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Thursday, 8 December 1983
Page: 3510

Senator SCOTT —Does the Attorney-General agree that major factors in his decision not to prosecute Mr Young under the Crimes Act were the degree of culpability of Mr Young and his, Senator Evans's, view that the former Minister had not intended to harm Australia's security? It is now a fact that Mr Justice Hope has found that the potential and not actual damage to national security of Mr Young's disclosures is the determinant of impropriety, that there was a real risk that significant damage could have resulted and that, notwithstanding Mr Young's short ministerial experience, it should have been apparent to him that he should not have made the disclosures. In view of this, will the Attorney- General therefore reconsider his decision since one of the main grounds for it has now been seen in a much different light by the Royal Commissioner?

Senator GARETH EVANS —I do not think Senator Scott would have asked his question, even though it was put in his hands by someone else, had he actually read the terms of my opinion on 29 August because he will find that the matter is squarely there addressed. The criteria that were spelled out as appropriate to be taken into account in determining whether a prosecution should flow, even on the worst case assumptions as described, were: Obscurity of the law, the need for deterence, the seriousness of the offence and degree of culpability. The question that I further drew attention to on page 9 of the opinion is that a conviction under section 79 (3) of the Crimes Act, which is punishable by two years imprisonment, would be likely to result in Mr Young's automatic disqualification from parliament.

As to the particular matter of the degree of culpability what I wrote was this, and I believe it conveys its own answer to Senator Scott's question:

Although the disclosure of the specific matters described in Mr Walsh's account would potentially have been very serious-in terms particularly of what it would reveal about, and the way in which it might have interfered with, security operations-it does not appear, in the event, that any such damage occurred. Nor was there, obviously, any intention to harm Australia's defence, security or international relations.

Mr Hope's finding was that no damage had in fact occurred. It was potential, certainly, but the findings of Mr Justice Hope were in a sense identical with those that were anticipated here in the articulation of this particular criterion. Once again, despite the probing and general neurosis and fidgeting that is going on from Senator Chaney and others on the other side, there is simply no substance in any of their suggestions about reconsideration, and I propose to do nothing of the kind.