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Tuesday, 2 June 1987
Page: 3803


Mr SPENDER(5.43) — Answering the comments from my front and my back, let me, first of all, deal with the one which came, lastly, from the honourable member for Dundas (Mr Ruddock). The intent of what is proposed is to make sure that the common law rules as to the acceptance or rejection of evidence which is obtained illegally apply in all future cases. For example, if there is a defect of a technical nature, one would think that courts ordinarily would overlook that defect and say that the evidence should be admitted. Whether or not evidence which is illegally obtained is to be admitted under common law rules depends upon a balancing of the interests to which I referred earlier. So if there has been blatant and deliberate illegality, it is extremely difficult to persuade a court to admit the evidence. On the other hand, if the illegality is incidental, technical or unintentional, it is a quite different proposition. I hope what I have just said answers the honourable member for Dundas. I do not say that the amendments I proposed are easy ones because it is a complicated legislative code and I know the Government has given a considerable amount of thought to how it should work. However, I understand from what the Attorney- General (Mr Lionel Bowen) has said that he really does not disagree with what I am saying but what he really thinks is that the position is probably achieved under the Telecommunications (Interception) Amendment Bill without the amendments that I propose.

Let me go back a little and pick up one or two things that the Attorney-General said and then come to the question of principle. The Attorney-General asked: `What about people who are unlucky enough to have been sentenced before the law is changed on the assumption that the High Court of Australia says that the decision in Hilton v. Wells should be overruled?'. What would then happen is that anybody who had been sentenced on the basis of law-not that the High Court changes a statute; courts do not change a statute, they change the meaning to be given to a statute or decide that a previous meaning was not the correct meaning-would, I assume, make an application for special leave to appeal from a conviction and the court would deal with it on its merits.

Secondly, the Attorney-General says that his desire is to entrench the current law; that is, the decision in Hilton v. Wells. But that is simply the current interpretation. The interpretation to be given to the law, as it is stated in section 7 of the Telecommunications (Interception) Act, is ultimately to be decided, as I understand it, by the Full High Court. But what the Attorney-General has said does illustrate the nature of the problem, because if the High Court reverses Hilton and Wells and says that evidence which has in the past been obtained illegally is not admissible, it will mean that one set of rules will have applied to those who were convicted before that reversal and another set of rules are to apply to those who are convicted after that reversal-subject, as I said, to an application being made for special leave if a person has been sentenced under the old interpretation.

What the amendments are designed to achieve is no more than this: Firstly, to place the common law rules into effect as the basis on which the legislation is to operate prospectively; secondly, to leave the interpretation of the old law-that is, the old statute-up to the High Court. It seems to me-there appears to be a difference between me and the Attorney-General on this-that effectively proposed section 64 entrenches the decision in Hilton v. Wells regardless of what may take place in the future. That is something which we think should not happen. If the High Court decides that the Hilton and Wells decision was wrong, so be it. But effectively what we say is that the common law discretions, the common law rules, should continue to apply. The Attorney-General said that I was putting an amendment which, amongst other things, referred to `subject to other rules as to admissibility'-I paraphrase what I said-`so that there would be a discretion in the court to decide one way or the other as to whether evidence was admissible'.

I have referred to what lawyers have said. I do not necessarily agree with what the law associations say about these things, but I point out to the Attorney-General that the President of the Law Council of Australia has said that clause 6 and proposed section 64 will remove from the judges the discretion they would otherwise have to exclude the illegally obtained evidence. If, as I understand, it is not the Government's view-the Attorney-General has confirmed to me that that is not what the Government intends-that may be a way of overcoming the problem insofar as the courts have any regard to what takes place in these debates. If it is the Attorney-General's intention that the common law principles should continue to apply for evidence that has been obtained under the old regime, but obtained illegally, that might go some distance to meeting the problem. But for the purposes of dealing conclusively with the problem, we have put up a number of amendments which would leave the old law to be determined by the High Court if it chooses to reverse Hilton and Wells and the new law-that is, evidence obtained under the Act with all the various amendments that have been made to it-to be determined according to common law rules and not according to any special rules to be laid down by this Act.