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Tuesday, 6 March 1984
Page: 452


Senator GARETH EVANS (Attorney-General)(3.31) —With lawyer-like understatement, to use Senator Chaney's phrase, perhaps I may say that his contribution in opening this debate was one of the most tedious and tendentious bits of sanctimony to pass the lips of anyone in this place within my living memory. It was tedious because, of course, it amounted to nothing more than a repetition of themes that have been flogged literally to death in the last few days and, indeed weeks. The allegations that have been made today are allegations that have been made and answered on numerous previous occasions. Because of the obligations upon me as a member of this chamber, I am obliged to answer them again, and I shall do so with such good grace as I can muster in the circumstances.

The Government's response to the allegations as they first appeared in the Age just over a month ago and as they have been repeated in this place has occurred at both an Executive and a parliamentary level. In both of those forums or domains, the response has been appropriate and responsible, for reasons which, once again, I make clear. At an Executive level the sequence of events was very specifically recorded in the very full statement I made to this place on 28 February. When the material was presented to me on 1 and 2 February, I made sure , after consultation with the Special Minister of State (Mr Young) that it was immediately referred to the Australian Federal Police for preliminary investigation and report. When that report came to me and the Special Minister of State 10 days later, roughly on 13 February, the decision was made to seek independent advice from a highly qualified legal practitioner whose independence and integrity as well as competence in these matters would be absolutely beyond doubt. Who better in this respect than Mr Ian Temby, who was our Director of Public Prosecutions-designate, and whose appointment had not been subject to anything other than congratulations by other members of this Parliament at the time it was announced.

Mr Temby very rapidly fulfilled the task that was asked of him, focusing, as he was particularly asked to do, on the question of the judge which had given rise to most expressions of public concern and media outrage, whether artificial or otherwise. Mr Temby had available to him all the material that was in the Government's possession. I cannot imagine what Senator Bjelke-Petersen was talking about yesterday when she suggested that five or six of the alleged conversations were not made available to him. I can only think that she was referring to the numbered conversations in the National Times article referred to at one stage, which was reference to summaries that had appeared in the printed material unaccompanied by full transcripts. There were many more than five such alleged conversations having that status. I cannot imagine what else she was referring to.

All the material available to us was given to Mr Temby. The aide-memoires of the conversation with the judge in question were not made available to Mr Temby because those conversations had not occurred and were not intended to occur until such time as we had Mr Temby's opinion, because the conversations with the judge, as I indicated very clearly in my original statement in this Parliament, were premised upon me being satisfied that neither the police nor Mr Temby took the view that any such conversation that might then take place with the judge would prejudice any ongoing criminal investigation. So, as a matter of the logical approach to this, it was quite inconceivable that any such reference of material to Mr Temby at that stage would have been appropriate. That is to completely misunderstand the sequence of events and the reasons why things were done, which I have already explained very fully in my parliamentary statement.

Now that the further step has been taken following the evident need for further investigation of a number of matters-most obviously, the circumstances of the taping itself, which clearly, on any view, to the extent that this stuff is authentic, was illegal, but also in relation to other possible Federal offences, the general character of which I identified in my statement-now that those matters have been referred to Mr Temby's task force, which he is heading up as independent Special Prosecutor, all the material, including the aide-memoires of the conversation, either has been or will be made available to him to make such use of it as he chooses. There is no question of any denial of this material. I might add, in case anyone is in any doubt about this, that the terms of reference of that task force and that reference to the Special Prosecutor, in which capacity Mr Temby is acting for this purpose, have been made in absolutely general terms, and the language of the reference is, again, incorporated in the text of my statement of 28 February.

The other executive action that was taken by the Government was the seeking of a second opinion on the questions of law that were concerned about the proper meaning of 'misbehaviour' and the obligations of this Parliament. That opinion was sought by me from the Solicitor-General as soon as Mr Temby's initial response was to hand, and that opinion of the Solicitor-General has been received and tabled in this place. It speaks for itself as the work of a very distinguished lawyer, one whose distinction was amply recognised by the other side of this place by the frequency with which they briefed him in major cases when they were in government. He is a man whose integrity and competence has also hitherto been unquestioned; but I suppose that he, too, given the standards of morality, political and otherwise, that apply in this place, will be traduced by the general approach to this matter that has now been so amply demonstrated by Opposition spokesmen.

There is absolutely nothing the Government's response at an Executive level to this material that has been otherwise than, as I have constantly said, responsible, responsive, proper and prompt. Nothing more could reasonably be asked of any government and nothing more should be reasonably asked of us, even in the overcharged and overheated atmosphere of this nauseously tedious ongoing debate.

It appears that the main thrust of the attack today is mounted not so much in respect of the Government's Executive endeavours but, rather, the attitude that we have taken to Parliament's position in this matter and what we have had to say in the parliamentary forum. So let me concentrate yet again on explaining why we have responded as we have in this Parliament. There has certainly been no desire at any stage to remove this debate from the ambit of the parliamentary forum. A very full statement was made on the first sitting day we were back here , on 28 February, and it was a much fuller statement than seemed to have been expected by the Opposition. It was a full statement motivated by our desire to express full respect for the parliamentary institution and its legitimate requests or demands for information from its Executive. It was a full and complete statement and it was made at the first possible opportunity.


Senator Durack —It raised more questions than it answered.


Senator GARETH EVANS —One of the things that it deliberately tried to do was to answer every question Senator Durack had raised in his rather flatulent series of Press releases in the preceding days. The statement deliberately-not that it would have otherwise not done so-adverted to every one of the matters to do with the handling of the matter that the Leader of the Opposition (Senator Chaney) had called into question and said would be the subject of a strenuous parliamentary attack on the part of his gaggle of troops.


Senator Chaney —Tell us about your visit to the judge and the capacity in which you did that.


Senator GARETH EVANS —To respond to Senator Chaney's interjection, if there is any feeling that I have omitted to say what I should about the visit to the judge, I say, as I said in my parliamentary statement, that the circumstances were perfectly clear. I have already indicated that that visit was designed to enable the judge in question to have an opportunity to be heard-something that has been demanded in raucous tones and terms by all sorts of people in the context of one other controversial matter within recent memory in the last year. It is a sound principle-that of audi alteram partem-and one that I believe in honouring. I believe it is appropriate, since a judge is involved, that the ministerial head of the department responsible for the Federal judiciary, should have personally accepted the responsibility for having those conversations. The two conversations were conducted at arm's length in the presence of a secretary of my Department. A record of them was kept. The conversations were undertaken for the purpose, I repeat, of enabling the judge to have an opportunity of being presented with the material and making such response to it as he chose both initially and subsequently after he had had a full opportunity to absorb it. Those were the circumstances in which those visits took place. I make no apology for doing it in that way. I equally make clear that I would not have undertaken those visits or had those conversations without first having the clearances to which I referred earlier in this speech. There is nothing more that I can usefully add on that subject.


Senator Chaney —Did you just let the judge respond or did you ask questions?


Senator GARETH EVANS —I asked a series of questions, as I have made perfectly clear. I said: 'This is the nature of the allegations made. This is this subject , this is another subject, this some other subject. What, if any, response would you care to make to this subject matter?' That is the context in which the conversations took place and that is the context in which the exchanges were recorded. That is the context in which I gave some indication as to the content of those replies and that is the context for which I make no apology whatsoever now nor at any other time.

I return to the parliamentary debates in this place. We have indicated, quite apart from my laying down that statement at the first opportunity, a complete willingness to debate this matter at all times that are appropriate and available in the parliamentary calender. We have debated matters of public importance and we have debated the statement. We have debated the statement at rather more extended length than was the subject of agreement from the Leader Opposition before that debate commenced when he said there would be no more than three or four speakers on the Opposition side. Six hours of debate later, he now claims that there has been insufficient debate on the motion to take note of the paper, notwithstanding the numerous other parliamentary opportunities that are, of course, open to him, including this one today, to raise the matter in other ways.

We have had some huffing and puffing about the adjournment motion which was moved by the Australian Democrats yesterday and to which I responded by moving that the resumption of the debate be made an order of the day for 25 March, which is in fact a Sunday, as I recalled after sitting down. Nobody expected that debate to be other than wound up at the time that the Democrats leapt to their feet and moved an adjournment motion. Their reason for moving an adjournment motion had, however, been made perfectly clear in the course of the debate; namely, that they regarded it as appropriate that the Parliament look again at this issue, but that it should do so after the hothouse atmosphere of the New South Wales election had exhausted itself. With that in mind and in a way that was entirely consistent with the foreshadowed position of the Democrats , I moved that the adjourned motion be called on again after that election was over. There are ample other opportunities, as we are now witnessing, for this matter to be debated in any way the Opposition chooses.

I just note in passing the extraordinary behaviour of the Opposition in the debate yesterday in relation to the question of the aides-memoire. Senator Durack gave notice of a motion today seeking once again the tabling of those aides-memoire. It would seem that he wants to have access to those documents in a way that the Opposition, in voting upon the motion last night, chose not to have. It was perfectly clear from the terms of the motion last night that the Opposition would have had the support of the Australian Democrats in seeking from the Government if not the transcripts in the terms in which it wanted them, certainly the aides-memoire in the terms that it wanted them. What kind of extraordinary, nonsensical hypocrisy we are confronted with today, with a further moving of that motion and a desire, I expect, to have that motion brought on again urgently for debate, I can hardly bring myself to say. That kind of nonsense when the Opposition made an utter mess of its tactics and strategy last night when it had the opportunity available to it, to have to put up with the sort of lumbering rearguard action with which we are now confronted, beggars and staggers the description. I suggest to Senator Withers, who as usual is leering on the halfway to the back benches, that once again there has been ample demonstration of the absence of any kind of credible tactical leadership in the Opposition party which he continues to grace.

As to the responsibility of this Parliament in relation to the documents as they concern the judge in particular let me come yet again to the essence of the Government's position in this respect. Of course it is the case that we do not and never have denied the primacy of the role of parliament so far as determining questions of judicial behaviour is concerned. For Senator Chaney to say that I now am accepting this view or am now admitting this, that, or the other about it, is to totally overlook the fact that I have never said anything other than that under the Constitution Parliament has this role. It may be that there are some exceptional circumstances in which the judiciary would claim some residual supervisory role but, putting that to one side, it is clear that Parliament is the body that has the primary determining role in this respect under the terms of the Constitution. But that is a role which must be looked at in the context of this case and in the context of what is being claimed about this case.

The role of the Parliament, as I said yesterday, is a very limited one so far as the judiciary is concerned. The principles espoused by the founding fathers, the principles inherent in the very text of the Constitution, make it clear that there must be respect for the concept of the separation of powers and the absolute independence of the judiciary from malicious or half-baked attacks upon it by the Parliament if our Constitution and the Federal system it embodies with the position of the judiciary as the referees of that system is to survive. That principle was articulated over and over again by the founding fathers, and it is perfectly clear that that is the case so far as the proper construction of the constitution is concerned. The only role of this Parliament is not to criticise and generally censure the judiciary or individual members of it in a way that is perfectly appropriate for this body to do regarding the Executive; the only proper role for the Parliament, apart, of course from larger questions of public policy as to the merits or otherwise of particular judgments and the approach of the judiciary to solving particular problems of law which are always a proper subject for public debate, when one is talking about the propriety of the behaviour of judges and whether they are fit and proper persons to stay on the bench, is and must be the narrow one of determining whether there has been misbehaviour within the strict meaning of that expression as it occurs. For all the reasons that I articulated yesterday, that is a narrow concept. It extends to either of two situations: First, the performance of the judge in his judicial capacity, in the conduct of his judicial office, and, secondly, the commission of offences by the judge in question which are unrelated to his judicial office but which are of a character which is incompatible with his continued occupancy of the bench. That is where it begins and ends. The law, the practice and the principles in Australia are quite different from those that obtain in the United Kingdom. The roles of our respective parliaments are very different in this respect.

The second point that I make relates to the further argument that will be put to me, namely: If that is so why is it nonetheless inappropriate for the Parliament itself to look at all the material, pass upon it and determine whether there may have been misbehaviour of the kind in question here. Why should the Parliament be asked to rely simply on the views of the police, the views of the Special Prosecutor, however distinguished, or indeed the views of the executive government of the day? This Parliament is being asked to exercise this self-restraint by me and by the government of the day-it is not being told that it cannot do it but it is being told that it should not do it-because of the particular circumstances of this material. To repeat what I have said a thousand times and what we all know to be the case, it is utterly unauthenticated material, as to the whole of it or any part of it. No concession has been made as to the accuracy of it, no admission has been made by anyone in a position to make any such admission and it is simply unauthenticated. Moreover , if it is authentic and turns out to be such it was clearly obtained in circumstances of manifest and spectacular illegality. Thirdly, not only is it unauthenticated and manifestly illegally obtained, but also it is a gross invasion of the personal privacy of lots of individuals.

Under those circumstances and given the significance of the course of events that would follow were Parliament to insist upon having this material in the public domain, I believe it is appropriate for Parliament to accept the assurances that have been given by everyone-that whatever else this material might contain and whatever other judgments one might be minded to make about indiscretions or otherwise, if the authenticity of this material could be established it does not establish anything that could possibly give rise to allegations of misbehaviour within the meaning of the Constitution. It does not point to or establish criminal conduct. It does not go in any way to the conduct of the judge in his judicial office. As such it is not appropriate for Parliament to do this. Were Parliament to insist upon having this material put out for all the world's salacious spectators to see we would be creating a precedent which we would long live to regret. All of us receive letters from time to time urging the most extraordinary misbehaviour on the part of individual judges, usually from aggrieved litigants. All sorts of scuttlebut and gossip is bandied about, particularly in the hot house atmosphere of election campaigns. It is quite inappropriate, simply because an allegation of this kind is made, to demand that this sort of material, in all its sordid quality, be laid out. There are occasions when it is appropriate for Parliament, on the basis of the circumstances I have outlined, simply to take some things on trust. Common decency so demands.