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Wednesday, 25 February 1987
Page: 598

Senator DURACK —I refer the Minister representing the Attorney-General to the announcement that Air Vice-Marshal Flemming will not take legal action to challenge his dismissal from the position of Director of the Australian War Memorial. Is the Minister aware that the major reason given for this decision was the Air Vice-Marshal's concern about the high cost of ultimate resolution of this question before the High Court, as it would be a test case of the meaning of `misbehaviour'? In view of the long history of this matter and the succession of inquiries, will the Government give consideration to meeting Air Vice-Marshal Flemming's legal costs on the basis of it being a test case so that the question of misbehaviour can be decided, if necessary, in the highest court?

Senator GARETH EVANS —I will refer that question to the Attorney-General but I doubt that his answer will be in the affirmative. Any grant of legal aid depends on some assessment as to the likely success of the case in question. It is not believed by the Government that there is any conceivable foundation for a challenge to the action that took place, either on the grounds of procedural defect, natural justice and so on, or so far as the definition of `misbehaviour' is concerned. I do not want to rehearse again the circumstances of Air Vice-Marshal Flemming's dismissal. I simply make a point, as has been made very cogently by Senator Gietzelt in this place, that when misleading information is given in circumstances in which there can be no doubt whatsoever as to the intention of the false information in question, where that information goes directly and immediately to the conduct of a statutory authority for which the person concerned is responsible, on any conceivable definition of misbehaviour-that is an issue which of course has been canvassed very widely in this place-there is no foundation on which such a case could be made. That is obviously the substance of such advice as Air Vice-Marshal Flemming has already received. I say that on the basis of Press reports. I imagine that is the basis on which he has very sensibly decided to accept the decision that has been made. But as I said, I will refer the question to the Attorney-General. He may wish to add something more.

Senator DURACK —Mr President, I have a supplementary question. After about three supplementary answers I think I am entitled to a supplementary question. When the Minister refers this matter to the Attorney-General, will he remind him of the Government's decision to pay enormous legal costs incurred by the late Mr Justice Murphy in a series of similar inquiries and legal proceedings?

Senator GARETH EVANS —I will do no such thing, Mr President.