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Monday, 30 August 2004
Page: 26682


Senator BRANDIS (5:09 PM) —The question raised by Senator Faulkner's notice of motion, circulated earlier today, for the proposed new `children overboard' committee is a factual question. It amounts to this: whether or not Mr Scrafton did or did not say certain things to the Prime Minister on 7 November 2001. I will come back to the issue of the reliability of Mr Scrafton's different accounts of that conversation in a moment.

I want to begin by making the point that inquiries into questions of disputed fact are inquiries which parliamentary committees are peculiarly ill suited to make. They are inquiries that courts are very well suited to make because courts approach questions of disputed past facts with objectivity, are governed by rules of evidence, and the participants in the process have no agenda other than to put alternative versions of the facts before the court. But in Senate committees—and we saw this classically in the `children overboard' committee which, like the new foreshadowed `children overboard 2' committee, was primarily concerned with questions of disputed past facts—there cannot be an objective, neutral, careful, analytical inquiry. For a start, every one of the inquirers, the senators, has by definition a political agenda.

There is no point in being pious or oh so pure about this: every senator by definition is a politician and has a political approach to the factual inquiry, which is not governed by rules of evidence which subject the process of inquiry to any kind of rationality. Senators from all points of view—government senators are guilty of this as are opposition senators—use the opportunity to make political points. There are some kinds of Senate committee processes, particularly about matters of policy, where that is perfectly appropriate, but the process is badly suited to eliciting factual truth. If there is one thing I believe in more than anything else, it is that facts are not ideological. There are not Labor Party facts or Liberal Party facts or Australian Democrat facts; there are just facts. Either an event happened or it did not. You cannot have a political construct on whether or not that fact happened. As a very distinguished barrister who was once a mentor of mine used to say, facts are stubborn and impressive.

The process of a Senate committee to try to elicit evidence of whether or not a fact existed, or whether or not words were exchanged during a conversation, is not something that the political process—that dialectical process of clashing political values—is suited to discover at all. As a result you get the bizarre view that the findings of a Senate committee into questions of disputed fact are somehow the result of some forensic process. They are anything but that. That is why we on the government benches do not support Senator Faulkner's motion—from my point of view, not because it is an abuse of Senate process but because it entirely lacks utility. How is the Australian public going to be any the wiser about what Mr Scrafton may or may not have said to the Prime Minister in the course of a conversation three years ago when Senator Faulkner says one thing and other senators say other things—particularly in the course of an election campaign where the Labor Party and the Australian Democrats have made this the very issue on which they want to campaign? How is that, in heaven's name, going to be a process which will elicit objective truth? Of course it will not.

If you had any doubt about that, you only had to listen to Senator Faulkner's speech to the chamber in moving his motion. Senator Faulkner announced in moving his motion that the Prime Minister had misled the Australian people about what Mr Scrafton said to him. That is what he said. We heard him in this chamber an hour ago in the course of moving a motion to set up a Senate inquiry, of which he will be a key principal, to decide whether or not the Prime Minister misled the Australian people about what Mr Scrafton said to him in the course of the conversation three years ago. So in moving for the committee to be established he has already announced his conclusions. In the very speech in which he advocated why there should be a committee, he demonstrated by announcing his own conclusion why no such committee can have any worthwhile value other than being a forum for political point scoring. That is why government senators think that this is not a worthwhile exercise, in particular in the course of an election campaign.

In the course of the debate assertions have been made about the Prime Minister's motives. So the second point that I want to make is this: there have now been three occasions by which the Prime Minister's motives in this can be tested. The first occasion happened a long time ago. It happened three days before the 2001 election, on 7 November 2001, during the celebrated telephone conversation with Mr Scrafton. Although there is now an area of disagreement between the Prime Minister and Mr Scrafton as to what Mr Scrafton told him, there is one thing both the Prime Minister and Mr Scrafton agree Mr Scrafton did tell him. Mr Scrafton said to him words to the effect: `Well, Prime Minister, as requested I have reviewed this video, the video of the so-called `children overboard' incident. It does not support the government's case; it is inconclusive.' That word `inconclusive' is the word used by both Mr Scrafton and the Prime Minister in their recollections of what Scrafton said to the Prime Minister.

So what did the Prime Minister do? He immediately said, `We had better release it,' and he did. So when told that this one contemporaneous document, the famous grainy video, did not support the position the Prime Minister had put out there in the public arena—a video which had become the most important piece of evidence about the controversy—with an election three days later, the Prime Minister said, `Although this does not support my position—if anything, it weakens my position—we will get it out there,' and he did. How is that conduct contrived to mislead people?

Then last week, within a fortnight of Mr Scrafton publishing a new version of his conversation with the Prime Minister, the Prime Minister caused statements to be taken from Major General Powell and Commander Noonan. Those were the two gentlemen who conducted the military inquiry. After the 2001 election there were two internal inquiries. There was the Bryant inquiry, which the Prime Minister himself had instructed to be convened to find out what happened, and the Powell inquiry, which was the internal military inquiry. So after Mr Scrafton changed his position and announced in his letter to the Australian newspaper on 16 August a revised version of events, the Prime Minister caused Major General Powell and Commander Noonan to be interviewed. Do you know what they said? It was a point that much was made of by Senator Faulkner. They said, `When we spoke to Mr Scrafton in November 2001 what he said to us then was what he is now saying in his letter on 16 August 2004.' In other words, again, evidence against the Prime Minister's version of events. What did the Prime Minister do? He said, `We had better release it.' So he released statements from Major General Powell and Commander Noonan. I pause to say that what Mr Scrafton told Powell and Noonan was quite different from what he told Jennifer Bryant, who ran the internal Public Service inquiry, but that is another matter. The fact is that that piece of evidence, contrary to the Prime Minister's interests, again in the shadow of an election being called, was received by the Prime Minister—it did not help his case; in fact it hurts his case—and what did he do? He said, `We had better release it,' and he did. How is that behaviour designed to mislead people?

Thirdly, after the Prime Minister decided to call an election on 9 October and he visited the Governor-General yesterday and advised him to prorogue parliament and dissolve the House of Representatives, he made a decision to allow the Senate to continue to sit for today and tomorrow. As you know, Mr Acting Deputy President, I am always lost in admiration for Senator Faulkner's thespian skills. But for Senator Faulkner to maintain with a straight face the view that somehow the Prime Minister forgot to prorogue the Senate, forgot that maybe the Senate might be seized of the `Scrafton affair', as it is now being called, forgot that if the Senate was not prorogued before Tuesday afternoon the Senate might set up another `children overboard' committee, I think is an Academy Award winning performance by Senator Faulkner and one of the finest examples of sangfroid I have ever seen in this chamber.

Of course the Prime Minister knew that if the Senate sat today this would be the first order of business. Every political observer in Australia and every newspaper columnist knew that. So the Prime Minister—creating, I think, an historical precedent—having dissolved the House of Representatives and having made a decision to prorogue the parliament, deliberately delayed the prorogation of the parliament until 4.59 tomorrow afternoon specifically to enable the Labor Party to move the motion that Senator Faulkner has now moved so that the last thing that could be said against the Prime Minister is that he was trying to sweep it under the carpet, that he was trying to cover it up.

So there we are: against all of these fast and loose allegations that the Prime Minister is involved in an act of deception, every time a piece of evidence surfaces that is contrary to the view the Prime Minister has consistently maintained throughout, the Prime Minister publishes it and he invites his political opponents, in the shadow of an election, to set up this inquiry rather than, as would be the ordinary course of events, proroguing the parliament at the time of the dissolution of the House of Representatives—that is, yesterday. So the bona fides of the Prime Minister, his respect for process and the pains to which he has gone to ensure that it cannot be rationally or honestly maintained by any fair-minded person that there is a cover-up here, cannot be questioned or brought into doubt.

I said before that Senate committees, whatever they might be good at, are very bad fact-finding tribunals for all the reasons I recited. Nowhere can that be better seen than in the report of the first `children overboard' inquiry, which was not a respectable document. The myths by an obsessed media and political insiders on the left wing of Australian politics have, in a bizarre way, raised this document to some almost sacerdotal significance. It is nothing of the sort. You only have to look at the findings at variance with the evidence to realise that that is so. In the last couple of hours as I have been preparing for this debate I have gone at random through the first few pages of the majority's report of the first `children overboard' inquiry—


Senator Ferguson —So have I.


Senator BRANDIS —Senator Ferguson who will follow me in this debate has done the same exercise—to pluck out what are represented as findings of fact which are at variance with the evidence. Mr Acting Deputy President, it is hard work. There were 2,181 pages of the Hansard transcript of this inquiry. There was a bundle of tabled documents almost three-foot high. Do you think that those who signed off on this document had actually carefully scrutinised, analysed and subjected that evidence to a forensic analysis? Of course they had not. Do you think the journalists, who accepted uncritically what they said, did the same thing? Of course they did not. What has been done has been to uncritically accept, as if it were holy writ, political rhetoric which dances around on the basis of a volume of evidence, unanalysed and unscrutinised, which does not actually support the so-called findings of fact. Let me just give you a few examples.

There is a finding of fact that on or about 17 October 2001 Admiral Barrie informed Minister Reith that there were serious doubts about the veracity of the report that children had been thrown overboard from SIEV4. That is what the finding of fact is. But do you know, Mr Acting Deputy President, what that finding of fact omits to say? You do not even see a mention of it until you get to the government senators' report. It omits to say that Admiral Barrie qualified that evidence by saying that, on being pressed by Mr Reith, he nevertheless adhered to the original report. So what is described as a finding of fact that Admiral Barrie told Mr Reith that, obscures the real evidentiary truth that on that date, 17 October 2001, Admiral Barrie affirmed to Mr Reith his advice that the original advice which emanated from the bridge of the Adelaide from Commander Norman Banks ought to be adhered to. You do not see a word of that in the majority's report because it did not fit in with their political objectives.

Then we see as a finding of fact that on 7 November 2001 the then acting Chief of the Defence Force, Air Marshal Angus Houston, informed Minister Reith that children had not been thrown overboard from SIEV4. That is represented as a finding of fact. Again it is untrue, because, if you look at the evidence, what Air Marshal Houston told the committee was that there was a belief in Defence that the original report was wrong, but he also told Mr Reith that he, Air Marshal Houston, had no personal knowledge of or involvement in these events whatsoever, that he was conveying to Minister Reith second-hand, hearsay, what some in Defence were saying and that he was not in a position to countermand Admiral Barrie's original advice, which he had affirmed to Mr Reith on 17 October. So what is represented as a finding of fact, if you look at the evidence which underlies it, is in fact directly at variance with the substance of what the witness said. Then we have this rather preposterous claim:

The committee finds—

dwell on that word `finds', implying as it does the product of some careful analytical forensic scrutiny of the evidence—

that Mr Reith deceived the Australian people during the 2001 Federal Election campaign concerning the state of the evidence for the claim that children had been thrown overboard from SIEV 4.

That so-called finding notwithstanding that, at every point in time up to and including the date of the election on 10 November 2001, the man upon whom Mr Reith had a statutory obligation, under the Defence Act, to rely on as his ultimate source of advice on operational matters—the Chief of the Defence Force, Admiral Barrie—continued to say to Minister Reith that the original report that children had been thrown overboard should be adhered to; that although there were doubts, those doubts were not of sufficient weight to cause him to abate from his original report. So that finding against Mr Reith was made in the face of that evidence unmentioned by the majority and of course, allow me to say, in the absence of the committee having heard directly from Mr Reith because the Labor senators refused to subpoena him.

So there is truth and there is spin. There is reality and there is rhetoric. There is political propaganda and there is empirical fact. The first `children overboard' inquiry was an example of spin, rhetoric and propaganda, and we fear the second `children overboard' inquiry will be nothing but more of the same.