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Thursday, 28 March 1985
Page: 981


Senator GARETH EVANS (Minister for Resources and Energy)(3.43) —I move:

That the Bill be now read a second time.

I seek leave to have the second reading speech incorporated in Hansard.

Leave not granted.


Senator GARETH EVANS —The Government has decided upon a course of action which will put to rest once and for all the extent of unauthorised telephone interception in New South Wales and the extent to which that material may disclose breaches of the law. The proposed course of action has been arrived at in consultation with the Government of New South Wales and it is a course of action on which both Mr Justice Stewart and Mr Temby agree.

Before coming to the details of that course of action I wish to set the record straight on a number of matters because it has been suggested in recent days that the Attorney-General (Mr Lionel Bowen) has done an 'about-face' on this issue. I regard comments of that kind as grossly inaccurate in a context where the Attorney-General has been endeavouring to resolve, and I believe the Government has now resolved, a most difficult issue in the administration of criminal justice.

As is well known, Mr Justice Stewart in his 8th Interim Report recommended that indemnities be granted to 31 New South Wales police officers in respect of conduct which may have breached the Telecommunications (Interception) Act 1979. Mr Justice Stewart was faced, in making that recommendation, with a difficult problem, namely, that in order to obtain truthful evidence from the officers concerned, he felt they needed to be given an assurance that they would not be prosecuted in respect of matters arising out of their evidence. The Attorney-General does not want to under- estimate the difficulty Mr Justice Stewart faced but his recommendations presented him with at least as much difficulty.

The Prosecution Policy of the Commonwealth, which I would like to emphasise was presented to the Parliament in December 1982 by the Acting Attorney-General, Mr Neil Brown, QC, on behalf of the then Attorney-General Senator Peter Durack, QC, lays down very clear principles to be applied in the grant of an indemnity by the Attorney-General. I want to refer to those principles because I think they are very important in considering this matter. They read:

In principle it is desirable that the criminal justice system should operate without the need to grant indemnities or pardons to persons who participated in offences with a view to these persons giving evidence against the principal offenders . . .

Nevertheless, 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 . . .

One major question-to quote from Senator Durack-to be addressed is:

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?

The Prosecution Policy makes this statement in concluding the principles on grant of indemnity:

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

The principles I have just referred to make it clear that indemnities should not be lightly given; and they be given in a context where the person, the subject of the indemnity, is capable of giving evidence in a prosecution for a more serious offence than the offence the subject of the indemnity. In considering the application of these principles, the Attorney-General has been concerned that breaches of Commonwealth intercept law cannot be taken lightly. That law regulates intrusion into the basic privacy of every citizen. Unauthorised and illegal intrusion is a very serious matter. I want to add this-The Government has the very gravest view of interception by police. The Act is a protection of civil liberties and breaches of it cannot be overlooked except in situations of the utmost gravity.

The advice of the Director of Public Prosecutions, Mr Ian Temby, QC, was sought. Mr Temby advised against the grant of indemnities and his reasoning is consistent with the principles set out in the Prosecution Policy of the Commonwealth which I have just described. I report that the evidence then was not likely to lead to the prosecution of any person. I should also add that both Mr Justice Stewart and Mr Temby have advised the Attorney-General that 'the Age' materials themselves are unlikely to lead to prosecutions. The issues involved, however, are much wider than the granting of indemnities to New South Wales police officers.

As the Attorney-General has already said in the Parliament, Mr Justice Stewart has reported on a much wider extent of unauthorised interception in New South Wales than the period of 'the Age' materials, that is, 1976 to 1981. Mr Justice Stewart refers in his report to the fact that unauthorised intercepts took place in New South Wales up to 1984. The Government believes that the time has come to have the full extent of unauthorised interception in New South Wales thoroughly examined by a Royal Commission. Secondly, the Government believes that an independent assessment should be made of the extent to which material or information, relating to unauthorised intercepts, discloses offences against the law. The Government has decided to change the terms of the Stewart Royal Commission to inquire into and report upon these fundamental matters. The course of action which has been arrived at, in agreement with the Government of New South Wales, is as follows:

1. Amend the Royal Commissions Act 1923 of New South Wales to provide that Stewart J. can exercise the powers of a judge of the Supreme Court under that Act.

2. Amend the Commonwealth terms of reference of the Stewart Royal Commission to empower that Royal Commission to inquire into and report upon-

(a) whether there exists any information or material, including documents or tape recordings, relating to unauthorised telephone intercepts occurring in New South Wales in the possession of any person-in particular, New South Wales police and Australian Federal Police-which discloses an offence or possible offence against a law of the Commonwealth and which warrants further investigation-I might explain that the offence is a criminal offence;

(b) the nature of the offence or offences so disclosed;

(c) the identity of any person who Stewart J. considers is capable of giving evidence which will or will tend to render such information or material admissible in a prosecution for an offence against a law of the Commonwealth or of the State-or who is capable of giving information which might reasonably lead to evidence of such an offence-in respect of whom Stewart J. recommends an indemnity in relation to offences against Commonwealth law in connection with unauthorised telephone intercepts.

It should be noted that the grant of indemnity will be subject to the following conditions: The person concerned gives, in the opinion of Mr Justice Stewart, his active co-operation including the giving of evidence truthfully and frankly and withholding nothing of relevance in the inquiry aforementioned in which he is required to give evidence; Mr Justice Stewart remains satisfied at the conclusion of the inquiry that the actions of the person concerned were carried out for the sole purpose of gathering information for use only in the investigation of crime.

3. New South Wales will establish terms of reference for Stewart J. similar to the Commonwealth terms, but in respect of State offences. The proposed Commonwealth terms of reference have been discussed with the New South Wales Government and its officials.

4. Amend the Telecommunications (Interception) Act 1979-

(a) to remove the requirements that Stewart J. must establish the authenticity of the Age materials before dealing with them further;

(b) to permit persons to furnish material to the Royal Commission without breaching that Act;

(c) to permit the Royal Commission to pass on material to responsible authorities; for example, the National Crime Authority, the Director of Public Prosecutions, the Australian Federal Police, the New South Wales Police and the New South Wales Solicitor-General, without committing an offence against that Act.

I welcome the co-operation of the Opposition in this matter in allowing the Bill to be introduced as a matter of urgency today. Save for the authenticity question, the amendments proposed are consistent with the earlier Stewart Royal Commission amendments to the Telecommunications (Interception) Act. That is the proposed course of action. It has the agreement of Mr Justice Stewart and Mr Temby. They have been consulted on the new terms of reference for the Royal Commission.

The Royal Commission, under its revised Commonwealth and New South Wales terms of reference, will be able to inquire into and report on-

(a) the full extent of unauthorised telephone interception in New South Wales. It is not limited by any period of interception except, I might add, that it would be limited as from today. Any future interceptions would not be countenanced. They must cease from the establishment of this Commission;

(b) the full extent of criminal conduct exposed by that interception; and

(c) the recommendation of indemnities, but based upon proper principles.

The Royal Commission will be required to report to both governments by 31 December 1985. I would add that we expect all police officers to come to this Commission within 28 days. The Government does not see any need for any longer period and this will enable the Royal Commission to complete its consideration by 31 December 1985.

This is a Bill to amend the Telecommunications (Interception) Act 1979 to enable Mr Justice Stewart, as Royal Commissioner, to investigate unauthorised telephone intercepts occurring in New South Wales to see whether they disclose an offence or possible offence against a law of the Commonwealth or of a Territory. The Government's decision to enlarge Mr Justice Stewart's terms of reference for this purpose has been dealt with.

The Bill generally follows the form of the amendments that were passed last year at the Budget sittings to enable the so-called Age materials to be passed to Mr Justice Stewart in his capacity as Royal Commissioner appointed to inquire into drug trafficking. There are, however, two major changes which, in effect, make the inquiry envisaged by this legislation a completely new one in many respects.

First of all, the legislation will enable Mr Justice Stewart to look at material and information additional to material and information relating to the Age materials. Secondly, the Bill removes the requirement that was inserted in the legislation enacted last year to the effect that the material could be used only after an initial finding by Mr Justice Stewart that the documents in question are an authentic record of the matters purported to be recorded in them. Mr Justice Stewart has agreed that this requirement should be removed, having regard to the unreliable character of some, if not most, of the material.

A further provision has been added, modelled on existing section 6P of the Royal Commissions Act, to enable the Royal Commissioner to pass on material to law enforcement authorities where that is the appropriate course. The law enforcement authorities named in the Bill are the Attorney-General of the Commonwealth, of a State or of the Northern Territory; the Director of Public Prosecutions; a Special Prosecutor appointed under the Special Prosecutors Act; the Commissioner of the Australian Federal Police or of the police force of a State or of the Northern Territory; or the authority or person responsible for the administration or enforcement of the law in question and also the National Crime Authority.

I commend the Bill to the Senate. In view of its importance and urgency, it is proposed that it should pass through all stages in the Parliament today. The financial implications of the Bill are estimated to be $1.5m for the extension involved in the sittings of the Stewart Royal Commission.