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Tuesday, 6 March 1984
Page: 445

Senator KILGARIFF —I direct a question to the Attorney-General. I note that last Thursday, 1 March, the Attorney-General refused to accept any authority in regard to the case of Michael and Lindy Chamberlain. He said the matter was entirely the responsibility of the Northern Territory Government. In view of these statements, does the Attorney-General consider that since the Northern Territory acquired self-government the Territory has received plenary legislative and executive powers? If so, how does the Attorney-General explain the apparent contradiction between his denial of any authority of the Federal Government to interfere in the Chamberlain case, on the basis that it is a Northern Territory matter, with the Government's stated intention to interfere in another Territory matter, namely, the criminal code? Will the Attorney- General give some indication of when and in what circumstances the Federal Government will in the future seek to interfere in the Northern Territory's affairs? Will the Attorney-General outline the Government's perception of the term 'self-government'?

Senator GARETH EVANS —My recollection, although I will need to check this, is that the terms of the Northern Territory (Self-Government) Act retain a residual capacity in the Commonwealth Government through the Governor-General in Council to override or to recommend changes to Northern Territory legislation based on the provisions of that Act. It is my recollection that that does not extend to overriding executive decisions of the Northern Territory Government, even though the case be a good one. As I said, I will have to check that, but in answer to the question my belief, at first blush, is that that is so. More importantly, one has to look at the actual merits of these competing situations. So far as the Lindy Chamberlain affair is concerned, despite its bizarre-to use Senator Button's favourite word-characteristics as a case and the popular attention it has excited--

Senator Button —That is not my favourite word.

Senator GARETH EVANS —Well, it is one of the honourable senator's favourite words. He used it a couple of times today. It is a good word-an excellent and very appropriate word. The honourable senator's use of it today reminded me how good a word it is. In circumstances of this case, despite its idiosyncratic characteristics which have made it the subject of such popular attention, it is essentially an ordinary matter to do with the administration of criminal justice by reference to familiar standards of criminal proof in the context of the familiar offence; that is, murder or manslaughter, as the case may be. There is nothing to suggest that the criminal process has been other than followed in a normal and entirely satisfactory manner through all the successive stages of appeal.

When, however, we are talking about the Northern Territory criminal code a very different situation confronts us. This criminal code has brand new provisions, many of them highly questionable and highly challengeable but four of which in particular raise absolutely fundamental questions about the terms on which Australia as a nation has adhered to the International Covenant on Civil and Political Rights. It also, in at least one instance, raises fundamental questions about the whole Anglo-Saxon tradition of criminal law that we have inherited and hitherto applied all around the country. There is a head-on challenge to those concepts and those principles in a number of provisions of the code which have been the subject of a quite lengthy process of communication and negotiation between the two governments.

The course of action that is proposed at the moment does not yet, I believe, justify the description 'interference' as Senator Kilgariff has employed it. We have made clear our belief that certain aspects of the code ought to be amended. The most recent communication from the Prime Minister to the Chief Minister has indicated that if no satisfactory response to our latest communication is obtained within a short period, we will recommend to the Governor-General that he in turn recommend to the Northern Territory changes to the code. That is still not interfering to the extent of applying different provisions or repealing or disallowing particular provisions of that code. That is a further step that could be contemplated at the end of the road, but all of us hope that will not be necessary.

Mr Everingham responded to that last letter of the Prime Minister, I understand a few days ago, saying that he wants to have a meeting with the Prime Minister and me to discuss this matter further. The Prime Minister has today written back to Mr Everingham, having consulted me before sending the letter, saying that he, together with the Attorney-General, would be happy to meet Mr Everingham to discuss the matters in issue. That is where the matter presently rests. I hope that meeting will take place in the near future. I hope that sooner rather than later an appreciation of the fundamental principles involved in this matter will strike Mr Everingham and that he and his Government will behave perhaps a little bit more sensitively that they have to date.