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Friday, 22 March 1985
Page: 668


Senator CHANEY —My question is addressed to the Minister representing the Attorney-General. I refer the former Attorney to the fact that it is now three weeks since the present Attorney-General publicly agonised over the request for indemnity from 31 members of the New South Wales Police who have been asked to give information to Mr Justice Stewart regarding tapped telephone conversations. I remind the Minister of his answer to Senator Chipp yesterday when he said that it was not clear from what Mr Bowen had said in the House of Representatives whether a final decision had been made on the indemnity question. In the light of Mr Bowen's other comments on Australian Broadcasting Corporation radio and in this morning's newspapers will the Minister clear up the confusion by telling the Senate whether a final decision has been made and, if it has, whether or not the request for indemnity has been agreed to?


Senator GARETH EVANS —The Attorney-General has advised me that he has not made a final decision to refuse the indemnities in question although his strong inclination at this stage is to follow the advice and reasoning of the Director of Public Prosecutions in this respect, which of course is that the indemnities not be granted. The Attorney-General has reserved a final decision until the outcome of certain further developments is known. In the first place there have been consultations in recent weeks with both the Director of Public Prosecutions and Mr Justice Stewart with a view to finding some agreed means by which relevant evidence may be tendered to the Stewart Royal Commission of Inquiry into Drug Trafficking. These consultations will continue. In addition to this, the Attorney-General has also formally requested the New South Wales Government to make strong representations to its Police Commissioner with a view to any relevant police knowledge or documentary material being put before the commission. He was advised this week that such representations have been made and that a reply is awaited.

There is also some confusion on this matter because of a failure around the place to understand who actually makes the indemnity decision. It might be useful if I put something on the record in relation to that. It should be made clear that indemnity decisions of the kind in issue are made by the Attorney-General in his own right as first law officer although there is an accepted convention as to the propriety of his consulting with his Cabinet colleagues for their views on matters of particular difficulty or sensitivity. As to the role of the Director of Public Prosecutions, he has statutory power under section 9 (6) of his 1983 Act to grant so-called use indemnities; that is to say, undertakings as to the non-use of particular evidence in subsequent prosecutions. However, what is involved in the present Age tapes matter is not this but a request for a transactional indemnity; that is to say, immunity from prosecution for a particular kind of offence.

This kind of immunity or indemnity can be granted only by the Attorney-General but it was formally agreed by me, in my former capacity as Attorney-General, with the DPP on 7 March last year and the practice continues that as transactional indemnity would be granted only by the Attorney-General after consultation with the Director of Public Prosecutions and, exceptional circumstances apart, the Attorney-General would act on the DPP's advice and recommendations. It was in this context that Mr Temby's advice in the present matter was both sought and given.