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Tuesday, 21 August 1984
Page: 55


Senator GARETH EVANS (Attorney-General) —Mr Deputy President, I seek leave to make a statement in connection with the report and to incorporate the text of the statement in Hansard.

Leave granted.

The document read as follows-

The Director of Public Prosecutions, Mr Ian Temby, Q.C., in his capacity as Special Prosecutor appointed to investigate and prosecute any Federal or Territory offences in relation to the Age materials or their contents, has presented his final Report to me. I take the first opportunity of the present Sittings to table Mr Temby's Report.

I should point out that full copies of both Reports have been given already to the Senate Select Committee on the Conduct of a Judge and to Mr Justice Stewart in his capacity as Royal Commissioner into Nugan Hand Activities. Making the Reports available to these two bodies as soon as practicable after it became available to the Government was in accordance with the course that was followed in relation to Mr Temby's interim Report, to which I referred in the Senate on 6 June 1984.

Copies of the Report have also been provided to the New South Wales Attorney- General's and Justice Department, as the investigations referred to in the Report are part of joint investigations carried out by the Australian Federal Police and the New South Wales Police in relation to the so-called Age materials .

I make it clear that the Report tabled tonight is the full Report presented to me by Mr Temby on 20 July, without deletions or editing of any kind.

The decision to table the Report in this complete form, together with the attached Report signed by the Acting Commissioner of the Australian Federal Police, has not been an easy one to make, and the Government has had to weigh and balance strongly held and argued competing views.

On the one hand, the AFP has expressed concern that public release of its own Report would set a precedent for the release of police operational documents of a kind which have not hitherto been made publicly available by any Government, and would have unfortunate consequences for the capacity of the AFP to pursue future inquiries on cases likely to excite public interests.

The Government also had to consider the fact that a number of individuals are named in the Report in such a way as to make it possible in practice that, justifiably or not, adverse inferences might be drawn about them. Basic civil libertarian principles demand that the reputations of individuals, and particularly those about whom no adverse findings or recommendations are made, should be given the maximum possible protection.

I welcome this report. It is the first part of a report being prepared by a committee under the chairmanship of Professor Waterhouse. When the Vietnam Veterans Counselling Service was established in 1982 regard was given to its future continuance. This report is considerable evidence of the fact that the Service produced some very effective results in its first couple of years. Its clients numbered in excess of 3,000. Clearly, this part of the report, which makes quite a number of recommendations, provides a very successful and necessary addition to the circumstances surrounding Vietnam veterans in particular and their problems, both social and economic, in settling into the Australian community to which they so clearly belong. It is quite an extensive, in-depth review and evaluation of the operation of this Service. A number of recommendations are of a structural and administrative nature. Indeed, the final one, if I recall it correctly, suggests the possibility that the Vietnam Veterans Counselling Service may well eventually be extended to involve such a service to veterans from all other conflicts in Australia's history and veterans of the defence forces themselves.

There seems to be little doubt that many of the problems that confront the Vietnam veterans in this country are in some measure peculiar to them. The yare peculiar perhaps in the sense that it was a conflict in which there was not unanimous support at home for the people involved. It wa a conflict which took place in unusual circumsstances; circumstances in which even one's enemy was extraordinarily difficult to identify. Because of these and other pressing reasons the problems of those men who have returned from that conflict have in some measure differed, certainly in intensity, from the problems of men who have returned from other areas of conflict over the years.

I do not need to add to these remarks except to reiterate that the first part of the report of Professor Waterhouse's committee quite clearly indicates that the operation of the COunselling Service is successful. It involves a great number of people who are benefiting from it. Recently I had an opporutnity totalk to members of the Vietnam Veterans COunselling Srvice in Townsville. I was impressed by the amount of work that they did and the sincerity and dedication of the people involved in offering the services in that area. This service has spread to all capital cities, and Townsville. It is probable and, certainly I believe, necessary that its availability to the more remote areas of rural Australia should be a significant consideration for the future. O commend the report to the Senate.


The DEPUTY PRESIDENT —Order! The time allocated by Sessional Orders for the consideration of government papers has expired.

In this respect, the Commissioner has expressed his concern to the Government that the tabling of the police report may unfairly bring to public attention personal details and statements of individuals who have been involved in the police inquiry and who are quite innocent of any wrong doing. The Commissioner has also expressed his concern that material provided to the police investigation by many people could be subject to Parliamentary debate without those persons having any right of reply.

Against this, on the other hand, the Government had to consider the very strongly held view of the Special Prosecutor that his Report, together with its AFP attachment, should be published in its entirety: that no current or future investigation would be likely to be prejudiced by such publication, and that no other overriding public interest required any part of the Report to be kept confidential.

A compromise position initially favoured by the Government was the tabling and publication of the Report with several names (but not those of the Judge or solicitor) excised, and the attached police report deleted entirely, but with the full Report and attachment being made available on a confidential basis to the leaders of the non-Government parties in both Houses.

On balance, the Government came to the view that the independence and integrity of the Special Prosecutor should be completely respected and that, despite the reservations felt about doing so, the Report and attachment should be tabled in full.

We make it absolutely clear, however, that this should not be regarded as a precedent for the tabling of any police operational document in future. The circumstances associated with the preparation of the present police report have been quite unique, namely oversight throughout the Special Prosecutor pursuant to his statutory responsibilities under the Special Prosecutors Act 1982.

Investigations

Mr Temby's description of the investigations that were carried out may be summarised as follows:

The materials delivered to the Attorney-General by the Age on 1 and 2 February 1984 comprised 524 pages of documents which are, or purport to be, transcripts of telephone conversations, summaries of telephone conversations and profile notes on certain persons, together with four cassette tapes. The documents bear dates within the period from 5 March 1976 to 5 May 1981. The tapes contain no internal evidence as to recording dates. The original source of the documents is not apparent. (Para 6).

The Editor of the Age, Mr Creighton Burns, after agreeing to an interview, declined to be interviewed, saying that the Royal Commission should be appointed and that '' 'The Age' had no confidence in the investigation''. (Para 7).

The actual material given to the Age, report- edly by Mr Bob Bottom, was provided by Mr Burns. The transcripts received had the same content as those previously received by the Attorney-General, but the tapes received differed in one important respect.

They included one conversation which is of some importance in establishing the source of the tapes; this conversation was omitted from the material handed to the Attorney-General and is apparently between a member of the NSW Police Force and a prisoner. (Para 10).

The conclusion of the technical expert who was requested to examine the tapes, Mr Don Craig, of Louis Challis and Associates Pty Ltd, was that neither set of tapes comprised an original recording but were copies and that there were examples of editing on each set of tapes.

The likelihood is that the original recordings were made on reel-to-reel tapes and reproduced on recording with a mechanical system of operation. Although the expert did not say this, Mr Temby understands that such a system of recording is likely to be used in conjunction with a device used for the surreptitious interception of telephone conversations.

The expert has advised that further examination of the tapes appeared to him to be unwarranted; Mr Temby concurs. (Para 11).

Mr Bob Bottom declined to be interviewed by the AFP. (Para 14).

Information from Mr F. A. Silvester, formerly the Director of the Australian Bureau of Criminal Intelligence, indicates that Bottom was already in possession of part of the materials by September 1981 (the purported conversation between Mr Morgan Ryan and others between 7 February 1980 and 10 May 1980 and the personal profile notes). (Para 16).

The other avenue of investigation that has been closed to Mr Temby is through refusal of a former member of the NSW Police Force to be interviewed by either the AFP or NSW Police. It is Mr Temby's belief that the former officer could assist in further investigations into the source of the materials. (Para 17).

All persons who were allegedly parties to the telephone conversations, except the Judge, have declined to be interviewed or to comment on whether the purported telephone conversations took place and whether the content or theme accorded with their recollections. (Paras 18-19).

A report received by the senior officer in the NSW component of the Joint Investigating Team contains the general conclusion that the authenticity of the materials is questionable. There is nothing in that report which would assist in laying charges against any individual for any Federal offence. (Para 20).

Findings

It is important to note the following findings contained in Mr Temby's Report:

The Age materials have no present probative value. (Para 25).

The voices on the tapes cannot be proved, save to the limited extent to which the Judge has given an acknowledgment which however would not be of any assistance on the question of authenticity. (Paras 22, 25).

It is not possible to prove that the tapes or transcripts, or any part of them, are of actual telephone conversations. (Para 25).

Mr Temby is satisfied that, if there were intercepts of telephone conversations , they were not authorised under the Telecommunications (Interception) Act 1979. (Para 21).

Conclusions and Recommendation

I come now to Mr Temby's main conclusions in the Report:

He states that he has sought to detect all offences against Federal laws and finds that (apart from the question of telephone intercepts) there is nothing that warrants a charge or further investigation. (Paras 27, 30).

Other possible offences which appear from the contents of the material are matters of State law with which Mr Temby is not concerned. (Para 27).

Mr Justice Stewart, in his capacity as a Royal Commissioner, is investigating matters arising from part of the transcript material. In the course of that investigation, it seems likely that he will inquire into the circumstances in which the transcripts and tapes were made. (Para 28).

In particular, Mr Temby has noted (para 27) that the investigation of certain matters referred to in the interim Report has been completed and in no case is the laying of a charge warranted. The matters were itemised in the interim Report as follows:

''Suggestion that charges in the A.C.T. were 'watered down' from $100,000 to $9 ,000

Suggestion that improper assistance had been given to two medical practitioners in Medifraud matters

The possible 'fixing' of a case in the A.C.T.''

Recommendation

I come now to the specific recommendation that Mr Temby makes in his report. He notes in para 31 that the question of possible offences against Federal law could be taken further by some body or person having coercive powers, and that both the Senate Select Committee on the Conduct of a Judge, and Mr Justice Stewart, as Royal Commissioner, have such powers. His recommendation is that the matter be left as it is until Mr Justice Stewart and the Senate Committee have completed their respective tasks.

He stated that no useful purpose would be served by maintaining his appointment as Special Prosecutor, which expired on 21 July 1984. He has pointed out that, in the event that there is sufficient evidence to enable charges to be laid, he would not hesitate to do so in his principal capacity as Director of Public Prosecutions.

That completes the description of Mr Temby's Report. I would like to acknowledge the professional, expeditious and impartial manner in which Mr Temby carried out the responsibilities of Special Prosecutor in this matter.

Government's Response

The Government has accepted Mr Temby's recommendation in toto. In this regard, I have already indicated that Mr Temby's Report was forwarded as soon as practicable to the Senate Committee on the Conduct of a Judge, as well as to Mr Justice Stewart as Royal Commissioner.

The Government will be studying carefully the report of the Senate Committee as soon as it is available. I shall be introducing as soon as possible an amendment of the Telecommunications (Interception) Act 1979 to clearly enable Mr Justice Stewart to investigate the Age materials that have been referred to him. The Act as it stands at present does not, technically speaking, allow unlawfully obtained intercepts to be used for any purpose, not even for the purpose of inquiring whether or not an offence has been committed against the Act.

As to the question of any possible offences against State law, I have already indicated that copies of the report have been provided to the New South Wales Attorney-General's and Justice Department. By virtue of sections 26 and 27 of the Commissioner of Public Complaints Act 1984 of New South Wales, the Age materials are in effect the subject of a statutory reference to the Commissioner under which he is to give due consideration, first of all as to whether any or all of the materials has been authenticated. If, having done that, any matter in the materials appears to the Commissioner to be capable of being the subject of, and to be appropriate to be dealt with as, a complaint under that Act, then the Act applies to the matter as though it were a complaint under that Act. It has been indicated to the New South Wales Government that the Commonwealth Government would have no objection to Mr Temby's Report being provided to the Commissioner for this purpose.

Finally on this aspect, I wish to state categorically that the Government would reject any proposal that Mr Temby's Report justifies or requires a special Royal Commission be appointed in relation to the Age materials. Mr Temby makes no such recommendation, but in any case the matter is one for the Government to decide. The Government believes that the investigations already made by or under the Special Prosecutor, and the investigations and consideration made or being undertaken by Mr Justice Stewart and the Senate Select Committee between them amply cover all significant issues requiring investigation at this stage.

Comments

By way of comment, firstly I can only repeat what I said on the first day of the autumn sittings. The most worrying aspect of this whole matter continues to be the massive indifference to illegality and invasion of privacy which has surrounded this affair; and, associated with that, the profound indifference, even cynicism, with which illegality and privacy invasion has been greeted by some members of the media and Opposition spokesmen.

The reputations of individuals have been slandered in the Parliaments of the Commonwealth, New South Wales and Queensland and, under privilege based on those Parliamentary statements, by the media. The damage and injury done to the targets of what has patently been an orchestrated, co-ordinated campaign is to a significant extent irretrievable, and would have been known to be irretrievable.

Six months later, the question of authenticity remains. The dubious status of the material has not really changed since I referred to it in my statement on 28 February. The material remains anonymous and unauthenticated.

I referred in that statement to a belief by the Age that the materials had been received from some source in the NSW Police Force. Mr Temby's Report notes in paragraph 10 that a tape omitted from the materials passed by the Age to me but subsequently made available to Mr Temby is of some importance in establishing the source of the tapes. It seems to increase the likelihood that the tapes emanated from elements within the NSW Police Force. However, I point out that Mr Temby goes on in paragraph 20 to state:

''It would be idle for me to express any view as to whether the materials or any part of them were prepared by elements within the New South Wales Police Force. I make specific mention of that possibility because it is treated in some circles as a received truth that the materials emanated from that general source . What matters for present purposes is proof, not speculation.''

Finally, notwithstanding the difficulties of proof, I note the statement by Mr Temby, Q.C., that, in the event that there is sufficient evidence to enable charges to be laid, Mr Temby will not hesitate to do so in his principal capacity of Director of Public Prosecutions.

Motion (by Senator Gareth Evans)-by leave-proposed:

That the Senate take note of the report and statement.

Debate (on motion by Senator Durack) adjourned.