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Wednesday, 13 November 1985
Page: 2044

Senator DURACK(10.45) —The Opposition will not support the motion moved by Senator Mason this morning to suspend Standing Orders in order to enable debate to commence on his Bill to set up a commission of inquiry to review the conviction of Mr and Mrs Chamberlain. That does not mean that the Opposition opposes any debate taking place on that Bill. It is simply that in today's circumstances, we believe it would be inappropriate and quite unsatisfactory for debate on that Bill to take place. The Opposition thoroughly agrees that early debate should be held on Senator Mason's proposed legislation.

The reasons why the Opposition takes that view are very much the same as those that have been expressed by the Minister for Resources and Energy, Senator Gareth Evans, on behalf of the Government. There is no doubt that a great deal of material must be considered before a decision can be made by any honourable senator in this place. Certainly there has been no opportunity for that consideration to be given to the support of Mr Martin by any members of the Opposition at this stage.

To recoup the facts, the submission of the solicitors for Mr and Mrs Chamberlain was made to the Northern Territory Government early in June. That Government referred the mass of material submitted, most of which was of a highly technical nature, to the Solicitor-General of the Northern Territory, Mr Martin, who has been overseas to discuss the matter with experts and, of course, has done so in Australia. Only yesterday Mr Martin's report was tabled in the Northern Territory Legislative Assembly. It is a report of well over 100 pages, including appendices. I have not had the time to study it. As I said, I am sure other senators have not either, including Senator Mason. I think he realises the problem. He indicated that when he said he did not want the debate to be concluded today, but he wanted it to be commenced.

Senator Mason —That is right, I do.

Senator DURACK —The difficulty with that is: How do we commence to debate something without knowing what our attitude to it is? I think the force of that argument is accepted by that acknowledgement by Senator Mason. I think everybody agrees that these were the proper procedures to have taken. Senator Mason introduced this Bill in the middle of last year and attention was given to it by the Opposition at that time. I think Senator Mason very wisely did not bring it on for debate last year, although there were suggestions that he may do so. I was then the shadow Attorney-General and we went through the ordinary party processes to determine what attitude we would adopt to the Bill at that stage, and I emphasise the words `at that stage'. On 13 September last year I issued a statement on behalf of the Opposition, which I will now read:

Mr and Mrs Chamberlain were tried and convicted in the Supreme Court of the Northern Territory in accordance with the law of the Territory. They were represented by most experienced counsel and appeals to the Federal Court and the High Court were dismissed.

The Chief Minister-

at that time Mr Everingham-

and the Attorney-General of the Northern Territory-

there has been a change of Attorney-General as well-

have given an assurance that, if material is presented to them by persons authorised by Mr and Mrs Chamberlain to do so which provide any ground for a further inquiry into their convictions, careful consideration will be given to it and the appropriate action to be taken. So far no such application has been made to the Northern Territory government. I have also spoken personally to both the Chief Minister and the Attorney General and I feel sure that they will give sympathetic consideration to any such application.

The Opposition has now considered its attitude to the Private Member's Bill and has decided that in the light of these facts it would not be appropriate to support the establishment of a Commission of Inquiry as proposed in the Private Member's Bill. In our view the proper course would be for Mr and Mrs Chamberlain to take up the offer which has been made by the Northern Territory government.

I stress that that statement was made in September last year in the circumstances that were presented at that time. I also added:

On behalf of the Opposition I will maintain a close interest in any steps that may be taken by Mr and Mrs Chamberlain and will keep in touch with the Northern Territory government about the matter.

I did not hear anything more for a number of months. That statement was made in September last year. Indeed, it was only in June this year that the actual submission in the terms that were indicated was made to the Northern Territory Government. Although there has been some question as to why it has taken so long-from June until now-I believe that it has been reasonable for the fullest inquiries to be made by the Solicitor-General of the Northern Territory. If there were no definite time at which that report would be made, maybe another question would arise. The circumstances now are that Mr Martin has presented the report. He has only just presented it, and the Northern Territory Government has acted on it with rather surprising speed, if I may say so. I think there may be criticism of that aspect of the matter in the light of the size of the report, but that is a matter for the Northern Territory Government, of course, and not for us.

Certainly it must be emphasised, as far as we are concerned, that we do need time to consider fully Mr Martin's report. Also, no matter what decisions one might make or what conclusions one might draw in relation to Mr Martin's report, there are some other major matters which must be addressed. One has been addressed by the former Attorney-General and the Minister at the table, Senator Evans, namely the question of the self-government which has been conferred on the Northern Territory since 1978. Of course, these are matters which are fairly and squarely within the devolution of power to the Northern Territory. If this matter had arisen in a State, there would simply be no power on the part of this Parliament or the Government to take any of the steps which are being suggested by Senator Mason or which have been quite properly contemplated by Senator Evans or which it has been suggested may be contemplated by the Government. That is a very serious question which must be considered. Technically, of course, this Parliament and this Government have the legislative and executive power under the Constitution to set up an inquiry. There is no question about that. Nevertheless, that is an issue which needs very serious consideration.

There is another consideration as well, and that is the step of setting up a commission of inquiry into a conviction which has been upheld by two courts of appeal, including the High Court. The normal processes of the law are that those legal decisions of the court stand and are not reviewed. It is only in most exceptional cases that any executive government would set up a commission of inquiry to investigate a conviction which has been obtained and upheld in that manner. Senator Mason mentioned a case in South Australia. Of course, it does happen occasionally, but the emphasis must be that it is an exceptional situation and an exceptional decision. That in itself is another matter which must be given the gravest consideration. For all those reasons the Opposition believes that it is premature today to consider Senator Mason's Bill, but I reiterate and emphasise that we certainly believe that the question raised by the Bill must be addressed and the Bill is clearly required to be debated in the near future.

Senator Evans said a few words which, with your indulgence, Mr Deputy President, perhaps were not relevant to the debate. As he has said something to which I have given a lot of thought, I hope you will grant me the indulgence of making some comments about that as well. I agree with the views that Senator Evans has expressed in relation to the release of Mrs Chamberlain. I expressed similar views to the former Attorney-General of the Northern Territory 12 months ago. It is within the power of the Northern Territory Government to make a decision to release Mrs Chamberlain and it should be considering that. I imagine that it has considered it. It is not something which is considered only once. The question whether someone should be released from gaol may come up often for consideration. Senator Gareth Evans, the former Attorney-General, and I, as a former Attorney-General, have had the experience of having to consider and reconsider matters of this kind in which very sensitive human considerations have to be addressed. Sometimes very hard decisions have to be made. But they are the continuing responsibility of any person who holds the office of Attorney-General or the appropriate Minister, whoever he may be.

I urge that the necessary consideration and reconsideration be given to this matter. I will not go into all the reasons why that prerogative power should be exercised, but it is certainly there and it certainly can be exercised. I acknowledge that in all the circumstances there may be a lot of difficulty but certainly the power is there. It is a power to which I would give serious consideration. As Senator Gareth Evans indicated, if he were in the position he would do the same.

Question resolved in the negative.