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Wednesday, 29 February 1984
Page: 169

Senator CHANEY (Leader of the Opposition)(5.28) —Six months ago I would have been surprised at the Attorney-General (Senator Gareth Evans) lending himself to this sort of performance. I must say his behaviour over the last six months has led us all to believe that we can expect nothing but the most political approach to every issue which he takes on as Attorney-General. The Opposition opposes the suspension of Standing Orders. I wish to make out a case as to why we believe the terms of standing order 448 have not been met. We do not believe, notwithstanding the carry-on of the Attorney-General, that this is a case of urgent necessity. Indeed, the Attorney-General's own behaviour over recent months in the face of the most flagrant abuses of parliamentary privilege by Senator Primmer is a simple demonstration of his inconsistency of principle. Today he produced a statement more than two months after the event as a defence of that long-serving public servant. Today for some extraordinary reason Senator Evans has to bring on this matter which must be dealt with as a matter of urgent necessity.

Let me explain why we think the Attorney-General believes that this is a matter of urgent necessity, and let me explain why the Opposition does not believe that this matter is a matter of urgent necessity. I believe that the attempt by the Attorney-General to bring into this chamber as a matter of urgency a debate on comments made in the other place is a clear demonstration of the Attorney- General's lack of confidence in his ability to handle the debate which was supposed to take place in this chamber today.

Senator Gareth Evans —Mr President, I take a point of order. Might I suggest that the Leader of the Opposition is addressing himself to why the matter ought not be debated at all in this place, rather than to the question of its not being debated as a matter of urgent necessity, and that you should drag him back to the point.

The PRESIDENT —There is no point of order.

Senator CHANEY —I do not mind at all. That enables me to clear up another of the Attorney-General's rather wild statements, because he suggested that in some way I could prevent the Government bringing on this matter for debate. In fact, once the Attorney-General gave notice of motion, under the Standing Orders, from tomorrow it would be a matter of Government Business and could be brought on for debate at any time that the Government chose. It is a quite ridiculous allegation on the part of Senator Evans.

To return to my point, what is quite clear is that the Attorney-General and, indeed, perhaps the Government, was anxious to avoid the actual item of business which the Government had indicated would be dealt with today; that is, the debate on the tapes. The debate was started yesterday by the Attorney-General putting down a quite inadequate statement which has been the subject of criticism in the matter of public importance today. The fact of the matter is that if we look at the way that the Government approached this matter, it is quite clear that it was desperately trying to avoid that debate. Look at the way it failed to mention the possibility of this debate being brought on, when the usual business meeting was held this morning. Honourable senators should look at the secrecy that surrounded its giving of the notice and look at the fact that the Attorney did not tell us that the notice was to be given or that there would be an attempt to debate this matter today until after he had put down that notice. Why was it that this matter was not mentioned this morning? Why was it that the program was arranged for us to discuss the tapes? Why was it that this ambush was prepared by the Attorney-General to divert us from that task? Mr President, this is not a motion of censure. It is a motion which simply passes an opinion on parliamentary privilege with which we would all agree, and an opinion on certain comments that were made in the other place with which many of us would not agree. It is common for a motion of censure to be brought on without notice because of its importance. But there is no precedent for a motion of this sort being brought on as a matter of urgency by the suspension of Standing Orders, except in the normal political hurly-burly of this place.

Why is it that the Attorney-General says there is such a hurry to consider this matter? I invite the Senate to consider the quite contrary behaviour of the Government with respect to the very serious abuses of parliamentary privilege which have taken place over and over again in this chamber and which have been corrected by governments of a Liberal-National Party persuasion and governments of the present persuasion, namely Australian Labor Party governments. I refer to the frequent attacks which have been made on the employees of the Commonwealth, and on public servants, by Senator Primmer.

Senator Gareth Evans —Mr President, I take a point of order. I think on any view of the matter Senator Chaney is straying from the point at issue, not least when one contemplates that he is referring to a statement put down by the Government today in answer to allegations made by Senator Primmer during the last week of the previous session.

Senator CHANEY —Speaking to the point of order, Mr President, when I started to speak I indicated to you that I can show that this is not truly a matter of urgency by contrasting the way in which the Government has behaved over admitted breaches or abuses of parliamentary privilege in this place and the way it is proposing to behave today. The fact of the matter is that the Government has put down a statement today, three months after the event, at last clearing Mr Ryan of the allegations which have been made against him. Yet for some peculiar reason it suggests that this matter must be dealt with immediately. I suggest that in drawing that parallel, I am properly indicating why the Opposition does not believe that this is a matter of urgency, but a matter of politics.

The PRESIDENT —Again, I do not uphold the point of order, but I ask Senator Chaney, in making his comparison, to restrict his remarks in his case to reasons for non-urgency so far as suspension of Standing Orders is concerned.

Senator CHANEY —Thank you, Mr President. I will certainly do that. If we look at the motion which Senator Evans is seeking to have us debate, we find that he has very carefully listed all of the words of the Leader of the National Party of Australia, Mr Sinclair, which he wishes to criticise and complain about. I, like Senator Evans, will not repeat those words because they are contained in the motion which has been circulated to all of us. But let me remind honourable senators of the sorts of allegations which were made in the Senate as long ago as 6 December, with respect to a senior employee of the Commonwealth Government. The allegations did not concern a State judge, for whom we have no responsibility, nor something which was said in the House of Representatives, for which we have no responsibility, but something which was said in the Senate. A Labor senator talked about the existence of a phantom employee on the payroll of an Australian High Commission. He talked about financial irregularities, collusion, and crude and abrasive treatment of subordinates. He talked about many things which any reference to the statement which was incorporated in Hansard today by Senator Evans will show were extremely defamatory and highly offensive to a loyal, hardworking, long serving member of the Federal bureaucracy. The Minister for Foreign Affairs (Mr Hayden) has in words which I have already quoted to the Senate and will not, therefore, repeat, made it clear that those allegations were totally without substance.

The point that I wish to make to the Senate is that the Government and, in particular, Senator Evans tolerated allegations of a most serious kind being made in this chamber by one of its senators about a public servant for whom we are responsible. Three months later, the public clearance which Mr Ryan has so earnestly and publicly sought has been given. But the Attorney-General today, in his desperate attempt to steer the debate away from issues which he knows are damaging, is saying that on this occasion comments, which he does not like, which were made not in this chamber but in the House of Representatives, not about a Commonwealth employee but about a judge appointed by another jurisdiction for whom we are not responsible, must be dealt with immediately. I simply present that contrast to the Senate because I believe it goes to any judgment as to the sincerity of purpose with which the Attorney-General has brought forward this matter. I believe there is no sincerity of purpose. This is an attempt to create a smokescreen, an attempt to divert attention from the matters which are within the responsibility of the Attorney-General.

The Attorney-General might have had the wit to argue that the judicary is a special case. Perhaps that is what he meant when he told us that it was so important that we should leap in and look after the reputation of the judicary. That should be done today, not tomorrow. The Government controls Government Business, so the matter can be brought on tomorrow. But it is so important that the Government wants the matter dealt with today, not tomorrow. Is it a fact that members of the judicary are such fragile flowers that they should not be criticised at all, that there should be an immediate attack on anyone who dares to criticise a judge? I suggest to you, Mr President, that reference to fairly recent history, statements made by members of the Labor Party about judges and reference to authority suggest that there is no room for the Attorney-General to argue that in some way the judiciary is a special case which demands urgent attention if not today then yesterday. There are no shortages of precedents for rather violent words being used about judges. I will quote some of the words which have been used.

Senator Gareth Evans —Mr President, I take a point of order. I suggest that once again the honourable senator is trying your patience and that of this chamber.

The PRESIDENT —I think the Leader of the Opposition is starting to stray.

Senator CHANEY —Mr President, I would like to make quite clear why I am addressing these matters. I am seeking to find the reasons why, within the terms of standing order 448, it can be said that this is a matter of urgent necessity which should be dealt with today rather than tomorrow, in the normal course of the Standing Orders. The Government, of course, has total control of Government Business and may bring on the matter at 10 a.m. tomorrow, if that is its wish.

Senator Gareth Evans —That is a slight on the Democrats.

Senator CHANEY —The Government has total control of the business of the Senate. If the Attorney-General does not understand that, it is because he has taken no interest. But let me show the Senate that there are plenty of examples of hard words being said about judges. I will then quote a judge on the view which should be adopted about public criticism of the findings of judges. The present Prime Minister, Mr Hawke, was reported in December 1979 to have made the following statement:

If ever people have to face their maker and justify their existence, certain occupants of the High Court will have a particularly messy time.

That was because, in Mr Hawke's view, and in his words, certain tax provisions had been given a 'totally perverted interpretation by the High Court'. The High Court is a small bench. The decisions of the High Court are pretty well known. Clearly--

Senator Gareth Evans —Mr President, I rise on a point of order. I suggest that you be sufficiently merciful to Senator Chaney to allow him something to say in his main substantive speech and not allow him to proceed with these particular matters which simply do not bear upon the matter in issue which is the urgent necessity to deal with some scurrilous and impossible to tolerate attacks upon the judiciary, matters upon which this Parliament must immediately respond.

The PRESIDENT —I am listening to the Leader of the Opposition carefully. I urge him to relate his remarks to the case of urgent necessity which I assume he is in the course of doing. There is a tendency for him to be getting a little wide of the mark but I assume he is relating his remarks to the reason for the urgent necessity to defend the institution of the judiciary. In that respect I will allow the Leader of the Opposition to proceed.

Senator CHANEY —I thank you, Mr President. I will recall the sequence of my argument. The first point which I made was in relation to other matters which were admitted by the Government to represent the most serious abuse of privileges of this place. There has been a very slow reaction and indeed no attempt either to give notice of motion or to suspend Standing Orders to deal with it. That was my first point. My second point was that perhaps it could be argued that public servants may be dealt with slowly but that judges are a special case. I simply wanted to indicate by using no more than three quotations that in fact plenty of hard words have been said about courts. I will again quote Mr Hawke who reportedly said of the High Court in 1979 that it was: . . . 'anachronistic', 'absurd' and 'out of line with economic and social realities'. Again in the same year he was reported as saying:

In this day and age I can't think of a greater obscenity than the decision of the High Court in respect of the Curran case. It defies all logic and commonsense.

In other words in 1979 it was said that something was obscene and that it defied all logic and commonsense. My simple point is that those words are as harsh as the words which are part of the motion. My next point is to say I believe there is no legal reason for treating judges any differently from the way the Government has treated public servants or others whom they believe have been traduced in this place. Mr President, I have no wish to try your patience but I will quote, if I may, some lines from Lord Atkin. I think his words, which can be used to argue both ways to some extent, are helpful to the Senate in deciding whether some negative comment on judges is a matter of such urgency as to require immediate action by the Senate. In 1936 Lord Atkin said:

. . . Whether the authority and position of an individual judge, or the due administration of justice, is concerned, no wrong is committed by any member of the public who exercises the ordinary right of criticising, in good faith, in private or public, the public act done in the seat of justice. The path of criticism is a public way: the wrong-headed are permitted to err therein; provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism, and not acting in malice or attempting to impair the administration of justice, they are immune. Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken , comments of ordinary men.

The conclusion at that point simply is that there is nothing in the way this Parliament has behaved in the past to suggest that in some peculiar way any criticism of judicial decisions or of the decision of a judge, particularly when he is acting not judicially but in an administrative sense to some form of inquiry, is any precedent for suggesting that that is a matter which has to be dealt with with particular urgency. What I say is that the particular urgency that exists in this case is to allow Senator Evans to avoid dealing with the matters that are clearly within his own responsibility.

Senator Gareth Evans —We have been dealing with them for the past two hours.

Senator CHANEY —The only reason we got to deal with them over that period was because we gave notice of a matter of public importance specifically to ensure that that sort of thing could not occur. The only reason we stopped moving a suspension of Standing Orders before the debate came on was that, Mr President, I indicated we would not give leave for the tabling of the Australian Security Intelligence Service statement if the Government persisted with its attempts to stop the debate. That is the truth of the matter. The fact is that there is an attempt, through the use of this urgency motion, to get the Government off the hook. Quite clearly it is an embarrassment to the Attorney-General to have continuing debate on the matters for which he is responsible. He is vulnerable on two counts. He is vulnerable on his lack and the Government's lack of enthusiasm for tackling organised crime and he is vulnerable on his mishandling of the tapes affair. There is plenty of evidence of both those matters in the public record by spokesman other than-

The PRESIDENT —Order! I think the Leader of the Opposition is now beginning to debate the subject matter of the suspension. I urge him to come back to the immediate urgency of the matter.

Senator CHANEY —Mr President, the case which I put on behalf of the Opposition is that we have ample examples in this chamber of honourable senators using privilege in a way which in the judgement of some of us is objectionable. That is not a peculiar thing. It is a matter which has been the subject of some debate in this place. Senator Jessop brought forward suggestions as to how we might deal with it. As recently as December there was debate about the abuse of the privileges of Parliament. It is without precedent for this Government and for this Attorney-General to give notice of any sort of motion to deal with this sort of matter. Therefore, of course, it is without precedent for him to try to get the matter dealt with as a matter of urgency on the day on which the matter is brought into the Parliament. This is a specious application on behalf of the Attorney-General. It is an application which he brings to cover his own political discomfort. I believe it is unworthy of a man who carries the office of Attorney-General. I believe we should not permit him to take the business of the Senate out of its normal order but rather we should proceed to the business that was on the Notice Paper. This was the discussion of the tapes which is a matter within his responsibility and a matter on which he is clearly bungling.