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Monday, 25 March 1985
Page: 761


Senator MISSEN(10.00) —Tonight I wish to discuss a matter which has a long and unfortunate history in this chamber. It relates to the treatment of two citizens by governments in Thailand and New South Wales and, in the last two years, the actions of the present Hawke Administration and in particular, I regret to say, the failures of the Minister at the table, the Leader of the Government in the Senate and Minister for Industry, Technology and Commerce, Senator Button. I have given him notice that tonight I propose to proceed to put before the Senate certain facts in the hope of appealing in this chamber to the sense of justice which I have always understood Senator Button to have but which I have found in my dealings with him on this matter has been shamefully neglected.

The two people in question are William Charles Sinclair, a citizen of New South Wales and a man who is fairly well known partly because of a book which was written about the travail he experienced as a prisoner in Thailand, and his son, Gregory Sinclair of Melbourne, who is a constituent of mine.

I have taken some interest in the concerns and problems of this family in the last few years. I have said that they have suffered injustice at the hands of a number of governments. I remind the Senate that I spoke on this matter back on 15 December 1982, which is recorded at page 3597 of the Senate Hansard of that date. I spoke at some length and produced many documents in this chamber to indicate the way in which attempts were being made to produce and prove the authenticity of documents. I referred to the way in which documents were sent by the New South Wales Government, despite undertakings that it would do other things, and to the circumstances in which William Sinclair was incarcerated in prison. Along with other persons, he was charged with certain drug offences which he vehemently denied at all times and of which he was ultimately acquitted by a court of appeal. He was convicted in a lower court in Thailand and ultimately the Court of Appeal rejected evidence which was false evidence and which was proved to be false evidence in courts in the State of New South Wales. He was freed but not without problem or without losing a great deal of his bail money because of the curiousities of the law of Thailand. That man might have died. I am sure that there are many people in New South Wales who wish that he had died so that he could not continue to haunt them in days to come. But he got back to Australia, is free and has for some years, with his son, been claiming a total of $145,580 which was seized by the then Bureau of Customs on 19 October 1978 in Brisbane under section 229A (2) (a) of the Customs Act, claiming it to be drug-related money, although it has always been contended that it was not so, and substantial evidence shows it was not so. But that money was forfeited and governments have kept that money, have earned income from it and have refused to allow these people to prove their case.

I will not go into the past details of this, which were related in my speech in 1982. I remind members of the Senate that the problems which Mr William Sinclair had in Thailand are described very graphically in the book Kingdom of Illusions: The William Sinclair Story by Richard Shears and Isabelle Gidley. They described his efforts there to vindicate himself and be released. He could well have been executed in Thailand because the law of Thailand enables people to be executed without trial for drug-related offences. It took his family a great deal of money and effort to ensure that he was not executed and ultimately could stand trial and be released.

The claim to which I refer is one that I pursued firstly with the former Attorney-General, Senator Gareth Evans, who shortly after that handed it over to the now Minister for Industry, Technology and Commerce. Since that time I have pursued this claim. I have a number of documents which, for the speed of the Senate, I desire to incorporate in Hansard tonight. I will speak briefly about what they display but it is important that the Senate see in the record what has been done in respect of these claims. When Mr William Sinclair returned to Australia he very quickly made a claim for the moneys. He has contended that the moneys which were seized were mainly the proceeds of a sale by his son of a very successful restaurant in Brisbane. There were also some moneys of the father, William Sinclair, which he had accumulated over many years. All that money was being held for some time in trust boxes of his daughter-in-law. They were removed and handed over by another person to the Customs people and seized under the terms of the Customs Act, the claim being that they were drug related. These two men have put themselves and their information entirely at the hands of the Government and the Customs people and have been interviewed. They say that the money bears no relationship to drugs.

One can understand that governments might have thought that this was so at the time when he was in gaol in Thailand and charged with such an offence. But they have not been willing to open their eyes to the facts which have been released quite freely by these people. By 20 August 1982 William Sinclair wrote on behalf of himself and his son to the Australian Federal Police, the then Bureau of Customs and also to the Commonwealth Crown Solicitor. I have acknowledgements of that letter. The letter, which I am about to incorporate, does not bear a date, but the acknowledgments of it all refer to it as the letter of 20 August 1982. I seek leave to have this letter which I understand was dated 20 August 1982 incorporated in Hansard.

Leave granted.

The letter read as follows-

57 Guildford Road, Surrey Hills 3127 Melbourne, Victoria Telephone 836 8416.

Dear Sir,

Re: $145,580 seized on 19th October, 1978 in Brisbane, Queensland, by reason of Section 229A (2) (a) of the Customs Act

As you are no doubt aware I have recently returned from Bangkok, Thailand and am presently residing at the above address with my son Gregory. Further after spending three years and eight months in various Thai Prisons, I was acquitted of all charges brought against me in relation to narcotics trafficing etc.

Immediately upon my arrival back in Australia I instructed my son to contact the Customs Department to ask their attitude in relation to the above sum of money and further to advise the responsible offices that I would be pressing my previously lodged claim for that sum. During the past eight to ten weeks my son has been speaking to firstly Mr Moore and thence Mr Keating in Canberra. Mr Keating advised him to contact Chief Superintendent Brian Bates of the Australian Federal Police who recently kindly advised him to address all correspondence to Brisbane as from a departmental point of view the matter should be dealt with in that state.

Since my arrival back in Australia, free for the first time since October 1978 of the constraints of strict censorship, being held incommunicado for long periods of time, an appalling legal system, a language barrier and the corruption associated with both the legal system and police of Thailand I have had the opportunity to fully examine the documentation and circumstances surrounding the seizure of the abovementioned sum.

I wish to again categorically state that this money is the legitimately earnt property of both my son and myself and in no way represents the profits of any narcotics transactions and as such should never have been siezed under Section 229A (2) (a) of the Customs Act. I can however understand how this seizure did come to pass and would be affected by any responsible police officer, after reading the colourful and highly inaccurate media reports originating both in Australia and Thailand in October and November 1978.

I would like to refer you to a letter of mine dated 11th April, 1979 and addressed to ''The Investigating Officer, Federal Bureau of Narcotics, Brisbane, Queensland. In this I claimed the money and unfortunately I have never had an acknowledgement of reply. By way of explanation this document was smuggled from prison at great risk after being typed by a Thai with a bad command of the English language.

Also I would like to refer you to a statement given by my son to Investigator J. W. Robinson at the Narcotics Bureau, 82 Eagle Street, Brisbane on the 27th February, 1979. More specifically the answer to Question 27 does have great bearing on this situation.

Accordingly I would ask that due to the highly unusual circumstances surrounding this case, time factors involved my imprisonment pending trial, my complete inability to acquaint myself with the facts, my complete inability to lodge a claim until April 1979 either solely or with my son be taken into account when consideration to this matter is given. Further it is generally known that the majority of the money is my property yet I have never been issued with a seizure notice and I would respectfully ask that this be taken into account.

My son has also been thoroughly investigated by the Taxation Department and assessed on his correct income for the period 1977-80. The investigation was based on amounts included in his share of the amount seized and this Department is now awaiting payment.

At present my only form of income is an old age pension, I am heavily in debt, so I would ask that your earliest possible consideration be given to this matter and our property returned.

Yours faithfully,

WILLIAM C. SINCLAIR


Senator MISSEN —In that letter William Sinclair makes a very clear claim that the moneys were his and that they were in no way connected with drug matters. He points out that he took the first opportunity, on returning to Australia in October 1978, actually to make the claim because he was held incommunicado for long periods and the language barriers and corruption associated with the legal system in Thailand made it impossible for him to make any claim before then.

To put it very briefly, the position was that when the moneys were seized the father was of course incarcerated incommunicado and his son was not willing to take any action. His wife had possession of the money. He was warned that if there was a challenge she may well have been arrested. She was six months pregnant and he was not willing to do anything at that time. His main concern at that stage was to save the life of his father and the money, though a very great sum, was not the first thing in his mind. Thus the one month, the 30 days, passed by in which the opportunity arises under the Act to challenge the seizure of this money. What we have been trying to do ever since is to have the Government recognise that these moneys are not drug related and that they should be returned. If it will not do that, it should at the very least agree to obtain the necessary document from the Governor-General to waive the time barrier to enable these people to be able to pursue their claim at law.


Senator Button —Why don't you seek a declaration at law that the moneys are yours?


Senator MISSEN —The Minister knows quite well, from the correspondence and the opinions of counsel that have been supplied to him, that it is maintained that no legal action can be taken because of this particular problem--


Senator Button —Under the Customs Act; I am talking about a declaration.


Senator MISSEN —Well, Senator, I am saying that you and I, perhaps, are not in the eminent position of counsel who have advised-this is the advice that Senator Button has as well-that nothing can be done until this is waived and he is not willing to do that. I was approached and on 1 June 1983 I made an appeal to the Minister in a letter. At the same time I produced a statement dated 30 May 1983 from Mr Gregory Sinclair, setting out why he had not made the claim earlier. We produced then many documents, which have been available to the Government ever since, to justify the allegations that were made and the entitlement that they had to this money. I seek leave, Mr President, to incorporate in Hansard the letter of 1 June 1983, the accompanying letter from Gregory Sinclair dated 30 May 1983, and an additional letter of mine on 2 June 1983, forwarding some further documents.

Leave granted.

The letters read as follows-

PARLIAMENT OF AUSTRALIA

The Senate Commonwealth Parliament Offices 400 Flinders Street Melbourne 3000 Telegraphic address: 'Commemroom', Melbourne Telephone: 62 2521

1st June 1983 Senator the Hon. Gareth Evans

Commonwealth Attorney-General

Parliament House

Canberra, ACT 2600

Dear Attorney-General,

2E. Gregory William Sinclair and William Charles Garfield Sinclair-claim for $145,580 seized on 19 October 1978 in Brisbane Queensland, by reason of Section 229A (2) (a) of the Customs Act

As you are probably aware, I have for some time in my capacity as a Victorian Senator been concerned with the representations of my abovenamed constituents, relating particularly to the trial and imprisonment in Thailand on drug charges of William Sinclair and his subsequent acquittal. His son Gregory Sinclair also sought my assistance to facilitate the use of evidence in those proceedings, seeking the cooperation of the Australian Government and went to very great lengths to avoid his father's summary execution under the extraordinary provisions of the Thai law.

You may also be aware of the efforts that were made to obtain forensic evidence in respect of an alleged statement or confession by William Sinclair of 22.12.78 to NSW police officers (operating in Thailand) and the record of such efforts are set out in some detail in my speech in the Senate on 15th December 1982 (copy enclosed).

You may not be aware that, subsequently, the alleged original statement was returned to Australia by the Thai authorities and, before the change of Australian Government, forensic inquiries were set in train and have resulted in a report by Mr Robert M. Harston (copy enclosed) which throws considerable doubt on the genuine status of that statement and its signatures. This is of direct relevance to this submission.

Enclosed with this letter are a number of relevant documents listed in Gregory Sinclair's letter to me of the 30th May 1983 (copy enclosed). They describe in detail the course of events and the reasons why neither applicant was in any position to make and pursue claims for the substantial moneys seized, within the time allowed by the Customs Act, indeed for several years thereafter. I might add that it is accepted that there are minor discrepancies as to estimated assets and as to dates (for example Questions 9 and 10 of Document B refer to the year 1979 instead of 1978), but the applicants maintain the essential consistency and honesty of their accounts of these events and are ready to appear before any court or your officers to expand on any statements. I understand that Mr Robert M. Harston would also be available for discussions as to the forensic evidence related to purported statement.

My representation to you is that you and the Australian Government should now exercise any discretion available or act on a petition of right to set aside the times prescribed under the Customs Act, and to enable justice to be done to the applicants either:

(a) by returning the moneys seized to the applicants forthwith; or

(b) by enabling the applicants now to file notices of objection to the seizure.

I am informed that at the time of seizure, notices of seizure of the above moneys were served on a number of persons and authorities and the same request is made in connection with those notices. However I believe that no notice of seizure was ever delivered to William Sinclair and it may well be that there was no valid seizure in respect to the portion of the moneys to which he lays claim. This fact should also be taken into account.

I contend that it would be unconscionable for the Australian Government to maintain the seizure of moneys in the circumstances revealed in the documents which I now enclose and I trust you will exercise your discretion to see that justice is done.

May I also say, as a separate matter, that William Sinclair, who is substantially destitute and on legal aid, continues to seek the additional $41,000 bail money forfeited by the Thailand Court, no part of which has been repaid to him since his acquittal. I trust also that the Australian Government will give support to his efforts to recover these moneys.

I await your early reply.

Yours sincerely,

ALAN MISSEN Senator for Victoria Enc.

57 Guildford Road, Surrey Hills, Vic. 3127

30 May 1983 Senator Alan Missen,

Senator for Victoria,

Commonwealth Parliamentary Offices,

400 Flinders Street,

Melbourne 3000

Dear Senator,

Re:$145,580 seized on the 19th October, 1982 in Brisbane, Queensland by reason of Section 229A (2) (a) of the Customs Act.

I refer to our previous conversations and meetings and wish to submit to you a number of documents, which I feel will explain fully to you, the situation as it now is and as it evolved.

Document A: A 'situation report' made by my solicitors in Sydney (Abbott, Tout, Wilkinson and Creer) some time in late 1979 for the information of my council, Mr. T. Hughes, Q.C., made after my arrest by Det. Sgt. B. W. Dunn and before my committal hearing.

Document B: A record of interview between myself and investigator J. W. Robinson of the Federal Narcotics Bureau, where I formerly clarified my financial situation (as best I could). This was in relationship to $25,600 that was further seized and later returned by the F.N.B. It was made after I acquired a set of true accounts from my restaurant.

Document C: Seizure Notice relating to document B. By way of explanation, I no longer have a copy of the Seizure Notice relating to $145,580.

Document D: A photocopy set of some of the true takings of Neptune's Restaurant on a day by day basis, including (in the handwriting of my former partner, D. A. Taylor) and an accurate summary of actual takings for the restaurant in the calender year 1978. It is worth noting that the takings are well in excess of $1.1 million, mainly in cash.

Document E: A copy of the sworn statement made by me in January 1979 when I was contesting payment of my half-share of the restaurant. For obvious reasons, Mr Taylor settled out of court, paying me $90,000 for my half-share of the restaurant, which he claimed made approximately $5,000 per annum.

Document F: A photocopy of a claim made by W. C. Sinclair for the confiscated money in April 1979. It is worth noting that it was compiled by me from notes smuggled from the prison, typed by a Thai with little command or understanding of the English language and is inaccurate in parts. It is further worth noting, that it was made after my father had given a statement to Det. Sgt. Dunn but before my father had sighted the photocopy and its contents that Det. Sgt. Dunn alleges is the original statement.

Document G: Photocopy of the relevant section of the Customs Act.

Document H: Copy of letters written by W. C. Sinclair claiming the $145,580 on his return to Australia and replies from the respective bodies.

Document I: Copy of notes taken by a lawyer, Mr Gibson from Legal Aid upon our application for their assistance in this matter.

Document J: Copy of a letter sent to you by W. C. Sinclair indicating all relevant information.

Document K: Photocopy of statement-please see attached forensic report.

Document L: Photocopies of Sydney newspapers indicating the pressure I was under to obtain large amounts of money to stop the summary execution of my father in Thailand.

I would like to explain in more detail my reasons for not making a claim for the $145,580 during the thirty day period from 19th October, 1978, allowed under the Customs Act.

On being informed by my solicitor that I had thirty days to lodge a claim and that the onus was on me to provide full details as to the source of the money, I was faced with the following problems;

1. The money was held in boxes in my wife's maiden name at the ANZ Bank, Queen Street, Brisbane. My solicitor informed me that if I made the claim there was a very good chance that the Narcotics Bureau would arrest Robyn, ''to make me talk''. My wife was six months pregnant at the time and we were having serious problems with the pregnancy, the stress and strain which could result from this action I would not risk. To this day I still retain the same attitude, namely that had the money been ten times this amount I would not have risked the life of my unborn child or the health of my wife.

2. I was well aware by that stage that ''the name of the game'' in Thailand was neither guilt or innocence but money, bribes and corruption. My father's life depended heavily on just how much financial assistance I could arrange for him in Thailand, in the shortest possible period. I was then informed that if I claimed the confiscated money I risked being arrested. My legal advisors at the time advised that I should remain free and to liquidate the rest of my assets as this would be the only way I could help to free my father. The other alternative was to be arrested and have my assets frozen.

3. I also knew that my father was being held incommunicado in Thailand, although we tried, I could not get near him for a full explanation of his share of the amount-approximately $90,000. In fact his period of confinement did not expire until well after the thirty day period had lapsed. I first saw my father in prison late January, 1979, conditions did not allow for discussion of any type, especially that of a rational nature. As well, I was still pre-occupied with saving my father's life.

4. Due to my absolute look of credibility at the time, the continuing inaccurate and distorted media reports and not being able to acquire any business records (see document D) until January 2rd, 1979 which extended well outside the period allowed by the Customs Act, I had no recourse available to me.

This was further complicated by the fact that I knew that my former partner, D. A. Taylor, had told the Federal Narcotic Bureau that, 'He did not know where my income came from.' Please remember that he was a solicitor and the former Mayor of Waverley, New South Wales, whilst I was the son of William Sinclair; hardly a match in credibility. The Federal Narcotic Bureau did finally believe my income when in February/March I was able to produce the figures from the restaurant. Simply by deducting the amounts actually recorded as takings, from the amounts banked in 1978, they could see a very large discrepancy.

5. During the time allowed to claim in late 1978, I had no idea what the future held or at the four years it would take to try my father in Thailand. I was naive in my belief that by working to clear my father's name and achieving his freedom, that the confiscated funds would be automatically returned by the Federal Government. I could not foresee that Det. Sgt. Dunn would also arrest me and force me to spend over one year clearing myself; nor could I foresee this highly questionable statement taken by Det. Sgt. Dunn, containing such a false explanation as to the sources of the money. I have no need to recount to you the difficulty and obstructions we have all experienced obtaining and refuting its contents. Please also note that the Federal Narcotic Bureau had a photocopy of the ''alleged original'' in their possession from late January or early February, 1979, my farther's complaints about this statement were only just being heard.

I have been fully investigated by the Taxation Department and have been assessed on a large sum I am unable to pay, based on my income from the restaurant. I have explained the situation fully, however, they still insist on instituting bankruptcy proceedings against me, based on a judgment against me in 1980.

One further interesting point to make is that I have been informed that the confiscated money was held, wrapped and sealed in a parcel, at the Reserve Bank in Brisbane and not paid into consolidated revenue until after my father's return to Australia in late May, 1982. We are very indebted to you for your efforts and support, thank you once again for all your interest.

Yours faithfully,

G. Sinclair

PARLIAMENT OF AUSTRALIA

The Senate Commonwealth Parliament Offices 400 Flinders Street Melbourne 3000 Telegraphic Address: 'Commemroom' Melbourne Telephone: 62 2521 2 June 1983

Senator the Hon. Gareth Evans

Commonwealth Attorney-General

Parliament House

Canberra, ACT 2600

Dear Attorney-General,

Gregory William Sinclair and William Charles Garfield Sinclair-claim for $145,580 seized on 19 October 1978 in Brisbane Queensland, by reason of Section 229A (2) (a) of the Customs Act

I refer to my representations by letter to you of 1 June 1983 and my discussion with you last evening in delivering those representations and accompanying documents. I desire to add the following information:

(1) Today I have received from my constituent Gregory W. Sinclair a letter dated 31 May 1983 setting out details of the other notices of seizure relating to the above amount, as known to him. My representations to you relate also to those notices and I enclose a copy of Gregory W. Sinclair's letter.

(2) You asked me the derivation of the $41,000 bail moneys referred to in the last paragraph of my letter of 1 June 1983. I have checked and found that my reply was not fully accurate. Some $25,000 of the bail moneys came from an advance from the publishers of William Sinclair's book on his prison experience in Thailand, and the balance was substantially a payment from a close member of the Sinclair family.

(3) Mr Gregory Sinclair has pointed out to me that, when these matters were being investigated by the Commonwealth Taxation authorities, both Mr Ross Black of the Investigation Section (Sydney) and Commander Max Rogers formerly of the Narcotics Squad (Brisbane) but now retired, questioned Gregory Sinclair at length and their conclusions may be of value to the Government in assessing my constituent's claims.

Yours sincerely,

ALAN MISSEN Senator for Victoria Enc.


Senator MISSEN —I thank the Senate. Honourable senators will be able to see the way in which this claim was made. The representation was that the Government should exercise any discretion available or act on a petition of right to set aside the times prescribed under the Customs Act to enable justice to be done to the applicants, either by returning the money seized to the applicants forthwith or by enabling them to file notices of objection to the seizure.

I pointed out in that letter-this is one of the curious things-that Mr William Sinclair was never served with notice of the seizure. It was served on the person who handed over the money to the Customs officers. He has since been sued over it; but I do not think that the man is worth suing. Mr Sinclair was never, in fact, served with the notice and he never received it. At the conclusion of my letter of 1 June I said:

I contend that it would be unconscionable for the Australian Government to maintain the seizure of moneys in the circumstances revealed in the documents which I now enclose and I trust you will exercise your discretion to see that justice is done.

I repeat that today. What has happened in the meantime is even more unjust and unconscionable. In addition, on 27 June 1983 I forwarded a copy of the notice of seizure, which we had not had originally, and for some considerable time we had no response from the Government. Very often I spoke to Senator Button. I saw him in the corridor and said: 'What is happening on this matter?' The matter was referred almost immediately by the then Attorney-General to Senator Button, and we had a long period of obfuscation and delay, and even at one stage, the loss of the whole file. I wonder whether the file is still lost. Perhaps that is the solution to this matter.


Senator Button —You have lost a few letters that your clients wrote; that is your problem.


Senator MISSEN —You lost them, did you?


Senator Button —You lost them.


Senator MISSEN —Did we? I am not aware of that. That is news to me. Whatever my clients say, they may also have tried to get some action from Senator Button. If so, they have had no more success than I have had. Ultimately, on 28 May 1984, Senator Button, who is the Minister at the table, replied. I seek leave to incorporate in Hansard the reply of 28 May 1984.

Leave granted.

The document read as follows-

Office of the Minister for Industry and Commerce Parliament House Canberra, A.C.T. 2600

28th May 1984 Dear Senator Missen,

I refer to your letter of 2 February 1984 concerning the claim by Mr W. Sinclair and Mr G. Sinclair for $145,580 seized under the provisions of the Customs Act 1901.

I apologise for the delay in replying to your letter, however the matter is somewhat complex and has required consultation between officers of my own and other Departments.

In your letter of 1 June 1983 to my colleague the Attorney-General you sought the opportunity for Messrs Sinclair to object to the seizure or the return to them of the moneys. I note that the Attorney-General in his letter to you on 11 August 1983 expressed the view that Messrs Sinclair should seek legal advice on their position in this respect. I support that view.

Whilst the provisions of the Customs Act exclude any late claim under its terms there is, I consider, a genuine question as to whether there are other grounds in law which might be open to Messrs Sinclair in order to establish their claim to the moneys.

Whilst the possibility of legal proceedings remains I do not think it is appropriate for the Commonwealth to grant a concession to Messrs Sinclair.

Considerations relevant to the making of a recommendation to His Excellency the Governor-General, that he exercise his prerogative of mercy and remit the forfeiture would have to include my being satisfied that there was no doubt touching the origin or ownership of the goods in question. I believe I should also have regard to the existence of any legal right of review of which your constituents could now avail themselves.

Having regard to the history of this matter I believe there are proper grounds for doubting the claims by Mr W. Sinclair and Mr G. Sinclair that they are lawfully entitled to possession of the money.

With kindest regards Yours sincerely

JOHN N. BUTTON Senator A. J. Missen

Parliament House

Canberra, A.C.T. 2600


Senator MISSEN —In that reply, Senator Button herewith referred to the provisions of the Customs Act. He said, among other things, that there was a possibility that something could be done in law. He said:

Whilst the possibility of legal proceedings remains I do not think it is appropriate for the Commonwealth to grant a concession to Messrs Sinclair.

It will be noted that there was no suggestion that it would not be done, but he said that it should not happen-and this was a reasonable attitude-if there were legal proceedings. He then said:

Considerations relevant to the making of a recommendation to His Excellency the Governor-General, that he exercise his prerogative of mercy and remit the forfeiture would have to include my being satisfied that there was no doubt touching the origin or ownership of the goods in question.

He said that if there was no doubt in his mind whatsoever-not a reasonable doubt or the balance of probabilities; no doubt in his mind whatsoever-he might return the goods. A little later on it will be seen that the Minister, when exercising his discretion-a discretion that might be not as great as that-did not put on the applicants anything like the higher onus that he put on them at that stage.

I wrote back to the Minister on 29 August 1984. There was quite a bit of other correspondence which I have not produced; some of it I do not have in Canberra at present. We had obtained counsel's opinion. Already Messrs Sinclair had obtained counsel's opinion, from Mr Alan Archibald, a noted counsel in Melbourne, and a further opinion from Mr Weinberg, Barrister at Law and Dean of the Faculty of Law at Melbourne University. Their opinions, which I then sent to the Minister, were that there was no way in which they could proceed without this technical liability being overcome so that they could proceed to try to dispute the seizure. I seek leave to incorporate in Hansard the letter that I wrote to the Minister dated 29 August 1984.

Leave granted.

The letter read as follows:-

PARLIAMENT OF AUSTRALIA

THE SENATE Commonwealth Parliament Offices 400 Flinders Street Melbourne 3000 Telegraphic Address: 'Commemroom', Melbourne Telephone: 62 2521 29th August 1984 Senator the Hon. John Button

Minister for Industry and Commerce

Parliament House

Canberra, A.C.T. 2600

Dear Minister,

Re: W. and G. Sinclair-Claims for Moneys Seized Under the Provisions of the Customs Act 1901

I refer to your letter to me of the 28th May 1984, which I referred to Messrs. W. and G. Sinclair and their Solicitors, for consideration. I have now received, and enclose herewith, copy of a memorandum of advice from Mr Weinberg, Barrister at Law and Dean of the Faculty of Law at Melbourne University. In it he refers to earlier advice which had been received by Messrs. Sinclair from Mr Alan Archibald of Counsel. You will see that there is general agreement between counsel that there is no possibility, in law, of the Sinclairs instituting successful action against the Commonwealth, for reasons that are given in the opinions. I therefore suggest to you that this now answers the question which you raised in your letter of the 28th May 1984 in respect to the possibility of further litigation with the Commonwealth on this subject. I return to my request to you that you, as Minister, should exercise your undoubted discretion either to waive the times within which claims can be made or, preferably, that you should return the money, because there seems to be no suggestion or evidence that these moneys were associated with drug activities.

You will note also, of course, that apparently no notice of seizure was given and this should, I would suggest, influence your judgment.

The fact that there are some doubts as to the precise extent of ownership of the moneys by the respective parties is a matter that might require more clarification but there seems no doubt as to the amount of money which was received from a third party, which had previously been in the possession of the Sinclairs.

I would suggest that there is ample reason why you should exercise your discretion in either of the ways which I have indicated, and it would be a gross injustice on the part of the Commonwealth if it were to hold on moneys to which it patently has no just claim.

I should be pleased to hear from you at an early date.

Yours sincerely,

ALAN MISSEN Senator for Victoria Enc.

c.c. Mercer Lewenberg &Pryles

Messrs W. &G. Sinclair


Senator MISSEN —Within that letter I forwarded counsel's advice. We pointed out that there was no possibility, in counsel's view, of further litigation on the subject. We referred again to the fact that no notice of seizure was ever received by one of the persons concerned. We pointed out that there were some doubts as to the precise extent of the ownership of the money between the two parties; there was some doubt as to how much was owned by the father and how much was owned by the son. It was not a dispute between father and son, but there was a bit of obscurity as to where one's ownership of the money ended and the other's ownership began. We received next, and after a considerable further delay, a letter dated 29 November 1984 from the Minister at the table, Senator Button. I seek leave to incorporate that letter in Hansard.

Leave granted.

The letter read as follows:

Minister for Industry and Commerce Parliament House Canberra, A.C.T. 2600

29 November 1984 Dear Senator Missen

I refer to your letter of 29 August 1984 concerning the claim by Messrs William and Gregory Sinclair to money forfeited to the Commonwealth, following its seizure by the Federal Narcotics Bureau in October 1978.

You have asked that I waive the time in which a claim might be made for the money or that I return the money to Messrs Sinclair.

In considering these matters I have had regard to Counsels' opinion which you enclosed and I continue in the view that it would not be appropriate for me to exceed to your request to waive the time constraint. I do not consider litigation should be facilitated in such a way, unless the situation reliably demonstrates the presence of an arguable claim which would otherwise fail to be heard. Equally, I consider such a claim should be supported by an arguable case as to its merits.

Having reached this view I also note that with the full benefit of instructions, Counsel do not consider that a claim would succeed if litigated.

I have considered whether I should have a recommendation placed before his Excellency the Governor-General that he exercise his discretion to remit the forfeiture and I have decided that I should not. I reached this view because I am not satisfied that Messrs Sinclair were the true owners of the money prior to its seizure and because I am not satisfied that the money was not narcotic related goods for the purposes of paragraph 264 (2) (c) of the Customs Act 1901. Equally, I do not consider that the forfeiture of the moneys took place in circumstances which were beyond the control of Messrs Sinclair such that they were denied the opportunity to establish a claim according to law, they considered at the time that they were lawfully permitted. I am satisfied that the position was fully understood by them and they took the view that it would be inappropriate for them to do so.

Yours sincerely

JOHN N. BUTTON Senator the Hon. Alan Missen

Commonwealth Parliament Offices

400 Flinders Street

Melbourne, Victoria 3000


Senator MISSEN —This letter contains the amazing refusal which then took place. The Minister said that he did not intend to waive the claim. He said that he had considered the counsel's opinion which I had enclosed, and that it would not be appropriate for him to accede to my request to waive the time constraint. He said:

I do not consider litigation should be facilitated in such a way, unless the situation reliably demonstrates the presence of an arguable claim which would otherwise fail to be heard.

An arguable claim; that is all the Minister contended for, and it is surely all that is reasonable. If there is an arguable claim, surely a citizen of this country should be allowed to exercise it. The Minister went on to say that he had reached the view that he would not place the matter before His Excellency the Governor-General for him to exercise his discretion. He said:

I reached this view because I am not satisfied that Messrs Sinclair were the true owners of the money prior to its seizure and because I am not satisfied that the money was not narcotic related . . .

Throughout this period we had pointed out a number of witnesses who ought to have been questioned. There were people in the Customs department, people retired from that department and people from the Australian Federal Police who had interviewed those people. A number of people from the Taxation Office had interviewed Sinclair Junior. In fact, he was threatened with bankruptcy. It is extraordinary that he has been charged tax on this money which, it was claimed, he earned and it was also claimed on which he was clearly evading tax. He has paid the penalty for that. He has been charged extra penalties. He has paid those while the money has been taken from him because it is claimed that it is drug related. He has had it against him both ways. So far as I can ascertain the witnesses and investigators who have spoken to these two men have never been questioned by the Minister's Department or by anyone. They have not been seen again. So much for the examination that enables the Minister to satisfy himself that there is no case for him to exercise discretion. It is scandalous that the Department has not bothered to check up on the facts that were made available.

That was the Minister's reply, after no real examination of the facts. Mr Garry Sturgess, who now runs the Australian Broadcasting Corporation's Law Report and who has taken an interest in this case over the years, and I got together again and I wrote on 11 January 1985 to the Minister, making a further and lengthy demand, setting out the facts and the outrageous conduct which I believe has been carried on. I seek leave to incorporate in Hansard my letter to the Minister of 11 January 1985.

Leave granted.

The letter read as follows-

PARLIAMENT OF AUSTRALIAThe Senate Commonwealth Parliament Offices 400 Flinders Street Melbourne, Vic 3000 Telephone: 62 2521

11th January 1985 Senator the Hon. John Button

Minister for Industry and Commerce

Parliament House

Canberra, A.C.T. 2600

Dear Minister,

Re: Messrs William and Gregory Sinclair - Seizure of $145,580 Under The Customs Act 1901

I refer to your letter of the 25th November 1984 and ask you to seriously reconsider the decisions you have made.

You first decided it would be inappropriate to waive the time constraint for claiming the money.

The whole history of the Sinclair case 'reliably demonstrates' that what you say is an essential precondition for waiving the time limit; that is 'the presence of an arguable claim which would otherwise fail to be heard'.

The Sinclairs have repeatedly claimed the seized money had nothing to do with the importation of narcotics. They are supported in this claim by two Thai appeals courts (including that country's highest court) in relation to Mr William Sinclair, and by a New South Wales Court in relation to Mr Gregory Sinclair.

Since returning to Australia in May 1982, not one representative of the Federal or State police, nor any Royal Commission official, nor any official of any State of the Commonwealth Government, has approached Mr Sinclair in relation to the money or any other matter to do with narcotics or anything else.

The Sinclairs have, however, made explanations as to the ownership and derivation of the money to various officials and to legal counsel which, at the very least, set up an arguable claim, one which, without your waiver, would otherwise fail to be heard.

Mr William Sinclair was not even served with the notice required to be delivered under the Act; and the person who had possession, custody or control of the money upon seizure, Mr Jeffs, who was served with a notice, is currently being sued by the Sinclairs for conversion. The Writ issued in the Supreme Court of Queensland charges that Mr Jeffs failed to exercise proper care and custody of the forfeited money, delivering it to a third party and now being unable to recover it.

At the time the money was seized, Mr William Sinclair was being held incommunicado in Thailand and under threat of execution without trial. His son, Mr Gregory Sinclair, was bending his every efforts to avoid this from happening. It was in these circumstances, of which more later, that Gregory Sinclair made the decision not to object to the seizure of the money. He made the decision, backed by legal advice, that to lodge an objection would have led to the arrest of him and his wife (then six months pregnant), the freezing of his assets, and that in all the circumstances the interests of his father's life were best served if he remained free and in a position to capitalise his assets and send the resulting money to Thailand.

You say in your letter, having decided not to waive the time constraint, 'I also note, that with the full benefit of instructions, Counsel do not consider that a claim would succeed if litigated'.

Counsel do not think the claim would succeed precisely because the Sinclairs are out of time and being out of time can make no claim for the money. If you were to waive the time constraint the whole basis for counsel's opinion would be removed. The opinion of Mr Archibald and that of Mr Weinberg have nothing to do with the merits of the case.

Mr Weinberg writes: ''I agree entirely with Mr Archibald that for technical reasons it would be impossible for either of the Sinclairs to recover the moneys seized . . . '' . The technical reasons which he refers to are to do with the fact that no notice of objection was lodged within the time period.

I also find it ironic that you have refused waiver of the time limit partly basing your decision on counsel's opinion which you had in fact requested.

Mr Weinberg's opinion came about as a direct result of your letter to me of the 25th May 1984. You say there: 'Whilst the possibility of legal proceedings remains I do not think it is appropriate for the Commonwealth to grant a concession to Messrs Sinclair'.

On the basis of this, and an earlier letter by the then Attorney-General of the 11th August 1983 which you refer to, the Sinclairs, at further expense to themselves, sought legal advice to the effect that there was 'no possibility of legal proceedings remain(ing)'.

This advice you then use against them to choke off the possibility of their objecting to the seizure of the money out of time.

But whilst using this against them you at the same time seem to have ignored that part of the advice which is clearly favourable to them when deciding that his Excellency, the Governor-General, should not exercise his discretion to remit the forfeiture.

Mr Weinberg, who in addition to being a barrister, is the Dean of Melbourne University Law School, says he has studied the case closely and 'it now appears that those moneys were unconnected with any dealings in prohibited imports, and were the property of those two men'.

You say that you are not satisfied Messrs Sinclair were the true owners of the money, yet you deny them any opportunity of establishing that case.

In addition to Mr Weinberg, there is Mr Archibald's opinion, which says in relation to Mr Gregory Sinclair: 'I see no reason why he should not have been regarded as 'the owner' of the moneys which he contends were his property'.

That he is the true owner of part of the sum claimed is the opinion of the Federal Tax Office which has assessed him, on the basis that it is his money, for a sum of more than $20,000-only a small fraction of which remains unpaid. So while you deny his claims and his right to establish them, another Commonwealth Department insists on his ownership and taxes him on it as income.

I am advised that, of all the people mentioned in the course of Woodward Commission, Mr Gregory Sinclair is the only one to step forward and make full disclosures about the amounts and sources of his income.

As mentioned earlier he was charged with conspiring to import narcotics into New South Wales. The charge was curtly dismissed by the Magistrate, and three other people charged on matters arising from related facts, were acquitted by a New South Wales District Court.

Mr Gregory Sinclair gave a full account of his finances as far back as 28th February 1979 to two officers of the Federal Narcotics Bureau. It is clear from the record of interview that his share of the seized money derived from an extremely lucrative Brisbane restaurant of which he was a principal at the time.

I am advised that Mrs Robyn Sinclair, nee Sherratt, in whose name the seized money was held in safety deposit boxes in the ANZ Bank at the corner of Queen and Creek Streets, Brisbane, has never been questioned about the ownership and derivation of the money.

Mrs Robyn Sinclair withdrew the forfeited money immediately prior to seizure and it was passed to Mr Jeffs. It is interesting to note that a sum of $22,840 left in the deposit boxes was later seized by the Narcotics Bureau. When its seizure was objected to, the Sinclairs were able to satisfy the authorities as to its ownership and that it was in no way derived from the illicit sale of drugs. They received this money back despite the fact that it formed part of a pool of money which you are refusing to either give back or allow the Sinclairs the opportunity of objecting to its seizure.

It is disturbing that you have apparently come to your decision about ownership and derivation of the money without reference to the investigating officers in the case. To the best of my knowledge neither former Commander, Mr Max Rogers, nor his assistant, Mr John Robinson, formerly of the Federal Narcotics Bureau, have been consulted in relation to the decision you have reached. I drew your attention to my letter to the Attorney-General, Senator Evans, (2nd June 1983), when I specifically drew attention to the then investigations of Commander Max Rogers and Mr Ross Black.

In making your decision about ownership and derivation of part of the seized money you might well have had regard to a statement allegedly made by Mr William Sinclair on the 22nd December 1978, to two New South Wales policemen in Thailand to collect evidence for the Woodward Royal Commission. This was to the effect that the money was the property of an Arthur Stanley Smith.

Mr Sinclair has consistently denied making the statement, claiming it as a forgery. Having regard to the whole extraordinary history of the statement (see my parliamentary speech, 15th December 1982, Adjournment), it would, in my view, be totally unfair for you to attach any weight whatsoever to it. If indeed you do attach weight to the statement, it can only apply to that part of the forfeited money belonging to Mr William Sinclair.

In asking you to reconsider your decision, I think something should be said about the extraordinary circumstances enveloping the Sinclair family since the arrest of Mr William Sinclair on 11th October 1979.

It is my view, and there is ample evidence to support it, that Mr Sinclair's arrest and conviction came about because of the improper conduct of Australian officials. They acted in breach of international law and of Australian Government Guidelines governing the conduct of our police and officials abroad.

As a result of their actions, fully detailed in a series of articles in the Melbourne Age by lawyer and journalist Garry Sturgess and by my speech to the Parliament on 27th May 1982, an Australian citizen was placed in the position of being in danger of being executed without trial.

During a period when he was being held incommunicado and when his fate seemed to depend on the amount of money his family could send to Thailand, an amount of $145,580 was seized by the Crown. In the midst of everything else the family had to worry about, uppermost in their mind being the life of Mr William Sinclair, they had further to decide within 30 days whether to object to the seizure of the money or forfeit it forever.

For Mr William Sinclair's part, he was not and could not have been notified of the seizure, and he has since told me that even if he had been informed, he was like the man about to be hanged. His mind was concentrated, but not on that.

I am enclosing Mr Gregory Sinclair's explanation of why he did not object within the 30 days.

When the threat of execution without trial had passed, it was the evidence of Australian officials which led to Mr Sinclair's conviction. The evidence given would not have been admissible in Australian courts. It was disputed at all times by Mr Sinclair and was eventually rejected by two Thai courts of appeal. In the meantime, Mr Sinclair spent more than three and a half years in a Thai prison.

It is estimated that Messrs Sinclair have spent upwards of $150,000 in legal fees to do with the case. In addition, the Thai authorities have improperly confiscated $20,000 bail, notwithstanding the fact that Mr Sinclair has been cleared of all charges in Thailand.

The social, psychological and financial position of the Sinclair family has been severely affected by the events of the past six years, and it is in the context of all this that the Australian Government is now withholding $145,580 of the family's money. The claim made by me in June 1983 was fobbed off and not answered until November 1984.

To add insult to injury, Mr Gregory Sinclair has had to pay tax on the amount. The Government's action is unconscionable.

Again, I ask you to reconsider your decision.

I am advised that Messrs Sinclair would, at the very least, like to be given the opportunity of personally discussing their case with you and with any members of your Department.

Before I take further action in respect to this shocking denial of human rights and justice, disclosed by this letter, I ask that, within fourteen days, you give an opportunity to Messrs Sinclair to see you and answer any further questions you desire to ask.

Yours sincerely,

ALAN MISSEN Senator for Victoria


Senator MISSEN —I retailed in that letter many of the things I have already said tonight. I pointed out the opinions which were obtained. I pointed out, among other things, that the opinions of counsel made clear that these men had good claims. I pointed out that Mr Weinberg said that he had studied the case and further said:

. . . it now appears that those moneys were unconnected with any dealings in prohibited imports, and were the property of those two men.

I also pointed out the statements of Mr Weinberg and Mr Archibald in relation to Gregory Sinclair:

I see no reason why he should not have been regarded as 'the owner' of the moneys which he contends were his property.

It is also pointed out that a further sum of more than $20,000 was seized at one stage and returned. One wonders on what basis some was returned and the rest was retained. Among other things, I said:

It is disturbing that you have apparently come to your decision about ownership and derivation of the money without reference to the investigating officers in the case. To the best of my knowledge neither former Commander, Mr Max Rogers, nor his assistant, Mr John Robinson, formerly of the Federal Narcotics Bureau, have been consulted in relation to the decision you have reached. I drew your attention to my letter to the Attorney-General, Senator Evans, (2nd June 1983), when I specifically drew attention to the then investigations of Commander Max Rogers and Mr Ross Black.

The Minister and his Department are not prepared to see these people and to ascertain their impressions and beliefs on the matter. I do not know how the Minister has made his decision. It does not appear clear from any correspondence. I proceeded to make the claim and to point out, among other things:

. . . Messrs Sinclair have spent upwards of $150,000 in legal fees to do with the case. In addition, the Thai authorities have improperly confiscated $20,000 bail, notwithstanding the fact that Mr Sinclair has been cleared of all charges in Thailand.

The social, psychological and financial position of the Sinclair family has been severely affected by the events of the past six years, and it is in the context of all this that the Australian Government is now withholding $145,580 of the family's money. The claim made by me in June 1983 was fobbed off and not answered until November 1984.

To add insult to injury, Mr Gregory Sinclair has had to pay tax on the amount. The Government's action is unconscionable.

That letter has never had a reply from the Minister or any member of the Government. A copy of it was also sent to Senator Gareth Evans, who I am pleased to see is in the chamber, although Senator Button, whom I asked to be present and who was here for a while, has now departed. Senator Evans unfortunately is not taking any interest but is here. He had copies of this later correspondence because early on he had received claims from me and I had hoped that he might have intervened because he was, I thought, an apostle of justice, liberty and the rights of citizens. But one appears to be disappointed in that respect. Since January I have received no reply, no response, whatsoever. On 4 March 1985 I wrote again to the Minister. I seek leave to incorporate that letter in Hansard.

Leave granted.

The letter read as follows -

PARLIAMENT OF AUSTRALIA

The Senate Commonwealth Parliament Offices 400 Flinders Street Melbourne, Vic. 6000 Telephone 62 0521

4th March 1985 Senator the Hon. John Button

Minister for Industry and Commerce

Parliament House

Canberra, A.C.T. 2600

Dear Minister,

Messrs William and Gregory Sinclair-Seizure of $145,580 Under The Customs Act 1901

I refer to my letter to you of the 11th January, 1985, and my request then for an answer within the next fourteen days. I pointed out then that I would have to take further action if I did not hear anything about this denial of human rights and justice, as disclosed in your previous letter.

When I spoke to you in the corridor a few days ago it was apparent that you had never seen this letter sent on the 11th January, 1985, and you then undertook to have a look at it. There has been a long period of delay associated with this matter, and I think I have been extremely patient.

I must ask for a substantive answer from you before we resume the next sitting, otherwise I intend to raise this matter in the Parliament, and to set out the course which these matters have taken.

Yours sincerely,

ALAN MISSEN Senator for Victoria


Senator MISSEN —That letter reiterated what I had said and the fact that I had spoken to him in the corridor a few days earlier, at which stage he appeared to have no knowledge of my long letter of 11 January, knew nothing about it and would find out about it. I pointed out that I was going to raise this matter in the Parliament unless I got a substantive answer before the next sittings. The next sittings have now arrived and on Friday I advised the Minister by letter that I intended to raise this matter tonight.

This is a shocking indictment of the Government and of the Minister in particular. We see a cynical attitude, one department charging moneys and tax on those moneys and another department forfeiting the moneys. For a technical reason which it was beyond these people reasonably to overcome they have been deprived of their opportunity to seek to establish their claim in the courts of this country. As will be seen from my earlier speech, they have suffered at the hands of Australian officials and police who gave false evidence. Fortunately that case in Thailand was ultimately thrown out. They have suffered from the obfuscation of the Wran Government over a period. They have suffered in the last two years because of delay and because of the sheer lack of a sense of justice in this Minister and this Government.

I realise that my clients may not be without fault in the community. They may not have an absolutely perfect record. I am sure that that is so. Of course, they avoided tax, evaded tax, and, therefore, probably in the eyes of the Minister do not deserve the consideration that other people would have. I put them forward as citizens who have suffered. This is a disgraceful performance on the part of the Government. Senator Button has retired from the chamber, and I can presume from that only that he is not going to reply tonight, as he should do. He must be familiar with this matter by now. It is a matter of complete shame which I hope other people and the media in this community will take up in the interests of justice.