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Wednesday, 13 November 1985
Page: 2038

Senator MASON(10.15) —Pursuant to contingent notice, I move:

That so much of the Standing Orders be suspended as would prevent Senator Mason moving a motion to give precedence over all other business to the Order of the Day relating to the Commission of Inquiry (Chamberlain Convictions) Bill 1984 [1985].

As honourable senators will know, the Northern Territory Government yesterday decided not to hold a further inquiry into the Chamberlain case. At this stage I do not propose to examine in any detail the reasons for that decision because I have not had time, nor have other senators, to look with due reflection and consideration at the material which has come forward to us from the Northern Territory in support of that, and especially the lengthy report of the Northern Territory's Solicitor-General, Mr Brian Martin. But the reasons for that decision will ultimately become a matter for public debate-I suggest quite soon-and properly so. I think it is fair to say, too, that the Northern Territory Government has over the last five months conducted what has been in effect and with all respect to those concerned-this is not a criticism of them-a secret inquiry into the new evidence presented to it by the Chamberlain Innocence Committee, instead of the judicial inquiry open to the public and the media as was requested. In these events lies the seed of my motion to suspend Standing Orders.

Basically, the crux of the matter is that while there was an opportunity for the Chamberlain case to have a further judicial in the Northern Territory, that should reasonably have been allowed. I know from conversations I have had with honourable senators that it has been their view that, if possible, the Northern Territory Government should deal with this matter. On that basis we have the Bill to which this motion relates and which I do not propose to debate, other than to say it has been there for 18 months in order to give the Northern Territory just the kind of opportunity which honourable senators who have spoken to me had in mind. That no longer exists. So we in this place are confronted with a situation which is serious, important and goes very much to the heart of our responsibilities and duties because the ball is now in our court. We have a situation where if one takes any account at all of a vast mass of expert legal opinion and of public opinion in this country, there is a strong case that two Australian citizens have been convicted of the most serious crimes and that those convictions might now be disallowed if indeed that evidence could be produced at a judicial inquiry. So the matter cuts deep and is urgent for that reason. It is a serious matter to say in this place or in any other place-I am sure that no honourable senator would contribute to it-that one should allow a person who may well be innocent to spend a single day longer incarcerated in a prison. That is the reason we are considering this motion.

I raise this matter not in any unreal spirit. I know that honourable senators have not had time to study the material from the Northern Territory and I know that it would be less than responsible of me to expect them to pass this Bill or commence such an inquiry until they have done so. Therefore, I would not resist an adjournment of the Bill today if it comes on for debate. But it is very important that it does come on and that the Senate commences its task, which I suggest is indeed its task. When one looks at Mr Martin's material, one finds two remarkable statements which bear very greatly on this motion. Fundamentally. Mr Martin said on page 3 of his report:

Mr and Mrs Chamberlain have reached the end of the processes available under the law applying in the Northern Territory and seek to have the verdict set aside. In my opinion, in the absence of any new legislation, either Northern Territory or Commonwealth, touching upon the subject, the verdicts against them can never now be set aside nor can the penalities imposed upon them.

Mr Martin, in words more eloquent than my own, has confirmed the point I am making to the Senate; the ball is in our court. On page 106 of the report one finds similar statements by Mr Martin who has devoted an entire section of his report to possible review tribunals. He mentions this matter specifically. He says:

Senator Mason has introduced a Bill with the Senate which if enacted would establish a judicial tribunal to inquire into this matter.

Honourable senators who have studied this report will have found it fairly heavy going. It is very lengthy, but I found those references among the most interesting of all because I see in them something of a strangled cry for help.

One can read between the lines and say that possibly there is a feeling in the Northern Territory that this is a matter which is too big for local consumption. In saying that I am not criticising anybody. It is not right that an inquiry on this matter should be held in Darwin, a small community where there are so many bitternesses, so many superstitions, where so much has built up over the last three years concerning the Chamberlain case. In saying that I do not intend to be critical of anybody; I merely say that this matter needs to be taken out of that setting. It needs to be put into a setting where, first of all, certainly it can be given a judicial hearing to which the media and the public have access. It also needs to be away from what might be an overheated atmosphere in Darwin.

I am concerned, from my reading of the situation so far, that apparently the Northern Territory has not made any attempt to commission the appropriate experts to look at the forensic matters raised by the Innocence Committee. No scientific evaluation at all seems to have been made of the material raised. The report is mainly legalistic; I think that is a valid criticism, and it bears on my motion on whether or not we should proceed urgently to take our own steps on this matter.

Although I said I would accept an adjournment of the Bill, I think we ought not to sit on this matter in a leisurely way. I am greatly concerned with the feelings particularly of Mrs Chamberlain. Having embarked on this exercise, one of the most cruel things we could do in this place would be to allow it to drift on over weeks, months, perhaps years, during which Mrs Chamberlain would not know, in any way, what her future was or what the ultimate intentions of the Senate were. The matter is not so complicated that we ought not to get rid of it as soon as we can reasonably form a view on it. That reasoning would appeal to all honourable senators, who I know are just and humane men and women.

I know that in moving this motion I am embarking on a difficult and controversial task. This is balanced in my mind by my conviction of its importance and urgency. I will try to persuade the Senate to agree with me but, of course, honourable senators will make up their own minds on this matter. Mr President, I begin by seeking your indulgence, to whatever extent you think is justified, on the parameters of what I have to say. I know, and everybody who is listening to my speech ought to know, that the Standing Orders of the Senate oblige me to restrict my comments to the business before us, which is a motion for the suspension of Standing Orders. If it is successful it would allow me to move a motion to bring on the Bill for debate. Unless these two motions succeed the second reading of the Bill cannot proceed and the matters which urgently require examination cannot be examined, and I think that would be a serious matter.

My whole purpose in raising this motion is to establish a degree of necessity for the Senate to intervene in the Chamberlain case and having established that, to demonstrate a similar degree of urgency on any further action. Those are the two points I must make to honourable senators and I cannot do so without discussing aspects of the Chamberlain case that bear reasonably on those two points. The Commonwealth's power to intervene in this case is a matter about which I think honourable senators would like to hear first; it is the most important matter we have to consider. The Constitution provides that all laws which are made in this Parliament shall be binding on the courts, judges and people of every State and every part of the Commonwealth, notwithstanding anything in the laws of any State, a provision which, naturally, we would approach with great caution. However, section 122 of the Constitution states specifically:

The Parliament may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth, or of any territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth, and may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit.

I think it is generally agreed-I include the Northern Territory Solicitor-General-that that power exists and that there is no real reason why the Senate ought not to proceed if it wishes to do so. I say for the reassurance of honourable senators who might say `We might deal with it, but how would it fare in the other place?' that is a reasonable question. I am concerned about the attitude of the Government. I would much prefer to see this very important matter of conscience passed by consensus in this place rather than there being any sort of obligation or any pressure for the legislation to be passed through one place and not the other. I think that would be a great shame and I would not want to contribute to that kind of situation. There is a group of members of parliament crossing party lines in the other place who are prepared to sponsor the Bill in the House of Representatives. I have been given that undertaking. Further than that I cannot go, but that situation does exist.

This motion cannot be intelligible at all without a brief summary of the historical events which led up to it and which to my mind constitute reasons why this motion should be accepted by the Senate and why we should proceed with this matter right through to its conclusion as soon as it is reasonably convenient to honourable senators. Mr and Mrs Chamberlain were convicted respectively of being an accessory after the fact and of murder on 29 October 1982, following their Northern Territory Supreme Court trial. The Chamberlains legal remedies were exhausted when the majority of the High Court of Australia dismissed their appeal, notwithstanding that two of the five justices concluded that on the evidence presented to the jury the convictions were unsafe and should not stand. Of course, this finely split decision has served to raise further doubts in the minds of the public and to establish the Chamberlain case as a high water mark of legal controversy.

Following intensive scientific investigation, however, substantial and cogent evidence has come to light since the trial and the appeals. I understand that counsel has advised that this new evidence is cogent enough to prove the Chamberlains' innocence or at the very least to throw the gravest of doubts on their convictions. It is very much to the point that the aspects of that evidence which are now important and which, indeed, do attack so severely the two main points on which the Chamberlains were convicted at their trial, are matters which have come up since this matter went to appeal to the Federal Court of Australia and the High Court. Certainly they were mentioned by Mr Martin who makes the point that there is nothing new in the evidence. Superficially that is true, but the real point is that the evidence which came up at the trial and at the inquest is now being presented in a very different light from what it was then. In fact, it is being presented in such a way that it gives a direct 180-degree turn to the bearing that that evidence had on the possibility of events.

Senator Sheil —Is the evidence mentioned in the new report which has come out and which we have not read?

Senator MASON —That evidence is mentioned, dealt with and considered in that report. My main complaint with it is that it does not appear to have been subjected to the scientific examination which I feel it ought to have had. Indeed, if there was such scientific examination in any depth, we have not been told of it in the report or elsewhere. Like others, I have not studied the report in any great detail but I have come to that conclusion.

The basic point that we must consider now is that this new evidence cannot really be examined by any constituted judicial body that exists at present. This is the second half of the dilemma. Senator Gareth Evans, when he was Attorney-General, indicated that he might be prepared to support statutory amendments to enable a further appeal to be brought. Those amendments, as I recall them, would be to the Federal Court of Australia Act. I wonder whether that would be a good idea anyway since it would send it back to an appellate court and appellate courts, as we know, have significant limitations on the extent to which they can consider this sort of new evidence or a review of evidence. It seems to me and to those experts who know far more about the law and who are concerned with the Chamberlain Innocence Committee that the matter can be reviewed properly only by the setting up of a judicial inquiry with terms of reference wide enough to allow the consideration of all relevant evidence and to supervise all further scientific experimentation and analysis.

That final point is one I should stress and commend to the thoughts of honourable senators. This matter is like the Splatt case in South Australia where, as we all know, an inquiry of the kind I propose reversed the judgment against Mr Splatt. He was released from prison and has had to be paid very substantial sums of money in compensation. Having discussed this with Mr Splatt, he does not regard that as compensating him for five years spent unfairly in gaol. I can sympathise with him in that view and I am sure that all honourable senators do feel that to be the case.

It is necessary, I think, in this case to go right back to the forensic evidence. The forensic evidence is the key to it. Was it valid? Is it valid now in the light of what has been found out by careful experimentation since? I think that until that is considered somewhere, the Chamberlain case will continue to remain a vastly important issue and perhaps the most important legal issue in the minds of Australians. It is an issue in the minds not only of Australians, as I get letters from all over the world on this. These letters, I might say, are starting to compare the Chamberlain case with the Dreyfus case where, as honourable senators may recall, Captain Dreyfus was for many years refused a right of appeal because it might have been inconvenient to the Army and the legal procedures, but eventually he did and he was exonerated on the charges of spying of which he had been accused.

Despite assurances from the Northern Territory Government that the submissions put to it five months ago by the Innocence Committee would receive proper consideration, there is, I suggest, great doubt that this has happened, for the following reasons: The Northern Territory Solicitor-General was accompanied only by Dr Simon Baxter on an evidence-gathering trip to the manufacturers of the blood reagant to test the Chamberlain's car for foetal blood. Dr Baxter was the Crown witness whom the New South Wales Ombudsman found guilty of wrong conduct in respect of testing procedures used in the Chamberlain case. The Chamberlain defence, I understand, forwarded a telex on 31 July 1985 requesting that, in the interests of justice, Professor Barry Boettcher of the University of Newcastle be invited to join these two men on the trip. Honourable senators will note that Professor Boettcher has made a very considerable input to the scientific views on this matter. But to date the defence has not even had an acknowledgement of that communication. The trip, of course, has been completed and the decision made. Again I stress that the submissions to the Northern Territory Government can be properly evaluated only by scientists examining the new samples produced by further experimentation and re-examining trial exhibits. Nobody on behalf of the Northern Territory Government has made any attempt to do this and I understand that the defence suggestion that it be done was rejected. That is confirmed by what is in Mr Martin's report.

The suggestion that this has caused disquiet only among a vocal minority I think is cogent to a consideration of this motion. I believe that this view has now changed, and probably dramatically over the last six or seven months. It is a fact that in the most recent poll conducted in the Northern Territory, where originally, I think, there was strong feeling against the Chamberlains, 51 per cent of respondents thought there should be an inquiry, 25.5 per cent thought there should be no inquiry and 13.5 per cent were not sure. I think it bears on the point, without overstressing it, that the Northern Territory Government has taken an action which would appear to be against the wishes of the bulk of its constituents. Polls in Australia, taken selectively in certain States, have shown that up to one third of Australians and possibly more are deeply concerned about the Chamberlains case and believe that there well could have been a miscarriage of justice.

I ask honourable senators: Is it not of great importance to this chamber and to this Federal Parliament that many Australians feel that way, that two people have been convicted for murder and been through the various areas of appeal, yet one third of Australians believe that they are probably innocent? What respect will we have for the law or the legal processes in this country if that situation continues, if those people are left with the long standing view that the systems of law in the country are not capable-I am not at this stage saying that the Chamberlains are innocent-of providing a vehicle for people who have exhausted the ordinary legal means of appeal where new evidence of greater importance has come up?

I suggest to honourable senators that if we allow that situation to continue-I repeat, the ball is squarely in our court-we will have grave problems confronting us. I have far more faith in my colleagues here than to believe that that could ever be the case. I am absolutely confident that this Bill will be passed at the proper time. I could not have it in my heart to believe that the majority of honourable senators would contribute to the kind of situation which I have mentioned. I think its perpetuation or resolution one way or another, as a result, becomes a matter of urgency.

With your indulgence, Mr Deputy President-stop me if you feel that I am transgressing in this matter-I think it is fairly important that we say very briefly what the evidence was.

Senator Gareth Evans —Mr Deputy President--

Senator MASON —I have asked for the Senate's indulgence; if Senator Evans does not want me to do that, that is fair enough.

Senator Gareth Evans —With respect, Mr Deputy President, a great deal of lattitude has been given to the honourable senator so far. He will perhaps be trespassing on that lattitude if he pursues it to the point of a detailed review of the evidence at this stage.

The DEPUTY PRESIDENT —Senator Mason, all you have been saying is not strictly relevant to the suspension of Standing Orders.

Senator MASON —Thank you, Mr Deputy President. I will not strain the tolerance of the Senate on this matter other than to say very briefly that I believe that those three areas of evidence are such that they ought to have been given greater scientific consideration by the Northern Territory and that they are matters on which honourable senators, if they have the time and think it is important enough, ought to inform themselves so that they can make their judgment of them.

I make only one final point at this stage, Mr Deputy President. I thank you and the Senate for your indulgence. If ever there was a matter on which to my mind honourable senators ought to be permitted to consult their own consciences, surely it is this one. I feel that it would stand as a permanant reproach to and indictment of the parliamentary system if voting on this issue were to be dictated by party caucuses. I say this in my knowledge that members of all parties here, and in both Houses, for that matter, feel that further inquiry is justified. I cannot see that any useful purpose would be served by forcing them to vote against their own conscientious view. I appeal on that basis for a free vote in all divisions on this matter.