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Tuesday, 6 March 1984
Page: 461


Senator LEWIS(4.23) —The Senate is debating as a matter of public importance the failure of the Attorney-General (Senator Gareth Evans) to respect the role of the Parliament and to respond properly to the issues raised by the Age tapes. Before I turn to presentation of my case in relation to that matter, I would like to congratulate Senator Tate, notwithstanding the implied criticism of his own Whip, on his valiant attempt to present a case in defence of the Attorney-General. It is quite understandable why most members of the Australian Labor Party now believe that Senator Tate should replace Senator Evans as the Attorney-General. He is clearly much more rational and restrained and he is not continuing to embarrass this Government, as Mr Kitney said over the weekend, by turning difficulties into catastrophies. If Senator Tate would take a little advice from me, I suggest that he should see Senator Richardson and talk to him about joining the correct faction. Then no doubt the Prime Minister (Mr Hawke) will be on his way to the Press Club to make the necessary changes.

Section 72 of the Constitution provides that a judge of a Federal Court:

Shall not be removed except by the Governor-General in Council, on an address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity.

It appears that Senator Tate has finally managed to convince the Attorney- General who, as at yesterday, appears to acknowledge that this means proof to the satisfaction of both Houses of the Parliament. The Parliament then has to consider whether it is prepared to make such a prayer. I add that the Attorney- General seems to have ignored totally the other question raised in that section of the Constitution: What would happen if both Houses of Parliament did make such a prayer? That raises the question of whether the Governor-General in Council would be obligated to act on that prayer or whether the Governor-General in Council might be able to refuse to act on that prayer. In any event the Attorney-General apparently now accepts that it is a matter for the Parliament to decide whether there is proven misbehaviour or incapacity.

It quite fascinates me to discover that, despite all the debate in this place, the media still has not grasped the simple point that the Attorney-General is endeavouring to circumvent consideration by the Parliament of the material which would enable the Parliament to satisfy itself one way or the other. How is the Attorney-General endeavouring to circumvent the consideration of this matter? He is doing so simply by producing the opinion of a learned lawyer, Mr Temby, which in effect says: 'I have read the material, I have heard the tapes, I have considered the matter, and I believe that there is no evidence of misbehaviour.' The Attorney-General put to the Parliament that it should accept that statement and not bother to consider the material any further. I might say that Mr Temby makes it perfectly clear that the judge's behaviour is questionable. However, the whole point about this is that the Attorney-General is denying the Parliament the right to examine the material, even in a sanitised form. We are not going to be given the opportunity of considering this matter and making up our minds, as the Constitution requires us to do.

I have asked the Attorney-General by way of interjections how it is that we should make up our minds on this matter. What we are supposed to do? Are we supposed to sit down and read newspaper reports of the matter? Clearly we are not going to be provided with the actual material. Clearly we will be provided with nothing except an opinion; we ought not to apply our minds to the material to which Mr Temby has been able to apply his mind. No parliament worthy of its name would accept that. That is usurping our role. Certainly the Senate, as one of the greatest Houses of Parliament in the whole of the Westminster system, would not accept such a proposition. This Senate has demanded the right to consider the material, and I am sure that in due course, after the election in New South Wales, that will then happen. Of course, the Attorney-General gave himself away yesterday when he moved that the motion requiring him to table the material be adjourned until after 25 March. Why did he move that motion? He did it because there will be an election in New South Wales on 25 March. Clearly, there is something in that material which has nothing whatsoever to do with the judge but which vitally concerns the people of New South Wales. It is clear, is it not, that after 25 March the Attorney-General will have no care for the judge , whom he will proceed to pour down the drain as quickly as he has poured other of his colleagues down the drain.

I ask the Senate to consider what would be its attitude if Mr Temby had come up with a statement to the effect that he had considered the evidence and his opinion was the reverse. In other words what would be the Senate's attitude if Mr Temby had said: 'I find on the basis of the material that the judge is guilty of misbehaviour. Therefore the Parliament should pray for his removal'? What would have happened? Would the Senate have accepted that opinion without looking at the material? Of course not. The Senate would have demanded to see the material so that it could make up its own mind as to what it wanted to do. It is absolute nonsense for the Attorney-General to circumvent the Parliament in this way.

The matter of public importance before the Senate today is critical of the Attorney-General because of his actions. The first one is the denial to the Parliament of the right to consider the material and the second is the refusal of the Attorney-General to supply the Parliament with details of his interview with the judge. The Opposition has asked him a whole series of questions about that matter. Initially he indicated to us that he would supply us with information because after all, that cannot be subject to some sort of protection . The Attorney-General, the first law officer of the Commonwealth and a senator in his own right, spoke to the judge. We have asked him questions about the conversations which he had with the judge. But of course the Attorney-General, with all his usual manoeuvring, has endeavoured to avoid the important questions which we have been putting to him. I ask him: What was the nature of his call on the judge? Was it an informal or a formal call? Was it made on the basis of an old boy, in-club discussion? If so, why was it necessary to have Mr Brazil accompany him? Has the Attorney-General considered what problems that created for Mr Brazil? What would have happened if, in the course of that discussion, the judge had conceded that he was involved in some sort of conspiracy? Where would that have placed the Attorney-General? Where would that have placed Mr Brazil?

The Attorney-General has now refused to table the aide-memoire which Mr Brazil made as a result of those conversations. I ask the Attorney-General: Did he warn the judge that any statements he might make may be used in evidence against the judge or in any proceedings? After all, if the task force interviews the solicitor and the solicitor says 'Yes, the judge and I were involved in a conspiracy to bribe a Commonwealth officer' and as a result the task force decides to prosecute the solicitor and the judge, of course the link connecting the judge with the solicitor will be the evidence of the Attorney-General, Senator Gareth Evans. I ask the Attorney: Has he given any consideration to those problems? In other words I am asking the Attorney-General: On sober reflection of his actions, does he now consider that it might have been wiser not to have interviewed the judge but rather to have conducted his interviews by correspondence so that there would have been a written record as to precisely what was said, by whom, and what was meant. I have not the slightest doubt that the judge believes that it would have been wiser for the Attorney-General not to have interviewed him. I understand that that is the judge's main complaint to his colleagues-that what he is really concerned about is the Attorney-General.

I turn to the procedure which should have been adopted by the Attorney-General in this matter. The Attorney-General had an obligation. As Lord Shawcross has said, the obligation is to act without fear or favour. Lord Shawcross's precise words were:

. . . it was the duty (however personally unpleasant of His Majesty's Attorney- General to represent the public interest with complete objectivity and detachment, and that to refuse to discharge that duty in a particular case in which the public interest might be suspected to conflict with the interests of certain of his friends or of his political colleagues would be tantamount to saying that the office itself was inadequate to represent and protect the public interest against whosoever might challenge it.

With that in mind, a proper Attorney-General acting properly, in accordance with the obligations of an Attorney-General of the Commonwealth would have put the material, perhaps in a sanitised form, before the Parliament. He also, of course , would have put legal opinions with that material. He might then have argued the reasons why the Parliament should not pray for the removal of the judge. He might have argued that with all of the strength that an Attorney-General is entitled to argue that case. He would then have been allowing that decision to be made by the Parliament. He would not have been doing what he has endeavoured to do-circumvent the role of the Parliament by telling us that we do not have to consider the material; all we have to do is consider the opinion of Mr Temby and the other people he has put before us and that we should accept their decisions on the matter. That is not a role which this Senate will allow to happen to it. This Senate will refuse to allow the Attorney-General and his advisers to usurp its role.

Finally, I refer to the Attorney-General's response to Senator Chaney earlier today. To use his own words, the Attorney was 'tedious and sanctmonious.' He sounded very much to me like a naughty boy attempting to explain the unexplainable to a headmaster. But the Attorney-General, with his usual hypocrisy, excused his own actions for a series of reasons all of which he acknowledges will become insignificant after the New South Wales election on 24 March. That is what this debate is all about. I ask the Senate to support the matter of public importance criticising and condemning the Attorney-General.