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Thursday, 28 March 1985
Page: 1004

Senator GARETH EVANS (Minister for Resources and Energy)(6.01) —I will do my best to answer all the points that have been made. First-this is most relevant to what Senator Sir John Carrick has just said-it needs to be understood that indemnity is one thing, non-prosecution is something else. The simple fact that an indemnity may not have been granted in a particular case does not necessarily mean that someone who does not have an indemnity will be prosecuted. It always remains a matter for the exercise of prosecutorial discretion in the ordinary way as to whether someone will be prosecuted against whom there is some prima facie evidence that he has participated in a criminal activity.

Among the criteria that would no doubt be applied in making a prosecution or non-prosecution decision is the fairness of the treatment of that individual compared with the treatment made available to his fellows who are in an essentially similar position, but who may be in a technically different position such as to justify them getting an indemnity. I think that is the best I can do in answer to that question.

Senator Sir John Carrick —Surely that means giving indemnity to the team. If one person can prove to be helpful and he is part of a team, surely the accident of his being on duty at the time ought to be taken into account.

Senator GARETH EVANS —I understand the point that the honourable senator is making but I do not think I can go further than I have in answering it. Maybe a further answer will emerge from the answer I will now try to give to the other questions that have been raised about the indemnity procedures that are proposed.

As to the first point about who has the power to grant the indemnity, I think I have set all that out as clearly as I could in the answer I gave in the Senate on 22 March. As a matter of law, the power for the kinds of transactional indemnities we are talking about is vested in the Attorney-General personally. As a matter of practice he would normally exercise that power only after consultation with the Director of Public Prosecutions. Certainly it is matter for him alone.

As to the relationship between the decision of the Attorney-General (Mr Lionel Bowen) and the role, if any, of the Government, I indicated on 22 March-it has been acknowledged here-that it is traditionally regarded as proper for the Attorney-General to seek such advice as he wants from his political colleagues on matters of particular difficulty or sensitivity. I think the point can now be made in relation to these matters before us that the Attorney-General has sought the advice of his colleagues and certainly ground rules have emerged as a result of that process of consultation by him with Cabinet. Those ground rules can, unless something exceptional turns up, be expected to operate in the future of their own momentum, without any reference back to Cabinet in any particular case. It may be that Mr Bowen, having read what I say now, will want to supplement this answer.

My understanding of the ground rules and how they will work in practice is as follows: People will come forward, most of them have been identified already by Mr Justice Stewart, seeking indemnity. Mr Justice Stewart will ask them for a statement in writing as to what their evidence is likely to be. On the basis of that written statement he will make a judgment as to whether or not it satisfies the threshold criterion that will be identified in the terms of reference, namely, that it contains material which is likely to be evidentiary assistance in a criminal prosecution. If he is satisfied that that criterion is met he will then recommend to the Attorney-General that an indemnity in relation to a breach of the Telecommunications (Interception) Act be granted to that prospective witness. The Attorney-General will seek the advice of Mr Temby in the normal way in relation to such an application-because that is the established role of the DPP and there is no intention to vary that-and will make a decision, one hopes quickly, as to whether the recommendation of Mr Justice Stewart should be accepted.

If the decision is made in the affirmative and the indemnity is thus granted the evidence will then be given in the ordinary way before the Royal Commission of Inquiry into Drug Trafficking, subject to cross-examination and tested for veracity and everything else in the ordinary way. Mr Justice Stewart will, at the end of the day, report back to government on whether the witnesses' evidence under oath has in fact satisfied what I describe as the conditions subsequent; that is, that the evidence was given frankly, fully and without attempt to dissimulate, and that it does not disclose anything other than the bona fide attempt on the part of the person in question to gain evidence of breaches of the criminal law. If Mr Justice Stewart in fact certifies that those conditions are met, the indemnity will stand. If he certifies that they are not met and that the witness was, in fact, off on some frolic of his own when he was engaged in the tapes and seeking material for the purpose of political malice or something of that kind unrelated to the advancement of prosecution of the criminal law, he will certify accordingly. It will be possible in those circumstances for the indemnity to be revoked. That is the machinery that is laid out. I sketched that out in my reply to Senator Missen in the debate on the motion for the second reading.

I think it is important to appreciate that there is a fairly complex series of hurdles that have to be jumped over. There is no question of any sort of blanket immunity being granted of the kind that was originally recommended by Mr Justice Stewart. It may well in practice amount to the same thing because these are not especially difficult criteria to satisfy, but I believe the principle of non-indemnity at large is being observed in these proposed procedures.

Senator Chipp —It could be difficult if Mr Temby is as unco-operative as he has been.

Senator GARETH EVANS —I think that is not really a worthy interjection. With the utmost respect to Senator Chipp, Mr Temby has given all sorts of fearlessly independent advice with which I, among others, have had to contend over the period of the last 12 months.

Senator Chipp —I was not reflecting on his integrity. I just say that his advice has been bad.

Senator GARETH EVANS —Mr Bowen has indicated clearly that the final decision will be his. He will obviously have primary regard-because that is what will trigger his consideration of the matter-to the recommendation of Mr Justice Stewart. But he will also have regard to whatever views Mr Temby, as, after all, the chief prosecutor of the nation, may have as to the particular matter in question. That is an entirely proper relationship of the main characters in this cast. Let me come back to the point at which I began. I repeat that the mere fact that an indemnity may not have been granted to someone who has not sought it-say, in the first instance, to someone who may have been involved in the taping of some conversation which has no evidentiary utility at all-does not necessarily mean that it follows, as night follows day, that that person will be prosecuted. That is a matter for another decision-

Senator Sir John Carrick —It does not mean he will not, and that is my worry.

Senator GARETH EVANS —That is perhaps just a risk which people who have engaged in systematic breaching of the criminal law will have to contemplate. The criteria are clearly laid out in the terms of reference. Anything less than those criteria of the kind that were being urged by all sorts of people, such as blanket indemnities in advance, would not, I believe-nor does the Government believe-be acceptable in principle. I believe that as a practical matter there is no ground for the kind of concern that is now being articulated by Senator Sir John Carrick, but I cannot take his question any further than that. There is one further point that can be made. By virtue of section 6DD of the Royal Commissions Act, there is a provision whereby a person gains additional protection from that, in the sense that any evidence he may give cannot be used in any subsequent prosecution against that person himself. That is an additional layer of protection to these putative police witnesses that ought to be borne in mind.