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Friday, 22 March 1985
Page: 673


Senator HAMER —I refer the Minister representing the Attorney-General to the Attorney-General's considered written answers to questions submitted to him by the Age newspaper published in the Age today where the Attorney said:

'Lesser criminals are sometimes given indemnity on the basis that their evidence will lead to the successful prosecution of major criminals. Police officers do not fall into that category . . .'

Does the former Attorney-General believe that his successor is seriously suggesting that the alleged crimes of conspiracy, corruption and interference with court processes and crimes associated with drugs are lesser crimes than whatever offence the New South Wales police may have committed?


Senator GARETH EVANS —It is the case that in granting indemnities it is one tried and true application of such a power that it be exercised in a circumstance where lesser crimes may be involved in order to catch a larger fish. It is a matter for judgment in the circumstances of any particular case whether that principle is applicable. A number of principles are applicable to the exercise of the discretion to grant an indemnity. I think the best telling of that tale is, as so often, the document entitled 'Prosecution Policy of the Commonwealth' tabled in the Parliament in December 1982 by the then Acting Attorney-General, Mr Neil Brown, on behalf of the then Attorney-General, Senator Durack, pages 11 and 12 of which I think are extremely pertinent to sensible consideration of the matter presently under debate. Paragraph 26 states:

. . . before a decision is made to grant an indemnity or to recommend to the Governor-General the grant of a pardon, all possible alternative courses must be considered. One possible alternative which must always be considered is to proceed to conviction of the prospective witness in respect of at least some of the offences committed by him before commencement of the trial of the principal offender. In broad principle, this course is preferable to giving an indemnity in respect of all offences committed by the prospective witness that would be disclosed by his evidence.

In paragraph 27, the Attorney-General of the day said:

Having regard to these matters, I require information to be placed before me as to the following matters:

These are again criteria which should be very definitely borne in mind by anyone opposite or in the corner on the other side who is inclined to rush to judgment on this matter:

Do the interests of justice require the case to proceed against the principal offender?

Is the evidence of the person in respect of whom the indemnity or pardon is sought essential to achieve the conviction of the principal offender?

Whether it would be possible to proceed to conviction of this person on at least some of the charges that would be disclosed by his evidence before the trial of the principal offender?

What is the degree of involvement of the person in the offence compared with the involvement of the principal offender?

What is the general character of the person and his previous criminal record? Was any reward or inducement offered to the person as a condition of his giving evidence.

Finally, paragraph 28 states:

The ultimate decision to grant an indemnity or recommend grant of a pardon is only made after the most careful consideration of this material. Assuming a decision is made to grant an indemnity, the scope of the indemnity should be no wider than the circumstances require.

I put that on the record in order to emphasise the seriousness of any decision to divert from the normal course of prosecutions where criminal offences are established or likely to be established and to grant an indemnity. It is a matter to which any Attorney-General of any stripe, colour or party must give the most anxious consideration. Some of the suggestions that are bruited about that indemnities of the kind that are in issue here and on the scale here proposed are something that should be granted casually in the context of an essentially exploratory exercise in terms of what might follow thereafter are ones that I do not think stand up very well at all with the principles so clearly enunciated by Senator Durack and Mr Brown in 1982.