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Wednesday, 29 February 1984
Page: 167


Senator GARETH EVANS (Attorney-General) —I therefore move:

That so much of the Standing and Sessional Orders be suspended as would prevent the Senate from proceeding forthwith with the motion of which I gave notice this day dealing with the attacks by the right honourable member for New England in the House of Representatives on the integrity, impartiality and competence of Mr Justice Cross.

I note with some interest the immediate reaction of Senator Chaney, on behalf of the Opposition, to try to gag this debate. I note accordingly the lack of confidence he has in the willingness of this chamber to do other than condemn the right honourable member for New England (Mr Sinclair) for his attack on the competence, impartiality and integrity of Mr Justice Cross. I note his unwillingness, on behalf of the Opposition, to put this matter to the test. But it is not something which ought to be long delayed in being put to the test. In issue today are matters which ought to be debated immediately following the scurrilous attacks that were made yesterday on the institution of the judiciary and on Mr Justice Cross in particular by Mr Sinclair. What happened yesterday, and only yesterday, is that under cover of privilege and with the Speaker, no doubt because of the particular circumstances of an individual defending himself from what he perceived to be an attack allowing in those circumstances rather more latitude than perhaps would be usual in comments on the judiciary, Mr Sinclair made one of the most sustained, vitriolic and utterly ill-founded attacks on the judiciary ever heard in the Parliament of this country. Extravagant charges were made--


Senator Chaney —Mr President, I take a point of order. I understood that the Attorney-General was addressing a motion for the suspension of Standing Orders. Presumably such a motion has to relate to the terms of the Standing Orders. It has to relate to the Attorney-General's reasons for putting forward a matter as being one of urgent necessity. In his remarks so far he has said nothing which would suggest that there is any urgency in this matter, other than perhaps a certain political urgency on the part of the Attorney-General to cover his tracks. I take that point of order. I ask you to direct the Attorney-General to address himself to the terms of the standing order.


The PRESIDENT —I take note of what the Leader of the Opposition has said. I do believe, though, that the Attorney-General is leading up to his reasons for the giving of urgency. I draw the attention not only of the Attorney-General but also all honourable senators to standing order 448 which says:

In cases of urgent necessity, any Standing or Sessional Order or Orders of the Senate may be suspended on Motion . . . without notice: Provided that such Motion is carried by an absolute majority of the whole number of Senators.

The reasons for urgent necessity should be the subject matter of the debate.


Senator GARETH EVANS —Mr President, I am indebted to you for your ruling. I note again the sensitivity of the Opposition and its leader to this matter and note again their desire to postpone the inevitable when it comes to dealing with this matter. The urgent necessity in this case is to defend the institution of the judiciary in this country as quickly as this institution of parliament can turn its mind to the task because of the magnitude, vehemence and the ill-foundedness of the attack made upon it by the right honourable member for New England.

Extraordinary charges are made, charges which are detailed and listed in the motion which, to save time, I will not read now. But they are charges concerned with the ignoring of evidence because of predetermined conclusions. They are charges relating to the sacrifice of accuracy and the sacrifice of judgment. They are charges related to the abandonment of the application of the principles of natural justice. They are charges relating to the failure adequately to inquire into terms of reference. They are charges that the inquiry was run as a star chamber or as a kangaroo court. They are charges which are such that, as the Deputy Prime Minister (Mr Lionel Bowen) said in the other place, if true the judge in question is no longer fit to hold judicial office. There are charges which, if not true, indicate that the maker of them is no longer fit to hold office as a member of this Parliament.

There are three particular reasons why this motion ought to come on and come on immediately. Firstly, it ought to come because there is no credible basis for the attack which has been made. Secondly, it ought to come on-and that ought to be put to rights very quickly indeed; the public exposure of that state of affairs-and come on quickly and not be allowed to linger on the Notice Paper because what is involved is an attack in particular on the personal credibility, respect, status, competence and impartiality of a single judge of great reputation and distinction, Mr Justice Cross. Thirdly, it is a motion which ought to come on immediately because, as I say, it does involve a fundamental attack on the judiciary of a kind which has become regrettably all too common in this Parliament in recent times from this Opposition which finds itself unable to act with decorum, decency or common sense in these matters.

I will briefly indicate the nature of the issues under those respective headings because all of them go directly to this question of urgency. What is involved, first of all, in establishing no credible basis for the attack made by Mr Sinclair is a recognition that Mr Sinclair's statement does not, on its very face, even begin to make out a case against the Cross findings; the Cross findings which were absolutely comprehensive in their demolition of the credibility of the person in question; findings which identified no less than five separate bare-faced and deliberate lies told by Mr Sinclair in his speech on 29 October 1983. I do not stop to address these matters in detail at this point. These are matters that are appropriate for discussion under the substantive motion. I simply mention that these are the matters that Mr Sinclair has failed to address in his statement, as he failed to address them in evidence before the Cross Commission. I refer firstly to his statement that these two men , referring to Mr Waterhouse and Mr Coombs, claimed to speak for the police. Mr Justice Cross found that they did not and Mr Sinclair has not undermined that finding in anything he has said.


Senator Chaney —I raise a point of order. It appears to me that the Attorney- General is now canvassing the substance of the matters he would wish to put on the substantive motion. He indicated that. He is now trying to suspend Standing Orders to move the motion. I ask you, Mr President, to cause him to desist from that course and to direct himself to the matter of urgency.


The PRESIDENT —I think the Attorney-General is relating his remarks to the reason for urgent necessity for the suspension of Standing Orders. Again, I would ask the Attorney-General to restrict his remarks to the statements of reason for the urgent suspension.


Senator GARETH EVANS —Mr President, I am indebted again to you for your ruling. I say no more about that first aspect of the matter than that it is crucially and urgently important that this Parliament address itself to the five particular matters on which Mr Justice Cross found that Mr Sinclair had told deliberate and bare-faced lies and that this Parliament satisfy itself that there is no substance whatsoever in Mr Sinclair's suggestions that Mr Justice Cross had erred and erred fundamentally in reaching those conclusions.

The second matter I said was of urgent necessity to re-establish was the reputation of Mr Justice Cross in the aftermath of the scurrilous, vitriolic and disgraceful attack upon him. It has to be appreciated in this respect that we are not talking about some fresh-faced ingenue as a judge, we are talking about someone who is one of the most experienced criminal lawyers, trial lawyers and trial judges in this country; someone who has been on the District Court bench for 21 years, from 1957 to 1978; someone who has been on the Supreme Court bench for six years, from 1978 to 1984; someone whose proud claim-I understand it is- is that during that entire time he has never been overturned by the Court of Appeal on any direction on a question of law or any determination on a question of law he has ever made. His capacity has never been questioned. His integrity has never been threatened. His experience in weighing and balancing the competing claims of witnesses of varying degrees of credibility has never been tested or challenged. Yet this is the man whom Mr Sinclair exposed again to such a disgraceful diatribe of unfettered vitriol in the House of Representatives yesterday. It is this man whose honour it is appropriate that this Parliament should immediately leap to defend without further lapse of time.

The final point I make is that Mr Sinclair, in his remarks, was clearly quite deliberately putting at risk public confidence and trust in the independence, honesty, integrity, impartiality and the competence of the judiciary. That is something which cannot be allowed to wallow on the Notice Paper until such time as Senator Chaney deigns to allow the debate to proceed. The behaviour of Mr Sinclair in this respect is not the kind of behaviour that can or should be tolerated by any parliament. It is deserving of condemnation. At the very least the expression of regret that is contained in this motion ought to be carried. It ought to be condemnation which is expressed at the first available opportunity, without delay, without deferring it.

I can understand why the Opposition does not want this motion to come on. I can understand why it does not want it to be put to the vote. I can understand why it should be very reluctant indeed for this matter to be dealt with forthwith. I can understand the embarrassment of a great many more honourable members and senators on that side of the chamber who are appalled, naturally, by the abominable behaviour that their party room colleague has now saddled them with. Let them wrestle with their consciences, let the matter be tested and, because of its urgency, let the matter be tested now.