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Wednesday, 29 February 1984
Page: 159


Senator MISSEN(4.33) —There are some very curious aspects about the handling of this whole matter. In fact, a number of red herrings have been drawn across the trail since these tapes were disclosed by the Age some three weeks ago. I hope that the Attorney-General (Senator Gareth Evans) keeps to his temperate, moderate way, which he seems to have slipped from late in the afternoon, and lets me present my argument. I remind this chamber that since those tapes have come to hand, and even before that, when certain information was disclosed in the National Times, the reaction on many sides was one of avoidance and of drawing red herrings. Mr Wran, of course, was very ready to say that his staff threw the allegations into a waste paper basket; they did not bother about them, they were not going to. We are told now that the material from the National Times was not available. Today and yesterday the Attorney- General did the same sort of thing. He tried to avoid the issue by downplaying the allegations and by relying on opinions about which I will have more to say in another speech and, of course, by launching an attack on the Age for disclosing this information. He tried to divert attention in that way.

Let us get to the question which underlies this matter of debate today, that is , the duty of the Attorney-General and the way he has acted in the handling of the tapes and their contents. One must explore what are the duties of the Attorney-General. I shall read to this chamber something written by an authority who I imagine would be fairly respected by the Attorney-General. I refer to the Rt Hon. S. C. Silkin, the former distinguished Attorney-General of England and Wales in the Labour Government, who wrote an article called 'The Functions and Position of the Attorney-General in the United Kingdom'. There are some minor differences between the way Attorneys-Generals operate from one country to another, but I think certain statements in this article are worth recounting.

He speaks in the article of his work as an officer of the House of Commons. I remind our Attorney of his duty to this House in regard to these matters. Mr Silkin wrote:

The Attorney-General is often asked and customarily undertakes to give legal advice to Parliament, and in that capacity to take part in debates and to attend before committees of the House. In giving legal advice he owes a special duty to the House, separate and apart from his duty to the Crown, and in these matters he occupies a different position from an ordinary Minister of the Crown. Whereas a Minister is normally expected to make a controversial speech, when a Law Officer participates in a Commons debate for the purpose of giving legal advice he is generally expected to assume the attitude of independence and to speak as a lawyer, not as a politician bent on defending the position adopted by the Government.

I remind the Attorney of that statement because I do not think that his conduct in the last few days has accorded with it. Mr Silkin further wrote:

When dealing with the question that you might have independent law officers--


Senator Gareth Evans —You haven't a clue.


Senator MISSEN —The Attorney has had plenty of chances, he should give me a chance now. Silkin wrote this about the category of an independent law officer:

. . . we should have the semblance of accountability and not the reality. And in my experience there is no more potent weapon in a democratic society than the reality of accountability to Parliament. Every decision which the Attorney- General takes, every piece of advice which he gives, every statement which he makes is one for which in some form or other he may ultimately be held accountable in Parliament.

The Attorney will be held accountable to this Parliament. He is accountable to this Parliament in regard to his handling of these tapes.

I turn to his action, because he has maintained, of course, that he has been, in his own words, proper, prompt, responsive and responsible. I suggest that in none of these circumstances does he even get a pass rate. Certainly, early on there were delays. Obviously when people such as Senator Archer asked questions about these matters earlier, there was very little speed. Later on, and in February, there was enormous speed. He has quickly tried to forestall Parliament by ensuring that he had opinions, which opinions I certainly challenge and attack and believe to be unsound. He has got them quickly and has gone to see the judge on two separate occasions. I take the view that what he has done here today, of course, in a series of answers to questions is selectively to give us some of his views on some of the matters he discussed with the judge over those 20 minute conversations. We do not have the whole facts. We have a sifted account. As members of this Parliament we know that serious questions are being raised and we are going to need all the facts when these matters are properly examined.

The Attorney went to see the judge. He did that following the opinion of Mr Temby. I regard that as very bad advice indeed. I believe that the Attorney- General should not have gone so that he is in a position today where he gives selective statements, where he is asked only to judge obviously selected parts of the conversation. I think that it was unwise for an Attorney-General to do that. Some other person should have made the investigations.


Senator Gareth Evans —What about what you were saying about giving him an opportunity to be heard?


Senator MISSEN —I am quite happy for the judge to have every opportunity to be heard. I do not think the Attorney is the person who should have interviewed the judge and then be in a position where he can pick and choose what he will tell his Parliament about his conversations. Of course, taking a hypothetical case, if the judge happened to be someone with whom the Attorney had some personal friendship, knowledge or association that would make the action even more an act of folly than if the judge were one of the judges whom the Attorney did not know at all. Time alone will tell what the situation is in that respect.


Senator Gareth Evans —Do not make any vulgar assumptions.


Senator MISSEN —I am not making vulgar assumptions; nor will I take notice of the Attorney's vulgar interjections. The fact is that the Attorney chose to get Mr Temby's opinion. I criticise that, as well as the Attorney's course of action . From everything I hear, Mr Temby is a man of great ability. He will no doubt make a good Director of Public Prosecutions. Why was he pitchforked into this matter? Very rapidly he is asked to give opinions on a number of matters. Some of the opinions that he gives may well be thought to be close to contempt of this Parliament because they are telling this Parliament what its duties are if in fact it sees fit to take action against a judge. Of course in my view-and I think the authorities support it-if this matter were to come before the Parliament and we had to decide whether there was any proven misbehaviour it would be a matter within the compass of this Parliament. It would be seriously considered by this Parliament. It would not be corrected by courts. It is not for officers of the Public Service, whatever their capacity, to advise us in advance as to what can and cannot be misbehaviour or proven misbehaviour. It is not a matter for the courts. It is a matter about which opinions are contrary. In another speech I intend to challenge this aspect in great detail.

Let us look at the terms of reference. The Attorney has had Mr Temby do various things. The Attorney, in his statement yesterday, said:

It was decided . . . Mr Ian Temby, QC, should be briefed to advise on what offences against Federal law, if any, appeared to be disclosed or suggested by the material, and what further inquiries should be made.

That was said as if offences against Federal law are the only questions which might come within the power and compass of this high court of Parliament when it considers criticisms against a judge.


Senator Gareth Evans —Do you disagree with the Solicitor-General on that?


Senator MISSEN —I certainly do. I disagree most strongly with the Solicitor- General. I believe his opinion has internal inconsistencies and he comes to wrong conclusions.


Senator Gareth Evans —Are we going to have the benefit of your opinion?


Senator MISSEN —You are indeed.


Senator Gareth Evans —When?


Senator MISSEN —When the debate on the tapes is brought on, a matter which was originally to be debated today and which, because of the conniving of the Government to stop it, has not yet come on. But it will come on, when I will certainly be expanding on that. I believe there is no doubt that Parliament has the power to determine these questions. Interestingly, we do not know what Mr Temby's terms of reference were. We do not know precisely what he was asked to give advice on. He went on to say:

It is thought appropriate that I should also comment as to whether, on the same assumption, the conduct of (the judge) appears to have been injudicious.

That is very interesting. I do not know where the word 'injudicious' comes from. That does not appear to have been mentioned in the Attorney-General's statement as part of his terms of reference. How many other things was he asked to mention ? He formed an opinion on what is 'proved misbehaviour', which is the term the Parliament has to consider in regard to judicial behaviour. The Solicitor- General also came to a view on that. I believe that Mr Temby was given certain instructions. He no doubt worked very quickly. He produced advice, including the most unfortunate advice to the Attorney-General that he go and see the judge, and from that flow awkward consequences.

There is no time to deal with the opinions in detail. The whole question of justiciability, the power which this Parliament has and the fact that the High Court and other courts, as Professor Ryan and others have pointed out, do not have the power to intervene in the actions of Parliament, mean that both these opinions move upon a false basis either that there must have been a mistake in a judge's judicial action, in his office, or that he must have committed some heinous crime against the general law, although not necessarily recorded a conviction. There are many other situations within those two positions. The Solicitor-General in his opinion quoted from Chief Justice Burbury.


Senator Gareth Evans —Burbury?


Senator MISSEN —Yes, Burbury, a distinguished Chief Justice of Tasmania. He quoted with approval the case of Henry v. Ryan about judicial behaviour. He said :

. . . misconduct in his private life by a person discharging public or professional duties may be destructive of his authority and influence and thus unfit him to continue in his office or profession.

After ignoring that, he went on to deal with Sir Garfield Barwick's opinion, although he was not even a member of the Parliament.


Senator Gareth Evans —That is in the context of establishing what kinds of criminal offences are involved.


Senator MISSEN —He did not deal with criminal offences. If one reads the opinion one finds that he deals with Barwick's advice to the Government before he was even a judge as though it was advice from the distinguished Chief Justice in his judicial capacity. Anyway, the Attorney-General may be assured that we will go into this in detail. I think it was a grave mistake for the Attorney-General to present Mr Temby's opinion in particular, which opinion is a suggestion to the Parliament about what its rights are. I believe it is an incorrect opinion. Because allegations are made, it is important that the Parliament consider them. We must do this with knowledge of all the facts, when it is obtained. I am not at all happy with the way in which it has been handled, nor with the way in which information is being obtained by police. Someone of greater eminence should have investigated this matter. But we must wait and see what comes out of that.

The Attorney-General places great reliance on the fact that these documents are not authenticated. Of course, documents such as this which are serious invasions of privacy and which are probably in breach of the law must be seriously depreciated because of that fact. We will probably never know whether some alterations have been made, but even from what the Attorney-General has said today there is an indication that much of the material is authenticated to an extent by the statements of the judge whom the Attorney-General chose to interview. At least we know that those matters were discussed. I do not take the view that judges' conversations are all that important. I can retail many of them from my club. They show horrible social views, but they are private conversations, as are telephone conversations. On the other hand, it is a question for this Parliament to determine whether actions which follow from that --


Senator Gareth Evans —You have the responsibility then to draw to our attention some of these private conversations, you ass.


Senator MISSEN —I thank the Attorney-General. He is not an ass. He just lacks judgment. That is his problem. He is a very clever man without much judgment. He will not prevent me from saying that it is a question of finding out whether any action followed, by a judge or any other, which rendered them unable to effect their positions and depreciated them in the public eye. We have here an important question of the standing of the judiciary. The Attorney-General, by his clumsy handling of this matter, has caused himself to go in the wrong direction. He has taken wrong advice. He has perhaps hurried too much in that regard. He has heavied the Parliament and tried to pre-empt the undertaking of its duties. He has not taken seriously the matters in regard to a judge. He has ignored the rights of Parliament and, therefore, I think he stands condemned.