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Wednesday, 28 March 1984
Page: 774


Senator CHIPP (Leader of the Australian Democrats)(11.18) —I believe that the Senate has heard two fine speeches from Senators Durack and Gareth Evans on this very difficult question of the Age tapes. The speeches, of course, have been at variance and listeners to the debate can draw their own conclusions as to whether those positions have been taken because of political persuasions or whether they are objective opinions. I believe that both speeches were motivated by genuine beliefs in what should be done with this affair. The Australian Democrats have regarded the matter as serious right from the beginning. It is a vexed matter, a nasty matter, a matter which I think all of us would have preferred had never arisen. The fact that it has arisen means that it has to be settled.

I was impressed by that section of Senator Gareth Evans's speech which said that we are now setting a dangerous precedent. My goodness, we are; let not Senator Evans think that members of the Opposition do not recognise that. We are establishing an extraordinarily dangerous precedent. I do not know whether a parliamentary committee has ever before inquired into the conduct of a Federal judge. I do not think it has. It is a very serious matter and the implications that can be drawn from some of the material do not make it a light-hearted affair. Let us face it; let us grasp the nettle. The Senate in the first instance is acting on behalf of the Parliament to determine whether under section 72 (ii) of the Constitution a very senior judge in the Federal jurisdiction has misbehaved and whether he should therefore be dismissed. If people think that anybody wants to play politics with a question like that, they ought to think again. It would be only a very brave or stupid person who would play party politics with a suggestion like that.

I have enough confidence in the Senate committee system to be absolutely persuaded at this stage, even before the personnel of that committee are appointed, that every person on that committee will behave responsibly and will not go on witch hunts or engage in party politics. I state that categorically to people listening to this debate. That is the way in which the Senate committee system in this place operates. It is something of which we should all be proud. I am sure there is nothing to indicate that this exercise will dim that image.

We agree with Senator Evans that we would be setting a dangerous precedent, but what does the Attorney suggest in its place? With great respect to him, what he is saying is: 'Let's do nothing'. He says-I respect his opinion-that in his view the tapes do not deserve or demand examination.


Senator Gareth Evans —So far as the judge is concerned.


Senator CHIPP —Without pre-judging the issue, I have an opinion that is different from that of Senator Evans. I am certainly not playing party politics in this. Party politics will not be played by us. But let Senator Evans agree that if the conversations between certain individuals on the tapes and transcripts alleged to have taken place did take place-let us assume for a moment that everything on those tapes and transcripts is authentic and genuine; I am not saying it is, but let us assume it is-then prima facie that is enough information to put a question mark against prominent people in this country of a nature that would demand examination and a clearing of the air.

Senator Gareth Evans is certainly more knowledgeable of the law than I. He may well be more intelligent than I, but one thing that I have over him is that I have been in this business longer than he has. Without doing the old soldier act on him, let me say that I believe that this is one issue that will not just go away. There is no way it will just disappear down the track. What Senator Gareth Evans, the Attorney-General, forgets, temporarily, I think in his innocence, is that there will be a Federal election this year. Does the Attorney really believe that an issue like this will go away? Does that mean he is prepared, if he has thought it through, for a massive cloud to hang over a senior judge of this country for that length of time? Does he believe that that massive cloud should also hang over a senior Federal court in this country for the next eight or nine months? Does he believe that it is proper in a democracy which operates under the rule of law that all judgments from that senior court with which that judge might be associated should remain clouded for the rest of the year? I am not even talking about the likelihood or otherwise of the guilt or innocence of the judge. I am saying that the cloud is there. Will it go away because the Attorney-General has summoned and obtained legal opinions from highly respected lawyers? Clearly, the cloud has not gone away and those respected opinions have been on the table of this chamber for the last month or more.


Senator Missen —And heavily criticised.


Senator CHIPP —That is another aspect. The position has been worsened since the publication by the Age of the transcripts and the debate in this place because there have been some conspicuous cowards, not in this chamber, who, under the privilege of Parliament have named certain people. These despicable people under the privilege of Parliament have named the people appearing in the tapes. I have nothing but the lowest contempt for politicans who do that sort of thing.

I should like to turn to one aspect that has not been yet mentioned in this debate. I want to talk about the judge concerned. What is his position? He has been compromised in a most terrible way. Whether the tapes are authentic or not or genuine or not, that judge is now in a state of compromise. If the Attorney- General was fair I think he would acknowledge the thrust of that remark. The judge will continue under a condition of compromise until he has had an opportunity of clearing his name. He will be compromised until his name and reputation are cleared. I raise a point which has not been raised yet. What has happened to that old Australian saying: 'Give a fellow a fair go'? Has the judge been given a fair go? Of course he has not. He has been named, he has been demeaned, he has been persecuted, he has been tried by innuendo by cowards under parliamentary privilege, by sniggers by questions by disreptuable people to Ministers, et cetera.


Senator Gareth Evans —What about that other old Australian saying: 'Get off his back'?


Senator CHIPP —If the Attorney has another formula for getting people off his back let him put it forward in this chamber. He did not put it forward in his speech five minutes ago. All he said was: 'Let's do nothing about it in this chamber and the issue will go away'. That is political innocence of a kind that borders on being naive. It just will not go away, nor will this judge have an opportunity of clearing himself. What can he do? Can he get up on the Bench on which he sits and say that this is a pack of rubbish? Of course he cannot. Can he go through that rather quaint method that was suggested at the weekend by a journalist of being tried by his peers on the same Bench? That is totally absurd . I wish we could find an easy solution. The Attorney is wrong if he thinks that simply by producing a couple of legal opinions in here the thing will go away. I certainly have not been in the position the Attorney has been in of being able to speak to the judge since the affair began. However, I would not be at all surprised that the judge would welcome this kind of inquiry. Certainly, if I had nothing to hide I would welcome an inquiry like this. The inquiry will protect the judge's position. Potential members of the Committee already have in mind that there will be no unnecessary embarrassment of the judge. We have now received from the Attorney a totally unnecessary admonition in his amendment to the motion that Committee members must behave well and in a gentlemanly fashion. I do not know why there is so much to fear about the appointment of this Committee.

Although I have complimented the Attorney on his speech, I cannot reconcile one aspect of what he said. On the one hand, he said this morning-I took the words down-'that there is no argument about that' when referring to the fact that Parliament and Parliament alone has to be the judge of whether a judge has misbehaved under section 72 (ii) of the Constitution. The Attorney has made that clear on several occasions. If Parliament and only Parliament has the power, surely Parliament has to be in a position to make an assessment as to whether there has been misbehaviour under section 72 (ii). As far as I am concerned, leaving all party politics aside, as a member of parliament I am just not prepared, without having heard the tapes or having gone into the matter and hearing evidence, to accept the word of two lawyers.


Senator Gareth Evans —I bet you would be if the judge's name had been Bill Smith . Fair comment?


Senator CHIPP —I acknowledge the interjection of the Attorney-General so that it will be recorded in Hansard for the sole purpose of enabling readers of Hansard to judge how contemptible that interjection was. I make no other reference to it . How do we proceed if Parliament is going to be the judge? Nobody would deny the total absurdity of 189 members of Parliament-all members of the House of Representatives and the Senate-gathering in some chamber to conduct an inquiry, hear evidence and make a judgment. That really is cuckoo land, and nobody has suggested that. If we proceed from the Attorney's acknowledged position that only Parliament can make the decision, I think logically we go to a fact-finding group of the Parliament to go into what has been alleged, the evidence, the explanations, and the replies of the people who have been maligned. Hopefully, a lot of the evidence will be taken in camera so that innocent reputations are not damaged. This all-party group could report back to the Parliament.

My only fear in this exercise is that once the Committee has reported, and on the assumption that it does clear the people named, the politicking will not then cease. I am not worried about the Committee because I believe it will conduct itself with propriety and dignity. But let us assume that a sizeable majority of the Committee comes down with the finding that there is no offence and no misbehaviour under section 72 (ii). I hope that that would be the end of it. I hope that the Parliament would then regard the Committee as the honest broker, as the umpire, if it comes down with that sort of decision. That is the big question which, of course, we cannot answer until the Committee brings down its report.

Let us look at the accusations that the Liberal Party has engaged in a kangaro court, a witch hunt or whatever. I do not think that can be sustained. It is not my business to defend the Liberal Party. It can defend itself far better than I can. But I believe the Liberal Party has shown a great deal of bona fides in the way in which it has suggested this Committee might be constituted. An Opposition majority has not been proposed for the Committee. In fact, the Liberal Party, without reference to the Australian Democrats- I commend it for this-proposed that the Government have a majority on the Committee. It proposed that the Australian Labor Party have the majority and that there be a Labor Party Chairman. I believe that that act in itself makes the argument that this is a political witch hunt fall to the ground immediately. Of course, the Australian Democrats totally support such a proposal.

The Attorney-General has made four points, four very good points. He has made the point that the tapes are unauthenticated. I remind him that when the original motion was moved for a joint committee of both Houses it was the Democrats who moved an amendment that the first task of the Committee should be to examine the genuineness or authenticity of the tapes. I concur with his concern that the tapes are authenticated. He has now moved another amendment with which we concur and which we will support, that is the insertion of the words 'if the Committee is satisfied that the tapes and transcripts referred to in sub-paragraph (a) are authentic and genuine in whole or part'. I think there is something to be commended in that amendment because it will stop the Committee, as Senator Evans said, from roaming at large over 500-odd pages of transcript, some of which is not backed up by tapes.

Then the Attorney-General said that if the tapes are authentic they were illegally obtained. I find some irrelevance in the fact that they were illegally obtained. Whether a tape is obtained legally or illegally, it is still a massive invasion of privacy. The material is no different. No doubt there are miles of tape in the Australian Federal Police headquarters which have been legally obtained. They are still massive invasions of privacy. I share the Attorney- General's concern and Senator Durack's concern that the unfortunate part of taped conservations is that innocent names are mentioned on them. As I have said before in the Federal Police archives there would be miles of tape and pages of transcripts of conversations legally obtained on warrants properly made out. I am quite sure that my name and the name of every prominent member of parliament is mentioned. One of the idiosyncrasies of criminals on a phone is to big note themselves. They say: 'Oh, so and so. Yes I have got him under control. I paid him 10 grand last year. He's on our side'. I think we ought to pause and imagine the effect on such a person if that sort of tape, legally obtained, were tabled in this place or printed in the Age newspaper. We are talking about very serious stuff.

I feel that we are about to go into a new era. I will divert for a moment to illustrate the point. I was at a football match the other day and a fellow came up out of the crowd with a camera, took my photograph and walked away. Not a word was spoken. It was not a terribly exciting football match. It was in Adelaide and there was a difference of about 20 goals in the score. I reflected and thought what a massive invasion of privacy it is for anybody to have his photograph taken without first his permission being sought. It is almost like having fingerprints taken. In some aspects it is worse. It is an invasion of privacy which we have allowed to occur and which has occurred by default. That is why this matter is so serious. By default we may well get into a situation where any telephone conversation can be taped and reproduced. Let me assure the Attorney-General that I am not one of those people who sniggered at the remark he made about what people say over a telephone in private. I will confess that I have had many conversations with friends, my wife and children over a telephone that, when looked at in naked print, would seem quite different from the way in which they were intended. I share the Attorney's concern on that matter. We will support his amendment and I understand the Opposition will also support it.

The Attorney-General wants inserted into Senator Durack's motion four guiding principles. They are: First, that at all times the Committee take care to protect as far as possible the privacy, confidentiality, rights and reputations of individuals et cetera; secondly, that it summon witnesses to appear personally only when satisfied that circumstances demand it et cetera; thirdly, that it give specific consideration in the case of each proposed witness to the desirability of hearing evidence in private et cetera; and, fourthly, that it ensure that the operational methods and results of investigations of law enforcement agencies be protected from disclosure where that would be against the public interest. Those four things are almost like saying that we love motherhood and hate sin or the reverse, whichever happens to be one's persuasion . I was a little offended as a member of the Senate and a possible member of the Committee to be told by the Government how we have to behave. All senators have behaved like that since time began. That is why they have such a high reputation . Then I saw the wisdom of the Attorney-General's amendment for the reason that this Committee establishes a precededent-


Senator Gareth Evans —It is not just any old Senate committee, is it?


Senator CHIPP —It is not just any old Senate committee, it is a Senate committee inquiring into the behaviour of a Federal judge. For that reason the Democrats, and I understand the Opposition also, will support this amendment. I have not seen the Attorney-General's latest draft. I hope he has incorporated the three amendments suggested by the Democrats, namely the insertion in paragraph 3(b) of the words 'so far as possible', the deletion of the word 'full' and the insertion in paragraph 3(d) also of the words 'so far as possible'. I and the Democrats support the establishment of this Committee with some reluctance in the wish and the hope that it will enable the judge to clear his name and remove the cloud that hangs over the Bench on which he sits.