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Wednesday, 6 June 1984
Page: 2596

Senator GARETH EVANS (Attorney-General)(10.55) —This is another area where the Government is faced with the choice between the Opposition Huns and the Australian Democrat Visigoths, both of whom seem determined to tear down--

Senator Durack —I thought we were in a spirit of calm.

Senator GARETH EVANS —A spirit of gentle irony is what is abroad at the moment, Senator Durack. With Senator Durack's well-known sense of humour I do not expect him to be able to appreciate that. What I am saying in my usual extravagant language is that we do not like either the Democrat proposals or the Opposition proposals. The fact that the Opposition has now yielded to the Democrats does not make our choice any easier in that respect. What is involved is something of a frontal assault on the tradition of executive responsibility and accountability for matters of this kind. Moreover, it is an assault which seems to be premised on the notion that the government of the day is likely to be motivated by all sorts of shonky considerations and will be got at by the forces of darkness of one kind or another and be wanting, for a variety of ill- sustainable motives, to withdraw references in particular circumstances.

Senator Chipp —What is wrong with giving Parliament rights in these important matters?

Senator GARETH EVANS —Senator Chipp would have had some reservations about that back in his ministerial days where every single bit of executive action he wanted to take had the capacity to be second-guessed by a chamber perhaps wanting to make extravagant political capital out of something which he knew, on the basis of information available to him, was a thoroughly soundly based and legitimate course of action being proposed. The Government is not saying that the Executive ought to be able to act behind closed doors in this matter and not expose itself to some degree of accountability for its actions. We are saying, in the language of the existing Bill, that the Minister be required to publish in the Commonwealth of Australia Gazette and table any such withdrawal so that it will quickly come to public knowledge that such a withdrawal is under way. That will, of course, generate for the Government a considerable degree of political trouble if the Government is acting in a way that is colourable or indefensible. The practical situation will be that, if the government of the day is acting in a way which is challenged, it will have to defend itself and explain publicly why it is acting as it is.

I do not seek to prolong the debate on this matter except to say that there are quite basic principles that we see to be here involved about the Executive's responsibility for its actions. There are certain things in the Executive and law enforcement area which have traditionally been regarded as properly the prerogative of the Executive alone, notably decisions about prosecutions and decisions about withdrawal of prosecutions, all of which raise policy issues similar to those which underlie this consideration. I do not think anyone is suggesting that there is a proper role for Parliament to play in second-guessing the Minister or the Executive on matters concerning decisions to prosecute, decisions to withdraw prosecutions, decisions to release prisoners from gaol and things of that kind. It is perfectly proper that the spotlight of parliamentary scrutiny be played upon such Executive decisions. But that is a very different matter from saying that the Parliament should be making those decisions. That is as far as I want to take the point. However, because of the gravity of the issue of principle we see as here being involved, the Government is minded to divide on this should it become apparent that we are in a minority.