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Wednesday, 29 February 1984
Page: 150


Senator GARETH EVANS (Attorney-General)(3.42) —There is a lot of ritual in this place. We have just witnessed another example of the phenomenon at work. Senator Durack had absolutely nothing to say today, and he knew he had nothing to say in this issue. But because he had been creating expectations that he would be having something to say, he stood up in this chamber, wasted everybody' s time for the last 20 minutes and said exactly nothing. The former Attorney- General, Senator Durack, began his remarks by saying that the subject was manifestly one that demanded immediate debate. I ask him: If so, why did he not put his proposition to the Senate in the form of an urgency motion, which indeed was the form in which he submitted this proposal earlier today before he rather shamefacedly withdrew the urgency motion and substituted the matter of public importance which now appears before us? This rather arcane distinction is one that may not be appreciated by anyone unfortunate enough to be listening to this debate, but there is a significant distinction. An urgency motion is one which has a vote normally at the end of it, whereas a matter of public importance does not have a vote. Undoubtedly, the reason Senator Durack did not want to put his proposition forward as an urgency motion was that he knew he could not be confident of winning such a vote, challenging the Government's handling of this matter. He knew he could not be confident of winning such a vote because he does not deserve to win such a vote. The reality of the matter is that this Government's handling of what has clearly been a sensitive and difficult matter has been proper, prompt, responsible and responsive in every possible respect.

Senator Durack expressed surprise at the lengths to which I had gone in my statement yesterday to explain, in very great detail, why the Government had acted as it had and precisely what it had done. Of course I went to great lengths to explain the Government's reaction because the allegations, or most of them in the Age material-the tapes and the transcripts-are serious and manifestly of the kind that deserve a serious-minded government response. It is also the case that the circumstances in which the tapes and the transcripts, if authentic, to the extent that they are authentic, were made, are equally important if not more important, raising as they do quite fundamental questions about the extent of illegality and unauthorised invasions of privacy in this country. I make no apology for the weight that I gave to the value of privacy in what I said yesterday, or to any of the language I employed in explaining to those on the other side who are somewhat less sensitive than perhaps they ought to be to these issues just why it is that privacy is a value of quite fundamental significance and justifies far more respect being given to it than seems to be the case by honourable senators opposite and far more respect than was certainly given to it as I have been heard to say on various occasions by the Age newspaper, in choosing not only to run the story but also to run the story in the way in which it did, emphasising the particular aspects of it that it did. I make no apology for emphasising the value of privacy at stake here, in issue here and at risk here, nor do I make any apology whatsoever for the emphasis I placed upon the dangers involved in the challenge, the attack upon the credibility, status and reputation of the judiciary in a mater of this kind, again in particular the way in which the Age handled the story, emphasising as it did the supposed involvement of the judge in these matters as the first story ; de-emphasising by comparison what, on the face of it, were arguably some rather more serious allegations.

I do not apologise for emphasising the way in which the judiciary, its reputation, status and credibility as an institution can be put at risk because it is self-evidently the case that when we have a series of attacks of the kind that we witnessed in recent weeks with this affair, followed by Mr Sinclair's performance yesterday, building as they both did in turn on the actions of Mr Fraser last year at the time of the Woodward Royal Commission into the Australian Meat Industry and Mr Fraser's response to recommendations he found unpalatable, we are going down a most unhappy course. I do not in any way contest the force of what Senator Durack said about the appropriateness of moderate, temperate, reasoned argument or criticism, indeed quite forcibly expressed criticism, at the performance of the judiciary, the cases that the judges decide or, on occasions, misdecide. Indeed over the year I have been in the forefront of those who have been very critical of members of the judiciary and of particular courts for particular kinds of decisions. That is a perfectly proper and legitimate exercise of the right of free speech whether or not in this Parliament. Equally, I do not in any way challenge the propriety of criticism, properly reasoned, well developed, temperately expressed, of other aspects about the performance of judges; the propriety of judicial behaviour as it affects the conduct of their office. Indeed, I hardly could contest the propriety of acting in these terms because I led a very significant debate of this kind back in 1980 so far as the suggestions of bias and conflict of interest involving a former Chief Justice of the High Court, Sir Garfield Barwick, were concerned. But I challenge anyone to go back over that debate and find anything in the language that I used in that speech which was other than moderate, cautious, temperate and well documented-a very different state of affairs from the kind of salacious, undocumented, unauthenticated scuttlebut that has been put into the public domain very deliberately by those who have actively conspired to produce the present series of articles and the subsequent dissemination of those articles in the media and right around the nation.

It is not the case that the mere cautious, not putting of the names of people in these articles was an act of great responsibility. The names in question, on the face of it, with a little bit of help from a hard core of journalists who knew only too well what was involved, were disseminated around the halls and passages of this place, I know, within about 10 hours of the first story appearing in the Age. It is the case that a very serious campaign of gossip and innuendo has gone on and has been actively perpetrated by many different people in recent weeks. Let us remember that that has been based not on any public performance of the judge's duties in office, nor has it been based on any private behaviour which has been in any way directly related to the conduct of his activities in office. It has been based on what are at best private conversations, intended to be private, not bearing upon the performance of his judicial office, the details of which, as I have said, are denied by the person in question both in general terms and as to a number of specifics. Alternatively , they are the subject of explanations as to context or they are the subject of both denials and explanations. Under those circumstances it simply does not wash -to use Senator Durack's expression-to have the unctuous piety of the language employed by him today being poured over our heads in the context of this matter. It is an inappropriate response to material that does not deserve this kind of respect.

The substance of the matter of public importance before us today is one that is directed not to any specific matters but rather to the general handling of the whole question by me and by the Government since it arose just a month ago. Indeed, it is very odd for this particular matter of public importance to come forward in the way it has, given the way in which the statement yesterday did address very directly and very responsively a whole series of particular questions or matters that were identified by Senator Durack last week as demanding of explanation; not only deserving but also demanding of explanation by the Government.

In a Press release he put out last week on 24 February he said that the Opposition was completely dissatisfied with the way in which the Government had treated these various issues and was demanding a soundly based explanation. He said that the Opposition would be pursuing in Parliament this week a series of questions and he listed them. There were six of them. Each one of these questions was specifically and directly addressed in what I said yesterday. I believe that the propositions that were put were in fact deserving of reasoned and temperate answers and he was given reasoned and temperate answers yesterday. He has not, in any way, challenged the answers to any of those questions. It is fascinating that under those circumstances he should have the gall to come in on behalf of the Opposition with a matter of public importance which in general round and condemnatory terms challenges the Government's and my handling of this particular case.

First of all, the issue raised was two months of inaction 'by the Attorney- General and Special Minister of State following Opposition questioning in the Senate late last year'. That matter was expressly directed and responded to in a page and a half of my statement when I explained, quite clearly, the circumstances in which it had been impossible to take that investigation forward until the newspaper in question, the National Times, produced further material, which it failed to do. It was only when the Age actually came up with the material in question that it was possible to pursue that investigation. Secondly , there was the decision to seek an opinion on judicial behaviour from Ian Temby QC, rather than the Solicitor-General. As we now know, I sought an opinion from both and I did so certainly before Senator Durack's feeble thunderings from the side lines. Indeed, I even did so days before the Age chose to give me another batch of gratuitous advice and suggested that was a more appropriate course of action. Thirdly, the issue was the failure to obtain a second opinion on such a major question. I have just answered that. Fourthly, there was the failure by the Attorney-General to address the question himself. I appreciate that there may have been difficulties in days gone by in getting the Attorney-General of the day ever to focus on issues for himself. I assure him that that is not the case in this instance nor generally these days. I have focused on the issue, I have addressed myself to the key questions in issue certainly so far as the issue of misbehaviour and the other legal points in issue are concerned. I am thoroughly satisfied with the quality of the advice that I have been given and accept that advice based not simply on the fact that it is coming to me as advice but on the fact that I fully endorse the argument and reasoning in it.

The fifth question was the basis of Mr Temby's opinion that alleged conduct of the judge did not constitute misbehaviour within the meaning of the Australian Constitution. There does not seem to be any challenge to Mr Temby's advice in this respect as that has now been laid out on the public record and supplemented by a rather more detailed piece of reasoning but to essentially the same effect by the Solicitor-General. Mr Temby's opinion has been criticised for its supposed omissions. I am puzzled by the particular omissions that Senator Durack identified in response to an interjection in this respect because certainly, on my reading of the opinion, the material that was the subject of questioning this morning is specifically addressed in Mr Temby's opinion.

Finally, we have a question about an explanation demanded of the circumstances and results of the Attorney-General's approach to the judge. I spelt that out in some detail yesterday. I supplemented it with some further detail today beyond which I do not propose to go essentially for the reasons that I spelt out yesterday in this respect. There is nothing untoward and nothing in any way improper about the discussions that took place. The discussions have in fact satisfied me along the lines that I indicated in answers at Question Time.

The major specific matter that Senator Durack seemed to continue to be fussed by is that of authenticity. Let me focus, once again, on just what is involved here so far as the authenticity of this material is concerned and what exactly is being claimed, suggested, or stated by the Government. It has never been the case that the Government has denied outright that the material is authentic. What we have said all along is that we simply do not know whether or not it is authentic as a whole or as to any particular part of it. What I said yesterday was 'I cannot emphasise too strongly the dubious status of the material in question'. I went on to say that the material was completely anonymous and completely unauthenticated. It seems that there may have been some confusion in a number of breasts or heads around the place as to an apparent incompatibility of those two propositions, but there is of course a distinction between material being completely unauthentic on the one hand and completely unauthenticated on the other.

The business of authentication is the process that is involved in determining whether or not something is in fact authentic. While we simply do not know whether the material is authentic or not, we certainly do know that the material is not authenticated. That is the problem with it, because it is just not self- authenticating in any obvious way even so far as the tapes are concerned, the electronic bits of physical material although, as I readily acknowledge, their prima facie force so far as their authenticity is concerned is considerable and certainly much greater than in the case of documentation, simply type face on paper. Nonetheless, one simply cannot be assured in this day and age that any particular conversation that purports to be a full and complete recording is indeed just that. I hardly need to repeat the obvious points that can be made about the ease with which tapes can be tampered with, edited, chopped around and a very different meaning conveyed. It is that very issue that has been the subject of expert attention at the moment.

So far as the authenticity of the documentary material is concerned, obviously it is a very much more difficult business to authenticate material of this kind and to get some sort of perception of just how accurate it is even when it appears to be a detailed transcript and even more so when it is just a summary of some other transcript which is not here to hand. I am fascinated by the suggestion from Senator Durack that the Age in fact went to great pains to authenticate the material. I am fascinated with his face value acceptance of Mr Burns's assertions in this respect. Has he heard what Mr Burns said, I think it was last night, in this particular respect? Mr Burns said that some tests had been done on the tapes as I recall it, and that a few policemen of their acquaintance had been asked as to whether the documentary material seemed the sort of thing that might have been produced on the occasion in question. If that is the best that Mr Burns can do-I do not doubt that he cannot do much better- there is a real difficulty in authenticating material of this kind. It certainly does not justify the confidence that Senator Durack has placed in it.

Do I need to repeat that the mere fact that this material has been given to various law enforcement authorities, in some cases specially created for the purpose, does not, in itself, amount in any way to a concession, admission or an acknowledgment of its authenticity. It is simply an obvious response to the receipt of material of this kind which, on the face of it, raises a number of serious issues as well as a number of manifestly not very serious issues but which does clearly, because of the seriousness of at least some of it, demand proper investigation. That is the course we have followed. We would have been quite properly criticised and criticised roundly if we had not followed that course. What was the alternative? Was I to simply sit there at my desk with the material sitting in my lap waiting for intuition to strike as to whether it was in fact authentic? What a nonsensical suggestion. Of course, the material had to be given out and made the subject of proper investigation by people in a position to follow the trail, follow the leads and see what, if any, substantive weight and effect could be given to the allegations and material contained therein. That is exactly the course that has been followed.

The whole investigative strategy that the Commonwealth has set in train involving a combination of resources from the Commonwealth and the State police forces under the independent supervision of the Special Prosecutor is a strategy that is designed to produce results if indeed results are there and obtainable, if they are there to be produced. We believe the results are there to be produced so far as the circumstances of the taping and the taking of the transcripts are concerned because it seems very likely that at least some illegal, unauthorised telephone tapping was done.

Beyond that, when one gets to the content of the material, it is much more difficult to pin down, certainly at the federal offence level, what, if any are the specifics. I did my best to identify in the statement what were those particular areas that clearly demand a further investigative effort with regard to the possible commission of federal offences. I emphasise, however, as I did in my statement, that Mr Temby is very cautious about recommending that major investigative resources be devoted to these particular matters. He says very clearly, if honourable senators read the thrust of his opinion as a whole, that it is a very tenuous basis on which an investigation could proceed. Indeed, in some instances, for example, the question of the possible fixing of a case in the Australian Capital Territory, if one reads his opinion one will see that for reasons which he sets out with clarity and common sense it will clearly be very difficult to follow up that matter. Nonetheless, that is one of the tasks that will be pursued.

This debate has really been a tiresome rerun on the part of the Opposition-and, I readily acknowledge, no doubt from me as well-of the points that were made yesterday. If it was a tiresome rerun as far as I am concerned, the reasons are quite obvious: Nothing new has been advanced by the Opposition and certainly nothing such as would justify the kind of questioning that has been involved of the handling of this matter by the Government in general and by myself in particular.