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Friday, 9 December 1983
Page: 3622


Senator TATE(2.54) —Whilst in the library this morning, I happened to come across a passage in a book called A Generation of Judges, an 1886 publication.


Senator Lewis —Just browsing, were you?


Senator TATE —I was just browsing and the publication happens to be very apt to the occasion this afternoon. The author said of the office of the Attorney- General:

It is probably the most laborious post in the three kingdoms, providing exceptional temptation for that disregard of health which is not unknown in any branch of the profession of law.

I believe that in relation to the present Attorney-General (Senator Gareth Evans ), the holder of that high office in Australia among this federation of six States and Territories, that is a very apt description of the office which my colleague discharges so well. The fact is that it is also a temptation when somebody attacks his office with the zeal of the present incumbent to those in the Opposition or those who take a contrary political view to hang around and wait for that apparent small lapse of judgment at the margins and then take it and blow it up into a completely distorted caricature of the discharge of duties by that Attorney-General. That is exactly what we are faced with today; a little bit of sniping at some apparent alleged lapses or errors of judgment by the Attorney-General, which, of course, he has refuted in the substance of the allegation but which has taken up so much of our valuable time this afternoon. The fact is that on a scale of one to 10 in the procedures available to this chamber to condemn a Minister for failing to discharge the duties of his office, this urgency motion, so-called, rates about 2 1/2.


Senator Crowley —Too high.


Senator TATE —Perhaps 2. There is not much more to this motion than a schoolmasterly admonition, a little bit of chiding of the Attorney. This chamber has this afternoon been distracted from a very important legislative program. We have been impeded, and that distraction, that failure to consider legislation, has a nice ironic twist. What was on the Order of Business circulated this morning for this time of the day? It was the Taxation (Unpaid Company Tax) Assessment Amendment Bill 1983 (No. 4), by which this Government is still attempting to undo the effects of the gross maladministration by the previous Attorney-General of his particular office, during which the previous Government permitted the defrauding of the revenue to the tune of hundreds of millions of dollars. Some honourable senators have the cheek to come into this chamber and bring forward this urgency motion rather than deal with the repercussions of that particular maladministration by the previous Attorney-General.

However inconsequentially expressed, this is nevertheless an important debate. One would have expected that when an indictment such as this is brought against the chief law officer of the Crown, the particulars of the offences would have been laid out so that we could give due consideration, as any person is entitled to do when a charge which affects his whole office and his reputation within the community is being laid. But we find nothing. The motion states:

The need for the Attorney-General to live up to the duties of his office.

There are no particulars of offence. There is nothing laid out in order to enable some deliberation or consideration of charges or particulars of offences that might be listed. Is this the Star Chamber of the Tudors and the Stewarts or is it the Senate chamber of the Australian Parliament? We ought to have had the particulars of offence laid out if such an indictment were to be laid. But even though our Federal Constitution provides for trial by jury on indictment for serious Commonwealth offences, that protection afforded to the citizens of Australia was not afforded to the Attorney today. It falls poorly from the Opposition's lips to mount such an attack without particulars of offence.

If the Opposition had provided particulars of offence, we could have gone through the matter point by point. The one particular of offence on which the Opposition chose to dwell, the supposed partiality of the Attorney-General towards Mr Mick Young, fell to the ground-I could not take it seriously-after Senator Chaney, in order to prove the state of mind of the Attorney, quoted the state of mind of the Prime Minister (Mr Hawke) in the other chamber, in relation to the question of the readmission of Mick Young to the Ministry. I should have thought that the meanest, most obscure magistrate in the most far-flung jurisdiction of Australia would have laughed that out of court-trying to establish the state of mind of one man by reference to the state of mind of another. I could not take that seriously, and it is quite clear that the Australian Democrats could not take it seriously because it was not until I rose to speak that one of them even came into the chamber.

Any impartial observer looking at this urgency motion would have looked for perhaps the bringing into the chamber of evidence of neglect or indifference by the Attorney to the duties of his office. We all know that the facts are utterly to the contrary of any such evidence, which could not be proffered anyway. One may look for evidence of ill-will distorting or perverting the carrying out of the duties of the office. Malice toward none is an absolutely cardinal principle . There could be no evidence of any perversion or distorting of the discharge of the duties of office by the Attorney in that regard.

Was there any evidence of partiality towards one part of the Attorney's portfolio rather than another? No; right across the board there has been a tremendous range of matters which he has addressed, and not only the administering of the Department, which was in such a woeful state and which, as I say, led to the defrauding of the Australian revenue of hundreds of millions of dollars. The fact is that there has been a multitude of appointments and a strengthening of judicial resources-judges, courts and tribunals-so necessary for the provision of justice to the Australian people. He has been involved in that and also with projected reform in areas of the law, both Commonwealth and those requiring Commonwealth-State co-operation. He has put into place an assault on organised crime and official corruption throughout Australia. Added to this, we have a very zealous commitment to our democracy, to the constitutional foundations and bases and sources and strength of our democratic way of life. He has invited the Australian people to join in a referendum in the process of changing that constitutional basis for the bettering of our democracy .

In all these ways the Attorney-General has discharged over such a wide panorama the duties of his office. If the Australian people were asked, as a reflex action, whom they would identify with law reform right across the whole range of issues, on a national scale, such as might challenge or unsettle them, they would say Mr Justice Kirby and Senator Gareth Evans. The public has faith in those two men-not that they agree with them every time, not that there may not be some dissent from some particular assessment or judgment that either of those men make; but the public knows that with them the legal system is in good hands. There may be some lapse of decorum; we have all been the subject from time to time of some barbed remark or of the calculated insult in which the Attorney takes such mischievous pleasure. But all that proves is that we have as an Attorney a human being, not an automaton.

Finally, it is a measure of the grudging admiration of those on the other side of this chamber that they came into the chamber without a censure motion, without a vote which, if carried against the Attorney, would have led to his resignation. There is nothing in this matter which is by any stretch of the imagination required to be taken as a vote of no confidence in the Attorney. Opposition senators could not come in here and seek to censure him because they knew they did not have the facts to back up such a charge. They know in their hearts that a dozen venial sins do not amount to a mortal sin; that in fact there is nothing in the way in which the Attorney has discharged the duties of his office that in any way puts him in jeopardy of losing the confidence of this chamber. They have failed to demonstrate in any way that he has failed and I believe that this proposition brings no discredit on the Attorney but rather on those from whose lips it has fallen. I believe that the motion ought to be tested as quickly as possible and therefore, in order to see it defeated as it deserves to be, in order to make the matter a matter of test straight away, I move:

That the question be now put.

Question put.