Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
 Download Current HansardDownload Current Hansard   

Previous Fragment    Next Fragment
Thursday, 8 March 1984
Page: 598


Senator HAMER(11.34) —The Senate is considering a motion of censure against the Attorney-General, Senator Gareth Evans, for his handling of what is called the Age tapes affair and his refusal to provide appropriate information to this Parliament. The first line of defence the Attorney-General has put up is the illegality of the taping. There is no reasonable doubt that these tapes were illegally made, but the attitude of the Government and of Government Ministers seems to be fairly flexible. Some time ago the present Prime Minister (Mr Hawke) used a tape which was illegally obtained. On the Mike Willesee show he was asked about his attitude to his use of this illegal tape. This was his answer:

. . . not only do I not regard it as any significant invasion of privacy that I should be concerned about, but I believe it's a duty of anyone who's got information which will disclose the nature of these people and what they will do to decent Australians, then they should be revealed for the sort of people they are and the perfidious and hypocritical actions that they undertake.

That was the remark of the present Prime Minister when he was using, for his own purposes, an illegally obtained tape.

It is important to understand that the fact that this information is obtained illegally-there is no reasonable doubt about that-does not prevent us taking appropriate action, although of course we have to be satisfied before we take action that the material is authentic and relevant. The Attorney-General has made a great deal about the invasion of privacy involved, and certainly that is very serious, but of course the invasion of privacy is exactly the same whether the tapes were obtained legally or illegally. The invasion of Mr Combe's privacy , although his tapes were obtained legally, was just as much an invasion of privacy as this is. The problem I find with the Attorney-General's attitude is that he is putting up smokescreens to prevent his doing what I think he knows he should be doing.

Worse still-I think he was well described as an Inspector Clousseau in his behaviour and success-he seems to be most concerned, because it is a simply proved offence, one would have thought, to get the people who made the tapes. One wants to think about the circumstances in which these police, and I am sure they were police, made these tapes. They were confronted with a situation in New South Wales where some level of corruption has been endemic for years. It has become much worse under the Wran Government. They were confronted, when trying to investigate serious crime, with a network that covered police, politics, the criminals and elements of the judiciary. In order to try to find out what was blocking proper law enforcement in New South Wales they illegally taped things. Their methods were wrong; their motives, I think, were admirable. The danger is that Senator Evans's Inspector Clousseau-type activities will get the honest cops in New South Wales thrown out and leave the people they were trying to expose still in positions of power and influence. He has to start considering what will be the consequences of his actions. Like nearly all the things he does , they will have quite counter-productive effects.

I now turn to the responsibility of Parliament in this matter. Section 72 of the Constitution makes it quite clear that this Parliament is responsible for removing judges who have shown themselves to be inappropriate to hold that position. We have to define misbehaviour. It is not for the Solicitor-General or for some Director of Public Prosecutions. We have to make up our minds what is misbehaviour. Consider what might happen if there were before this chamber a motion to remove a judge for misbehaviour. We would have to decide whether we accepted that his behaviour constituted misbehaviour. It is our responsibility. Of course, being a responsible body, I hope that we would listen to people, including the Solicitor-General and others. Knowing lawyers, we would have very diverse arguments to listen to, but we ultimately hold the responsibility. We in this Parliament must decide whether a particular type of behaviour constitutes misbehaviour. No one else can do it. They can advise us, but our responsibility remains.


Senator Robertson —Not from first principles.


Senator HAMER —Of course, from first principles. It is our responsibility. We can take such advice as we wish, but we must have responsibility. There is another point in the Constitution I should refer to-the reference to 'proved misbehaviour'. That does not mean, as some honourable senators appear to think, that there has to be some sort of conviction in a court of law before the Parliament can act. The 'proved' undoubtedly refers to this Parliament having to accept, to decide, that the offence which it is complaining about is proven. We have to be the deciding body. We can take what advice we like, but ultimately the responsibility is ours and we cannot get away from it.

The question of the justiciability of these decisions is pretty clear. There is no way in which our decision that the offence was proved is justiciable. I can conceive of circumstances in which the Parliament might act completely irrationally so that the decision that behaviour constituted misbehaviour within the meaning of section 72 of the Constitution might be reviewed by the High Court. The question of proof is not justiciable. The definition of misbehaviour which Parliament accepted might be challenged. In the first instance, after taking proper advice, it is the responsiblity of this Parliament, not the Executive, not the judiciary, to decide what constitutes misbehaviour. If we are to make such a decision, we must have the information on which that decision can be made. The Government is trying to push us into a catch-22 situation in which the Attorney-General says: 'Yes, it is your responsibility, but no, I will not give the information on which you can exercise that responsibility'. That is a position which we cannot accept.


Senator Robertson —Two bob each way.


Senator HAMER —No, I am having it all on the one horse. We must make the decisions. We are the responsible body. We must decide whether the material is genuine or authentic. We should not delegate that decision to the Executive. We shall not make it by ourselves; we shall get advice-which is what the Attorney- General will be doing-which will allow us to decide whether the material is genuine or authentic. It is our responsibility. That was the weakness of, and why I voted against, the amendment moved by the Australian Democrats on the question of producing these tapes and transcripts in this chamber. They had left the decision as to whether the tapes and transcripts are genuine or authentic to the Executive. That is quite wrong. It is not the Executive's responsibility; it is the Parliament's responsibility, and we cannot yield it to anyone else.

Senator Gareth Evans has referred the material to the Stewart Royal Commission of Inquiry into Drug Trafficking. He did not check it for authenticity first. He gave the material to the Commission. That Commission will no doubt decide whether the material is genuine or authentic. Senator Gareth Evans gave it the whole lot. Why does he treat a royal commission in that way, and Parliament, which has quite different but clear and separate responsibilities, in a different way? He should give the relevant material that he gave to the Royal Commission to that Commission and he should give Parliament the relevant material that concerns us. He should not filter it first. We agree that it is to be published-I shall come to that shortly-and that it has to be sanitised, to use the expression which is in current use, to remove persons' names. But nevertheless, ultimately the responsibility is ours, and we must have the material on which we have to exercise that responsibility.

I accept the difficulty involved in tabling this material even when it is sanitised by removing the names and distinguishing characteristics of individuals. They will be identified. But on balance, I thought that it was proper to table the material, because most of it had already been published in a newspaper. We have the situation that the material was in the hands of the Government, having been given to it by the newspaper, but was not being given to the Parliament. I accept this difficulty, but the Attorney-General has not said: 'There is a difficulty, but I shall endeavour to overcome it'. He has never, for instance, said: 'I cannot give it to the Parliament to be tabled publicly, yet of course I will give it to a select committee'. If he says that a select committee is not appropriate, I draw his attention to the fact that he has proposed the setting up of a select committee of Parliament to monitor security matters and to have access to information far more sensitive and far more damaging to individuals than is this information. Yet he has made no such proposal in this case. All that we have been met with is a blank and sometimes childish refusal to provide any information of any relevance to the Parliament. We have gone on, day after day, probing so that we can perform our proper role, the role assigned to us by the Constitution and the role for which we are elected. All that we are met with is indifference, sneers or frivolous answers from the Attorney-General. That is just not good enough.

I must mention one further matter about the judiciary. Until this case is resolved there will be a permanent stain on the judiciary. All of them are under this slur. Until the one judge is identified, all are under suspicion. I believe that it would have been decent and proper for the judge concerned, when this matter first arose, to come forward and say: 'I am the judge concerned. Of course, I do not like the invasion of privacy; I think that it was outrageous. But I am innocent of any wrong doing'. He should identify himself. There is a very good precedent for this. When, in England, a similar slur was cast on the members of the Conservative front bench, Winston Churchill junior, one of the Conservative front bench, came forward and said: 'To avoid my colleagues being unjustly reflected upon by this sort of misinformation, I announce that I am the Conservative front bencher concerned'. I think that the judge should have done the same because until he is publicly identified this slur will be hanging over the whole Federal judiciary, to the great damage of our judicial system.

Finally, I return to the Attorney-General himself. It is very sad that he has shown himself-although in many ways he was quite successful as shadow Attorney- General-to be quite unable to cope with the job itself. He seems quite unable to combine the job of being a party Minister in a party government with the job of being the first law officer of the Commonwealth and the legal adviser to this Parliament. He also does not seem able to distance himself from his former contacts, some of whom, in current circumstances, are inappropriate. He reminds me very much of a footballer bounding forward and shooting at goal with both feet-but, of course, being an Inspector Clousseau type, missing all the time and probably falling over. Nevertheless, he is bounding forward and shooting wildly at goal, then suddenly he stops, blows the whistle, becomes the referee, and says that the opposition is offside. He cannot combine these two functions in the way in which he is trying to do. He has neither the style nor the temperament for it.

The Attorney-General has lost the confidence of the Opposition in his ability and impartiality as Attorney-General. From this debate it also appears that he has lost the confidence of the Government. Neither the Leader of the Government in the Senate (Senator Button) nor the Deputy Leader of the Government in the Senate (Senator Grimes) bothered to defend him. They spent all their time attacking the Opposition. This is a problem for this Parliament. It is most important that this Parliament should have an Attorney-General in whom it has confidence and whom it can trust.


Senator Robertson —Did you say that the Leader of the Government in the Senate and his Deputy did not support him?


Senator Gietzelt —Do you suggest that you have an open mind on this?


Senator HAMER —I have a very open mind about it. I repeat, for Senator Robertson 's benefit, that in their debating speeches neither the Leader of the Government in the Senate nor the Deputy Leader of the Government spent much time defending the Attorney-General. They spent most of their time attacking the Opposition. We have an Attorney-General who, by his actions and by his childish behaviour, has lost the confidence of this chamber and this Parliament. He should be censured.