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Wednesday, 28 March 1984
Page: 790


Senator BOLKUS —My question is directed to the Attorney-General. Is he aware of allegations made today by the honourable member for Denison that the Government has failed to bring to the Parliament's attention a judgment of the Federal Court of Australia permitting evidence of tape recordings of telephone conversations obtained in breach of Commonwealth law to be admitted in criminal proceedings? Will the Attorney-General indicate whether there is any substance at all in these allegations?


Senator GARETH EVANS —I am indebted to Senator Bolkus for his question. As Senator Ryan said to me a moment ago, I was beginning to twitch from question deprivation syndrome. The matters raised by Mr Hodgman in the House of Representatives and elsewhere today are coloured by his usual disregard for the truth in matters of legal analysis, political judgment and every other respect any of us can think of. The reality is that there is no analogy at all between the circumstances of the apparently illegal interceptions that led to the preparation of the Age tapes and transcripts and the situation considered by Mr Justice Cosgrove in the Tasmanian case of Migliorini. That Tasmanian case concerned interceptions made with the consent and co-operation of one of the parties to the calls in question. The apparatus consisted of a suction cap and tape recorder, connected to the phone by the police sergeant concerned. The conversations in question were themselves the crucial evidence of the criminality involved in that case insofar as they demanded large sums of money from the party in question and were coupled with threats against the party's wife and children. The circumstances of the taping involved, when a call was received, the party pressing the record button and the ensuing conversation then being received on the tape. That is a very different kind of interception situation from that which appeared to be the case in the alleged interceptions in the Age tapes situation. In that case there was apparently no element of co- operation by any of the parties to the conversations apparently intercepted.

In summing up in the Tasmanian case the judge said that the illegality in that case was not intentional or reckless and the acts of the police and the party concerned involved no overt defiance of the will of the legislature or calculated disregard of the common law. He also said that the reception of the evidence in that case did not amount to the condonation or approval of deliberate breaches of the law by the police and did not demean the court as a tribunal whose concern is in upholding the law. Indeed, applying the principles articulated by Mr Justice Cosgrove in that case, it would be completely fair to say that, on what we know about the Age tapes and transcripts at the moment and the alleged circumstances of their coming into being, he would have rejected them as evidence.

In addition to that, as I said in the course of the debate this morning, it is not now and never has been the Government's position that the mere fact of evidence being illegally obtained in Australia means that it is inadmissible in court proceedings. That is basically the situation in the United States and some other jurisdictions but it is not and never has been the situation in Britain and Australia. It is a matter of the court weighing and balancing public interest considerations of the kind that were obviously taken into account by Mr Justice Cosgrove in the Tasmanian case.

As further evidence of Mr Hodgman's utter incapacity to follow a straight line in these matters, I refer the Senate to the fact that in the opinion of the Director of Public Prosecutions, Mr Temby, tabled by the Government in both Houses of Parliament during the first week of the present sittings, the following point was specifically made:

It does not necessarily follow that evidence cannot be given of an unlawfully intercepted telephone conversation.

It is the case that the Government has been very concerned to emphasise the apparent illegality of the tapes and transcripts in issue in the Age case. However, we have never done so in a context where we have claimed that by virtue of that illegality the material would be automatically inadmissible. We have said there would be very profound public interest reasons why it should be carefully considered by the courts before its admissibility was guaranteed and that those considerations should weigh heavily with the Parliament. There is no foundation to Mr Hodgman's claim.


Senator Chaney —Mr President, in order to show the Attorney-General's incapacity to answer any question without abuse, pursuant to standing order 363 I ask him to table the papers from which he has quoted, which will enable us to show that the abusive bits at least were his own.


Senator Gareth Evans —I am happy to oblige.