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Tuesday, 19 August 1969

Senator WRIGHT (Tasmania) (Minister for Works) - It is always a distasteful experience to hear the devil quoting scripture. I have devoted a good deal of my life to the maintenance of principles which have been quoted in the speeches made in support of this motion; that is to say, a respect for law and an insistence upon the rule of law. But it is a sorrowful experience to hear those learned in the law abuse the situation by confused principle and imperceptive argument. I was challenged by the Leader of the Opposition (Senator Murphy) to quote any instance in the British courts which would accord to me the right to criticise a judgment of the court.

Senator Murphy - I did not say in the courts; I said in the Parliament.

Senator WRIGHT - The honourable senator's language is on the record. I did not interject when he was speaking and I intend to make a thoughtful and restrained speech. I go on the record for judgment not only tonight but hereafter. All I want to say, quietly, is that I rely on the words of Lord Aitken, one of the most notable, illustrious and respected members of the House of Lords in our generation, and of 18992/69- S-m this century. He said this, Mr Deputy President, in a case that went from Trinidad:

But whether the authority and position of an individual judge, or the due administration of justice, is concerned, no wrong is committed by any member of the public who exercises the ordinary right of criticising, in good faith, in private or public, the public act done in the seat ot justice.

That is to say, in public or in private the ordinary member of the public has a right to criticise the act of a judicial tribunal. Lord Aitken went on to say:

The path of criticism is a public way: The wrong headed are permitted to err therein:

I would offer that comment to Senator Murphy: provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism, and not acting in malice or attempting to impair the administration of justice, they are immune. Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.

Mr Deputy President,that is the right of the common citizen of England and of Australia, guaranteed by the rule of law in our system of justice. There are some of us who have been elected to represent in the place where it is our duty to speak - to parley - in Parliament, on behalf of those we represent; and then there are a few who are, under our system of responsible government, given the executive duty to apply the law and guide the administration and enforce the law. It may occur to the Leader of the Opposition (Senator Murphy) that upon them devolves a special duty with responsibility to speak in exercise of the common man's right of criticism of any judicial decision. In this case a magistrate was dealing with committal proceedings in which his duty was to say whether there was evidence which, if accepted by a jury as true, would reasonably justify the conviction of Mr Pratt for communicating confidential government information to the Newton Press.

It will be remembered that I did not write any letter to the newspapers when that decision was pronounced. It will be remembered that I did not make any statement on the motion for the adjournment of the Senate in protest against the decision. It will be remembered that I was asked not one but two questions after the propriety of such questions had clearly been brought to notice by the intervention of the Leader of the Opposition when he asked my leader, the Leader of the Government in the Senate (Senator Anderson), whether he thought my first answer was within the bounds of propriety. Senator O'Byrne's question was directed to the Leader of the Government; but, it being within the ambit of the Attorney-General's Department, I, with the assent of the Leader of the Government, answered it. What did Senator O'Byrne say? He said:

My question . . . involves civil liberties . . Now that Mr Justice Fox . . . has ruled that the search warrants issued for the searches of Maxwell Newton's home, office and bank records were invalid, will the Government give an assurance that there will be no repetition

No repetition of what? What the honourable senator was pleased to describe, behind his leader, the complainant tonight, as: . . a misuse of the Crimes Act-

In what respect? In this respect:

.   . to search homes, offices and bank accounts-

On what basis? The honourable senator said:

.   . on grounds as flimsy as those on which the warrants were issued against Maxwell Newton?

Then he added to that, for our interest:

Were not the whole proceedings designed to stop the strong criticism of the Government by Maxwell Newton's publications in an election year?

We have the pitiable spectacle of a Leader of the Opposition, whose disciple has asked that question, coming here to complain when I, a member of the Government, had the courage to give a forthright and restrained answer, not in the slightest degree going on to offer my opinion but simply pointing out that the proceedings in regard to the validity of the search warrants were not then final. Of course, I did not take the trouble to say: 'For that reason, lest it prejudice an impending appeal, 1 shall abstain from comment'. But all who know me in this place understood me to stop in that sense and for that purpose.

Having dealt with that matter, I then referred to the sequel of the search - a search that revealed material at great length which was in the handwriting of Mr Pratt and which had recently been the subject of committal proceedings in which I would never understand the magistrate to be adjudicating upon guilt. In committal proceedings the magistrate is considering only whether there is any evidence which, if believed, could reasonably justify a conviction. He would transgress all the rules of jurisdiction of a committal magistrate if he ever offered an opinion as to the guilt of the person. After recounting some of the evidence, I went on to say:

Other people are entitled to make their judgment as to whether there was a sound basis in reason and to enforce honesty in administration for the prosecution of Pratt in the circumstances. . . .

I was devoting myself to the justification for the prosecution of Pratt on the evidence that was disclosed upon this search. I did not state my opinion, but with characteristic restraint I suggested that other people were entitled to make their judgment. I was speaking of people other than the magistrate. Then I said, with terrific impropriety, I have no doubt, according to people with small minds and pitiable inexperience:

To impute wrong political motives in any such prosecution is to make a completely spurious suggestion.

That is where I left Senator O'Byrne. I refuted the imputation that the Government had used a search warrant to intimidate Mr Newton because it was an election year. I refuted the idea that we had searched his home on flimsy grounds. I refuted Senator O'Byrne's suggestion - an odious suggestion the full objectionableness of which, of course, I would not expect Senator O'Byrne to understand because he has become so habituated to such suggestions - in which he asked me to give 'an assurance that there will be no repetition of a misuse of the Crimes Act'.

Senator Cant - What was your answer to that?

Senator WRIGHT - Senator Cant is trying to divert me by repeated interjections. My answer to that was:

To impute wrong political motives in any such prosecution is to make a completely spurious suggestion.

I remember that I had to speak impromptu. Had I had the chance to think for a few seconds I would have chosen a better word than 'spurious'. But it will do; I shall rely on it. As to the alleged misuse of the Crimes Act, part of the law of this country and the rule of law that the Opposition pretends tonight to maintain is section 10 of the Crimes Act, which provides:

If a Justice of the Peace is satisfied by information on oath that there is reasonable ground for suspecting - -

Not believing; not knowing; not being convinced; but reasonable ground for suspecting:

.   . that there is in any house, vessel or place -

(b)   anything as to which there are reasonable grounds for believing that it will afford evidence as to the commission of any such offence; he may grant a search warrant authorising any constable ... to enter at any time any house, vessel or place named or described in the warrant . . and to seize any such thing. . . .

When the Government of which I am a member is on the receiving end of a suggestion by Senator O'Byrne that we should give an assurance against a repetition of the misuse of that power on flimsy grounds and a question to this effect: 'Were not the whole proceedings designed to stop the mouth of Mr Newton criticising the Government in an election year?', I pray for some pardon for having the fortitude to express myself in the moderate language that has been quoted against me. That language is:

To impute wrong political motives in any such prosecution is to make a completely spurious suggestion.

Then Senator Murphy asked a question, I think with his attention rather upon matters other than the subject under discussion, if the circumstances can be recalled correctly. He was answered by my Leader. Shortly after Senator Cavanagh made a contribution characteristic of his turn of mind when he addressed this question to me:

Is it the Minister's opinion that the decision in the case of Graeme Pratt was a travesty of justice and not in keeping with the evidence before the court?

What is a Minister to say when a question of that sort is put to him by the Opposition? Am I to bend low and with whispering humbleness say yes, or am I to say reluctantly, nevertheless quietly and after quoting the magistrate's decision in its relative respects, that in my opinion there was some evidence - and strong evidence - to show that Mr Pratt had communicated to the Press the confidential material he had received? I did not go on to criticise the magistrate. I did not go on to say that he was induced by any political motive or other improper motive. I did not use any expression that could possibly reflect upon him, other than by reference to an error of judgment. I am entitled as a common citizen to express my view as to the proper conclusion to be drawn from the evidence. I have a duty as a member of Parliament in ordinary circumstances and 1 have a duty as a Minister. When I am asked a question it would be a matter of complaint by the people whom Senator Cavanagh represents if I were to evade or avoid that question. How did I answer the question? I referred to the magistrate's relevant decision. Then I briefly recapitulated the evidence and said:

.   . I hold the firm opinion that there was not only some evidence but strong evidence that those manuscript documents were communicated by Mr Pratt to the Press.

I have been challenged today by Senator McClelland who spoke in support of his Leader, to produce the evidence upon which that opinion is based. 1 am very ready to respond to that challenge. For the convenience of the Senate I have transcribed the cable of 9th May, which we call the Paris cable', and the print that was made in the Newton Press on 1 3th May. In evidence a document was given, signed by Mr Pratt. I had that document in mind when I referred to due administration in my answer to Senator O'Byrne's question. Mr Pratt had signed the document on taking his office. It stated:

I understand that all official information acquired by me as an officer or employee of the Commonwealth is the property of the Commonwealth and is not to be published or communicated to any other person in any form except in the course of my official duties, whether during or after my service in or with the Commonwealth, without lawful authority.

Mr Pratthaving accepted an office on that basis, he was paid the appropriate emoluments. After the Paris cable came in from Paris to Australia on 9th May it was distributed to officers in departments, Mr Pratt being one of the recipients. This is the evidence upon which I base my firm opinion - as 1 was challenged to show by Senator McClelland - that there was evidence and strong evidence that Mr Pratt had communicated this cable to the Newton Press. The cable was distributed on 9th May. It has been proved to have been in Mr Pratt's possession either that day or on the following Monday. The excerpts that 1 am about to read were then committed to the personal handwriting of Mr Pratt.

Senator Branson - Why?

Senator WRIGHT - Ask that question most directly. Why? It was not a mere transcription of the cable, but in a form already appropriate for the printing press. It was so appropriate indeed that the Newton Press printed it-

Senator Branson - Verbatim.

Senator WRIGHT - Verbatim - word for word - exactly as it was proved before Mr Dobson to be in Mr Pratt's handwriting. The only suggestion that was put forward to exculpate Mr Pratt from the allegation that he had communicated it was that at some time the document in Mr Pratt's bandwriting might have been scribbled out by him just idly, for no purpose, and got into the hands of Mr Newton ex post facto. But unfortunately for that contention, Mr Pratt's preparation in Press form and the contents of the cable in his own handwriting had the marks of those people within the Newton Press who submitted the manuscript actually to being printed. The heading had been altered. Mr Pratt had given it a heading which 1 have no doubt was thought to be sufficiently attractive to increase the subscriptions to Mr Newton's Press. He had headed it Thoughts of Mr Debre' Someone in the Newton Press had crossed that out and had substituted 'Report on a Confidential Government Cable'. The sub-heading used was 'Australian Ambassador talks with French Foreign Minister'. So as to make it clear that this manuscript production of Mr Pratt, translating the substance of the cable of 9th May, printed by Mr Newton on 13th May, had come into the possession of Mr Newton, I point out to honourable senators that, in the act of printing, those headings had been added, and the directions to the printer in italics were also on the document. By one of those coincidences that only heaven can explain - not understood by Senator Murphy - the whole of Newton's publication is in italics. A search was made and the manuscript of Mr Pratt, who is an officer of the Department of Trade and Industry, was found. He had access to this confidential cable. He prepared the contents in a form so ready and appropriate for printing that the printer did not change one word of it. Then we are asked to believe in miracles, that Mr Pratt did not communicate that document, prepared for the Press and printed by the Press, to the Press.

I am a bit like Warren Hastings; I did not mean to say this, but I am amazed at my own moderation the other day. I said that there was strong evidence. I now say that there was such evidence that no reasonable explanation has been preferred by anyone that would reasonably justify the rejection of the inference that Mr Pratt had communicated that document to the Press. 1 differ from Mr Dobson about these things. I state this because this afternoon I was challenged by Senator McClelland to state the reasons in the evidence that led me to make the statement that I made. I stated it also because my Government's motives in entering upon the search and prosecution have been impugned by Senator O'Byrne as a misuse of the Crimes Act and as a proceeding on flimsy grounds designed to stop the mouth of Newton from his petulant criticism of the Government.

Having stated that in substance, let us see how the cables correspond with the Press. I content myself, by reason of limitation of time, with the most significant cable -that of 9th May 1969. The cable is expressed to be confidential and to be from Mr Renouf, the Australian Ambassador in Paris. The first paragraph of the cable states that Mr Renouf says that he saw Mr Debre, the French Foreign Minister, on 7th May 1969. The first paragraph in the printed Newton press - and we are supposed to understand that there has been no communication between Mr Pratt and Mr Newton - is a print of the manuscript document of Mr Pratt. It states:

Among the confidential cables received by the Department of External Affairs last week was a very interesting one from the Australian Embassy in Paris. The cable gave a summary of an interview the Australian Ambassador, Mr Renouf, had with the French Foreign Minister, M. Debre The interview ranged over a number of topics.

Paragraph 2 of the cable, dealing with Vietnam, said:

Debre said that both Hanoi the Front and (he United States wanted a political settlement.

But no progress towards one would be made, he was convinced, until the United States was willing to discuss political issues as distinct from military or at least both political and military issues at the same time.

He did not understand why the United States would not do so.

Nor did he understand why the United States did not show more enthusiasm for really secret talks and for secret talks with the Front where Saigon could also be present if it so wished.

The above was the only significance he thought, of Le Duc Tho's return to Paris and Kiem's declaration.

Mr Pratt'smanuscript ; Mr Newton's print ; is in these terms:

On the subject of Vietnam and the Paris Peace Talks, M. Debre was reported as saying that in his opinion the USA, Hanoi and the National Liberation Front were all anxious to achieve a settlement to the war. However, progress was bogged down because Hanoi and the Front wanted to talk of a political as well as a military settlement but the USA was only prepared to talk of a military settlement. He believed that as soon as the USA was prepared to talk politically, a solution to the ending of the conflict would be in sight.

Senator Branson - Would the Minister read that first paragraph which said that the cable was received and which may be of interest?

Senator WRIGHT - It reads:

Among the confidential cables received by the Department of External Affairs last week was a very interesting one from the Australian Embassy in Paris.

I wanted to show the close correspondence, paragraph by paragraph, between the cable and Mr Pratt's manuscript and the exact correspondence between Mr Pratt's manuscript and Mr Newton's print.

Senator TURNBULL (TASMANIA) - That has never been denied, has it?

Senator WRIGHT - I do not think it has, but it has never been reported. Until it is made public in factual terms it may be capable of distortion by people such as the Leader of the Opposition in the Senate and the member of the Australia Party. In relation to Laos paragraph 3 of the cable states:

Debre does not believe that Hanoi and the Pathet Lao may be preparing the way for negotiation for a new political settlement.

He takes the view that the Laotian and Vietnamese situations are inexplicably linked and that a settlement in Laos can only, and will, follow a settlement in Vietnam.

On this subject the Newton press said this:

Moving on to Laos, M. Debre was reported as saying that the situation there with the Pathet Lao was inextricably bound up with the Vietnam situation. He considered that the conflict in Laos could not be cleared up until the Vietnam conflict was over but once this was the case, the Laotian situation would soon be cleared.

On the next subject, paragraph 5, the Indian Ocean, the cable states:

Debre said that some is years ago the Soviet Union had to decide to build up its Navy.

This new strength had to be used somewhere: The Mediterranean was a natural area for its use and the Indian Ocean was a logical area in which to extend.

However, the main reason for Soviet activities in the Mediterranean, Debre reckons, is as a counter to American naval presence there.

As regards the Indian Ocean, Debre said that Soviet interest was preventive and principally directed against China: The Russians were much more interested in the centre of Africa - Somali, the Sudan and Nigeria - in which places the French were watching their activities closely.

In relation to that Mr Pratt transcribed this statement, which was printed in the Press:

Talking of the naval presence of the USSR in the Indian Ocean, M. Debre reportedly considers that this is largely a logical extension of their naval activities in the Mediterranean, which was solely intended as a counter-balance to the USA's presence. He believes the chief object of Soviet naval penetration into the Indian Ocean is to pose a warning to Mainland China. However, he also believes that it is connected with the Soviet's increasing interest in the central African countries. He says that' France is closely watching developments in this area.

The next subject is the bilateral relations between France and Australia. The cable says this:

Debre expressed satisfaction with relations with Australia.

However, it was time, he said, these were built up politically as well as economically.

On the political front, there should be more consultations and more regularly.

On the economic side, the French had to increase their investments in and exports to Australia.

He still had in mind the despatch of another mission to Australia but his plans on this had been interrupted by de Gaulle's retirement.

Asked to be more specific about political consultations, Debre said that there were several fields of common interest, including Asia, the Pacific and the Indian Ocean.

He did not want any formalised consultations but merely consultations between the respective foreign Ministries and embassies and occasional exchanges at ministerial level.

Mr Prattput that in this form, and the Newton press printed it in this form:

M.   Debre told Mr Renouf that he believed that France and Australia should work in closer co-operation than they have in the past, both in political and commercial fields.

On the political front, he said that France and Australia had many fields of mutual interest in me Pacific Ocean area, the Indian Ocean area and Asia. He did not envisage any particularly formal exchanges between the two governments but rather, more frequent consultation at ministerial or official level.

In the commercial area, M. Debre said thai consideration would be given to France sending another mission to Australia. He said that France's main concerns were in selling more produce to Australia to even up the trade imbalance and in investing in Australia's development. However, he said that further consideration of these points would be delayed due to General de Gaulle's resignation. f come now to the final paragraph on which I wish to seek the patience of the Senate. The cable said this:

De Gaulle's Departure

I took the liberty of expressing to Debre regret at the departure from the French scene of the General saying that although his policies had nol always had Australian agreement, he was a great figure.

I.   also explained that this verbal expression on what was an internal French affair seemed to me a more appropriate way than the messages which a lor of countries had sent.

Deb re thanked me and said thai General dc Gaulle would bc happy to have the message.

The Press article from a document in Mr Pratt's handwriting, and printed by Mr Newton, is in these terms:

On the subject of de Gaulle's resignation, Mr Renouf rendered on behalf of the Australian Government, a verbal expression of Australia's regret for the General's decision. He said thai while the Australian Government may not always have agreed with his decisions, it had great respect for him as a man of ability. Mr Renouf told M. Debre that Australia considered it better to deliver this message verbally rather than in a formal statement, as had been done by some other countries. M. Debre reportedly concurred and promised to convey the message 10 de Gaulle. He said that he felt sure the General would be most appreciative of Australia's sympathies.

Indeed, there you have language which, so far as I quoted it from the Press, is printed from the manuscript version of Mr Pratt. It closely corresponds, paragraph by paragraph, with the substance of the cable to which Mr Pratt had confidential access, and, within the space of 4 days of its receipt, it finds its way from the pen of Mr Pratt to the press of Mr Newton, and in the meantime, the appropriate indications are given to the linotypist of Mr Newton's press as to how it should be printed.

It will be remembered that Mr Dobson, the magistrate with whose opinion I differ, and in respect of whose opinion I took the occasion to express my difference when asked a question in the Senate, expressed himself as convinced that Mr Newton had not come by that material for printing in either an unlawful or dishonest way. When I am challenged as to the flimsy grounds for a search that revealed that evidence against an officer in the Department of Trade of a disclosure of confidential cables; when I am challenged as to the misuse of the Crimes Act; and when it is suggested by Senator O'Byrne that the proceedings were designed to intimidate Mr Newton rather than to defend the integrity of the administration by a due administration of justice, I quite soberly assert my right to state my opinion. I go further and say that 1 would regard myself as a veritable coward if I had avoided the question and I certainly would not misrepresent the circumstances to the Senate.

Some reliance has been placed by those who offer this motion of censure against me upon the fact that Mr Justice Fox has said that the warrant was invalid. I have read section 10 of the Crimes Act which shows that the law authorises a justice of the peace, if he is satisfied by information on oath that there is a reasonable ground for suspecting that there is in any house, vessel or place anything as to which there are reasonable grounds for believing it will afford evidence, to issue a warrant. In this case, instead of the warrant reciting that the justice had reasonable grounds for suspecting, it recited that a police officer had laid information on oath before the justice that there were reasonable grounds for suspecting, and the judge was not satisfied, on the face of the warrant, that the justice who issued the warrant was so satisfied. Such is the scrupulous care with which any intrusion upon the subject's private property or person or house is guarded against by the English law that Mr Justice Fox said that the exact condition that justifies the issue of a warrant had not been satisfied. This was that the justice should say that he was satisfied on oath that there were reasonable grounds-7to be set out - for suspecting the existence of evidence. This was not stated on the warrant and Mr Justice Fox therefore invalidated the warrant. That is to say, that procedural warrant was invalidated.

But if these documents were known to be, or suspected to be, in the possession of Mr Newton tomorrow and no proceedings had taken place against Mr Pratt, there would be nothing in law or in good practice to prevent a warrant in proper form being issued and it would be the duty of the Administration represented by the police force, which, in my usual experience, is so fearless and so effective in the discharge of its responsibility to prevent breaches of the law to secure a warrant from a justice of the peace and enter and obtain evidence. If the police then got three documents, all in the handwriting of an officer of the Department of Trade communicating to the Press confidential copies of cables, then, in my view, so far from suggesting that the warrant was issued on a flimsy basis, the warrant would be supported by the discovery of evidence. There has been no explanation of the evidence that we have other than Mr Pratt's resignation and a complete exercise of his right to refuse to give any explanation of the purpose for which he transcribed those confidential cables.

Mr President,as I began in sorrow I end in pity. But I am unable to express the real feeling of pity that I had after listening to the submissions of Senator Murphy and those who support him. Senator Murphy put to the Senate the principle that for a long time no house of parliament has thought it proper to impugn the propriety of a judicial officer's behaviour without that criticism being accompanied by a substantive motion. I do not know why Senator Murphy put that forward in argument this afternoon in support of a case that a Minister of the Crown should regard it as improper to differ from the opinion of a magistrate. It beggars of description to understand why such confusion should emanate from the learned Leader of the Opposition.

The motion before the Senate is that I should be censured for suggesting that Mr Pratt was guilty of the offence for which he was charged. Mr Dobson made it quite clear that if he were looking at it as a nonjudicial act he would answer the $64 question: 'Who communicated the information?' by saying: 'Probably the defendant'. Mr Dobson went on to say that there was no evidence-

Senator Poyser - No tittle of evidence.

Senator WRIGHT - I will come to that. He said that there was no evidence but that there were heavy clouds of suspicion. He then went on to say that suspicion does not warrant committal. I quite agree with him. But I nope that Mr Dobson did not think that it was his job to adjudicate upon Pratt's guilt. His job was only to consider whether there was evidence which, if believed by a jury - not by a magistrate or a Minister of the Crown - would warrant conviction. So when I said that there was evidence, and strong evidence, I was contenting myself, with the utmost propriety, with expressing an opinion on the question which was before the magistrate and on which I differed with him. The ultimate conclusion as to whether Pratt was guilty would, or course, be a matter for the jury.

Had the magistrate stopped there it would have been simply a question of criticising a judicial conclusion. But as we were told this afternoon by Senator Murphy and as I read in the judgment, the magistrate said that there was not a tittle of evidence and he did not understand why the prosecution had been instituted. In doing so he was making comment upon the Administration and the Administration is entitled to make an appropriate answering comment. That is an additional reason why it is proper for a Minister of the Crown to put forward a view, when questioned, that is different to the view of the magistrate. I regret that a motion of this nature could emanate from a dignitary of the Senate, the Leader of the Opposition, who is learned in law. I fail to understand the very basis of the motion. I can only come to the conclusion that it emanates from imbalance in judgment.

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