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Wednesday, 7 March 1984
Page: 567


Senator BUTTON (Leader of the Government in the Senate)(5.44) —I am afraid I cannot muster the passion of a Bonnie Prince Charlie, a person in permanent exile from government whose speeches on all these matters carry that embittered tone which goes back to 3 March last year. I am not responsible for that, Senator Peter Baume is.


Senator Withers —Get on to Evans.


Senator BUTTON —Senator Withers would prefer me to talk about anything but the Opposition. In spite of all the bluster and so on that has gone on in the course of this debate, there are some very revealing things in the speeches which have been given by Opposition members today. As the temperature goes out of the exercise, because there is no substance to it, the speeches get more and more repetitive and more and more dreary. There are two essential elements in this matter. The first criticises the Attorney-General (Senator Gareth Evans) for his handling of the so-called Age tapes affair. The second criticises the Attorney- General for failure to provide information. The censure motion on the Attorney- General was brought forward as a matter of urgency. It was only this morning that Senator Durack gave notice of motion that he wanted this matter investigated by a committee of the Senate.


Senator Durack —Two different things.


Senator BUTTON —No, not two different things, let us be clear about that. In every effort Senator Durack has made this week, and he has made plenty, the whole matter which has been the motivation of those endeavours, which I want to come to in a minute, has been the hidden agenda. I will talk about that later. Quite apart from the notice of motion that was given, the Opposition gave notice today of a matter of public importance, namely, the alleged double standards of the Government in refusing to release the forward Budget deficit estimates. It is the first time I can remember, in this session of the Parliament and in most of the last session, that the Opposition has paid any attention to the affairs of government in this country. Every matter of public importance has been directed at this issue, which I say relates to the hidden agenda. There has been no concentration at Question Time or at any other time by the Opposition on the questions which most concern the people of Australia.


Senator Withers —Ha, ha!


Senator BUTTON —That is something Senator Withers laughs about. As I recall it, he has asked one question in the last 12 months. That would have been a multi- thousand dollar question on his salary. There have been no questions on these important matters. Senator Peter Baume, the last speaker, referred to the Attorney-General's alleged conduct in relation to South West Tasmania, and the Combe affair. That leads to the discussion of the hidden agenda. He went on to say that this is a political issue in New South Wales. That is the prime concern of the Opposition and that is what this is all about. The first hypocrisy which is present in the attitude of the Opposition on this matter, and has been now for some weeks, is the fact that the Opposition has all the information. Members of the Opposition have told me that.


Senator Archer —I have been waiting for 14 weeks for replies I cannot get. Do you have the information?


Senator BUTTON —Senator Archer should ask the Leader of the Opposition (Senator Chaney). He will give the information; or perhaps he would not trust the honourable senator with it; or perhaps the honourable senator would be shocked to find that there is nothing much in it. That would be the reason why he would not give it to Senator Archer. The fact of the matter is that the Leader of the Opposition has had the information and he has said so. Other people say so.


Senator Walters —Name them.


Senator BUTTON —Senator Walters bleats out-she is suffering from a disease which in sheep is called blast-'Name them'. The Attorney-General today said he would not name them, and that has been the consistent position of the Government since this matter began. The Government will not be about, on the basis of fairly spurious information, bandying names about. The Opposition may be not so concerned. Turning to another matter, I wrote down a passage of the speech made by the shadow Attorney-General of this country, the Deputy Leader of the Opposition (Senator Durack). He said: 'There is quite a likelihood that the material is authentic'. He said that this afternoon in this place. On the basis of the allegation that there is quite a likelihood-there is quite a likelihood that it is not, in total-that the material is authentic-


Senator Durack —We are only going on what Senator Evans said about it.


Senator BUTTON —Yes, I know. The Opposition has, day after day, pursued this matter at Question Time, in matters of public importance, in all sorts of activities in the Senate, to try to see whether the material, authentic or not, is any grist for the mill.

I want to go through some of the questions of substance. First of all, the Attorney-General has been accused about the way in which he has handled the matter. I remind the Senate that the Attorney-General, on the first day the Parliament met, brought down a lengthy statement about the matter. He provided the Leader of the Opposition with opinions from Mr Temby, now the Director of Public Prosecutions.


Senator Walters —One man's opinion.


Senator BUTTON —One man's opinion. He provided the Leader of the Opposition with a copy of an opinion of the Solicitor-General. He brought down a lengthy statement in the Senate and since then he has elaborated on that statement in a number of respects.


Senator Missen —The opinions are illogical.


Senator BUTTON —That is an extraordinary thing. Senator Missen said that the opinions are illogical.


Senator Missen —I said that on Monday in detail.


Senator BUTTON —I am sorry, I did not hear the honourable senator at that time. But his leaders are so sensitive about that question that there has been no attack at all on the opinions. That has not been the burden of the Opposition's complaints at Question Time or at any other time. The burden of its complaints has been to find what it calls material which may or may not be authenticated.


Senator Durack —Not at all; you have not been listening.


Senator BUTTON —I would have thought that at least one of the honourable senator 's matters of public importance would have been devoted to that question; but it has not been. The point I was making before I was interrupted referred to the question of the handling of this matter by the Attorney-General. I was making the point that he has taken every reasonable step from the beginning of this matter to make as much information as possible available to the Parliament, consistent with the protection of the reputation of an individual, based on considerations of privacy. Consistent with that, all the information that it is possible to bring to the Parliament has been brought to the Parliament by the Attorney-General. The Opposition has asked numerous questions over a long period . It has not succeeded in extracting anything which in any way reflects inconsistency in those statements which have been made by the Attorney-General and the statement which was made on the first day of the parliamentary session.

The second charge, of course, relates to failure to provide information and in a sense I have commented on that. As I said earlier today in this place, on the one occasion that the Opposition had the opportunity to see that further information was tabled which would not necessarily assist it, it abandoned that opportunity in a fit of pique and is still complaining about that abandoned opportunity today. The major question in this matter goes to what is the duty of parliament. I take it that that is the reason for the Opposition seeking information in the way in which it has been doing, unless the reason for seeking that information relates to Senator Baume's revelation about there being an election in New South Wales. But assuming the best motives on behalf of the Opposition, assuming that it is genuinely concerned that allegations have been made against a Commonwealth judge, and that it is concerned with the substance of those allegations, the simple point I make is that it is often overlooked in the heat of this debate that we are dealing with tapes which were taken illegally-that is common ground between the parties-in respect of which there are transcripts, not necessarily direct transcripts, but summaries, as I understand it, of what is said to be in the tapes. This is the information which the Opposition has and which it is asking the Government to table in this place.

That is the nature of the information. I find it a very spurious exercise for an Opposition to embark on a fishing expedition which is now seven days old in order to try to substantiate facts allegedly about a Commonwealth judge and probably about other people, based on illegally taken tapes of private conversations. That is the standard which the Opposition adopts in this matter. What the Government, of course, is concerned to do-and there were all sorts of allegations in speeches that have been made in this place today-is establish a standard where the privacy of an individual is not affected by that sort of process in Australia. That is all that the Government has sought to do. Under section 72 of the Constitution, a Federal judge may be dismissed by a petition of both Houses of the Parliament. I think there is no disagreement with the view that if the Parliament were to make a judgment about that issue, it would have to do so judicially. I refer to the opinion of the Solicitor-General on that matter. He made the point, which is made, of course, in Quick and Garran and other authorities on the Constitution, that:

. . . the duty of Parliament is practically indistinguishable from a strictly judicial duty.


Senator Missen —He said that, did he?


Senator BUTTON —I am putting that as an authority of Quick and Garran and the Solicitor-General.


Senator Missen —Oh, are you?


Senator BUTTON —Yes, I am. No doubt the honourable senator will cite his own authorities, and they are likely to be him. But if one accepts that view, in any judicial proceeding the sort of material which is sought and has been sought in question after question in the course of the last seven days is not material upon which any judge or magistrate would act.


Senator Crichton-Browne —Why not?


Senator BUTTON —Because it would not be admissible in evidence. Perhaps the honourable senator will give us a legal opinion about that at a later stage. Before any proceeding which requires a judicial act comes before a court for consideration, there has to be a prima facie case made out which is investigated in normal proceedings by a committal. I refer the Senate to the statement of 17 February by the Special Minister of State (Mr Young) and the Attorney-General. In the last paragraph of that statement this point is made:

Both the police report and Mr Temby's opinion make it clear that there is no basis upon which any further police or Special Prosecutor investigation of the alleged behaviour of the judge, as revealed by the tapes and transcripts, could be justified.

On the basis of that, of course, it is open to Senator Missen and others to attack the character of somebody who gave that opinion, or to attack the police, the Solicitor-General or anybody else because it is alleged that those opinions are substituted for the opinions of Parliament. The point I simply make is that before that sort of material is admissible, it ought to be examined, as it has been. I do not know who else it would be suggested, from the Opposition side, should have examined that material other than the people whom the Attorney- General asked to examine it. So the point I make is that it is our view that the Parliament has a duty in this matter, both in respect of the preservation of privacy of individuals in relation to the source of the material which Parliament may wish to deal with and certainly in the way that that material is handled, in order that the preservation of civil liberties may be observed by this Parliament. It is quite extraordinary to find somebody like Senator Durack, the shadow Attorney-General, referring to material which may or may not be authenticated. We would argue that the Parliament, conscious of separation of power issues, should be very careful before it interferes in any judicial office . That sort of attitude is not being displayed by the Opposition.

I said something earlier about the question of motives in relation to this matter. I suppose they were best revealed by Senator Baume when he referred to the New South Wales election which is to take place shortly-a quite extraordinary reference to make in a speech which was allegedly devoted to the behaviour of the Attorney-General and the conduct of a Federal judge. That admission has been made again and again by Opposition speakers in the same sort of way in which Senator Baume made it; a concern to influence events in New South Wales being the prime concern and a concern which is detrimental, of course, to the civil liberties of the judge in question. So the sound and fury has all the flavour of an election stunt. It has all the flavour of this Opposition. It has been handled badly from the beginning. The Opposition has given no indication day by day of its intentions, what it is seeking in terms of information or what it is seeking to establish.


Senator Sibraa —Smearing!


Senator BUTTON —The Opposition has made smear after smear by way of question and innuendo in respect of information which on its own admission it had. It is extraordinary that an Opposition with that information seeks to raise this issue again and again in this Parliament. There can be no other explanation for it than the one given by Senator Baume. Piety in respect of this matter rings very hollow. I suppose the Opposition will pursue this matter in various ways, as it has pursued other issues with the same effectiveness. That does not alarm the Government at all. I said earlier today, and I repeat it, that in relation to the Attorney-General's handling of this matter he may have aroused some passion and some ire but that is not a charge justifying a censure motion.


Senator Chaney —I agree with that.


Senator BUTTON —Senator Chaney certainly has had his ire roused at various times .


Senator Chaney —I agree with that.


Senator BUTTON —I am happy to say that Senator Chaney agrees with me. He has indicated that he should not have got embittered or angered by the Attorney- General; he should have restrained his passions as Senator Baume earlier in this debate was quite incapable of doing. That is not the basis of a censure motion against an Attorney. Nor is the failure to provide information, having regard to the history of this matter, a basis for a censure motion against an Attorney. Samuel Beckett once wrote a great play called Krapps Last Tape. I might invert the title of that play for the benefit of the Opposition. That is what the dealings in Parliament in the last seven days have been like.


Senator Durack —Don't you recall the matters of public importance on the Alice Springs railway and also on the resources rental tax?


Senator BUTTON —I do recall those matters. That is an amazing achievement for the Opposition. I congratulate Senator Durack on it. I am very surprised--


Senator Walters —I am not surprised that you have no fire, no enthusiasm. I am not surprised at all. There is none there.


Senator BUTTON —Senator Walters is a wheelbarrow full of surprises. I am not surprised that she is not surprised. That has nothing to do with the topic of this discussion.


Senator Peter Baume —It is an impassioned defence of the Attorney.


Senator BUTTON —I do not want to make an impassioned defence of the Attorney. All the passions have raged on the Opposition side. Of course, the result is a tale full of sound and fury which at this stage signifies nothing. The passions will go on but they will get dimmer as time goes by because there is really no substance in the Opposition's case. I do not want to make passionate speeches for the Attorney. I appeal to the Opposition to see where this Parliament is going. This is an Opposition which relies on unsubstantiated material illegally obtained which invades the privacy of individuals. This is an Opposition which relies on all those things to embark on fishing expeditions in respect of information which it already has. That is a classic abuse of the processes of this Parliament. It is a classic abuse of the processes of the Senate. It is a classic abuse of the censure procedure against a Minister in a government. That is what the Opposition has done continually. As I said, I am not here to provide impassioned defences of anybody. All the passion has been on the other side. That passion has concealed a great deal of absence of fact and argument. The debate has very largely been passion, some of which I suppose has been engendered by the Attorney-General's responses to questions which have not been comforting to the Opposition. I understand that. That is what has happened here over the last week. It is a very sad situation for the Parliament that we have an Opposition which is not only inept generally in conducting its business but which has proved its ineptitude in its conduct of this matter.