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Thursday, 27 May 1993
Page: 1459


Senator BISHOP (12.55 p.m.) —Today I rise to plead the case of Reg and Sylvia Faulkner, who are victims of a 20-year legal battle against the Commonwealth of Australia which has cost them their business, their home and their health in their struggle for justice.

  Sylvia Faulkner should be an Australian success story—an Aussie icon. She was one of the very first women to succeed in the overwhelmingly male field of heavy engineering. In 1964, she set up her own engineering firm—at the behest of General Motors—to make motor parts. In 1968, she was the only woman finalist in the inaugural Prince Philip Prize for Australian Industrial Design. Her invention, the trisal clip, a reusable device that could connect heavy loads faster and more safely than conventional shackles, enabled the easy lifting of extremely heavy objects and had obvious wide application in industry.

  The famous engineering firm of Vickers recognised the trisal clip's potential and went into partnership with Mrs Faulkner to manufacture and distribute the clip worldwide. Sylvia Faulkner's troubles began when the Australian Army, having made an initial order, procrastinated about taking the clip, allegedly because of an argument with the Army's engineer-in-chief over who should be chairman of the production company. The engineer-in-chief, incidentally, subsequently resigned after a worldwide police investigation into commercial deals. Sylvia Faulkner had invested $4.5 million of her family money gearing up for the development of the clip. However, the vital seed orders from the Australian Army never came, notwithstanding numerous letters and assurances that orders were forthcoming.

  Sylvia Faulkner took legal action against the Commonwealth for breach of contract but was forced into bankruptcy because of repeated legal delays. It was a classic case of a defendant with deep pockets frustrating a plaintiff with only a case to argue. Again, we saw the resources of the Commonwealth pitted against an individual. It is never an equal struggle. In 1981 the now Leader of the Government in the Senate, Senator Evans, agreed with my colleague Mr Philip Ruddock that the delays were inexcusable and that the Faulkners' case was a classic example of poor administration. Indeed, so close was Senator Evans to the Faulkners that he agreed to sponsor them when they applied to become accredited international lobbyists.

  Notwithstanding this, when the case finally came for trial in 1987, Senator Evans decided to stop legal aid in a decision with serious implications for natural justice. According to the Faulkners and their then legal representatives, in pre-trial negotiations the Commonwealth had suggested $850,000 as a possible settlement figure. The Solicitor-General was involved in this case, both as an adviser to the Commonwealth as the defendant and as arbiter of the Faulkners' case through the provision of legal aid. The Faulkners allege that the provision of confidential advice to the Solicitor-General for the purposes of obtaining continued legal aid may have influenced the Solicitor-General in his capacity as chief counsel for the Commonwealth.

  After a discussion between the Faulkners' barrister and the Solicitor-General from which others were excluded, the Solicitor-General, in his capacity as arbiter of legal aid, then reversed an earlier commitment to cover all the Faulkners' legal costs, which meant that the Solicitor-General, in his capacity as Crown counsel, was almost guaranteed to win the case. The Faulkners' lawyer had advised that the case had a good chance of success provided overseas witnesses could be called. It was in the wake of this advice to the Solicitor-General that the grant of legal aid was amended to restrict the number of overseas witnesses who could be called.

  My colleague Philip Ruddock has suggested that the Solicitor-General's potential conflict of interest, as both chief law officer of the Commonwealth and arbiter of legal aid, meant that this matter was not dealt with expeditiously. My colleague has suggested that, even though the Solicitor-General tried to put a `Chinese wall' between his twin roles, the coincidence between his learning of the nature of the Faulkners' case and his withdrawal of unconditional granting of legal aid raises at least the suspicion of abuse of power. The ACT President of the Council of Civil Liberties has taken up the case and states:

Early on, something went bad between Faulkner and the (Army) people . . . and after that, I think person after person on the side of the institutions did something silly or wrong or supported something wrong and the damage was overwhelming on the Faulkners.

  Some very odd things have happened. Legal aid was restricted, the counsel confronted each other and told everyone else to leave. That's strange in itself. It's legitimately a matter for us to ask that individual rights and liberties are preserved from the point of view of the way the lawyers operated in this case.

I am not arguing today that the Faulkners' behaviour in this whole saga is utterly without blemish. I am not arguing that the rights and wrongs of this case are abundantly clear, but I am saying that the behaviour of the Solicitor-General raises very serious matters for concern.

  If the Faulkners' very plausible allegation is correct, that the Solicitor-General used information obtained in one capacity improperly to influence him in another capacity, then the very integrity of our legal system is threatened. The ultimate rights and wrongs of this dispute are now shrouded in the mists of time, but it does seem that a settlement offer of close to $1 million was mentioned and it is clear that the Commonwealth withdrew that offer after its chief officer happened to learn the exact nature of the Faulkners' case and legal aid was curtailed to prevent them proving it.

  Compared to the amount of money and time the Faulkners have lost in this pursuit, any settlement offer in the vicinity of the previous offer would seem to be little enough justice. There is so much money that governments waste, why not spend some on deserving people who have been put through living hell? In their own words now, they have got to the stage where they say, `Justice or we die'. I believe that the Government ought to renew the previous settlement offer to the Faulkners or, if that is inappropriate, consider the offer of a suitable ex-gratia payment in consideration of the pain and suffering they have experienced at the hands of government.

  Government exists in order to do whatever is appropriate to secure a better life for its citizens. In particular, government exists to ensure that justice is done by one citizen to another. Everything that this Parliament does and every act of every government should be motivated by considerations of justice for individuals. Therefore, it is all the more important that the Government which demands justice of its citizens should do justice itself. Granting the Faulkners a measure of justice is certainly not going to set precedents for a host of hard luck claims. How many cases are there of the Commonwealth wearing two hats to frustrate longstanding litigation? It will merely demonstrate that the law of this land does not discriminate between the whale and the minnow.

  In other words, the difficulty that is being presented here, that of obtaining information wearing one hat and the same person—an officer of the Government—using that information wearing another hat, is something that has brought about an injustice. I ask and recommend that the Government consider an ex-gratia payment around the sum previously offered to ensure that some justice is done at this late time.