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Monday, 4 September 1989
Page: 850

Senator HAMER —My question is to the Minister for Justice representing the Attorney-General. Has the Minister seen reports that the head of the Special Investigations Unit is very pleased with the cooperation he is getting from the communist Eastern bloc countries in providing war crimes evidence against migrants to Australia? Has Mr Greenwood concluded a number of agreements with these countries to provide prosecution but not defence evidence? In view of the fact that the alleged crimes took place nearly half a century ago in foreign countries quite outside the experience of the Australian legal system, will it not be a matter of very great difficulty to ensure a fair trial? Might not defendants require access to the countries from which they fled or migrated to establish contacts with potential defence witnesses and would not these defence witnesses need exit visas and some credible guarantee that they would not be punished if they gave defence evidence? If anyone ever does go to trial and if we are interested in the trial being fair, should not these matters have been dealt with in the agreements reached by Mr Greenwood? If suitable agreements cannot be reached, should not the whole idea be dropped because fair trials would be impossible?

Senator TATE —The legislation under which the Special Investigations Unit is now proceeding in the gathering of evidence that might sustain certain allegations concerning the activities of persons resident in Australia during the Second World War and the whole question of the operation of that unit and the way in which it gathers evidence was very comprehensively examined by the Senate during the passage of that legislation. It led to the insertion into the legislation of various clauses which put beyond doubt the fair trial, which Senator Hamer seems to be questioning, of any person who is charged. There is within that parliament-sanctioned framework all the guarantees that the common law protections which attend a criminal trial will be provided to those who might find themselves defending a charge that they are indeed war criminals.

I have not read the articles Senator Hamer refers to. If Mr Greenwood indicated that he was pleased with the cooperation he had received from the authorities in one type of jurisdiction, I am sure he would not mean to exclude the cooperation that he has received from authorities in other jurisdictions around the world. Indeed, I am quite sure that the sort of evidence that he has been able to gather has been because of the cooperation of those in the communist countries to which Senator Hamer referred and those in democratic countries such as West Germany, the United States and Israel. Mr Greenwood, of course, in discharging his function as head of the Special Investigations Unit, has not pursued his investigations with a prejudiced frame of mind, but has sought not only the sort of evidence which might lead to an allegation being sustained but also exculpatory evidence-the sort of evidence which might indicate that an allegation was baseless, was perhaps even maliciously made, but certainly which might not be sustained. He has made it very clear in all his cooperative work with authorities overseas that he is looking, as I say, for both exculpatory evidence and that which leads to some assertion of blame. I believe that fair trials, and the gathering of evidence which might lead to the assembly of a package which Mr Greenwood can hand to the Director of Public Prosecutions for consideration, can be guaranteed, as was fully explained and considered by the Senate in its passage of this legislation.

Senator HAMER —Mr President, I ask a supplementary question. Senator Tate has totally missed the point of my question. I accept that Mr Greenwood is working with diligence and probably honesty in determining who should or should not possibly be charged, but the person charged will of course be presumed to be innocent. What I am asking is how a refugee from a communist country can expect to be able to acquire defence evidence-witnesses with exit visas and guarantees of safety-if he is charged in an Australian court 50 years after the event.

Senator TATE —It was made quite clear by the Senate-it was contained in the amendments which were accepted by the Parliament as a whole-that if the trial judge comes to the conclusion that an accused person cannot mount a defence in a fair and practical manner for the sorts of reasons that Senator Hamer outlined, the trial should not go ahead.