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Wednesday, 11 September 1985
Page: 457


Senator GARETH EVANS (Minister for Resources and Energy)(3.9) —by leave-I move:

That the Senate take note of the statement.

I express my thanks and no doubt those of the Senate to you, Mr President, for making the report in the terms in which you have. Secondly, I express my support, and I believe again the support of all honourable senators in this chamber, for the action you have taken procedurally in order to have these matters aired before the courts in the difficult circumstances that have prevailed. Thirdly, I simply express my agreement with the view expressed by you that the issues raised in this matter and in particular by the Cantor judgment are serious ones that manifestly require further consideration.

I would not wish to be taken personally as necessarily endorsing every argument and every possible interpretation of the reach of article 9 of the Bill of Rights that was put forward by counsel for the Senate in the various proceedings to which you, Mr President, have referred. However, I take the view, which again I believe would be shared by most, if not all, honourable senators in this place, that article 9 of the Bill of Rights is and must be a very wide-ranging protection for parliamentary proceedings and affords greater protection to witnesses in parliamentary proceedings than His Honour Mr Justice Cantor seems to have allowed in his judgment, quite apart from the question, not addressed in his judgment, of the extent to which members of parliament themselves can be cross-examined on the basis of their contributions to parliamentary proceedings.

My personal view, for what it is worth, is that the immunity of parliamentary proceedings from scrutiny in court proceedings is not absolute and that it would certainly be permissible to put in evidence before a court what was said in evidence in an earlier parliamentary committee proceeding, but only subject to certain very narrow conditions. My view would be that such evidence would be permissible only on the basis that that material is used in a very limited way; for example, as a basis for comparing the content of other statements and is not itself directly challenged, impugned or made the subject of exploratory cross-examination. There seem to be very great difficulties that flow from opening up statements of witnesses in parliamentary committee hearings to the kind of wide ranging cross-examination that was in fact endorsed by Mr Justice Cantor. I say that with a full appreciation of the manifest practical difficulties in the conduct of a trial which undoubtedly would arise if a more extensive view of the protection of article 9 were in fact endorsed.


Senator Chipp —But did not this judge to some extent allow that to happen?


Senator GARETH EVANS —What to happen?


Senator Chipp —What you just outlined.


Senator GARETH EVANS —He did allow substantial cross-examination to occur. What I am saying is that that is what creates very great difficulties. I think it is possible to put material in from parliamentary proceedings as evidence of what was said and to use that, for example, as a basis for comparison of what is said on some other occasion in order to impugn, perhaps, the credit of the witness in relation to what was said on that other occasion. But once we start going behind that which was said in the parliamentary proceeding itself-once we try to test and impugn that-there could be a very substantial erosion of article 9.

Mr President, this is a complex issue. I do not honestly think it is appropriate for us to debate the merits of the Cantor judgment backwards and forwards in this Parliament at this stage.


Senator Chaney —It is all subject to appeal, is it not?


Senator GARETH EVANS —To the extent that questions of law are involved in relation to the treatment of the parliamentary proceedings, it is indeed the subject of appeal. For that reason, if for no other, I think any kind of full scale debate or any attempted resolution of this matter as distinct from just drawing it to each other's attention would be premature at this stage.

I simply repeat, in winding up, that I support the President in his undertaking to consider the matter further. I would expect that we would, and, indeed, should, appropriately debate this matter later in the light of that further consideration by the President and any further report or recommendations as to an appropriate course of action that might be made by him.