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Wednesday, 7 March 1984
Page: 554


Senator DURACK(4.19) —It is nearly 12 months since the Attorney-General (Senator Gareth Evans) was sworn into office shortly after the Hawke Government was elected. Over that period, indeed from his early days in office, he has been riding for a very serious fall. I believe, and the Opposition believes, that the point has been reached where that fall should be emphasised and the Attorney-General should suffer it. Honourable senators should look at some of the other spectacular failures of the Attorney-General over that period of 12 months. Think of the incredible, infamous spy flights over Tasmania perpetrated by him, entirely on his own initiative within a few weeks of assuming office.

There are a series of other matters in which he was deeply involved and about which he has offended a great number of people, particularly in relation to David Combe. I have already pointed out the complete contrast of the stance he is now taking and the paramount importance he has given in this matter to privacy-he has placed emphasis again today on the right of privacy-to the way in which he treated David Combe. That other extraordinary event also has paralells in this case. He dealt with David Combe and extracted a statement from him under very considerable pressure of time. Of course, Mr Combe repudiated it. There was also his entirely premature opinion in relation to Mr Young and the decision he made not to prosecute Mr Young even though there may have been breaches of the Crimes Act-a situation which pre-empted the decision of the Royal Commissioner Mr Justice Hope, in that matter. There have been many other matters of that kind .

The Opposition has brought this motion of censure forward today because in a sense it represents a culmination of a great many matters in which the Attorney- General has failed in his duty as Attorney-General, failed in administering his office in his executive capacity, and failed in the proper treatment of this Parliament. His attitude to the role, powers and rights of this Parliament and, indeed, his general attitude to the institution itself and those who serve in it , is really the last straw. It was notable that in defending himself against this censure motion today, he assumed a posture and used language in relation to the members of this chamber in the way he has done repeatedly in every debate in which he has taken part as Attorney-General. We heard him in silence today in order to give him the fullest opportunity of being heard on such an important charge. Except for one quite justifiable protest from the Leader of the Opposition, Senator Chaney, we endured in silence while the Attorney-General defended himself by accusing us of being a remnant, accusing us of stupidity, cant and humbug. That is the sort of language he used the other day when he accused the Opposition of being tedious, tendentious and sanctimonious. Although this is not the subject of the censure motion, it is an indication of the continual attitude of the Attorney-General to this Senate and to those who serve in it, at least on this side of the chamber. I wonder to what extent those who sit on the other side receive the same treatment in private.

The Opposition has complained over the last two weeks, and we complained before that time, about the way in which the Attorney-General has handled this matter. I want to deal with the two limbs of the Opposition's case that it has brought today. The motion covers both the attitude of the Attorney-General to the Parliament and his ability in handling this case. We have discussed these matters on a number of occasions. I do not want to labour them again in any detail today but I think they must be repeated. I have conceded that the Attorney-General treated the tapes seriously and referred them to a police task force for a report, which he obtained within a fortnight. I think the material was received on 1 February and he received the report from the police task force on 13 February. It was very interesting that in the peroration of the Attorney- General today he said that he thought a proper response to the material and the allegations was not to dignify them. But the Attorney-General took them very seriously from the word go. He has certainly continued to take the matter very seriously because, having received the police report, he referred it for opinion to Mr Temby. Having received Mr Temby's opinion, he appointed Mr Temby as Special Prosecutor and set up a joint police task force to look at the whole range of material. That is at work. He also obtained the opinion of the Solicitor-General, although he was rather slow in doing that. So the Attorney- General has treated the matter very seriously.

One of the first and major complaints of the Opposition is that he set aside further consideration of the matter. He made it clear in his major statement on the matter on 17 February that, in relation to the further investigation by Mr Temby as Special Prosecutor and by the police task force, no further inquiry would be made or was required in respect of the judge. That is the first and most major criticism that we make of the Attorney's executive handling of this matter. We have also pointed out that he put great pressure on Mr Temby for a speedy opinion and gave him the impossible task of analysing the vast mass of material and providing an opinion within less than 48 hours. Yet he asked the Opposition and the Parliament to accept Mr Temby's opinion. We then have the extraordinary conduct of the Attorney-General when he went, he now says, as Attorney-General, to interview the judge. He did not ask the judge the very pertinent question, as Senator Chaney has pointed out, as to whether the judge admitted that it was his voice on the tape. Yet the Attorney-General has been at great pains throughout this matter to throw the greatest possible doubt on the authenticity of the material.

We come now to the time when he had to face this Parliament. When we met for the first time after this problem had been faced by him, he made a statement to the Parliament in some detail and provided us with the opinions of the Solicitor -General and of Mr Temby. In regard to that statement, as I said on a previous occasion, he came into this Parliament wrapped in a cloak of unctuous piety about the rights of privacy, the untouchability of the judiciary and so on. The whole tenor of that statement was to shut up the Parliament and the Opposition. He thought that this matter should be accepted as closed and finished and that the Opposition should have no more to say about it. It has been a great complaint of the Attorney-General ever since that the Opposition has not taken that view. He said that he had answered the questions that I had raised, that that ought to be enough and that that should be the beginning and the end of the Opposition's interest in this matter. From the word go, from the time of that statement, there has been an offensive attitude to Parliament by the Attorney- General. He made it clear, through the whole tenor of his speech, that he wanted to emphasise that there was no authenticity, in his view, about this material. He even went on to say:

We simply have no means, and are unlikely in the future to have any means, of being sure that we have a full, untampered with, reliable account of the conversations that appear to have been intercepted.

He could not have emphasised more his wish to throw doubt on the matter. However , under the pressure of questioning, he has backed away from that. Indeed, in an interview, I think it was the very next morning, he backed away from that and said that it is almost certainly the case that a great many of the conversations between the parties in question did take place in some form or another. Indeed, in answer to a question-I think it was from Senator Sir John Carrick-about his conversation with the judge in relation to representations that allegedly the judge had made on behalf of somebody to obtain an appointment in New South Wales , Senator Gareth Evans told us that the judge had had some conversation to that effect, that the judge did agree with that. Yet the Attorney-General came into the Senate the next day and said that the judge made no admissions. I do not want to analyse all this material in great detail again. It has been analysed before. However, there is a very serious aspect of the Attorney-General's handling of this matter in that regard.

The Attorney-General has refused to table and make available the aide-memoire, he has refused to table the transcripts and today he refused to deny allegations as to the identity of the judge in question. We have the most ludicrous situation that the leading stories in many newspapers of Australia today have identified the judge on the basis of what may have been said in the Queensland Parliament, yet the Attorney-General is not prepared to confirm or deny that matter. He is not only making a fool of himself in adopting that attitude but also placing this chamber in a completely ludicrous position. We are talking about the material that the Age newspaper gave to the Attorney-General. The Attorney-General has that material. On his own admissions there is quite a likelihood of authenticity about many aspects of the material, to the extent that he went to see the judge on two occasions. The Attorney-General admits that the Parliament has the ultimate responsibility for the decisions about the conduct of the judiciary. Yet he persists in refusing to give to the Parliament, to this chamber, the material on which it can make that judgment.

The Attorney-General said, in one of his typically smart Alick defences that he adopts, that the Opposition could have had the aide-memoire. The Attorney- General himself-that is what the motion is about-has bitterly fought the tabling of the aide-memoire of his conversation with the judge. I am sure he will continue to do so. The matter the Attorney-General refers to is the Opposition's amendment seeking the tabling of all transcripts, including the transcripts of the tapes that had not been transcribed by the Age when it handed that material to the Attorney, and the aide-memoire. We moved an amendment asking for all that material to be tabled. The Australian Democrats, when they finally made up their minds about the matter, amended the amendment, rendering it in an unrecognisable and useless form, by requiring that the material should be authenticated and genuine material. That made it a completely different amendment. The original amendment was amended. How did the Democrats manage to amend it? The Attorney- General and those in Government supported the Democrats' amendment, thus emasculating the amendment that the Opposition moved. Now, with the aiding and abetting of the Australian Democrats, we have the Attorney-General saying that it was the Opposition's fault that it did not get the aide-memoire. The gravamen of our case is the attitude of the Attorney-General and the opposition he has maintained throughout this affair to giving the information to this chamber and to the Parliament.

That leads me to the other limb of the Opposition's censure motion against the Attorney-General; that is, that he will not provide and will bitterly fight at every step of the way the provision of the material to this Parliament on which it could make the judgment which he grudgingly but finally admitted it had the right to make. Anyone who read his statement to this chamber on 28 February, coupled as it was with the Solicitor-General's opinion, could only conclude that the Attorney-General was 'heavying' the Parliament to stop it from dealing with this matter because, he said, the Parliament had no power to deal with this matter. That was the approach of the Attorney-General.

He was backed into a corner a day or so ago, but he is now defending himself by saying what is his opinion. His opinion may be backed by that of the Solicitor- General, for what that is worth in view of some of the great omissions from his opinion. The Attorney-General is saying: 'Even though the Parliament has the ultimate power and it is not justiciable, except perhaps in some extreme circumstance, Parliament does not really have the power to determine what is misbehaviour or incapacity. That is very strictly defined. I have defined that with the opinion of the Solicitor-General'. Even accepting that that is the correct view of the matter, which we do not, the Attorney-General is still refusing to give Parliament the material on which it can make a judgment as to whether there has even been misbehaviour in the very narrow terms in which the Attorney-General himself defines it. Taking the argument further, there must be a wider power in Pariament. However, I am not going to debate that again today. We have debated that before.

As I said, the gravamen of the charge we make against the Attorney-General is that he has refused to give Parliament the material on which it can make any judgment, even in the narrow sense that the Attorney-General has laid down. The Opposition is seeking today to censure the Attorney-General for all the reasons I have given-for his handling of the matter in most steps of the way in this journey from the time the tapes were handed to him on 1 February this year, because of his inept handling of the matter and, more particularly, because of his own offensive attitude to Parliament and the denial of the rights of Parliament on this most important matter.