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Wednesday, 13 November 1985
Page: 2042

Senator GARETH EVANS (Minister for Resources and Energy)(10.35) —The Government will not support the suspension of Standing Orders to debate Senator Mason's Bill, the Commission of Inquiry (Chamberlain Convictions) Bill 1984 [1985], simply because we believe it would be quite premature to consider the terms of that Bill, calling as it does for a judicial inquiry, in the light of the fact that, as Senator Mason has said, a very substantial report was handed down only yesterday by the Northern Territory Government. This is a report from the Northern Territory Solicitor-General on the alleged new evidence and the reaction of the Northern Territory Government to that.

I believe that not only the Government but all honourable senators need time to consider the contents of that report, which is detailed and substantial, and to form a judgment as to whether the report is such that people believe that it would be appropriate for the Commonwealth to take some further overriding action. To get into any kind of substantive discussion of the terms of Senator Mason's Bill simply is premature until we have all had an opportunity to go through that process. That is the simple reason for opposing Senator Mason's motion.

I add three or four other points that I believe are relevant to the Senate's ultimate consider- ation of this matter. The first point is that it would be a serious step for the Government to take the action of establishing at the Commonwealth level a judicial inquiry of this kind. It is a serious step because of the reasons that I have put on the record on a number of previous occasions-in most detail in a statement issued on 14 June last year at the time of the initial introduction of Senator Mason's Bill. The simple fact is that since 1978 the Northern Territory Government has exercised full self-government powers in relation to matters of criminal justice arising within the Northern Territory. Even though the Commonwealth retains residual executive and legislative powers that could be used to override the Northern Territory Government at this stage, at neither the executive nor the legislative level has the Commonwealth since 1978 in fact exercised such powers. There is a very considerable conventional restraint, if you like, on our doing so, based on an acceptance of the principles of self-government.

I make the point that there may be exceptional circumstances that would justify the exercise of overriding powers, but it is a serious step for the Commonwealth Government or Parliament to take up such overriding action. It is not a step that has been taken so far. I think the lesson in the present context is that the Government and Parliament would have to be satisfied that there are serious and obvious de- ficiencies in the Northern Territory Government's response to the material put before it a few months ago for us even to contemplate taking such action. Whether there are such deficiencies is, of course, the sort of thing we want to be looking at over the next two or three weeks.

I make the further point that even if the Commonwealth were, at either the executive or the legislative level, to decide it was appropriate to exercise residual overriding powers and to come in with some kind of further inquiry at this stage, it would not be necessary for Senator Mason's legislation to pass for such an inquiry to be established. The Commonwealth does not need the specific authority of Senator Mason's Bill to establish a royal commission, or an equivalent inquiry. We do have the executive power and formal structure for doing so and for giving appropriate privilege protection and so on under the existing Royal Commissions Act. Although Senator Mason's Bill no doubt is an appropriate political device for raising the matter and getting it before the chamber, it is not a technically necessary means of--

Senator Mason —I did not once say that, I remind you, Senator Evans.

Senator GARETH EVANS —I am making the point for the record, even though Senator Mason has not pursued it in those terms. In other words, it might be a course of action that could be contemplated for Senator Mason's Bill to be rejected but nonetheless for some form of Commonwealth inquiry to be established. Once again I make the point that the Government will consider this matter over the next two to three weeks. After we have had a full opportunity to review the material and the character and credibility of the Northern Territory Government's response we will come back to this chamber and advise the Senate accordingly as to what our reaction would be.

I acknowledge the point that has been made by Senator Mason that the matter has been dragging on for a long time. I think that whatever else might be said about the Northern Territory Government's response it has been one that has taken a long time to appear, given that the material was available to it, I gather, some five months or more ago.

Mr Deputy President, might I trespass on your indulgence by adding a final point, speaking this time in my personal capacity rather than as a representative of the Government, but in doing so reflecting a view that I know has been very widely expressed both across party lines and by people who have formed strong views both about Mrs Chamberlain's guilt and about her innocence. The view I would express is this: Rather than continuing what may prove to be very protracted arguments about the case for a further inquiry or not having an inquiry, as the case may be, the weight of the old evidence, the existence of new evidence and the question of guilt or innocence, perhaps it would be more appropriate now for attention to be focused on the merits-irrespective of guilt or innocence or one's belief about guilt or innocence-of Mrs Chamberlain remaining longer in gaol. I personally would urge the Northern Territory Government to give very serious consideration to releasing Mrs Chamberlain on licence, notwithstanding the views that it obviously very firmly holds as to the probity and accuracy of the judicial proceedings that have taken place through all the courts in the land up to this point in time. I acknowledge that it would be a very difficult decision for the Northern Territory Government to make. She has, after all, been convicted of murder.

Murder in the Northern Territory is something that is punishable by imprisonment for life. It is not the case normally in any Australian jurisdiction that people are considered for release on licence in periods under 10 years or so when imprisoned for life for murder. That is the norm and that has to be acknowledged. However, these things are always discretionary. It is the case that the offence of infanticide, which is not on the statute books in the Northern Territory, is one that exists in other jurisdictions; for example, New South Wales, Victoria and Tasmania, where the maximum penalties respectively are life imprisonment, imprisonment for 15 years and imprisonment for 21 years. Although infanticide is manifestly not treated as a minor offence in such legislation it is certainly unusual for a woman convicted of infanticide to be given a custodial sentence at all and, if a custodial sentence is given, it is very unusual indeed for it to be more than a year or two with an appropriately lower non-parole period. I think that it needs to be borne in mind that Mrs Chamberlain has been in gaol for something over 2 1/2 years. Measured against that yardstick a question arises as to whether continued incarceration serves any obvious public benefit.

I well acknowledge that the whole crime of infanticide does involve some concept of diminished responsibility and there has been no question in the way in which the Chamberlains' defence has been conducted so far of any diminished responsibility being pleaded. On the contrary, the plea has been a very different one-there is no guilt of any kind; in fact, the cause of the death was something completely different. I acknowledge all of that and that, accordingly, the argument that infanticide is not a completely apt analogy. Nonetheless, bearing in mind all the issues that are involved in this case, I simply make the point that I believe the time has come for consideration to be given by the appropriate Government, and that is the Northern Territory Government-it is not anybody else-to that question. I say no more about that at this stage. I do not think that any purpose would be served in doing so. It may be that people's sense of justice would be better served by something along those lines occurring at this stage rather than pursuing what might prove to be the Will-o'-the-wisp of a further inquiry.