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Wednesday, 26 November 1986
Page: 2769


Senator LEWIS —My question is directed to the Minister representing the Attorney-General. I refer the Minister to the statement issued last night by the Minister for Veterans' Affairs about the Government's latest manoeuvring in its determination to get rid of the Director of the Australian War Memorial. Can the Minister summarise for the Senate the nature of the legal advice received from the Solicitor-General and Mr Graham, QC which led to the Government's decision? What, in practical terms, is meant by the expression `paying due regard to the principles of natural justice' which Senator Gietzelt used to describe the way the Director's response to questions would be handled? Finally, how can Air Vice-Marshal Flemming be said to have been accorded the principles of natural justice without the opportunity, still denied, for him or his legal advisers to question those making accusations against him?


Senator GARETH EVANS —I do not think it would be appropriate to go into the details, certainly not all the details, of the advice that has been rendered to the Government by both Mr Douglas Graham, QC and the Solicitor- General on this matter, but I think the relevant aspects of it that Senator Lewis has expressed concern about can probably be summarised as follows: It is clear that the rules of natural justice must be observed in the exercise of a power such as that conferred by sub-section 24 (1) of the Australian War Memorial Act 1980-dismissal for misbehaviour. There is no doubt about that. Those rules will require that the Director be informed of the grounds upon which it is contemplated that his appointment may be terminated and those rules also require that he be afforded a fair opportunity to be heard and to put forward both his response to those grounds and any other matters which he may wish to advance as reasons why the power of termination should not be exercised.

There is a quite substantial body of law as to what the rules of natural justice mean in this kind of context. The requirement is simply, as I have said, that a person be afforded fair opportunity to be heard and to put forward matters which he may wish to advance as appropriate reasons. So far as I am aware-I do not think there is any suggestion to the contrary in the advice from the lawyers concerned-that does not require oral examination of witnesses, particularly not in a circumstance where there may not be any oral testimony of other witnesses to be taken into account. I do not want to comment any further beyond that because that gets us into essentially legal argument. I simply make the point that it is something that can be perfectly well objectively tested on the basis of the substantial body of authority which exists as to what the requirements and rules of natural justice are.

There are a number of ways further in which the requirements of natural justice may be physically satisfied in terms of hearing arrangements. One such way that Senator Gietzelt has indicated and that the Government proposes to follow is the appointment of an appropriately qualified senior person to receive the representations that the director may wish to make and then to report to the Governor-General in Council on the basis of his findings, having heard those representations. As I say, this is the course the Government has chosen to follow; it is a course that is entirely proper and consistent in terms of the applicable law and practice and it is certainly not a course such as should attract any reasoned criticism from the Opposition.

I just add by way of further parenthesis that any suggestion that previous inquiries may have been somehow at fault and, in particular, that Mr Jones may be somehow at fault for not having afforded opportunities to do various things that might count as natural justice is to completely misunderstand the nature of the investigation upon which Mr Jones and others before him have embarked. Mr Jones was not, by his terms of reference, specifically charged with the function of determining whether or not the Director had been guilty of misbehaviour within the meaning of sub-section 24 (1) of the Act. His inquiry was essentially a wide-ranging investigation commissioned not by the Executive Government but by the War Memorial Council. Under those circumstances it is entirely understandable that he did not address the substantive question of misbehaviour at all-certainly not in any reasoned way-and did not engage in the sorts of procedures that are now being contemplated by the Government.


Senator LEWIS —Mr President, I ask a supplementary question which is more for clarification. Is the Minister saying that it is the advice to the Government or his own view-I am not sure which-that it is not necessarily a principle of natural justice that the person accused is entitled to question those making accusations against him?


Senator GARETH EVANS —I do not propose to go into the details of the matter. It is my understanding of the advice that has been received that that is probably so, but essentially it is a matter for the person conducting the hearing, the representations. I do not want to go on record as retailing the details of advice. It is a matter for the Government, not me here and now, to determine what and when information should be released. Clearly that is confidential at the moment. It is something that Senator Lewis can look up himself. I would be happy to arrange for a list of authorities that are relevant, if he still knows where to find them, so that he can sort out the matter himself. It is a matter of law what the requirements of natural justice are and if they are not fully satisfied in a way that is likely to survive subsequent legal scrutiny obviously remedies will be available.