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Wednesday, 28 March 1984
Page: 781


Senator DURACK(12.06) —The Senate has been debating in broad terms a motion which I moved to establish a Senate Select Committee on the Conduct of a Judge. The debate quite specifically related to conversations that are alleged to have taken place as revealed in what have become known as the Age tapes, certain portions of which were published in the Age newspaper in early February. It is now clear from material that has been provided to the Senate by the Attorney-General (Senator Gareth Evans) in the course of the debate that the transcripts range over 520-odd pages. There are tapes which were not originally transcribed. Presumably transcriptions have now been made of those tapes. I do not know the number of pages involved. In any event, there is a considerable mass of material. Some of that material concerns only the conduct of a judge. The Committee would be required to establish whether that material is authentic, either in whole or in part and, if so, whether that conduct would be such as to amount to grounds of removal of the judge under section 72 (ii) of the Constitution.

The Government, although opposing the proposal itself, has moved some amendments to my motion. I say immediately that the Opposition will agree to those amendments which are of three kinds. The first two really tidy up the drafting of the terms of reference to give a more firm meaning to them. Certainly, the amendment only gives effect to the intention of the terms of reference contained in my motion. The third amendment proposed by the Government adds a new and extensive paragraph to the motion and lays down that the Committee will act in accordance with a number of principles. I do not propose to go through those principles in detail; suffice it to say that the Opposition will agree to the proposed amendment. However, I feel bound to say that I regard the amendment proposed by the Government as unnecessary. I believe it is somewhat of an insult not only to this Committee and the people who might be on it but also to the committee system as it has developed.

The considerations that are set out in the so-called principles are ones which I believe Senate committees, faced with problems of this kind, have in the past and will in the future, particularly in this case, observe. It may be that principles of this kind will become common form principles for Senate committees . I am only prepared to accept them in the light that they will be accepted as common form principles. In agreeing to the Government's amendments, I do not for one minute concede that this Senate Committee or any Senate committee would act in any way contrary to those principles. I find it a bit surprising. Perhaps it is due to Senator Evans's substantial inexperience in sitting on these sorts of Senate committees. I know that he has been a member of other Senate committees, but it does surprise me that he should be so ignorant of the way in which Senate committees have operated in the past and the way in which this Committee clearly will proceed. I emphasise that the Committee will have a majority of Government senators and will be chaired by a Government senator.

I now turn to some of the major issues in this debate. The Attorney-General and his colleague the Minister for Social Security (Senator Grimes) reiterated the objections they have to this Committee and the objections they have had to this Parliament even debating the subject. Senator Evans now says that he has always conceded the role of Parliament in this matter. I accept his word that he has always done that. All I can say is that he gave a pretty good imitation of not accepting that when he first made his statement on this matter to the Senate. Certainly, from the very beginning he took the attitude that the Parliament should not really buy into this subject at all. He believed that by making a statement and tabling an opinion of the Director of Public Prosecutions, Mr Temby, and the Solicitor-General, Dr Griffith, elaborated by all his own rhetoric about privacy, the Constitutional position of the judiciary and the separation of powers, that should have been the beginning and the end of the matter. That was, quite rightly, totally unacceptable to this chamber. I believe that attitude is unacceptable to the people of Australia who expect their Parliament to exercise its responsibilities and not be fobbed off, as I have said, by the Attorney-General who on previous occasions sought to heavy this chamber by that approach.

We have been over all these issues. I do not think I need detain the Senate very much longer concerning the arguments, but I do want to reiterate some of the answers to the arguments that the Government is using because I am quite sure that the Government will continue to use them in the public arena. I have already dealt with Mr Wran, the Federal President of the Australian Labor Party. He has referred to this Committee as being a kangaroo court. That was a most unjustifiable accusation in the light of the way this Committee is to be structured. From the word go the Opposition wanted to establish a joint committee of members of both this chamber and the House of Representatives.


Senator Chipp —Why do you think Mr Wran thought he might be called before it?


Senator DURACK —That is a very interesting point. The other extraordinary and deplorable aspect of Mr Wran's statement was that the people who made these tapes should be gaoled. That has nothing to do with a Premier; it is for a court to decide. It seemed to me that Mr Wran's view was that the tapes were authentic or were substantially authentic.


Senator McIntosh —I raise a point of order, Mr Deputy President. We were closing the debate. Senator Durack is opening up new subject matter which has nothing to do with closing the debate.


The DEPUTY PRESIDENT —Senator Durack is responding to an interjection from Senator Chipp.


Senator DURACK —I do not propose to pursue that subject in any depth. I simply conclude by saying that Mr Wran was giving authenticity to the material by what he was saying. He also expressed a very strange concern about what role he may have in the Committee's considerations. I do not know why he would think that he might be called by the Committee. Nobody has ever suggested that he would be called by the Committee, but that seemed to be a very touchy subject for him. It has been a very touchy subject for the Attorney-General and for other people. I do not understand why they are all so touchy about it. Perhaps all will be revealed at a later date.

Of course, the other two matters the Government has been and keeps emphasising are that this material has been obtained illegally and that this represents a gross breach of privacy. As to illegality, the Opposition has said at all times in this debate that those who have committed breaches of the Telephonic Communications (Interception) Act, and it seems obvious that there have been such breaches, should be charged if they can be identified and if evidence is available. Then it is a matter for the courts to decide what should be done about them. The mere fact that material has been obtained illegally is no reason , on basic common law principles, why that material should not be examined for content. As Senator Chipp has said, this issue will not go away. It is totally unrealistic for the Government ever to believe that it will go away simply because the material may have been obtained illegally.

That has never been a principle of common law. It was recently reaffirmed in the High Court of Australia in the case of Bunning v. Cross that merely because material has been obtained illegally does not mean that it cannot be used for certain purposes of investigation, and indeed in some cases proof in court. The statute in this case may prevent this material being used in a court, I concede that; but there is no basic reason in the principles of English law, of common law, of our law, why merely because material has been obtained illegally it cannot be used for its content. It has been said over and again, not only here but in the public debate, that the material in this issue is very important and raises very serious questions relating not only to the judge but also to many other aspects of criminal law enforcement in this country. The Attorney-General has conceded from the word go that the contents should be investigated. In fact, he got very upset when he thought that Senator Chipp and I were suggesting that he would not look at the contents of the tapes; there was a misunderstanding at that time. He was at great pains to say that the contents would be investigated even though they may have been obtained illegally. There is no substance in that argument.

The other argument is that relating to privacy. Senator Chipp made a very important contribution when he said that, whether material is illegally or legally obtained, there is still an issue of privacy. The issue of privacy has to be weighed against other considerations. Certainly, as far as possible the Senate Committee should protect the privacy of people, and I am sure it will. Surely the last word on the subject of privacy, at least in this debate, must be that of the Prime Minister (Mr Hawke). This was quoted by my colleague Senator Hamer in debate in this chamber on 8 March, but I will quote it again. Back in 1972 on a Mike Willesee show, the present Prime Minister, when he had used material that had been obtained not by telephone interception but probably in breach of a State listening devices Act, admitted that it was obtained without the knowledge of the person who was a party to the conversation. He used this material, in gross invasion of the man's privacy, to belabour the man and his company and so on in relation to a dispute that was upsetting Mr Hawke. The interview makes very interesting reading. The Prime Minister went on like a two- bob watch in this interview back in 1972, in the same way he does when he answers questions in the House. He went on in the same way last week, revealing his total ignorance of the Constitution and the power of Parliament in this matter. On the occasion in 1972 the Prime Minister, who was then President of the Australian Council of Trade Unions and perhaps President of the Australian Labor Party at the time, was tackled about whether he was invading this man's privacy by quoting material in a very public forum. This is what our Prime Minister had to say on the argument of privacy, the same argument that the Attorney-General and the Government are now using.


Senator Tate —Let us have it. We have had the build-up.


Senator DURACK —I will read it to honourable senators. He said:

. . . 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.

I do not need to tell honourable senators that the Prime Minister said that; it is so typical of him. In the attitude he expressed in that interview he entirely refutes the Attorney-General's argument about privacy. The Attorney-General, incidentally, has refuted the Prime Minister's attitude on the powers of the Parliament which he expressed the other day.

I hope that the Senate will support this motion. I am pleased that Senator Chipp has done so in a very distinguished speech in this chamber, and I am very grateful for that. I trust that the Senate as a whole will support it and that this Committee will be set up, will act promptly, efficiently, in the best traditions of Senate committees and, certainly, in accordance with the principles which Senator Evans wishes to have incorporated in the terms of reference.

Amendments agreed to.

Question put:

That the motion (Senator Durack's), as amended, be agreed to.