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Thursday, 28 March 1985
Page: 989


Senator DURACK(4.30) —I am still recovering from my astonishment at the turn of events in the last week in relation to the whole matter of the New South Wales police tapes and the Age tapes which are associated with them. If I seem a little breathless at the moment, it is simply because of the extraordinary change in events and, in particular, the twists, turns and I might even say squirms of the Government and in particular of the Attorney-General (Mr Lionel Bowen) and no doubt of the former Attorney-General, Senator Gareth Evans, who is in charge of this Bill in the Senate.

The legislation we are considering is an amendment to the Telecommunications (Interception) Act to enable material that would otherwise be unable to be used by or even given to Mr Justice Stewart to form part of the material that he may use, inquire into and report upon. However, the Bill itself is associated with a statement of the Attorney-General on behalf of the Government which greatly widens the terms of reference of Mr Justice Stewart in his capacity heading the Royal Commission of Inquiry into Drug Trafficking which was specifically concerned with the Mr Asia syndicate. What we now have presented to us by the Government is a package which virtually establishes a new royal commission presided over by Mr Justice Stewart in very wide terms which are set out in the second reading speech. It will investigate matters relating to the unauthorised interception of telephone conversations in New South Wales, not limited to any particular period, except up to today. It is of the widest character, but specifically it is in relation to such interceptions which almost certainly were made by New South Wales police.

At the same time, there are amendments to the legislation to enable material to be given to Mr Justice Stewart enabling him to inquire into additional material, as well as the Age tapes which have already been given to him under a previous amendment to the Act last year. The amendments give Mr Justice Stewart much wider terms of reference and also ask him to recommend in relation to the granting of indemnities to persons who may be able to give evidence in possible prosecutions which could emerge from the whole of this new consideration of material by Mr Justice Stewart. This is a complete change of policy by the Government. I hasten to say immediately that it is a change of policy which the Opposition entirely supports. We will support the speedy passage of this legislation. Nothing could be a clearer example of our support than the co-operation we have displayed today in another place and here in ensuring that this legislation, which was introduced into the Parliament only just before midday today, will in fact become law before the day is out-that is, unless the Government stumbles again at some stage and cannot even get it in proper form to the Governor-General before the day is out. I would not bank on its managing to do that, but if it does not manage it today, perhaps it will manage it tomorrow.


Senator Robertson —That is not worthy of you.


Senator DURACK —That is not an unfair remark because of the utter confusion that occurred in the House of Representatives this morning. Statements were issued to the Opposition and withdrawn. Statements were issued to the Press and the Government then tried to withdraw them. New statements were supposed to be being considered by Cabinet and when the final statements were produced they were almost exactly the same as the ones that were given to the Opposition hours before. There really has been utter confusion. The Government was not able to get its act together very competently until about midday.

This characterises the whole sorry record of this Government in the last three or four weeks on this matter. I want to go back a lot further than that. The whole question of the New South Wales police tapes, of which the Age tapes are only a part, has been a matter of very great public concern for more than 12 months. It has been a matter of very great concern in this chamber and the Opposition has had a very consistent view from the word go. More than 12 months ago the Leader of the Opposition called for a royal commission into the whole question of this material. At that stage all that was known about it was what has become known as the Age tapes-the material that was given to the Age newspaper early in February last year. That material, as published by the Age, and by repute and by comment that was made freely upon it, indicated that there probably was illegal interception of telephone conversations. The material was derived from such interception. But the material also referred to the possibility of very widespread breaches of both Federal and State criminal laws. Two major questions arose. There was the question of how this material was brought into existence and what authenticity it had and, secondly, what value it was in establishing proof of very serious criminal conduct in a wide range of activities by people who are engaging in that conduct. A whole range of possible offences of a criminal nature were raised by the material. It clearly called for the most serious investigation at the highest level. That is why the Opposition called for a royal commission at that time. That was consistently repudiated by the Government until the volte-face by the Government only a day or so ago.

The Government responded by sending the material off to the Special Prosecutor and partially responded by proposing to send the material to Mr Justice Stewart but at that stage-and indeed until his terms of reference are amended-his brief was very limited, to the investigation of the Mr Asia syndicate. That was about the limit of the Government's response-except for the negative response by the Government, particularly by the former Attorney-General, who is the Minister at the table now. His negative response was tremendous. From the word go he sought to resist adequate and proper inquiries into this whole matter. He consistently threw doubt on the authenticity of the material. Not only did he throw doubt on its authenticity, which was a matter of concern, he even went so far as to say in his first statement on the matter in the Senate on 28 February last year:

We simply have no means, and are unlikely in the future to have any means, of being sure that we have a full, untampered with, reliable account of the conversations that appear to have been intercepted.

His line was that we were never likely to know and he did not believe it was even really desirable that the authenticity of the material should be properly established in the most effective way; namely a royal commission, which is now what the Government has agreed to.

Furthermore, the policy of the Government from the word go last year, no doubt under the influence of the former Attorney-General, was to emphasise the illegality of the material being brought into existence and of the invasion of privacy involved in it, rather than to concentrate on the substance of the material and what it revealed about substantive crime. I quote again from Senator Evans's statement of 28 February last year, when he said:

The most worrying aspect of this whole matter is, I believe, the massive illegality and invasion of privacy which appears to have been involved; and, associated with that, the profound indifference, even cynicism, with which that illegality and privacy has been greeted by some members of the media and Opposition spokesmen.

The Opposition has never sought to minimise or deny the very probable illegality or the seriousness of the illegality of how this material was obtained. The Opposition wanted a full and balanced inquiry into the whole business. How did the material come into existence? What did it reveal about crime? What could be done about the crime and revelations of crime that were probably contained in it?

A very important part of the record-it is a matter to which I should refer-is the first committee set up by the Senate, again in the teeth of opposition from the Government. That was the Senate Select Committee on the Conduct of a Judge which reported to the Senate on 24 August last year. The Committee reported to the Senate about the information it obtained further to that obtained by the Special Prosecutor about the nature of the material which was then known as the Age tapes. I do not propose to read the detail of it but it is set out in paragraph 39 of that Committee's report and it gives a clear picture of what the position was, namely, that officers of the New South Wales police force had taped material over a period in which they were targeting selected criminals. The object of their getting this material was to use it for intelligence purposes which, if it had been legal, would have been a very proper police exercise. But what we have to face up to is that the police have done that. There is an enormous amount of material, which is said to have been used for police intelligence purposes. Indeed, one of the defences that the Attorney-General has used in recent weeks is that the material, such as it is, has now been squeezed dry. There is nothing more in it and there is nothing more that we ought to be doing about it. What we have always needed to know and what we will now know as a result of the Government's about-face and backdown on this matter--


Senator Haines —Somersault.


Senator DURACK —You name it. One could use a string of words about this matter. We need to know what was the extent of this material. How much is there of it? It has been said that the Age tapes are only the tip of the iceberg. Not only that but also the Attorney has revealed lately that telephone interceptions were not confined only to the period 1976 to 1981. They occurred before then and have occurred right to the end of last year. Indeed, from what the Attorney is now saying, such a practice may be going on today. There is probably an enormous amount of material. We need to know all about it. We need to know how much intelligence has been obtained from this material and whether more intelligence can be gathered from it. It seems most unlikely that all the intelligence that was available from it has been extracted, as the Attorney-General said the other day.

We need to know the nature of criminal offences and the extent to which such offences can be prosecuted as a result of all this material being found. A vast range of issues and questions are presented by this material about which, if it had been properly handled 12 months ago, we would now have the answers and something further could have been done about it. Fortunately, as a result of the pressure of public opinion and the pressure applied by the Opposition in this Parliament, and with the efforts of Mr Justice Stewart and the people assisting him under his new terms of reference, we should be able to have answers to all these questions by the end of this year.

As I have said, the Opposition is very pleased that finally the Government has decided to do the right thing. Even though the Government has made somersaults, U-turns and whatever, the fact is that finally we are getting a royal commission, presided over by Mr Justice Stewart, with terms of reference which, as far as we can see, are perfectly adequate to do the job that we have always said should be done. Of course, as part of that exercise we have to amend the Telecommunications (Interception) Act. That is being done in a more satisfactory way than before.

If there is anything that underlines the dramatic change of approach to this whole matter-I am sure the former Attorney-General, the Minister for Resources and Energy, who is present in the chamber, must be squirming about this-it is the amendment. It is what seems to be a simple little amendment so that the Act does not require that Mr Justice Stewart should have to be able to authenticate the material before he can use it. Now he will be free to approach the matter at large. He will not be hamstrung in that way. That was the high point of the approach of Senator Evans, the former Attorney-General, to this matter-that one cannot do anything until the material is authenticated. That was a part of the limitations that were sought to be imposed upon the Senate Select Committee on the Conduct of a Judge. That Senate Committee found that to be a difficult matter as well, but it was able to get around it. That was the approach which has now been abandoned as well. That is another very important part of the retreat. It is one which the Opposition is very pleased to support.

Of course, we have the matter of indemnities. If anything has really been more absurd and demeaning to the office of Attorney-General of the Commonwealth it is the way in which the present incumbent, Mr Lionel Bowen, has been performing in relation to this question of granting indemnities. He has revealed a complete misunderstanding about the matter of indemnities, the powers of the Attorney-General in relation to that and the right basis on which to grant indemnities. He has had to learn about that. He has also been trying to agonise in public. I do not know whether that was just because he wanted to get sympathy or he thought he could get help, but the result is that he has not understood the right approach. He seemed to have the belief that police could not be given indemnities. Fortunately, at some stage somebody showed him the document known as 'Prosecution Policy of the Commonwealth' which was prepared by me and tabled in the time of the previous Government. As Senator Evans has acknowledged over and over again, it is a very valuable document. As a result of the Attorney-General having his attention drawn to that document and having studied it we now seem to have established the right approach to the matter of indemnities, which is set out in the second reading speech.

Of course, it is quite clear that all the previous statements Mr Bowen was making about how he could not give indemnity to the police were absolute nonsense. He has had to accept that now. He now seems to be taking the right approach to that question. He is going to ask Mr Justice Stewart to make recommendations in the right way and in accordance with that policy. It now appears that as a result of that he will get co-operation from at least a number of police. I do not know whether all the police will co-operate. No one knows that, but it now seems very probable that as a result of approaching this matter in the right way, at long last that co-operation will come forward, to the extent anyway that Mr Justice Stewart will be able sensibly to perform his functions and make his reports and recommendations.

However, the Opposition is concerned about the new proposals by the Government because they seem to be placing an enormous burden upon Mr Justice Stewart. We have the utmost confidence in Mr Justice Stewart to carry out this work, as we do in his ability to carry out his work as Chairman of the National Crime Authority and on the Royal Commission into the 'Mr Asia' syndicate and the Royal Commission into Nugan Hand. However, we have been concerned as to whether a man who has so much to do can now also carry out the major tasks with which he has been presented under these terms of reference in relation to the New South Wales police tapes. That is the only matter on which we are concerned. In the House of Representatives today the Opposition moved an amendment to the motion for the second reading of this Bill to add to it the following words:

whilst not declining to give the Bill a second reading, the House calls upon the Government:

(1) to ensure that Mr Justice Stewart is provided with personnel and material resources, including the services of senior counsel and other assistants sufficient for this inquiry to be completed with thoroughness, effectiveness and expedition, and

(2) to be satisfied that Mr Justice Stewart's other important inquiries into the Nugan Hand Bank and the 'Mr Asia' Affair and his work as the Chairman of the National Crime Authority are able to proceed without hindrance or disruption in addition to the further inquiries which are the subject of this Bill.

I am told that in the other place the Attorney-General gave those assurances. We notice that the Government will provide an extra $1.5m to the Royal Commission to carry out these additional functions. I doubt whether that will be sufficient. Still, the Government has given an earnest of its good faith in that respect. In view of that and in view of the assurances, as I am instructed, that have been given in another place, the Opposition in the Senate will not move that amendment to the motion for the second reading. The Government having already made those assurances, I think it would be churlish for us to move it here. However, I am referring to it here because I want to emphasise that that is the concern the Opposition has. Although we are accepting the Government's assurances now on that point, nevertheless we will watch it very carefully. We want to be absolutely sure that Mr Justice Stewart will have sufficient assistance and that other arrangements will be made for carrying on what work he would otherwise have been doing on the National Crime Authority. Certainly we will be watching that carefully in the coming months. We are looking forward to having if not his final report by the end of the year at least some interim reports during that time and by the end of this year on this most important subject.

As I have said, the Opposition is very pleased with the turn of events. We believe that it is just a year or so too late, that there have been a whole lot of developments that may have occurred in relation to this matter over that time which could have affected in an adverse way the inquiries that will now be embarked upon. We can only express our grave concern about the attitude of this Government, particularly the two Attorneys-General, Mr Lionel Bowen and Senator Gareth Evans, who from beginning to end of this affair have on their heads an extremely sorry record of non-performance and misunderstanding. I think it is quite contrary to all their rhetoric and protestations about their desire to be fighting organised crime in this country. We have always had grave doubts about the genuineness of the protestations of this Government and these Attorneys-General. Certainly the performance of the current Attorney-General in recent weeks has given us even greater cause for alarm because of his deep misunderstanding of his powers, his role and his duties. Wisdom finally seems to have been thrust upon him. I hope that when it comes to exercising his powers to grant indemnities he will be adequate to the task.

I made a mistake a few months ago, after the last election and the new Government was being formed, when I expressed the view publicly that Mr Lionel Bowen was better qualified to be Attorney-General than the former Attorney-General, Senator Gareth Evans. I should have said, of course, that neither of them is qualified for that high office. In fact, it is a case of out of the frying pan and into the fire. Fortunately the efforts of the Opposition and the pressure of public opinion have plucked this most important issue out of the fire. It is not too late to proceed with a proper inquiry into this major matter. We certainly wish Mr Justice Stewart all the best in the herculean efforts that will be required. We reaffirm our confidence in his ability to carry out this enormous task.