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Thursday, 27 November 1986
Page: 2873


Senator CHANEY —My question is addressed to the Minister for Veterans' Affairs. I remind the Minister that last week he said that he believed the Director of the Australian War Memorial was guilty of misbehaviour, but in an interview on Australian Broadcasting Corporation radio in Canberra the Minister admitted that there might be differing opinions as to what constituted misbehaviour. In particular, the Minister said on the ABC that he, the Minister, may `get a differing view from the courts about what constitutes misbehaviour'. I ask the Minister whether he will give an undertaking that he and the Government will do nothing which would prevent Air Vice-Marshal Flemming from having access to the courts in the event that he is dismissed. In other words, will he give a guarantee that, whatever the outcome of the planned procedure involving the Director, the Government will not place any barrier in his way as to his ability to go before a court and argue against any decision to dismiss him on the ground of alleged misbehaviour?


Senator GIETZELT —I concede that there are areas of interpretation of what constitutes misbehaviour and they are, of course, matters that, in this dispute, will be finally determined by persons other than me. However, I am firmly of the view that misbehaviour of a senior public servant is inherent in the report conducted by Mr Jones and presented to the Australian War Memorial. I remind the Senate of some of Mr Jones's findings. In relation to the acquisition of the warehouse, the report states:

. . . this matter appears to have been handled very badly . . . The Director's minute . . . was both untimely and misleading . . . The Director's response . . . did not in any way address the Minister's questions . . .

On the matter relating to the eastern staircase, the report states:

The first draft response . . . was deficient in several ways . . . Despite a specific request from the Minister . . . no such assurance was given . . . the Director's advice . . . was both inadequate and misleading.

On the top structure of the Australian War Memorial staff, the report states:

. . . the advice which was conveyed to the Minister . . . was selective and, as a consequence, misleading . . . the Minister would have good reason to believe that he was given inadequate and misleading information . . .

In relation to the 1984-85 annual report, the report states:

The Minister's assertion . . . that he was given inadequate and misleading advice is not unreasonable.


Senator Chaney —Mr President, I raise a point of order. The Minister is effectively debating the question I put to him. The question I put to him related only to the processes; it did not relate to the question of whether there was proven misbehaviour or misbehaviour on the part of the air vice-marshal. My question merely related to the processes and procedures which are available to a person in that position and whether the Government intended to place any barrier in the way of any existing remedies which a person in that position might have. The Minister has proceeded to quote from the report of the Jones inquiry into the Australian War Memorial, which is not a matter which I have raised and which is not challenged in a sense in this question or, indeed, by the Opposition. My question merely relates to the processes. I would suggest to you, Mr President, that effectively the Minister is entering into debate not on the question itself but on the whole merits or demerits of the air vice-marshal's position, and that is not a matter which the Opposition has sought to put in issue in this question or, indeed, at other times.


Senator GIETZELT —I wish to speak to the point of order. Senator Chaney began his question by referring to statements which I had made on radio, and I am responding to that because he quoted my opinions in respect of that. I therefore need to respond as to what I believe constitutes misbehaviour by a senior public servant.


The PRESIDENT —Order! Everyone knows that a Minister is entitled to answer a question in any way he desires, provided he does not enter into the realm of debate. As I understand it, Senator Gietzelt has been quoting from a report to support his interpretation of the word `misbehaviour'. At this stage Senator Gietzelt has not entered into debate and I will allow him to continue in the way in which he is proceeding, but I remind him of standing order 100. Once he does get into the realm of debate, I will have to bring him to order.


Senator GIETZELT —Mr President, I am speaking very precisely of the seven issues in respect of which the Jones report identified matters involving misleading the Government, the Australian War Memorial Council or the Minister. Senator Chaney wants to know whether I will give some guarantee about these matters in respect of the next step that the Government contemplates taking in the current dispute involving the Director of the Australian War Memorial. Of course, in addition to the matters that I have referred to, similar statements were made by Mr Jones in respect of the proclamation ceremony, the Heaton letter and the change in the banking arrangements for the Australian War Memorial, which is a very important aspect as the account now stands at almost $10m. The Government has sought advice from a Mr Graham, QC, from the Melbourne Bar, as well as from the Solicitor-General, and it is acting in accordance with that advice. Certain particulars will be made available to the Director and he will be requested to respond in order, firstly, that beyond any shadow of doubt there will be no suggestion, charge or allegation which can be sustained that he has been denied natural justice, as indeed he was not in the way in which the Jones report was prepared. But, having gone down the specific path of affording the Director full opportunity to respond to the matters which the Government has decided should be further examined, and he having responded to those matters, the matters will then be taken, I imagine, back to government or, depending upon the recommendations, to the Governor-General.


Senator CHANEY —Mr President, I have a supplementary question. I ask the Minister to direct his mind to the question which I actually asked, which was whether the Minister could give an undertaking that he and the Government would do nothing which would prevent Air Vice-Marshal Flemming from having access to the courts in the event that he is dismissed; in other words, that there should be no action taken by the Government which would interfere with the legal remedies which are presently available to Air Vice-Marshal Flemming.


Senator GIETZELT —The innuendo is that somehow the Government is acting in such a way as to deny the proper rights of a citizen to defend himself in any circumstances. There is no intention on the part of the Government to deny Air Vice-Marshal Flemming his due legal and civil rights. I have no authority to suggest that there would be any departure from those principles.