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Wednesday, 22 August 1984
Page: 124

Senator DURACK(12.24) —The Senate has before it today the final report from the Director of Public Prosecutions, Mr Temby, in respect of his appointment as a Special Prosecutor on 21 February 1984 in which appointment he was asked to consider the great reel of material which has become known popularly as the Age tapes and transcripts. He was asked to consider whether any activities which were illegal under Commonwealth or Territory law had taken place in relation to the possible interception of telephone conversations which were referred to in the material and tapes and whether any other activities, illegal under Commonwealth or Territory law, are established as a result of these investigations.

It is important to understand that Mr Temby was looking at what we call the authenticity of this material to determine whether anybody who had been or may be guilty of any interceptions should be charged with any offences under the Telecommunications (Interception) Act and also whether there was any evidence on which people should be charged under any other Commonwealth laws. I emphasise this because a good deal of political pressure has been brought to bear in regard to the first question, in particular by the Premier of New South Wales, Mr Wran. I think at one stage he said that he was going to ensure that a whole lot of police in New South Wales were put in gaol because of the activities that had been revealed. It is probably fair to say that a good deal of Mr Temby's time in relation to the special role that he was given under the Special Prosecutor's Act has been devoted to the question of the authenticity of the tapes and the commission of offences under the Telecommunications (Interception) Act as against offences under Commonwealth law generally. But there were clearly matters for investigation as to breaches of Commonwealth law. The contents of the tapes, as against the question of who made them and why they were made, is a very serious matter. I stress this also because of the comment by the Attorney- General (Senator Gareth Evans) in the statement which he put down last night and which we are now debating. He said:

The most worrying aspect of this whole matter continues to be the massive indifference to illegality and invasion of privacy which has surrounded this affair; . . . the profound indifference, even cynicism, with which illegality and privacy invasion has been greeted by some members of the media and Opposition spokesmen.

This is a very strange and a very false statement to be made by the Attorney- General. In the course of the extensive debates which took place in this Senate during the early part of this year the Opposition emphasised at all times the need for an investigation as to whether there had been breaches of the Commonwealth Telephonic Communications (Interception) Act and was conscious at all times of the invasions of privacy and the illegality that that would amount to. We supported the investigation of this matter by the Special Prosecutor. Indeed, in the first public comment that I made on the Age tapes-it was probably the first public comment to be made on the matter-I referred to the likely breaches of the Act.

So I completely reject that quite unworthy and false accusation that the Attorney-General has made in his ministerial statement on Mr Temby's report. The Opposition has certainly always said, says today and will continue to say that it is deeply concerned about the possible extensive breaches of Commonwealth laws. If any evidence can be obtained from the tapes and transcripts and certainly if those tapes and transcripts lead to or are helpful towards any other investigation and the obtaining of evidence about these various breaches of Commonwealth laws that are likely to be revealed by these tapes and transcripts, that evidence should be the subject of investigation as well. Indeed, that power was given, as I have said, to Mr Temby. It was appropriately given to Mr Temby. Unfortunately, Mr Temby has not been able to take the matter very far, but that is another question which I will deal with later.

What I am emphasising-the Attorney-General himself very early in the piece recognised this publicly-is that there was a real issue here as to what Mr Temby I think has called the provenance of the tapes, that is, how they were made, who made them and whether they were in fact made. These are all the questions he has had to look at. They are very serious questions. He has also had to look at the contents of the tapes and the possible indications of criminology which those tapes revealed. Certainly they do reveal quite extensive illegality in regard to breaches of Commonwealth and State laws.

Mr Temby, I think in his original opinion which led to his appointment, detailed some of the laws which may have been breached. He comes back to those in his report. The Attorney-General in his statement recognised that such matters were dealt with by Mr Temby in the course of his investigation. In again referring to the statement the Attorney said in relation to Mr Temby's conclusions:

. . . he has sought to detect all offences against Federal laws . . . there is nothing that warrants a charge or further investigation.

Of course some material arising out of parts of these transcripts has been sent to Mr Justice Stewart which he is investigating. Of course, Mr Justice Stewart will have coercive powers and may be able to take the matter further than Mr Temby has been able to do. Mr Temby also reports that he had taken the investigation of certain of the other possible breaches of federal law as well and found that some of these have been dealt with by the police and that no further work was required of him. He detailed these. Mr Temby has emphasised the fact that he has no coercive powers. In fact some matters dealt with in the tapes and transcripts have been referred to Mr Justice Stewart. Of course, as the Senate is well aware other matters have been referred to a committee of the Senate which has not yet reported. Therefore, it is probably premature at this stage to propose any action called for arising out of Mr Temby's report.

As I have said however, his report is of very considerable importance although he has been frustrated by a lack of coercive powers and lack of co-operation of a number of people. It is rather surprising to note some of the people he reports as lacking co-operation. Certainly one gentleman who was thought to be able to help him considerably-a gentleman by the name of Mr Jock Hawthorn formerly a member of the New South Wales police-refused to be interviewed by either the Federal or New South Wales police. Other people were approached to assist-I cite these from the report-namely, Mr Justice Murphy and Mr McHugh, QC, Mr B. Miles and Mr T. Christie, all of the Sydney Bar and Mr Ryan himself. The report stated:

Each of these persons, with the exception of Justice Murphy, either personally or through his legal representative declined to be interviewed or to comment on the matters sought to be raised.

As I understand, Mr Temby had a response from Mr Justice Murphy to the effect that the judge informed the Australian Federal Police by letter on 25 May that:

. . . what is on the tapes is a tampered-with telephone conversation, or more likely, an amalgam of tampered-with telephone conversations between (himself) and Mr Ryan.

As to the authenticity of the transcripts he was unable to confirm any of the transcripts and said that he did:

. . . not believe that they are genuine and accurate records of conversations between (himself) and Mr Ryan.

As Mr Temby pointed out, if that were evidence before a court it would not be of any assistance on the question of authenticity. Mr Temby was forced to the conclusion that it was not possible to prove that the tapes or transcripts or any part of them represented actual conversations. The voices on them cannot be proved save to the extent that Mr Justice Murphy gives an acknowledgment, which I have just mentioned. Mr Temby comes to the conclusion when in fact he says finally:

The matter could be taken further by the materials generally being referred to some body . . . having coercive powers.

I have already indicated this. However, the conclusion that Mr Temby has had to come to is that he cannot really say at all whether these tapes and transcripts came into existence as a result of the interception of telephone conversations, although he says that he has some fairly firm belief that they do. Nevertheless, there is no evidence of who did the taping and how it was done. Also there is not sufficient evidence for him to form an opinion as to whether the tapes are what they purport to be. As I said, Mr Temby was left in the situation of having very little assistance from a number of people who may well have been able to give that assistance. That is a very unsatisfactory and unfortunate state of affairs in respect of those who have not been helpful and who, in fact, have declined to be interviewed. As I said, these people include several members of the Sydney Bar and Mr Morgan Ryan, a Sydney solicitor.

As I said, this report is one of great interest and importance from a number of points of view. I think that one of its main areas of significance is the contrast between Mr Temby's report and some of the things the Premier of New South Wales has been saying in recent months. I think it was as recent as 19 August-last Sunday-that Mr Wran was interviewed and asked about the statement. The interviewer Robert Haupt asked:

You were going to track down the perpetrators of this inside the NSW police, how's that investigation going?

Mr Wran replied:

Not badly as a matter of fact. It's at a very interesting stage.

Mr Wran made those statements which in fact were made a month after Mr Temby had given his report to the Attorney-General. This is an indication that Mr Wran cannot determine whether these transcripts and tapes were based on interceptions made by anybody in the New South Wales police force. Some of the sorts of pressures that were brought to bear by the public statements of Mr Wran earlier this year at about the time the Age tapes came to light concerning what he was going to do to New South Wales police and also the pressures that he put on the New South Wales police may well have accounted for the difficulties that Mr Temby has had. That may be one reason why Mr Temby has been frustrated in his inquiries. However, that does not excuse the other people who were not placed under that pressure for not being more helpful to Mr Temby than they were. I believe that this matter is of very deep, continuing concern. It is another example of what is happening in regard to the administration of justice in New South Wales and of the attitude of the Premier of New South Wales to these problems.

Regretfully, I must say that the conclusion of the report by the Attorney, who seems to be continuing to express more concern about the possible illegalities under the Commonwealth Telecommunications (Interception) Act and the invasions of privacy and so on than about the broad problems of crime, particularly in New South Wales, gives some concern. Hopefully there will be other means of resolving the problem. I mentioned Mr Justice Stewart who has been looking at some aspects of it. I do not believe that anything more can be done at this stage. However, I think this report should continue to be kept very much alive and to the forefront of the deliberations of the Parliament. Unless somebody else wishes to speak at this stage, I propose to seek leave to continue my remarks later.

Senator Gareth Evans —What if I want to speak to wind up the debate? Are you proposing to adjourn the matter?

Senator DURACK —As some of these matters are the subject of a reference to a committee of this Senate which has not yet reported, I think that it would be preferable--

Senator Georges —Perhaps you ought to ask why the Committee has not reported.

Senator DURACK —The Senate has given extensions of time to the Committee. I believe that this debate should be adjourned, for the time being at least. I seek leave to continue my remarks later.

Leave granted; debate adjourned.