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Thursday, 28 March 1985
Page: 1000

Senator GARETH EVANS (Minister for Resources and Energy)(5.35) —in reply-In between the adolescent debating points of the kind to which we have been treated for the last 20 minutes from Senator Puplick, we have had from all Opposition speakers what perhaps can inevitably be described as a crow of triumphant vindication to the effect that the course that they have been urging upon the Commonwealth for the last 12 months of submitting to a royal commission the Age tape material as it was brought into the public record in February last year has now been-at last; belatedly- acknowledged.

Let me simply say right at the outset, and let it be understood, that that kind of claim simply has no shred of content whatsoever. The truth of the matter is that no one has been brought to trial on the basis of the material in that original collection of 11 taped conversations and some 1,000 alleged transcripts or summaries of conversations spread over 500-odd pages of documents. No one has been brought to trial on the basis of that particular material. On the clear view of Mr Temby, and I can put unequivocally on the public record the clearly stated view of Mr Justice Stewart, no one is likely to be.

Senator Chipp —They have as a result of them.

Senator GARETH EVANS —It is the case, as Senator Chipp has interjected, that someone has been brought to trial as a result of an inquiry into the Age materials which turned up other evidence not related to any of the subject matter of the Age material but amounted to separate and distinct allegations. That has been the case with Mr Justice Murphy in circumstances of which we are all aware. As for the Age tape material itself-the material which has become the talisman of this entire debate-it is simply not true to say that in any of the whole elaborate course of public debate, argument and analysis by professional lawyers and prosecutors that has taken place over the last 12 months anything has been found in that material to justify the sorts of claims that have been so constantly made about it.

One very senior lawyer of my acquaintance who has, in his official capacity, had cause to work through the material very closely indeed has said-it is my judgment that he is perfectly accurate-that even if it did prove to be the case, as the result of the exercises now to be mounted, that every last word of those documents and that material on tape was to be authenticated as having genuinely occurred and being an accurate summary or transcript of what occurred, then still standing alone that material would have the evidentiary value of a roll of toilet paper in the context of possible further prosecutions. For God's sake, let us understand that that is so before the crows of vindication and the crows of triumph about the course of action which this Government has taken, and which I in particular as the former Attorney-General took, in relation to that particular body of material gets out of hand here today. It may be the case that some new illegally obtained intercept material will turn up as a result of this very much broader set of terms of reference that is now proposed to be given to Mr Justice Stewart. It may be that that new material does contain hard evidence which is usable in some future criminal prosecution. But that has not been what has been the subject of so many motions, debates and arguments in this place. The argument has always been about the Age material itself. Let it be understood what the status of that material is. I would be very surprised indeed if at the end of the day it proves to be any different from that which I have already indicated.

Claims have emerged of a vast body of additional material running through the Age tapes period of 1976 to 1981 and all the way through to 1984 and perhaps even more recently than that. It is only because those claims have emerged, which Mr Justice Stewart has suggested may well be well founded, in the last two or three months that there is this additional body of material available, and which demands to be looked at, that the Government has changed its course in the way that is involved in the present legislation and the present extension of Mr Justice Stewart's terms of reference. It is because of that possible existence of a new body of material-nobody knows whether it exists or not; all sorts of allegations and assertions are being made and nobody has come up with any hard evidence as to the existence of any additional tapes or documentary material-and because of those allegations and the disquiet that is being generated, understandably enough, by those further allegations that the Government has decided to go down this markedly different course from that which we adopted all through the last year based on the Age tape material itself. I hope that is understood.

We are going down a route that involves what can perhaps be described as a vacuum cleaner exercise. We have created terms of reference which are so wide, so broad, and so far-reaching that they ought to be able to suck up every last bit of allegation, scandal and scuttle-butt tale that someone has to tell about alleged interceptions in New South Wales. That certainly is the intention. I hope that it is the effect. It may be that, as a result of all of that, something of some utility will turn up, not so much in relation to the Age material because I doubt that that is possible, but maybe in relation to something else.

Senator Durack —If you had set this up a year ago you would have found this out then.

Senator GARETH EVANS —A royal commission was never sought a year ago in relation to anything other than the Age tape material itself. The honourable senator should not pretend otherwise. It may be that nothing more worth while will emerge than what has been on the public record for the last 12 months in the so-called Age material. But, either way, the result of this exercise should be to cauterise this sore once and for all. That would be a very good thing in the interests of this nation.

Let me make just a couple of other points. I trust that this exercise over the course of this year by Mr Justice Stewart will not be turned into a trial of people's reputations by the media to the extent that that is made possible by the affairs of the commission being conducted in public, as they can be under its legislation, and to the extent that documents emerge on the public record gaining the protection of some privilege. Let me just express the hope, as I have done so often in the context of the debates about the National Crime Authority, that some regard be paid in the course of this exercise to the reputations of individuals whose names are bound to be dragged, like a succession of stinking fish, across the public stage, as so many names have been dragged in the last year or so.

Let me express the hope, in an appeal to the decency of those opposite to the extent that they retain any, that they do not take advantage of the situation of the royal commission and the inquiry, and the privilege that may be associated with it to destroy unnecessarily people's reputations. Let it be remembered that so many of the inquiries that have taken place over the last year or two have, in fact, resulted in an absolutely clear-cut vindication of the reputations of those people whose reputations have been put in issue by the public trailing of allegations against them.

I refer in particular, inevitably, to the Australian Broadcasting Corporation allegations against Mr Wran, proved to be unfounded by the Street Royal Commission of Inquiry into Certain Committal Proceedings against K. E. Humphreys. I refer to that part of the allegations against Mr Justice Murphy which were based squarely on the Age tape material and which were unanimously resolved as being unfounded by a committee of inquiry of the Senate. I refer to the allegations made by Mr Bottom against Schreiner, the New South Wales magistrate, that were found to be utterly without justification by the Cross Special Commission of Inquiry into Certain Allegations by Mr R. Bottom.

I refer to the allegations of Ian Sinclair about alleged sordid misbehaviour by various people, which was the subject again of findings as to the complete lack of justification for those claims by the Cross Special Commission of Inquiry into Certain Allegations by the Rt Hon. Ian McCahon Sinclair. I refer to the most recent report by Mr Justice Stewart, the Royal Commission of Inquiry into the Activities of the Nugan Hand Group, completely vindicating the reputations of a number of Australian Labor Party officials from New South Wales, who have been the subject, again, of claims of a slanderous kind over a long period.

Over and over again, inquiries have been held which have demonstrated that the existence of smoke simply does not establish the existence of fire. That has been the subject matter of so many of the public statements and defences of the course of action of this Government that I and other senior Ministers have made over the last 12 months. The validity of those statements remains as untrammelled as it always has been.

I make a further point relating to the question of indemnities, which was the subject of so much anxiety on the part of Senator Missen in particular. I have been disturbed to notice in the course of this debate that there has been simply no acknowledgement at all by any speaker of the enormity of the scale of illegality and misbehaviour that was manifestly involved in the collection of that material by so many people in an organised way over such a long period. There has been no acknowledgement that there is any social evil involved in that kind of lawbreaking.

Senator Withers —In a decent society it would not have been necessary.

Senator GARETH EVANS —There is simply no recognition even now by contributions like that from Senator Withers that there is anything wrong with the principle that the end may justify the means. There is no recognition that these things are difficult questions of weighing and balancing. Of course it has been the case since time immemorial-I was involved weekly in these sorts of decisions-that indemnities can and should be granted on familiar and traditional principles of the kind articulated in the Brown-Durack document; that the existence of a desire to achieve a successful prosecution of a greater crime can in fact justify the immunity of a lesser offender. Of course that is the case.

The thing that has been in issue in this matter, which has caused so much obvious difficulty in principle and practice to the Attorney-General now, has been the nature of the indemnities claimed on a blanket basis without regard to the nature of the behaviour of the people concerned or without hitherto any regard for the quality of the evidence that might turn up as founding some subsequent criminal prosecution. There is no hint of a suggestion of an appreciation by anyone opposite in this debate that these are relevant and difficult problems to be weighed up, in which there is very much to be said for letting the law take its course insofar as those who have been engaged in illegality of that kind. The course that the Government proposes to adopt, as set out in the Attorney-General's statement, is not that recommended by Mr Justice Stewart. It is not an open-ended, blanket advance indemnification of all those police officers, past or present, who may prove to have been engaged in it. On the other hand, nor is it a blanket refusal of such indemnity of the kind recommended by Mr Temby. It is something of a compromise, midway course sought to be steered as a result of which indemnities will be recommended by Mr Justice Stewart.

Senator Chipp —But everybody on this side of the chamber approves of that.

Senator GARETH EVANS —Let it be understood that indemnities will be recommended if in the opinion of Mr Justice Stewart the person is capable of giving evidence connected with the intercepted material in the prosecution for an offence against a law of the Commonwealth or a State. It is only in the context of the establishment of a clear nexus between the nature of the material in question and some proposed, likely or probably prosecution that an indemnity will be granted, subject to two conditions subsequent, which are also set out in Mr Bowen's statement, to the effect that indemnities will be sustained and not revoked only if in fact at the end of the day, after Mr Justice Stewart has heard the evidence, as distinct from getting some advance notice of what it will be, he is satisfied that the evidence was given truthfully and frankly and nothing of relevance was withheld and that he was 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. Let it be understood that there are a series of caveats and qualifications about the circumstances in which indemnities are likely to be granted.

Senator Missen —But they are not in the Bill.

Senator GARETH EVANS —No, they are not in the Bill, but they are in the terms of the second reading speech in describing the terms of reference proposed to be given to Mr Justice Stewart.

Senator Missen —That does not satisfy me.

Senator GARETH EVANS —Very little in this life seems to satisfy you, Senator Missen, and I can understand that because you bring such a random and erratic quality of intellectual application to these sorts of issues that it is quite believable that you constantly remain unsatisfied by the answers that you get.

Let it be understood, with this talk of somersaults and flip-flops on the subject of indemnities, that a course has been steered through this very difficult decision in a way that does recognise the competing social values that are here involved and in a way which is markedly different from the contributions to this debate of those opposite who have simply refused to do anything other than accept in all its majesty the principle that the end-assuming there is an end in this particular case-justifies the means; that illegal behaviour can not only be countenanced but applauded. That is not a position this Government will ever take. I hate to think that as a result of the course that has been followed in this case and as a result of the kinds of statements that have been made today any kind of precedent can be thought to be established for the future whereby illegal conduct on a massive scale by officials can be regarded as somehow a sound and constructive contribution to the social weal. It is an intolerable state of affairs demonstrating an awful lack of sensitivity to the civilised values that societies such as ours are supposed to be about should some conclusion like that prevail.

We all know that no vote was ever lost in the political process by being harder than thou in the subject of law and order. The hard course to follow in all these matters is not a course which succumbs in some reflex way to the instincts of the community as a whole, which by and large is overwhelmingly in favour of extremely rigorous approaches to law and order questions. The difficulty in politics, the difficulty in trying to maintain a course that is based on principle and not expediency, is to protect what Churchill used to describe as the 'squalid nuisances', those whom for all sorts of good, sound and objective reasons one has very little inclination to have any regard for whatsoever. But the measure of a civilised society is the way in which it treats people who from most other points of view do not deserve kind treatment or respect.

I would hate to think that in the wash-up of all this debate there has been thought to be some total capitulation by this Government to the principle that those sorts of values simply do not matter. That is not my view of the course that has been followed by the Government and I hope it is not presented or understood in that way. It is certainly the way the Opposition would like to construe and understand what has occurred because I fear it simply does not share the kinds of values that I am talking about today and that I have been on about in this whole difficult matter for the last twelve months. I commend the Bill in its present form to the Senate.

Question resolved in the affirmative.

Bill read a second time.