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Tuesday, 16 April 1985
Page: 1027


Senator GARETH EVANS (Minister for Resources and Energy)(2.34) —I wish to move that the Senate take note of the statement and that with respect to the petition lodged on behalf of Judge Foord, arising out of proceedings in the New South Wales Local Court of Sydney, and tabled by the President this day, the Senate does not accede to the request contained in the petition.


The PRESIDENT —Is leave granted for Senator Gareth Evans to move the motion?


Senator Chaney —Could I suggest that the two motions be separated? I would have thought that it would perhaps be appropriate to move that the Senate take note of the statement-not to debate it at this time. If there were separate motions one could be disposed of since I understand that it is desired to deal with it now. The other could simply be left on the Notice Paper in case at a later time honourable senators wished to discuss some of the principles involved in the statement.


Senator GARETH EVANS —I am happy to separate them provided we debate them together. I believe it might well be possible to deal with them both.


Senator Chaney —We will deal with one motion and there might be other elements we want to debate at a later time when we are not subject to restrictions.


The PRESIDENT —Order! I think it is the wish of the Leader of the Opposition that Senator Gareth Evans move two separate motions to deal with the matters involved.


Senator GARETH EVANS —The Senate is indebted to you, Mr President, for your advice as to the course of action which has been taken.


The PRESIDENT —Order! I take it that Senator Evans is now moving that the Senate take note of the statement.


Senator GARETH EVANS —by leave-I move:

(1) That the Senate take note of the statement.

(2) That, with respect to the petition lodged on behalf of Judge Foord, arising out of proceedings in the New South Wales Local Court, and tabled by the President this day, the Senate does not accede to the request contained in the petition.

I am moving both motions on the understanding that they will be put separately and may be dealt with procedurally separately as the mood of the Senate dictates. I repeat that we are indebted to you, Mr President, for your advice as to the course of action which has been taken during the committal proceedings to date. I simply say that I believe that the action taken was perfectly proper in all the circumstances. The Senate has an interest to protect to ensure that its privileges under the 1688 Bill of Rights are upheld, like those of the House of Representatives under a similar constitutional provision. While it may, on occasion, be the case that difficulties will be caused in the conduct of a prosecution for a third counsel to be present taking these kinds of points in trial proceedings-a point adverted to by Mr Temby in his letter tabled here today-and while it may well be that the whole issue could properly be the subject of further consideration as to how to handle these sorts of matters in practice, if they arise in future, I believe that there is nothing inappropriate about the action that was taken over the last few days. It may well be that that is something which, as Senator Chaney has foreshadowed, he may wish to debate further and, as I have indicated, I think there is room for further consideration of how one handles these situations in practice in the future. So I am perfectly content to simply say as much as that and no more about the first motion to take note of the statement.

The question, however, that is before us today and which I believe needs to be resolved very rapidly is the petition which we have had put before us by counsel for Judge Foord seeking in effect a waiver of the Senate's privilege in relation to certain written evidence put before the Senate Select Committee last year involving a statement by Mr Briese, in respect of which it is the desire of Judge Foord's counsel to cross-examine as to the content of that statement, the motivation with which it was made and the understandings which were had about it at the time. How to deal with this petition has been the subject of discussions by all parties around the chamber-I appreciate that not all senators individually would have had an opportunity either to see the terms of the petition request or, perhaps, to participate in party room debates about it-and certainly between the party leaders in this place.


Senator Missen —Has it been circulated?


Senator GARETH EVANS —It was circulated around the chamber about half an hour ago. I appreciate that there is some difficulty in dealing with this matter on the run as a result. Two courses of action are open to us. One is to go down the path I have indicated and simply refuse to accede to the petition here and now. The other, of course, is to refer the matter to the Privileges Committee and have the benefit of a report back to the chamber by that Committee as to whether the request in the petition ought to be acceded to. Were it not for the fact that the committal is proceeding and in fact is due to very shortly conclude, at least as far as the prosecution evidence is concerned, it may well be that the reference of the matter to the Senate Standing Committee on Privileges would be the more appropriate course. Given the fact that the trial is proceeding and it is necessary accordingly to reach a rather quick decision on this and given also that the merits of the matter do seem-as I will show in a moment-to be very clear, I have in consultation with Senator Chaney, Senator Haines and others around this chamber, including Senator Tate who is Chairman of the relevant Senate Committee, taken the view that it is appropriate to move this motion in the form that I have and I seek to dispose of it straightaway.

The particular issue of privilege that we are dealing with is the application of Article 9 of the Bill of Rights of 1688, which is, of course, binding law in this chamber by virtue of section 49 of the Australian Constitution which, Mr President, as you said in your statement, is to the following effect:

That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.

In your statement of 25 March you indicated in a little more detail how Article 9 had traditionally been construed in this Parliament as far as questions of desiring evidence before Senate committees to be made the subject of court proceedings was concerned. In your statement of 25 March you said that Article 9 means:

. . . evidence given before a Parliamentary committee may not be referred to in any court proceedings in such a way that that evidence is commented upon, used to draw inferences or conclusions, analysed or made the basis of examination or submission.

You added further:

This is a matter of law and the immunity cannot be waived by the Senate.

The view that you stated about the meaning and application of Article 9 is, with respect, one that I share. That is not to say that proceedings in Parliament in the form of evidence before a committee or anything else cannot ever be properly before a court. The Uren case back in 1979 was one demonstration of the way in which a statement could come into evidence in a court proceeding simply as evidence of the fact that it had been made, but not in such a way as to be capable of being questioned as to its content in that court proceeding.

What we have in the present case, however, from my understanding of it based on the terms of the letter from the solicitors for Judge Foord, is a request that the particular piece of written evidence before the Senate Committee not simply be put in as evidence of having been made but that it be very much the subject of cross-examination under the evidentiary rules governing prior inconsistent statements and so on, and that it be very much part of the court proceedings. Under those circumstances, Mr President, it would seem to me-and I understand that this is the view of others around the chamber who have had an opportunity to look at it-that this is a very clear case of the direct proscription in Article 9 of the Bill of Rights being infringed and as such not something that ought to be contemplated.

A question does arise as to whether the Senate can ever waive the privilege that is set out in Article 9 of the Bill of Rights. Views may differ about this. There have been opinions written from time to time and no doubt this is a matter about which lawyers could argue. I simply say that I believe the legislative prohibition is very clear in that it would require much stronger argument than I have seen in any context to persuade me that, when evidence before a Senate committee is proposed to be used in the way that this particular evidence is here proposed to be used, it would be capable for the Senate to waive that particular privilege. It seems to me that the proscription in Article 9 on proceedings in the Parliament being questioned in any way before a court is clear cut and, although I acknowledge that opinions may differ about this, I think the overwhelming balance of opinion would be in favour of there being an absolute prohibition on such evidence being able to be dealt with in that way.


Senator Missen —Mr Temby does not appear to think so.


Senator GARETH EVANS —With respect to Senator Missen, Mr Temby does not address his mind to the question of whether or not waiver is capable as a matter of law of being granted. What he is saying is that he would be very happy if the Senate did choose to waive its privilege because then he would not have as a prosecutor any subsequent trial proceedings cluttered up with counsel making all these points. That is the matter that I adverted to earlier when I said that there may be some force as a practicable matter in what he said, that it may be that we ought to give consideration to the best procedures by which these points may be brought before a court's attention, but that is a very different matter from acceding to this particular request that is now before us.

I make the final point that it would be a matter of concern I think for us all were there to be any strong belief in this chamber that Judge Foord's defence was going to be prejudiced in any serious way by being denied access to this particular statement. As to that, all I can say is that my understanding is that the techniques and courtroom procedures are available to defences in these sorts of circumstances whereby possible inconsistencies of statements over time can be the subject of some exploration in a court room context without the matter of parliamentary privilege being squarely brought in issue. It is my belief on the material I have seen, accordingly, that no injustice would result in this instance were we to go down the path I have indicated. That may again be a matter about which reasonable people could differ. The basic point remains: We have here a request to waive privilege and there is very grave doubt as to whether it can be waived at all since it seems to be the clearest possible case for the application of Article 19 which, of course, has a very long tradition behind it-it is not just a technical point I am making-about the protection of this Parliament and its proceedings which I believe everyone in this chamber will unanimously wish to uphold. For all those reasons I suggest that the most expeditious and appropriate way of acting in response to this letter is for us to carry the second of the motions that I moved.