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Thursday, 14 June 1984
Page: 2984

Senator MASON(10.05) —by leave-I move:

That the Bill be now read a second time.

I seek leave to have my second reading speech incorporated in Hansard.

Leave granted.

The speech read as follows-

I am submitting this Bill as a private member in the interests of two constituents, Michael Leigh and Alice Lynne Chamberlain, who are normally resident in New South Wales.

I am aware that I am reopening a matter which has engaged much time and money in the community and which many might now say ought to be laid to rest.

However, at the same time, many thousands of other Australians take a different view. Indeed, more than one hundred and thirty thousand people have petitioned the Governor-General on behalf of the Chamberlains, exhorting him to exercise his power of pardon. That petition was beyond doubt well-intentioned, and is important in that it gives some guide to the intensity and volume of opinion in the community about the Chamberlain case. However, it would seem scarcely feasible or desirable for the Governor-General to contemplate such an action unless an inquiry, such as this Bill proposes, had first expressed a view as to whether there are indeed any reasons why the convictions against the Chamberlains represented a miscarriage of justice.

On the other hand, on the assumption that a commission of inquiry did conclude upon good and demonstrable grounds that there had been such a miscarriage, then I believe the constraints upon the Governor-General, or perhaps the Administrator of the Northern Territory, would no longer exist.

The view has been put that the same purpose could be achieved by appointment of a royal commission by the Attorney-General (Senator Gareth Evans). I myself, of course, had considered this possibility.

However, there seems very considerable doubt about this means. Indeed, the Attorney-General himself takes the view that he cannot make that appointment. I have a copy of a very recent letter from the Attorney-General to Professor Barry Boettcher, Head of the Department of Biological Sciences at the University of Newcastle, in which the Attorney says:

I refer to your letters of 20 March and 7 May 1984, to myself and the Prime Minister, the latter having been passed to me by the Prime Minister for reply. I also refer to your meeting with my Private Secretary on 23 May 1984 at which you provided details of the forensic evidence in the Chamberlain case. I have noted your comments and the information you have provided.

However, as you know, the prosecution and sentencing of Mr and Mrs Chamberlain is entirely the responsibility of the Northern Territory Government. It is not possible for me to set up any judicial review or Royal Commission to inquire into the case. Nor is it appropriate for me to comment on any particular court proceeding.

Now my advisers also have doubts as to whether the Attorney-General can indeed operate on this within the Royal Commissions Act 1902.

However, there seems good reason to believe that appointment of a commission of inquiry, with all the relevant powers of a royal commission, can be established through an act of this Parliament, and that is, of course, the purpose of this Bill.

Section 122 of the Constitution states:

The Parliament may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth, or of any territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth, and may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit.

Now this clearly empowers this Parliament in this matter, and equally clearly indicates a viable course of action for us, should the Parliament decide to proceed.

Another reason for the Bill, of much lesser importance but still I believe, significant, is that it will permit examination of the new evidence, now said to be available, by members of parliament, and members of parliament will decide whether or not the Chamberlain case is granted further examination. In a matter over which there are such deep divisions in the community it would seem unfair to place this burden on even the most senior Crown law officers who must bear a certain amount of praise or a certain amount of approbrium, whatever way their decision went.

In all fairness, I think that is a decision we ought to take, and a responsibility which reasonably devolves on us. It also brings a tripartite involvement, which I believe to be desirable.

To turn to the Bill, I will mention that it stipulates three judges or ex- judges as the Commission. Why not a commission of one? Here again, I think, it would not be right to wish such a decision on one person.

The terms of reference are as follows:

1. The Commission shall, after due inquiry, report to the Governor-General whether, in the opinion of the Commissioners, fresh evidence presented to the Commission, considered in conjunction with the evidence adduced at the inquests and at the trial that resulted in convictions, is such as to justify a conclusion that the convictions, or either of them, constituted a miscarriage of justice.

2. The Commission shall, subject to this Act, conduct such inquiry as it thinks necessary for the purposes of reporting in accordance with subsection (1).

3. Proceedings of the Commission shall be in public, but the President has power to exclude any person for reasons he thinks sufficient.

4. If the Commissioners are not in agreement as to the report that should be made, a Commissioner may submit a separate report concerning that matter.

5. Upon receipt by the Governor-General of a report under this section, the Attorney-General shall cause a copy of the report to be laid before each house of Parliament.

It will be apparent that we have tried to set these out in a way which does not commit the Commission to a virtual retrial of the Chamberlain case. The accent is placed on new material which is said to be available. It is the contention of those who believe the Chamberlains innocent that this new material would significantly incline a reasonable person to that view. If that is so, an Inquiry on these terms of reference ought to satisfy them, and I understand that is indeed the case.

I might say that my motivation in this matter springs partly from my concern at the way in which circumstantial evidence is increasingly being used to convict persons of major crime. This, of course, is the large issue, of tremendous community importance, which lies behind the Chamberlain case, in which there was a conviction in circumstances where there were no witnesses to the alleged crime , no body has been found, the alleged murder weapon has not been found and no motive has been adduced.

Mr President, justice can err at times with the best of intentions, and a later examination can bring a completely different result from the original verdict.

There is a very good, simple, and practical reason for this. It is that, as time passes, new facts tend to arise in almost any matter; and these new facts can give, perhaps even dictate, a completely different view of the case.

This is what hundreds of thousands of Australians believe about the Chamberlain case.

If, indeed, there is any possibility of it being true of the Chamberlain case, then of course the vote, initially of honourable senators and the later of members of the other place, on this Bill, is of vital importance. It would indeed be a serious step to take to refuse anyone, no matter how black their reputation or how long their list of crimes, the opportunity of a fresh look at those facts in appropriate circumstances, much less persons of previous good character.

It is important to recall that for a variety of reasons, no new evidence was accepted at either the Federal Court of Appeal or the High Court hearings.

Indeed, I am advised that much of the new material is quite recent. One grouping of material is based on the question of the alleged blood found in the Chamberlains' car. I may say that material is too detailed, too complex and, indeed, too visual for me to put here, nor is there any need for me to do so. I hope my colleagues will go to the trouble of looking carefully at it themselves. However, I was influenced sufficiently by that new evidence concerning the alledged blood, and other material said to be new, to bring forward this Bill in association, as I have said, with my concern on the wider matter of conviction on circumstantial evidence which has also been commented on, of course, by such lawyers as Professor Julius Stone and Sir Reginald Sholl.

There are said to be not less than fifty reliable elements of new evidence that have come forward, which have not yet been made available to a court.

This material is so voluminous it would be unreasonable of me to seek to incorporate it in this speech. Nor is it desirable I should do so, since I certainly do not wish to appear as judge and jury in this matter. I have read many statements concerning new evidence, much of which is in the form of statutory declarations, and have also talked with many people who seemed to have significant material to bring forward which has not yet been considered by a court.

All these matters need to be considered in a proper legal setting where their truth or otherwise can be tested by full investigation and cross-examination.

The real issue before us is then, whether all this new material is to be ignored, which seems to me to present a risk of a continuing injustice, or whether it can be looked at again.

It is to the point that much of this new material is far from being secret. It has had an airing to very high audience television and radio programmes. Very grave allegations as to the conduct of members of the Northern Territory Police, and other people, have been made and some of these are contained in the statutory declarations I hold.

Concerning the new evidence, I seek to comment briefly on three general areas.

The first is that there does seem to be evidence that a dingo was in the Chamberlains' tent on the night Azaria disappeared; that its tracks were seen. There is evidence of dingoes taking food and attacking children. There is evidence, supported by statutory declarations in my hands, that the baby Azaria was heard to cry in the Chamberlains' tent, and that this was commented on by a number of people. This happened at a time at which, if the Crown's case against the Chamberlains were sound, the child was already dead.

There is substantial evidence which appears to rebut the linchpin of the Crown' s case-forensic evidence concerning blood in the Chamberlains' car and Michael Chamberlain's camera bag, and evidence that damage to the baby's jumpsuit, found later at Ayers Rock, could not have been made by a dingo's teeth, but was caused by a pair of scissors.

Evidence now exists which I understand shows similar damage in an identical jumpsuit was caused by canine teeth.

There is also evidence from persons at Ayers Rock at the time of the disappearance of Azaria that they considered the police did not take due note of their statements on some of the matters I have raised above, especially the baby 's cry and the dingo tracks, and I hold statutory declarations to that effect.

I hold a statutory declaration from Professor Barry Boettcher, Professor of Biological Sciences at the University of Newcastle, stating his view that the evidence that stains of infant blood:

'specifically that of Azaria Chamberlain, had been found in the Chamberlain car and on other items, is wrong. The bases for my conclusions are:

(a) the results recorded by the forensic biologist are not consistent with those expected if the examined blood stains had come from an infant and, specifically, from Azaria Chamberlain, and

(b) the testing solution (antiserum) for haemoglobin F used in the tests on the blood stains would react with adult blood in addition to infant blood.

''Further, I consider that the best interpretation of the results of the tests recorded in the forensic biologist's work notes is that the reactions observed between the antiserum to haemoglobin F and extracts of the blood stains were due to a contaminant in the antiserum reacting with haemoglobin A in the badly denatured blood stains. In other words, the blood stains were not of infant blood, but of aged adult blood.'

According to statutory declarations in my possession from two other persons, a distinctive, red-coloured dingo known as 'Ding', said to be very strong, with a fluffy coat, was alive some days after the disappearance of Azaria Chamberlain.

Other statements, which I understand are supported by statutory declarations I have not personally seen, claim that the dingo Ding was seen near the Chamberlains' tent shortly before Azaria disappeared; that the same animal had attacked a child not long beforehand and was to have been shot at that time; that it was not in fact shot; and that it was quite possible for such an animal to carry off a child of Azaria's weight, which I understand to have been nine and a half pounds. It has also been stated that due to a request from Rangers to visitors to Ayers Rock not to feed the dingoes, they were especially hungry and aggressive at this time.

These are matters on which I have no judgement to make, other than they would appear to require testing before some competent authority.

I have read many thousands of words of statements and statutory declarations about the Chamberlain case, and spent many hours talking with people who seem to have some material contribution to make.

Again I make no judgement on any of this material, other than to say that the volume and nature of it is such as to confirm in my mind that further inquiry is necessary.

If indeed there is a doubt about the matter, it must raise concern among us all that it be resolved quickly. However, it would appear that unless unusual measures were taken, it would not be possible for this Bill to be considered by both Houses in this session, which has now almost ended.

On this basis, it would seem inevitable that the second reading be adjourned until the Budget session. This would give all Members of Parliament the opportunity to consider the issue and form a view. However, I can see no reason why this Bill should not be voted on early in the Budget session in August. On that basis, I commend the Bill to honourable senators.

Debate (on motion by Senator Grimes) adjourned.