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Thursday, 8 March 1984
Page: 654


Senator GARETH EVANS (Attorney-General)(5.44) —The Government will oppose this motion even in the slightly more acceptable form represented by the Australian Democrats' amendment. I say 'slightly more acceptable' because although, on the face of it, the Democrats' amendment is much more attractive, focusing specifically as it does on the authenticity issue in a way that the original motion does not, nonetheless, as Senator Chipp was frank enough to acknowledge, the language of the amendment is couched in such a way that the committee will not be obliged to satisfy itself about the authenticity of this material before it goes on to consider and draw conclusions about the larger questions as to whether or not misbehaviour has occurred. In a sense, while not quite going so far as to say it is fraudulent to have the references there in those terms, it is the case that the authenticity issue may be one that regrettably the committee, if it is established, will feel itself able to slide over pretty quickly.

The reasons for our opposition to referring this matter to any kind of parliamentary committee will come as no surprise to anyone who has been following the endless debates on this matter over the last two weeks. Essentially, there are two inter-related propositions: Firstly, there is nothing in the material which justifies a full scale parliamentary investigation given the constitutional responsibilities of Parliament in relation to the judiciary. Secondly, there are very real dangers involved in setting the precedent of a full scale parliamentary committee investigation in the circumstances of this kind of case where the material is, as we all know, anonymous, unauthenticated, clearly illegal to the extent that it is authentic, and manifestly grossly invasive of personal privacy. We believe, and we do so quite frankly and sincerely, that to mount an investigation of the kind that is here contemplated on the basis of material as tenuous and as insubstantial as this will really constitute an open invitation to damaging but ill-founded attacks being made on public figures in the hope simply, of course, that some of the mud will stick. We do not believe that Parliament as an institution should lend itself and its dignity to this kind of exercise.

As to the material that is involved in this case, one or two more things need to be said. The motion quite properly confines its attention to the grounds under section 72 of the Constitution for considering judicial behaviour. But we say that it is clear that section 72 involves only two grounds for possible attack on a particular judge: Firstly, as I have said a thousand times, criminal misconduct of a kind that does not sit with continued occupancy of that office or, secondly, misbehaviour that is directly related to the conduct of judicial office even if falling short of criminality. That is clear, as we have discussed over and over again, from the opinion of the Solicitor-General and the opinion of Mr Temby. Although I know Mr Temby's opinion has been contested in some quarters of this Parliament, nonetheless I believe it has very real force behind it and is such that a committee looking at it carefully and properly would inevitably come to that conclusion. We also believe it is clear on the materials which we have examined very carefully, as have the police, as has Mr Temby, that the judge is simply not caught up in either of those two standard and only components of section 72. That is the position which we have stated over and over again, that at the end of the road, at the end of the day, what one is left with is something much less than criminal misconduct or activity directly related to judicial office-if anything at all.

We ask, as the Opposition has pointed out over and over again, for the Parliament to take us on trust in that respect-if not me, if not the Government on trust, certainly Mr Temby and certainly the Solicitor-General on the question of law involved. The reason we ask Parliament to take us on trust in this respect rather than have Parliament insist on going through the process of inquiry itself, which is its prerogative I readily acknowledge under section 72 of the Constitution, is once again because of the nature of the material here in issue-I can only repeat the point so many times without boring everyone-its anonymity, its unauthenticated character, its illegality and its grossly invasive of privacy character. There are very real dangers under those circumstances of Parliament getting involved in this sort of exercise. We ask that Parliament exercise self-restraint.

So far we believe from asserting the invincibility of parliamentary sovereignty , so far from improving the quality of parliamentary democracy by embarking on this sort of enterprise, the Government believes that to do so is to write a game plan for, ultimately, the destruction of democratic and libertarian values in this country. The reality is that an inquiry like this, whatever its procedures may prove to be, cannot occur without people getting hurt. Even if the people whose reputations are right on the firing line come up smelling like roses at the end of the process of the scrutiny of this inquiry, there is no doubt that they will suffer as people before them have suffered in those series of recent royal commissions which have produced a clean bill of health for the people centrally involved. There is no doubt that the people will suffer hurt, humiliation and pain while that process is working itself out.


Senator Missen —They are suffering now.


Senator GARETH EVANS —I do not stop to comment upon the hypocrisy of those who have created the very issue now crying that the issue can be resolved only by some further continuation of the circus that has already occurred. The point I make though about that hurt, humiliation and pain is not simply one that bears upon the personal experiences of those who are involved and are going to be involved. In the case of the judiciary, it has consequences that are considerably more important. It is not just a matter of making the position of the individual judge concerned impossible, but really it goes to the whole question of the credibility and capacity of the judicial institution to stay intact. How can it be business as usual for the court involved, for the judge involved, more particularly, while this particular process is working itself out ? The nature of the whole enterprise is such that that simply cannot be the case . What we ask would appear to be a quixotic question at this stage of the business because minds are apparently made up. The Parliament, this Senate, should think very carefully indeed about whether the likely end of this particular road, given what we know of the opinions, the conclusions of others who have objectively considered this material, justifies the means that are now contemplated.

If the Senate does vote to establish a joint select committee-we hope that the situation will not arise, but it may well do in a few minutes time-the Government will give very serious consideration to its attitude, both to the establishment of such a committee and its operation before the motion comes on for debate in the House of Representatives. We will do so against the background of Senator Durack's not very subtly concealed threat, reinforced of course by Senator Chipp's comments, to go down the path of a Senate committee in the event that the joint committee is not accepted. Among the matters to which we will be giving very careful consideration if this motion is passed will be the composition and especially the procedures of the proposed committee and whether the proposed procedures-we have no motion before us in this respect-are likely to be satisfactory to protect, so far as is possible to do so, the privacy, confidentiality and liberty of the individuals concerned while the committee is formulating its views.

Certainly I hope that if a committee in any form is established, very careful attention is paid to the principle of avoiding publicity while an investigation is proceeding. There will be no one on trial in the context of a parliamentary committee exercise. Charges have not been laid. It is wildly premature to contemplate their being laid. It may look like a trial in many respects and certainly that has been the experience already in what has occurred. It is one way of characterising it. It will go on being a trial, a trial by media, a trial by innuendo, but it has to be appreciated when one is engaged in essentially an investigative exercise, as this will be, that the same sorts of principles ought to apply as I have argued over and over again should apply to the kind of criminal investigation process through crimes commissions and royal commissions and so on. But they are matters that can be subjects of further discussion should the occasion arise.

I hope and the Government hopes that the situation will not arise, that we will not have to give consideration to all these particular questions. We hope that ultimately the view will prevail in the Senate that there are very real dangers, dangers that are almost impossible to overstate in any further consideration of a matter of the kind that is contemplated. To repeat, I am not asking the Senate to accept my views, the Government's views, but rather to be receptive to the conclusions, the very careful and well reasoned conclusions I believe, of independent credible third parties, men of integrity and competence such as the Director of Public Prosecutions and the Solicitor-General. We hope that for all these reasons, despite the apparent inevitability of it, the committee will reject the motion in question.