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Wednesday, 5 September 1984
Page: 516


Senator HAINES(6.43) —Yesterday when this debate first came before the Senate I canvassed on behalf of the Australian Democrats the attitudes we had to the various routes down which we could go to solve what was rapidly becoming a very unpleasant problem. I do not want to go into all the details I brought up yesterday, but I think that, in view of the speeches preceding my own, perhaps it would not be such a bad thing to run over the whole issue. First, we were confronted by a report, five months in the making, by six senators who produced three differing assessments, on which the Senate was then supposed to make some sort of intelligent assessment. We were confronted by the Government saying that, in view of those differing assessments by honourable senators on that Committee, the Government would refer the matter to Mr Ian Temby, QC, a man for whom I have a high personal regard, as Director of Public Prosecutions, and that that would be the first and almost the only step that was to be taken. Certainly it was to stand alone for the time in which Mr Temby was meeting.

The decision to take that route was made by the Attorney-General, who has taken what many honourable senators on this side of the chamber, and many outside legal opinions, believe is a very narrow, black and white view of what constitutes misbehaviour under section 72 of the Constitution. We said then, and I repeat today-I believe the Opposition took the same stance-that this was simply not appropriate; that Mr Temby would be placed in exactly the same position as was the Senate Committee. He would be confronted with two lots of sworn evidence in cross-examination from Mr Briese, a man of very high status in the community, but unsworn and certainly uncross-examined statements from Mr Justice Murphy. Senator Tate raised the question of suspension of standing order 304 to allow Mr Justice Murphy's counsel to cross-examine. I repeat what I said yesterday and remind honourable senators that Senator Chipp gave the previous Senate Select Committee just that option, and the majority chose not to take it. That left Mr Justice Murphy, I think quite legitimately, with the stance that he would not get involved in something which he could see would rebound against him quite unjustly. He argued, we believe legitimately, for the full requirements of natural justice to be complied with-in effect, for justice to be done and to be seen to be done.

Our concern here is not only with the integrity of this Parliament, of the Senate, and of the Australian Constitution, but with justice being done to a man against whom serious allegations have been made. So far as we were concerned, simply sending off the whole issue to Mr Temby, who has very limited resources for investigation and no coercive powers whatever, was simply going to be a non- event.

The Attorney-General (Senator Gareth Evans) promised, and the Prime Minister ( Mr Hawke) repeated today, that at the end of Mr Temby's inquiry the Senate would have the opportunity to make some decision about whether it would undertake a further inquiry. The Government, however, made clear that it would leave that decision to Opposition members-placing us, I believe, in the sort of invidious party political situation, or the appearance of that which all along we have sought to avoid. Indeed, the fact that with six honourable senators on a select committee three reports were brought down-one from the Labor members, one from the Liberal members and one from the Australian Democrat-indicates that we have to be very careful indeed that we be seen not to be running a party political line. It was therefore our intention to try to leave it as much out of the overt political arena as was possible. That meant our putting forward a motion that an independent non-Senate-connected parliamentary commission be established. We advocated giving three commissioners the sorts of powers that would be consistent with allowing them to call witnesses, to allow those witnesses counsel, to allow cross-examination and so on. The intention was that they should report back to this Parliament so that this Parliament could undertake its responsibility, and its responsibility alone, for any further action under section 72 of the Constitution.

That parliamentary commission, as I understand it, could be set up without legislation. The legislation that was necessary was to offer protection to the commissioners and to the witnesses appearing before it. The Government said that it was not prepared to support that legislative process. To our minds, that left the witnesses and the commissioners in an intolerable position. I indicated yesterday at some length in the Press conference I held that if the Government remained intransigent on this matter today, we would have a look at a fall-back position. I indicated then that at that stage the only position we could see was some sort of combination of our motion and intention of an independent inquiry with the Opposition's mechanism of a Senate committee. In other words, we would have to look at coming up with another sort of inquiry that had commissioners, as independent as possible, operating under the protection, for witnesses and the commissioners, of a Senate select committee.

Today, after consulting each other, we decided that perhaps as a matter at least of courtesy we should attempt to come to some form of consensus with the Government. Senator Chipp and I therefore spoke to the Prime Minister and the Attorney-General in an attempt to reach some form of compromise, if you like, that would allow an independent inquiry and also satisfy their desire to have Mr Temby look at whether there was a prima facie case on the evidence that was put before the Senate committee for questioning Mr Justice Murphy. We put to them that we would be prepared to support a reference to Mr Temby if the Government were prepared to offer us the legislation that was required to protect the witnesses and the commissioners of an independent commission and that the two would run concurrently, as we believe that they would be looking at separate, although connected, issues; that is, the element of criminality which Senator Evans has been stressing and the broader element of misbehaviour under section 72.


Senator Peter Rae —Or incapacity.


Senator HAINES —Or incapacity. I take Senator Peter Rae's point but I reiterate that the debate has tended to look at misbehaviour as the definition of incapacity is even more fraught with dangers than the definition of misbehaviour . Nevertheless, the Attorney-General has been taking a very narrow view of misbehaviour in the criminal sense. Other members of this House and very distinguished lawyers outside it have taken a different point of view. I suggest , with respect to the Attorney-General, that we owe it to this Parliament and to Mr Justice Murphy to be as broad as possible, as independent as possible and as non-political as possible in finding a solution.

The Government said that it was not prepared to give us its legislative backing in return for its reference to Mr Temby. Therefore, we fell back to the position that I signalled yesterday; that we would come to some arrangement whereby a marriage, if you like, could take place between the motion we put forward calling for a purely independent commission and the Opposition's protection of the Senate select committee. That in effect is what we have brought forward today-the proposition that a three-member or four-member Senate select committee be established which would have attached to it, appointed by the Senate, two commissioners to assist the committee in performing its investigation and cross- examination functions. The way we envisage it operating is in much the same way as an independent commission would operate. However, it would require the protection of the select committee because, and I must repeat it, the Government refused to offer us any other form of legislative protection for those people. If we are to get to the nub of the matter, an expression that the Attorney- General uses repeatedly, we cannot hamstring the commissioners or the Senate committee. We certainly cannot view an investigation by Mr Temby as being the sort of thing that is likely to resolve the matter, any more than the previous Committee was in a position to resolve the matter.

So what we anticipate setting up is something as close as possible to an independent inquiry, as devoid as possible of party politicking, as fair as possible to Mr Justice Murphy and as honourable as possible for the Parliament to undertake, given section 72 of the Constitution, which places the responsibility fairly and squarely on us. Given the impasse that was looming before us, with the Government being totally intransigent on this matter, I believe that we have taken the only possible and responsible steps available to us.

Debate (on motion by Senator Grimes) adjourned.