we address the professional conflicts that might arise in certain circumstances and certainly any criminality that might emerge from a proper and considered assessment of material.