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Thursday, 6 September 1984
Page: 591


Senator GARETH EVANS (Attorney-General)(4.59) —I do not discern any enthusiasm elsewhere in the chamber for moving an amendment so I am not sufficiently masochistic to pursue it. I appreciate the point that has now been put on the record that it is clearly within the discretion of the Committee.

Beneath the apparent maze of pedantry that has been perpetrated by me on this issue there lurks a point of real substance. That point is perfectly well appreciated by the Opposition, but I think it is less well appreciated by the Australian Democrats. At least that point should begin to be appreciated by the Fourth Estate and others who have an interest in this matter. The point is that in this terminology, even though most of the substance has been completely stripped away from it by the terms of the motion, the Opposition is continuing to try to create an image of a mini royal commission under the umbrella of the parliamentary committee listening to, adjudicating upon and writing advice about the issues involved in this matter. That particular mini royal commission will consist of commissioners, or commissioners assisting, as we are now able to describe them. The Opposition is trying to persist in creating the impression-it is creating as much machinery as possible to go with that impression-that this matter is about some kind of independent group of people, now designated as commissioners assisting, who will sit listening to the material presented to them and in effect adjudicate and make determinations upon it. That image is very much advanced if one develops as further machinery the concept of a bevy of counsel-senior and junior counsel-doing the hard work of examining witnesses on, as it were, the floor of the chamber where the matter is being determined.

The concept that I understand the motion is about is rather of the commissioners themselves doing the work of conducting examinations of witnesses and basically assisting the committee to reach its determinations and make its findings. Senator Chaney shakes his head. He cannot have it both ways, because the language of the motion which he has been obliged to accept does not enable him now to make the claim that he is speaking of an independent commission. That is just as well because if that claim could be made it would very rapidly be challenged in the courts.

I am trying in all of this to pursue expeditious resolution of the matter in a way that is consistent with high principle. Expedition is not advanced when machinery is created that is ambiguous in character and capable of collateral challenge in the courts. Unless we are very careful about the way in which we draft this motion it will be challenged, and that will prolong unmercifully this whole unhappy affair.

I say no more about that matter, except to make it clear for the record that the Opposition cannot continue to create the image of an independent commission when the terms of the motion, despite some minor variations, as are involved with this counsel assisting business, do not allow that conclusion to be drawn. If the terms of the motion allowed that conclusion to be drawn, that would be a most unhappy state of affairs.

Of course, the Government will oppose the motion because we have made it clear that it is inappropriately premature at this stage for us to contemplate any kind of committee to determine these issues. As I have said over and over again- I shall not repeat it-these are matters appropriate in the first instance for determination through the criminal process. If we are to create a committee we should at least make it a committee with precisely defined terms of reference and a membership of four, evenly divided between the Government and the Opposition. As I understand it, the Australian Democrats will move an amendment to that effect which the Government will support. If we are going to create a committee, let us make it the least worst committee it is possible to imagine, but let nobody be under the impression that the Government is otherwise than opposed to the creation of any committee at this stage.