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Thursday, 28 March 1985
Page: 1007

Senator GARETH EVANS (Minister for Resources and Energy)(6.19) —Technically, yes. The power to grant includes, as a matter of strict technical statute law, the power to withdraw. But, as a practical matter, I can assure the honourable senator that the Attorney-General would not. He has made that clear in describing to his colleagues the way in which the system could be expected to work.

Senator Durack —If any Attorney did that he would not get any reasonable co-operation.

Senator GARETH EVANS —I think that is a reasonable interjection offered by my learned predecessor who understands, I hope-he just demonstrated that he had some understanding-the way that the dynamics of these things would work.

As to Senator Missen's contribution, we can argue pedantically about the difference between 'same' and 'similar' and the appropriateness of using each. The clear intention is that the operative clauses of the New South Wales terms of reference would be couched in identical language to that in the Commonwealth terms of reference. There cannot be the same document because there is reliance of different powers. The document will be differently topped and tailed. But, in my understanding, there will be identical terms of reference, except the reference will be to State laws rather than Commonwealth laws and so on.

As to Senator Durack's concern that what I have said does not quite match the language of the second reading speech, the language in the second reading speech simply describes the formal conditions which have to be satisfied and identifies the person it is who makes the recommendation. The speech does not describe a practical process in any kind of chronological sequence. I have been adding to and giving further information than is contained in the speech. I have beside me the officer who wrote the speech and he assures me that my description of what in fact is intended to occur in practice on Mr Justice Stewart's recommendation and Mr Bowen's recommendation as endorsed here, is in fact consistent with what is in this document.

Can I just say that the kind of concern that is being expressed about the operation of these conditions subsequent is, I believe, misconceived. The honest policemen we have heard so much about who have been doing their level best, constrained unfortunately by the terms of the law, but doing their best to get criminals into gaol and are illegally intercepting as a result, and doing it with that motivation, will have nothing whatsoever to fear from the operation of these conditions subsequent. If it were established that policemen, despite their initial protestations to the contrary, were in fact using or misusing their position as police officers in the electronic bureau, or whatever it called itself, in fact to glean information which could then subsequently be used for purposes of bribery or blackmail, and if that were established to Mr Justice Stewart's satisfaction in terms of the course of the evidence before him, it staggers the imagination that under those circumstances he could do anything other than recommend a revocation of the indemnity originally granted on different assumptions. That is all that is involved in this. The language is pretty open textured both so far as the condition precedent is concerned and so far as these conditions subsequent are concerned. But it is designed to deal in a way that I think it is only possible to deal in principle with these issues-to create some kinds of hurdle requirements and some conditions which, if breached, will render the original guarantees nugatory.