Thursday, 6 September 1984 The PRESIDENT (Senator the Hon. Douglas McClelland) took the chair at 10 a.m., and read prayers. Senator GRIMES(Tasmania-Minister for Social Security) —I inform the Senate that the Minister for Foreign Affairs (Mr Hayden) left Australia yesterday to attend the United Nations General Assembly in New York, and to visit Central America and Portugal. The Minister for Trade (Mr Lionel Bowen) is Acting Minister for Foreign Affairs during Mr Hayden's absence. The Clerk —Petitions have been lodged for presentation as follows: To the Honourable the President and the Honourable members of the Senate in the Parliament assembled. The humble petition of the undersigned electors of the Commonwealth of Australia respectfully showeth that: 1. We are completely satisfied with the design of the existing Australian national flag. 2. We are aware it properly reflects the immutable characteristics of Australia , namely: The Union Jack-itself the creation of 3 Christian crosses-represents the nation 's historical origin, and the source of its language and law. The Southern Cross on an azure blue background signifying its place in space. The large star depicting the advent of Federation in 1901. 3. We know the flag has been a source of inspiration to generations of Australians in peace and war. 4. We recall that millions of native-born Australians and newcomers to these shores from other parts of the world have become united under its proud symbolism. 5. We are certain that any change to the flag will produce division in the Australian community. Your petitioners therefore pray that your Honourable House will: Propose and pass a motion that 'the existing Australian national flag remains sacrosanct from change'. And your petitioners as in duty bound will ever pray. by Senator Durack (from 19 citizens). To the Honourable the President and members of the Senate in Parliament assembled. The humble petition of the undersigned citizens respectfully showeth that: 1. They call on the Senate and the Government of the Commonwealth to reject the recommendations of the Commonwealth Schools Commission contained in 'Funding policies for Australian Schools', concerning proposed increases in State aid to private schools and the proposed community standards for education funding. 2. They call on the Senate and the Government of the Commonwealth to declare a three year moratorium (1985-1987) on increases in State aid to private schools and on grants for new private schools and for increased private school enrolments. 3. They call on the Senate and the Government of the Commonwealth to re-affirm their primary obligation to government schools and to implement all 1983 ALP election promises for increased funding to government schools. And your petitioners as in duty bound will ever pray. by Senator Ryan (from 30 citizens). To the Honourable the President and members of the Senate in Parliament assembled. The humble petition of the undersigned citizens respectfully showeth their objection to any proposed legislation removing the power of existing Commonwealth law to prevent the importation and sale of hard-core pornography (e .g. X-rated videos), and publications which consistently incite the use of hard drugs. They furthermore petition that, because of the importance of this issue to society, a conscience vote be permitted to all members of Parliament. And your petitioners as in duty bound will ever pray. by Senator Ryan (from 119 citizens). To the Honourable the President and members of the Senate in Parliament assembled. The humble petition of the undersigned citizens of Australia respectfully showeth: That in November 1978 more than sixty-two per cent of the voters of the Australian Capital Territory in a Referendum rejected the introduction of Territorial Government or Local Government in the Australian Capital Territory. That until the findings of the Commonwealth Grants Commission Inquiry into Australian Capital Territory finances have been made public and there has been a Referendum of the voters of the Australian Capital Territory as to their attitude to Territorial or Local Government. Your petitioners most humbly pray that the Government take no further action or legislation in respect of Territorial or Local Government in the Australian Capital Territory. And your petitioners as in duty bound will ever pray. by Senator Peter Baume (from 128 citizens). To the Honourable the President and members of the Senate assembled. The petition of the undersigned respectfully showeth that: 1. The Watsonia Army Barracks contains electronic communication facilities, operated by Australian and American personnel, that gives the United States the ability to pin-point Soviet nuclear submarines, hidden in the Oceans. 2. This would make it possible for U.S. killer-submarines to destroy all Soviet nuclear submarines, while the U.S. nuclear submarines launch their missiles in a 'first strike' attack. This makes Watsonia a potential nuclear target. A nuclear attack on Watsonia would have a disastrous effect on Melbourne. 3. The 'joint U.S.-Australian' bases in Australia endanger rather than protect us. They also add a new menace to nuclear arms race, that must be stopped. Your petitioners most humbly pray that the Senate in Parliament assembled should close the 'joint Australian-U.S., electronic communication facilities in the Watsonia Army Barracks. And your petitioners as in duty bound will ever pray. by Senators Primmer (from 46 citizens) and Zakharov (from 45 citizens). To the Honourable the President and members of the Senate in Parliament assembled. The humble petition of the undersigned citizens respectfully showeth: That Regulations and an Ordinance now before the Parliament amends the Customs (Prohibited Imports) Regulations and the Customs (Cinematographic Films) Regulations and supersedes the A.C.T. Objectionable Publications Ordinance in such a manner as to be harmful to society by removing from existing Commonwealth law: the power to prevent the importation and sale of hard-core pornography (e.g. X- rated videos) and publications which consistently incite the use of hard drugs; the power to prevent the importation and sale of grossly obscene publications, including those associated with blasphemy; the power to require imported video tapes/discs for non-commercial use to be registered by the films Censorship Board. Your petitioners humbly pray that the Senate, in Parliament assembled: should disallow the new Regulations and Ordinance and ensure that the Attorney-General enforce existing laws; that Censors more appropriately reflect responsible community attitudes; that further measures taken in association with the States to protect Australians, particularly women and children, from exploitation; and that, because of the importance of this issue to society, a conscience vote be permitted to all members of Parliament And your petitioners as in duty bound will ever pray. by Senators Archer (from 16 citizens), Cook (from 56 citizens) and Sibraa (from 125 citizens). To the Honourable the President and members of the Senate in Parliament assembled. The petition of the undersigned respectfully showeth: 1. They are completely satisfied with the design of the existing Australian National Flag. 2. They are aware it properly reflects the immutable characteristics of Australia, namely: (1) The Union Jack-itself the creation of 3 Christian crosses, represents the nation's historical origin and the source of its language and law. (b) The Southern Cross on an azure blue background signifying its place in space. (c) The large star depicting the advent of Federation in 1901 and each point depicting a State and the Territories of the Commonwealth. 3. They know the flag has been a source of inspiration to generations of Australians in peace and war. 4. They recall that millions of native-born Australians and newcomers to these shores from other parts of the world have become united under its proud symbolism. 5. They are certain that any change to its form or to its acceptance as the sole Australian National Flag will produce division in the Australian community. Your petitioners most humbly pray that the Senate, in Parliament assembled, should ensure that the existing Australian National Flag remains sacrosanct from change and remains the sole national flag. And your petitioners as in duty bound will ever pray. by Senator Archer (from 321 citizens). To the Honourable the President and members of the Senate assembled. The petition of the undersigned respectfully showeth: 1. That governments have a responsibility to maintain standards acceptable to society's wishes. 2. It cannot be guaranteed that X rated video material will not be viewed by children. Your petitioners most humbly pray that the Senate, in Parliament assembled should: Not adopt the X Classification for Films and Video Tapes, nor Category 2 for Printed Material. Further, that tighter restrictions be applied to R rated films and video tapes and Category 1 Printed Material. And your petitioners as in duty bound will ever pray. by Senators Ryan (from 131 citizens) and Walters (from 2,370 citizens). To the Honourable the President and members of the Senate in Parliament assembled: This petition of the undersigned citizens of Australia respectfully showeth that the reduction in the subsidy to tertiary student residential colleges of twenty- five per cent announced in the Federal Budget will: 1. Increase the financial hardship already being experienced by Australian students. The cut in subsidies to colleges will undoubtedly increase fees for that accommodation in 1984. Many students will be forced out of tertiary education as they will not be able to meet these increased costs particularly as the Tertiary Education Assistance Scheme only gained a maximum increase of $2.80 per week in the Federal Budget. 2. Decrease access to education for country students. Many country students live in college accommodation either to attend tertiary institutions in the metropolitan area or in regional centres. The cut in the subsidy to residential colleges will even further disadvantage this group of students who already have comparatively low participation rates in tertiary education. Your petitioner therefore call upon the Senate to ensure: (1) That the full subsidy to student college accommodation is immediately restored. (2) That the Federal Government assume financial responsibility for all student college accommodation to prevent the planned closures of colleges in Victoria. (3) That two students representatives are appointed to the committee of the Commonwealth Tertiary Education Commission reviewing student housing. (4) That new forms of college accommodation are investigated which would be more appropriate to the needs of the current student population, i.e. accommodation appropriate for students with dependent children. And your petitioners as in duty bound will ever pray. by Senator Zakharov (from 69 citizens). To the Honourable the President and members of the Senate in Parliament assembled. We the undersigned citizens of the Commonwealth do humbly pray that the Commonwealth government: 1. Uphold the principle that the seeds and cuttings of plants are a public resource and a common heritage to all and that accordingly seeds should be freely available to all, freely multipliable, able to be sold, exchanged, exported and imported by anyone who wishes. This is seen as a matter of national food security. 2. Recognise that plant breeding is a highly co-operative venture often involving private enterprise at the very last stages after basic seed collection , storage, and research has been publicly funded. 3. In view of the aforementioned paragraphs, recognise that any system giving ' property' or ownership rights over seeds to individuals, organisations or enterprises is inappropriate and unjust. 4. Recognise that legislation establishing plant patenting schemes overseas has had serious adverse effects namely: (i) a slowing-down of scientific information exchange and exchanges in basic plant breeding materials, that is, germ plasm, (ii) subordination and/or curtailment of public breeding programmes, (iii) farmer unrest at seed prices, (iv) monopoly control of seed production and sales has passed into the hands of giant petrochemical and drug corporations also marketing crop chemicals, (v) increased uniformity of crop varieties leading to a vulnerability to pest and disease attack. 5. Reject any proposal to legislate for any system such as the drafted Plant Variety Rights Act, which gives exclusive ownership rights over seeds to individuals, organisations or enterprises. And your petitioners as in duty bound will ever pray. by Senator Zakharov (from 31 citizens). Petitions received. Senator GRIMES(Tasmania-Minister for Social Security) —I table papers in accordance with the list circulated to honourable senators. With the concurrence of the Senate I incorporate the list in Hansard. Leave granted. The list read as follows- 1. A.C.T. Gaming and Liquor Authority-annual report 1982-83. 2. South Pacific Forum and Visit to Fiji-text of a statement by the Prime Minister made in the House of Representatives 5 September 1984. 3. Aboriginal Development Commission: Estimates of Receipts and Expenditure 1984-85-explanatory notes. Senator GARETH EVANS(Victoria-Attorney-General) —I table the Government's response to the report on the Constitutional Qualifications of Members of Parliament of the Senate Standing Committee on Constitutional and Legal Affairs. I seek leave to make a statement in relation to that. Leave granted. Senator GARETH EVANS —The report on the Constitutional Qualifications of Members of Parliament which was tabled by Senator Missen, as Chairman of the Senate Standing Committee on Constitutional and Legal Affairs, on 2 June 1981, deals with the desirability of changes to the provisions of the Constitution and of Commonwealth legislation relating to the qualification and disqualification of members of Parliament, and makes 18 recommendations in that regard. The report is under consideration by the Australian Constitutional Convention. The recommendations that relate to constitutional matters were placed on the Adelaide agenda of the Convention by the previous Government. They were discussed only briefly at Adelaide and have been referred to the Standing Committee of the Convention for further study. The Standing Committee has been directed to report by the end of 1984 and has itself asked for a report from one of its sub-committees, the Structure of Government Sub-Committee, by 30 September 1984. That Sub-Committee is giving the matter detailed consideration. It is important to note in this connection that only those recommendations relating to constitutional alteration are under study by the Convention. The recommendations for legislative changes require independent action and will be followed up by those of my Ministerial colleagues who are responsible for the administration of the particular legislation. So far as constitutional alterations are concerned, some of the Committee's recommendations raise large and complex issues and require further discussion with State representatives in the Constitutional Convention context so that a broad consensus may be achieved. Provided there is reasonable progress in the Constitutional Convention, a final Government position on these recommendations will not, therefore, be determined until the Convention has fully discussed them . I am, however, able to give the Senate an indication of the Government's views in principle on each of the recommendations, both constitutional and statutory. The Government's general attitude to each of the Committee's recommendations is set out in a document entitled 'Government Attitude to Recommendations of Senate Standing Committee on Constitutional and Legal Affairs concerning the Qualifications of Members of Parliament'. I seek leave to have that document incorporated in Hansard. Leave granted. The document read as follows- GOVERNMENT ATTITUDE TORECOMMENDATIONS OF SENATE STANDINGCOMMITTEE ON CONSTITUTIONAL AND LEGAL AFFAIRSCONCERNING THEQUALIFICATIONS OF MEMBERS OF PARLIAMENTSenate Committee Recommendation 1. Re-enact s.34 of the Constitution to entrench in the Constitution the age qualification of 18 years and the nationality requirement of Australian citizenship. Support entrenchment of 18 years but with retention of Parliament's power to lower the age, support the entrenchment of Australian citizenship. 2 (i) Insert the requirement of Australian citizenship in s.69 (1) (b) of the Commonwealth Electoral Act 1918. The recommendation has been implemented by the proclamation of s.34 of the Statute Law (Miscellaneous Amendments) Act 1981 which came into effect on 26 January 1984. 2 (ii) Remove the requirement of three years residence in Australia in s.69 (1) (c) of the Commonwealth Electoral Act 1918. This has been implemented by the Commonwealth Electoral Legislation Amendment Act. 2 (iii) Delete the requirement in s.69 (i) (d) of the Commonwealth Electoral Act 1918 that a Member be an enrolled elector or be qualified to be enrolled (this would have the consequential effect that a candidate need not be so qualified). No not support. The link between voter qualifications and candidate qualifications should be retained. 3 & 4. Delete the ground of disqualification in s.44 (i) (allegiance to a foreign power or foreign citizenship) but legislate to require a candidate who is a dual national to declare at the time of nomination that he- Support. * holds a non-Australian nationality; * has taken every step reasonably open to him to divest himself of the non- Australian nationality; and * will not accept, or take conscious advantage of, any rights privileges or entitlements under the nationality while a Member. 5. Replace the obscure and archaically expressed ground of disqualification in s.44 (ii) of the Constitution referring to ''attainted'' of treason by a reference to persons ''convicted under the law of the Commonwealth, and not subsequently pardoned, of the offence of treason''. Support. 6. Delete the ground of disqualification in s.44 (ii) referring to being convicted and under sentence for an offence punishable by imprisonment for one year or longer. Support the deletion of s.44 (ii) subject to its replacement by a disqualification similar to the voter disqualification in s.39 (6) (b) of the Electoral Act (ie. disqualification of a person who 'has been convicted and is under sentence for an offence punishable under the law of the Commonwealth or of a State or Territory by imprisonment for 5 years or longer'). 7. Delete the grounds of disqualification relating to undischarged bankruptcy and insolvency in ss.44 (iii) and 45 (ii) of the Constitution. Support. 8 & 9. Amend the Defence (Parliamentary Candidates) Act 1969 to give a right to Defence personnel to resign to contest an election and to reinstatement if unsuccessful. Support subject to appropriate discretionary and review procedures. 10. Not proceed with the Constitution Alteration (Holders of Office of Profit) Bill 1981. Support. 11 & 12. Replace s.44 (iv) of the Constitution disqualifying Members who hold ''offices of profit'' by new provisions which would give a more precise description of the offices in question and which would allow their holders to become candidates without being required to resign if they are not elected. Support subject to the inclusion of provisions which would empower the Parliament to specify conditions to which the candidature for election to a House of the Parliament would be subject. 13. Re-enact s.43 of the Constitution to allow a Member of one House to be ''elected '' to the other House without resigning so that he vacates his existing seat only on the declaring of the ''poll'' in respect of his election to the second House. Support. 14. Amend the proviso to s. 44 (iv) of the Constitution to allow the appointment and remuneration of Assistant Ministers, Parliamentary Secretaries and holders of ' like offices' without their disqualification. Support. 15 & 16 Delete the existing constitutional grounds of disqualification relating to pecuniary interests in Government contracts and taking a fee or honorarium for services rendered to the Commonwealth or for services rendered in Parliament to any person or State and in their place, give Parliament broad powers to legislate on conflicts of interest, direct or indirect and pecuniary or otherwise, and improper influence. Support but note that the matter may be better regulated through the Standing Orders rather than through legislation. 17. Amend s. 203 of the Commonwealth Electoral Act 1918 to make it clear that each House retains jurisdiction to determine any question respecting qualifications or vacancies unless it has referred the matter to the Court of Disputed Returns. Support. 18. Amend the Common Informers (Parliamentary Disqualifications) Act 1975 by deleting the penalty provisions, and providing simply for an action for a declaration to be brought in the High Court of Australia at the suit of any person, as to whether or not a Senator or Member of the House of Representatives is disqualified. Support. Senator GARETH EVANS —I emphasise that the Government's views as set out in that document are views as to the principle of each of the Senate Committee's recommendations. It is clear from the discussion that has already taken place within the Constitutional Convention that the detailed implementation of the recommendations may require some divergence from the draft provisions suggested in the Senate Committee's report. I think all honourable senators have cause for satisfaction with the report of the Senate Standing Committee on this topic. The Government intends to pursue all of the Committee's recommendations in one way or another and welcomes the further expression of views on the various issues raised by the report. Views expressed in the Senate will be kept in the forefront of the discussions that are yet to take place with the States in the context of the Australian Constitutional Convention. Senator MISSEN(Victoria) —by leave-I move: That the Senate take note of the statement. I have had the opportunity of briefly reading the response of the Government this morning on this matter. I thank the Attorney-General (Senator Gareth Evans) for the remarks he made about the work of the Senate Standing Committee on Constitutional and Legal Affairs. From the statement which the Government has presented, clearly detailed consideration has been given to the various recommendations which the Committee has made. Some of those recommendations relate to constitutional changes that would be required in regard to the problems arising from the qualification and disqualification of members of parliament; others relate to changes in the electoral law and some of them have been carried out. Some of the Committee's recommendations have been overtaken by events and in a satisfactory way. In regard to the response generally, I welcome many of the statements which the Government has made. In most cases, it supports the recommendations which the Committee has made. In some other cases it is a matter of doing so with some qualifications, of requiring some additional Standing Orders or adopting a different method of finalising the proposals which the Committee has put. I think that has to be looked at carefully by the Senate in the course of the debate on these proposals and also in the course of legislation which may come about as a result of the recommendations. It does appear that there has been a very substantial response to problems inherent in the Constitution. In many cases, they are not ones that have in practice arisen but there are a number of areas in which they could well arise. A number of them have. One problem is the difficulties that arise when members of one House transfer to another House. Another problem is a section of the Constitution which has provisions as to disqualification, some of which are clearly outdated and are not now matters that would be subject in the public mind to disqualification. Bankruptcy is a matter in question. All in all, the Government has made a substantial response to this report. These proposals deserve more consideration than the public or the media have given to them in the past when they were brought down as a Committee report. I have moved this motion in the absence of the Chairman, but I am sure that members of the Senate Standing Committee on Constitutional and Legal Affairs will be very interested in the report. They will consider in detail likewise the proposals that the Government makes. This debate probably will not continue very far today. I hope that it will be resumed at a later stage. Unless someone else wishes to speak, I seek leave to continue my remarks later. Leave granted; debate adjourned. Senator GARETH EVANS(Victoria-Attorney-General)(10.11) —I table the Government 's response to the Joint Foreign Affairs and Defence Committee report on regional conflict and super-power rivalry in the Horn of Africa. I seek leave to make a statement which was also made by the Minister for Foreign Affairs (Mr Hayden) in the House of Representatives yesterday. Leave granted. Senator GARETH EVANS —I seek leave to have the text of the statement incorporated in Hansard. Leave granted. The statement read as follows- I would like to take this opportunity to comment upon the Report of the Joint Committee on Foreign Affairs and Defence on Regional Conflict and Superpower Rivalry in the Horn of Africa, which was tabled in this House on 29 May 1984. The Government is indebted to the Joint Committee for the concise way in which it has canvassed the many complicated problems which beset the countries of the Horn. This Report will serve as an extremely valuable reference work for members of the Parliament, researchers and political analysts. It reflects a further result of the Committee's visit to and deliberations upon this important area of the world. Situated on the Indian Ocean, and more importantly at the entrance to the Red Sea, the countries of the Horn-Ethiopia, Somalia and Djibouti-command some of the world's busiest sea lanes. This strategic significance ensures that the major world powers take a close interest in the region, and in recent years the Horn has become yet another arena of East-West confrontation. Australia, as a nation dependent on international trade, shares a Western interest in the fate of this region, a fact which has perhaps been overlooked in previous years. The attention of the JFADC has done much to redress that situation. There is a high level of Australian community interest in Ethiopia. This owes much to the suffering caused both by the recurrent drought which has beset that country in recent years, and by the conflict in Eritrea. The Eritrea conflict ( to which the Joint Committee has devoted a full chapter of its Report) is one of the longest standing on the African continent. It has significantly de- stabilised Ethiopia, and indirectly other parts of the Horn. The Eritrean conflict has contributed in a major way to the intervention of the major powers in the region. The root of the Eritrean situation lies in the claim of the Eritrean people to exercise their right to self-determination, including the possibility of forming an independent State. The Committee-in my view, correctly -has refrained from drawing any firm conclusions as to the validity of the claims of the contending parties. This approach also conforms to that which Australian Governments have taken to the Eritrean issue. At various times calls have been made for Australia to raise the Eritrean issue in the United Nations and other international forums. Such calls have been resisted mainly because the nations of Africa, which are better placed to respond to this African problem, have not publicly recognised Eritrea's claims to self-determination. Until such time as the issue is recognised by the Organisation of African Unity as an international matter, and not an internal Ethiopian problem, Australia should not, I believe, take a stand in relation to the dispute. In the area of human rights, however, Australia and other like-minded countries have a legitimate interest in the Eritrean situation. The Joint Committee, in paragraph 4.99 of its Report, concluded that there was sufficient evidence of violations of human rights in Eritrea for Australia to seek explanations from the Ethiopian Government. The allegations made about such violations consisted mainly of claims that the Ethiopian armed forces have used chemical weapons, including nerve and poison gas, as well as napalm and inhumane weapons indiscriminately in Eritrea, and that substantial elements of the civilian population have been affected. The Government is concerned at any report of the use of chemical weapons and has strongly supported measures to strengthen the capacity of the United Nations to investigate allegations of their use. The Government also attaches a high priority to the early conclusion of a comprehensive convention to ban the production, stockpiling and use of all chemical weapons. We are working actively for this objective in the Conference on Disarmament. The Government has therefore investigated carefully the allegations contained in the Committee's Report. Inquiries have been made of other Western Governments , with the Eritrean Relief Committee and the advice of the Australian High Commission in Nairobi has been sought. These inquiries have, however, failed to produce any independent corroboration of the reports. Allegations of the use of chemical and inhumane weapons in Eritrea are not new, and most of those in the Joint Committee Report appear to relate to incidents which are at least two years old. Information available to the Government indicates that while there is some evidence that weapons such as fragmentation bombs have been used in Eritrea , over the last few years there has been an overall improvement in the human rights situation in Ethiopia. Nevertheless, the Government has seen fit to express to the Ethiopian Government, through our Ambassador, the Australian Government's concern with reports of human rights violations in Ethiopia, with specific reference to the allegations contained in the Joint Committee's Report. Our Ambassador also reiterated the Government's strong support for the early conclusion of a comprehensive chemical weapons convention. The response of the Ethiopian Government was to deny the allegations made in the Report and to affirm Ethiopia's support for a comprehensive convention to outlaw chemical weapons. The Ethiopians also claim that they have never used napalm in Eritrea. The Joint Committee Report also considered Somalia's claims to parts of Ethiopia, Kenya and Djibouti, another issue causing confrontation and tension in the Horn. The Report points out that Somali claims and their consequent invasion of the Ogaden region of Ethiopia in 1977 led directly to the large-scale intervention of the Soviet Union and Cuba, and to Ethiopia's hardening against the West, especially the United States. It also led Somalia to break off relations with the Soviets, depriving the latter of naval facilities, which were then made available to the United States. The Joint Committee's Report goes into this problem in some detail. While again reaching no firm conclusion as to the merits of the competing claims, the Report nonetheless underlines the implications that disputes such as these have for the international balance of power. It also demonstrates clearly the fragility of the power balances in the Horn of Africa. As with Ethiopia, Australia enjoys cordial relations with Somalia. The Australian High Commission in Nairobi has reporting responsibilities for Somalia and sends officers to visit Mogadishu, the Somali capital, and other parts of the country on a regular basis. Honourable Members may be aware that the Somali Foreign Minister, Dr Abdirahman Jama Barre, has just visited Australia as a guest of the Government. The visit provided an opportunity to focus on developments in this important region. The Australian Government was also able to take the opportunity to make clear to the Somali Government that Australia sincerely hopes that the problems of the region will be solved by peaceful means , and preferably in the context of an agreement among the countries concerned. The Joint Committee's Report on Australia's Diplomatic Representation in Africa (of December 1983), recommended that Australia open a resident mission in Addis Ababa. The Government has carefully considered this recommendation. It has been decided that it would be in keeping with Australia's interests in this region, and with our intention to focus Australia's foreign policy more toward the Indian Ocean and East Africa, to establish a small resident mission in Addis Ababa. An Embassy in Ethiopia will provide Australia with a direct channel of communication with the Ethiopian Government and our first resident diplomatic presence in this part of the world. The Embassy will further serve as a point of contact with the Organisation of African Unity and the United Nations Economic Commission for Africa, both of which have their headquarters in Addis Ababa. As is the case in many areas of government, workloads and priorities vary over a period of time. It is a normal function of the management of a Foreign Service to review the activities of overseas missions in terms of relative priorities and performance, with a view to ensuring that maximum benefit is derived from the financial and personnel resources that are available. I have to say that the opening of a mission in Addis Ababa can only be achieved through the redeployment of existing resources within Australia's diplomatic network. In conclusion, Mr Speaker, I would like once again to express my own congratulations to the Joint Committee as well as the appreciation of the Government for its significant contribution to a clearer understanding of the problems besetting the Horn of Africa. Although the overall impact of the Report on the Horn is not optimistic of quick solutions, it is important to Australia to have a better understanding of this significant region of Africa. Senator SIBRAA(New South Wales) —I seek leave to make a short statement on the report of the Joint Committee on Foreign Affairs and Defence. Leave granted. Senator SIBRAA —As Chairman of the Sub-committee of the Joint Committee on Foreign Affairs and Defence which undertook the inquiries leading to the two reports on the Horn of Africa and on diplomatic representation in Africa, I wish to thank the Government for responding to the Committee reports in such a detailed way since it has come to office. The Committee's reports had three major recommendations: Firstly, that violation of human rights in Eritrea be investigated; secondly, that consideration be given to opening a post in Addis Ababa; and thirdly, that Australia open a post in Mauritius. I am pleased to say that the Government has acted on all these recommendations. It has investigated allegations about the use of chemical weapons in Eritrea. The Government's response states that it has failed to unearth any independent corroboration of reports of the use of chemical weapons in Eritrea, although it states there is some evidence of the use of fragmentation bombs. The very fact that an Australian government is willing to make such inquiries on a government to government basis is proof of its interest in human rights. The fact that such matters are raised in this way keeps governments aware that they are of interest to the international community , and cannot be swept under the carpet. The response states that the Government has studied the Committee's observations about the possibility of opening a post in Addis Ababa, and it has been decided to open a small resident mission there. This will be in keeping with Australia's interest in the region, and our intention to focus Australia's foreign policy towards the Indian Ocean and East Africa. The opening of a post in Addis Ababa has a number of advantages: Firstly, it underlines Australia's interest in Africa, and our commitment to participating in developing co-operation. Secondly, it will serve as a point of contact with the Organisation of African Unity and the United Nations Economic Commission for Africa, as well as other African organisations headquartered in Addis Ababa. Thirdly, it will allow better monitoring of Australian contributions to development co-operation and humanitarian relief schemes in Ethiopia. It should be noted that, as with the establishment of posts in other countries, diplomatic representation of itself means neither agreement with nor disapproval of the domestic or foreign policies of the country in question. As far as the Eritreans are concerned, it will be to their advantage that Australia has a permanent presence in the region. They can be assured that their problems will not be ignored. The report of the Jackson Committee to Review Australian Overseas Aid Programs suggested withdrawal of Australian participation in bi-lateral aid projects in Africa. There are some dangers in this proposal if it is not properly understood . For while the Jackson report suggests withdrawal in the narrow area of project aid, there is no suggestion of a downgrading of our commitment to African development co-operation and humanitarian relief, training and a whole host of other areas of co-operation. The decision to open a mission in Ethiopia, which has a special place in African history as well as in current Pan African political developments, should put at rest any fears that Australia is withdrawing from its deep interest in the future of Africa. Another major recommendation of the Committee was that Australia open a post in Mauritius. Although this matter is not addressed in the speech of the Minister for Foreign Affairs (Mr Hayden) the Senate will be aware that earlier this year, the Government announced the establishment of such a post. The Jackson report placed the Indian Ocean island states in category one to receive Australian assistance and stated that they deserve special consideration. The Australian post in Mauritius is well placed to provide that assistance. The Committee, therefore, is pleased with the way the Government has responded to the recommendations and observations contained in its reports over the last 12 months and also the fact that it has adopted the Committee's main recommendations. If nobody else wishes to say anything I would like to seek leave to continue my remarks later. The PRESIDENT —You sought leave only to make a statement, Senator Sibraa. You have made that statement. Bill received from the House of Representatives. Ordered that the Bill may be taken through all its stages without delay. Bill (on motion by Senator Grimes) read a first time. Senator GRIMES(Tasmania-Minister for Social Security)(10.16) —I move: That the Bill be now read a second time. I seek leave to have the second reading speech incorporated in Hansard. Leave granted. The speech read as follows- This Bill is an omnibus Bill implementing many of the major social security and repatriation initiatives of the 1984-85 Budget. It also gives effect to the Government's policy on the asset testing of pensions announced in the Senate on 1 June 1984. The Budget measures contained in this Bill amount to an increase in expenditure on income security and social welfare of $397 million in 1984-85 and $616m in a full year. On top of the $938m increase in expenditure that automatically results in 1984-85 from factors such as increased numbers of pensioners and beneficiaries, and the indexation of pensions and benefits, this increase is considerable and demonstrates the Government's commitment to improving the lot of the poor and disadvantaged. It has necessarily been achieved within an overall economic strategy that, of itself, also will be of substantial benefit to low income groups by reducing unemployment and inflation. The Bill provides substantial increases in assistance for those most in need. For example, a sole parent with one child and renting privately will receive in November 1984 up to $11.50 a week, or 9.6 per cent more as a result of the measures contained in this Bill. At the same time, the Bill also provides for the application of an assets test to ensure that resources will not be dissipated on those who do not require assistance. I will give details of the financial impact of these measures as I deal with each major initiative. BUDGET MEASURES Social Security Act 1947 The major Budget initiatives dealt with in Part II of this Bill consolidate and extend the steps taken by the Government in last year's Budget to provide additional assistance to those in greatest need in our community. The Bill provides for a special increase in the basic rate of all indexed pensions and benefits for single people and married couples. Additional assistance will be provided to single adult unemployment beneficiaries without dependants, to private renters, and to pensioners, beneficiaries and other low income families with children. Social Security (Budget Measures and Assets Test) Bill Social Security (Budget Measures and Assets Test) Bill Social Security (Budget Measures and Assets Test) Bill Social Security (Budget Measures and Assets Test) Bill Social Security (Budget Measures and Assets Test) Bill Social Security (Budget Measures and Assets Test) Bill Increase in Pensions and Benefits One of the Government's major concerns is to improve the adequacy of pension and benefit rates by raising, over time, the basic pension and benefit rates to 25 per cent of Average Weekly Earnings. As progress towards this objective, we have decided to increase the rate of all indexed pensions and benefits by $2.50 a week for single people from November 1984. Married couples will receive an extra $4.20 a week. In the absence of these increases, the rates of indexed pensions and benefits would have remained unchanged in November 1984 due to the negative movement in the Consumer Price Index in the six months ending June 1984. Without this increase, the single pension as a proportion of Average Weekly Earnings would have represented about 23.2 per cent. It is estimated that this measure will lift the single pension as a proportion of Average Weekly Earnings in November 1984 to about 23.8 per cent. The maximum rate of pension or benefit for single adults, other than unemployment beneficiaries with no dependants (for whom special provision is made in this Bill), will be lifted to $91.90 a week, and for a married couple to $153.30 a week. Under the income test, a single person without children will be able to have income of $213.80 a week before the pension ceases. For married couples without children, the pension will cease at $356.60 a week. These limits are higher where there are children. The limits are also higher for age pensioners aged 70 or over, to whom a more lenient income test applies. Some 1,934,000 pensioners and 213,500 beneficiaries will benefit from this initiative at an estimated cost of $192.1m in the current financial year and $ 279.0m in a full year. The new rates for pensions and supporting parents' benefits will operate from pay day 1 November 1984, while unemployment, sickness and special benefit instalments will be paid at the new rates on and after that date. Initiatives for the Unemployed One of the Government's major election commitments was to restore progressively the rate of unemployment benefit for single adults to parity with the standard rate of pension. Before November 1978, the single adult rate for unemployment beneficiaries was set at the same level as the single rate of pension and sickness benefit. After its exclusion from automatic pension and benefit indexation arrangements by the previous Government, its real value declined substantially. Single adult unemployment beneficiaries were thereby subjected to the greatest discrimination and required to bear the greatest burden during the economic recession. Since coming to office, we have moved progressively to end this discrimination by closing the gap between this group and single pensioners and sickness beneficiaries. We increased the rate by $4.25 a week in May last year, and then by $4.95 a week in November 1983. As well, we provided for automatic indexation of the rate from May this year, which added $3 a week, in addition to a special increase in May of $2 a week. In keeping with our election commitment, this Bill provides further assistance. From November 1984, the rate of unemployment benefit for single people aged 18 years and over who have no dependants will be increased by $2.50, bringing that rate to $81.10 a week, and, it will be increased by $2 a week, in addition to any automatic indexation increase, from May 1985. These initiatives will affect some 381,000 beneficiaries at an estimated cost of $39.4m in the current financial year and $89.4m in a full year. In our first Budget, we increased the rate of benefit for single unemployment and sickness beneficiaries aged 16 and 17 years by $5, to $45 a week, from November 1983. This Bill provides for a further $5 a week increase for this group from November 1984, where they have been in continuous receipt of an income security payment for 6 months. An estimated average of some 13,600 young beneficiaries will benefit from this increase. The estimated cost will be $2.3m in the current financial year and $3. 5m in a full year. To ensure that single beneficiaries aged 16 and 17 years with dependants receive the same level of basic assistance as other single pensioners and beneficiaries caring for dependent children, their maximum rate of benefit will be increased to the standard rate of pension from November 1984. Normal indexation provisions will apply in future. This will be of particular benefit in tragic cases where the loss of both parents has given young people the responsibility of caring for younger brothers and sisters. An estimated 300 beneficiaries will benefit from this initiative at an estimated cost of $0.5m in the current financial year and $0.7m in a full year. Assistance to Renters Rent assistance is available for pensioners, supporting parent beneficiaries and long term sickness beneficiaries (that is, those of 6 or more weeks standing ) who have little or no income apart from the pension or benefit and pay private rent or lodging. The maximum rate of payment currently is $10 a week. In recognition of the particular difficulties faced by people forced to pay high rents in the private market, the maximum rate of rent assistance will be increased by 50 per cent to $15 a week from November 1984. This will significantly improve the level of assistance to eligible pensioners and beneficiaries who rent privately. The rate of incentive allowance paid to people in sheltered workshops and to invalid pensioners undertaking activity therapy and adult training programs, will also increase to $15 a week from November 1984. Some 288,000 pensioners and 17,300 sickness beneficiaries will benefit from this initiative, at an estimated cost of $46.0m in the current financial year and $66.6m in a full year. Assistance for Pensioners, Beneficiaries and other Low Income Families with Children In keeping with this Government's strong commitment to improving the level of assistance provided to low income families with dependent children, we have built on the priority we gave these families in last year's Budget by again increasing payments to them. From November 1984 the maximum rates of additional pension or benefit paid for each child of a pensioner or beneficiary and the Family Income Supplement paid to assist low income working families, will be lifted by $2 to $14 a week per child. Together with the $2 increase also provided last year, these payments will have been increased by 40 per cent since 1983 when this Government came to office. These measures will benefit an estimated 287,000 pensioner and 128,500 beneficiary families, as well as 27,000 families in receipt of the Family Income Supplement. They will cost an estimated $60.8m in the current financial year and $89.5m in a full year. The Bill also provides for a 25 per cent increase in the rate of mother's/ guardian's allowance from November 1984, bringing the maximum rate to $10 a week . This allowance is provided in recognition of the greater needs of sole parents relative to other pensioners and beneficiaries with dependent children, and is paid in addition to additional pension or benefit paid for each child. An estimated 258,000 pensioners and beneficiaries will benefit from this measure at an estimated cost of $18.5m in the current financial year and $26.8m in a full year. Repatriation Act 1920 Repatriation Budget initiatives are also dealt with in Part II of this Bill. Pension increases are to extend to service pensioners and to those in receipt of war or defence widows' pensions. In addition, increases are made in the rates of pensions payable to orphans, pension additions for certain amputations or loss of vision, and attendant allowance. Other initiatives for increases in Recreation Transport Allowance, Clothing Allowance and Funeral Benefit will be achieved by amendment of regulations. Increase in Pensions and Allowances Repatriation service pensions are similar to age and invalid pensions except that, where granted on the ground of age, they are available at the age of 60 for men and 55 for women. Service pension rates are calculated by reference to the rates of age pension payable under the Social Security Act 1947, and accordingly, single service pensioners receive an increase of $2.50 a week and married couples will receive an increase of $4.20 a week from 8 November 1984. Some 401,000 service pensioners will benefit from this initiative. War and defence widows will also receive an additional $2.50 a week to maintain parity with Social Security widows' pensions. This initiative will affect some 59,000 war and defence widows. Increases in additional pension for children, guardian's allowance and rent assistance, which apply to Social Security pensioners, will also flow to service pensioners in similar circumstances. Some 5,600 Repatriation pensioners will benefit from increases in additional pension for children and a further 300 families will benefit from increases in guardian's allowance. Some 12,000 service pensioners are affected by our initiative in relation to rent assistance. These measures will cost an estimated $37.3m in the current financial year and $60.3m in a full year. The Bill provides for increases in allowances paid to Veterans suffering certain amputations or loss of vision, in attendant allowance and in pensions paid to orphans. The increases will have effect from 8 November 1984 and represent movements in the Consumer Price Index in the twelve months since increases in last year's Budget. Additions to pension vary according to the type of disability. The range of benefits will be from $5.50 per week for loss of a leg below the knee, up to $35 .90 a week for the loss of both legs. These amounts represent an addition to any General Rate disability pension otherwise payable. Higher amounts for certain other amputations are adjusted automatically in line with any movements in the Consumer Price Index and were increased in May of this year. They will remain unchanged in November 1984 due to the negative movement in the Consumer Price Index in the six months ending June 1984. The rate of attendant allowance is to be increased from $25.90 to $26.90 a week in the case of the Veteran who is blind or is suffering a cerebro-spinal injury. In the case of a Veteran who has had both arms amputated or who is blind and has lost hearing or speech, the allowance is to be increased from $51.80 to $53.80. This allowance is also paid in addition to disability pension. A double orphan's pension will be increased from $36.90 to $38.40 a week while the increase for a single orphan will be from $18.45 to $19.20 a week. These measures will cost an estimated $70,000 in the current financial year and $100,000 in a full year. The opportunity has been taken to make a number of minor consequential amendments to the Acts dealt with in this Bill, to update the indexed rates of pensions and benefits to reflect the actual position of those rates as at November 1984. Assets Test In my statement to the Senate on 1 June 1984, I announced the Government's decisions on the Report of the Panel of Review of the Proposed Income and Assets Test. I said- 'It is time for us all to recognise that the real issue is not whether we should have an assets test, but what is the fairest and best form of assets test .' As long as we have a needs-based welfare system, it is necessary to have a measure of need which takes account fully of the financial resources of a person . Clearly, it is not fair for those with little or no assets to be treated on the same basis as those with substantial assets. Yet this is the effect of a means test which looks only to a person's income. Traditionally, the measure of need in the Australian social security system has been a means test based on both income and assets. In 1976 the assets component of the means test was removed. Since then, there has been widespread concern about wealthy people receiving a pension, especially where their asset wealth was arranged to avoid producing income. Inevitably, the absence of an assets test provided greater opportunities for the circumvention of the income test. Avoidance schemes are now widely available and readily accessible. If no steps are taken to discourage the proliferation of these schemes, basic inequities are increased, resources are mis-directed, and public confidence in the pension system is undermined. The Government believes it is necessary to take account of both assets and income in any pensions test in order to be both a fair measure of need and equitable to all members of the community. The key features of the assets test are as follows. The test will apply to all social security and repatriation service pensions that are currently subject to the income test, but the majority of people receiving these pensions will not be affected by the assets test. It will not apply to blind pensions, to unemployment, sickness or special benefits, to repatriation war or defence widows' pensions, or to repatriation disability pensions. It will come into effect on pay day 21 March 1985 for social security pensions and pay day 14 March 1985 for repatriation service pensions. The principal home owned and occupied by the pensioner, no matter what its value, is completely excluded from the test. So is that part of the land surrounding the home (known as ''curtilage'') that is used for domestic purposes . The land allowed for domestic purposes cannot exceed the size of a normal building block in the immediate area and also cannot exceed 2 hectares ( approximately 5 acres). In the case of a farm, market garden, hobby farm or bush block, this means that an area of up to 2 hectares will be treated as '' curtilage'' if it is used mainly for domestic purposes. Other exemptions include pre-paid funeral expenses, including the cost of a cemetery plot, awards for valour not held for investment or hobby purposes, and special aids for disabled people such as wheelchairs, hearing aids, and orthopaedic irons and braces. The first $70,000 of other assets is exempt for single pensioners who live in their own homes. For married couples who occupy their own homes, the first $100, 000 of other assets is exempt. These exemption levels are $50,000 higher for non -home owners such as people renting. The eligibility limits for fringe benefits and for Repatriation medical treatment for service pensioners are $80,000 for single persons and $115,000 for married couples living in their own homes. An additional $50,000 is added to these limits for non-home owners. All these limits will be indexed annually for movements in the Consumer Price Index. These limits, in conjunction with the exemptions outlined above, are most reasonable and give due recognition to people's efforts in accumulating assets to provide themselves with financial security. At the same time, they will ensure that the mis-direction of resources to people with substantial wealth who do not have a real need for pensions, is addressed. Above these limits, assets will have the effect of reducing the maximum rate of pension by $26 a year for every $250 of assets, that is, by $1 per fortnight for each $250 of assessable assets. On the basis of estimated rates of pension applying in March 1985, no pension will be payable where assessable assets exceed about $116 000 or $177 000, respectively, for single pensioners and married couples who occupy their own homes. For those who do not occupy their own homes, the corresponding amounts are $166 000 and $227 000. The assets test and the current income test will apply separately but only one will determine the amount of pension to be paid. The actual rate payable will be the lower of the rates produced by the income or the assets test. The value of assets to be taken into account will be their net market value. This means the amount of money a person could reasonably expect to receive if the assets were to be sold, less any debts on that asset such as a registered mortgage or a hire purchase debt. It does not mean the amount paid for the asset , its insured value or its replacement cost. To minimise intrusion into the personal affairs of a pensioner, a net market value of $10 000 is set on contents of the pensioner's principal home and other personal effects where they are used primarily within the home for private and domestic use. The valuation of assets in this area is based largely on self- assessment. Pensioners can claim a lower amount if they consider $10 000 to be in excess of the actual net market value of these assets. Where they consider that the net market value of those assets exceeds $10 000, people will be required to notify that value. The Departments of Social Security and Veterans' Affairs will normally accept the pensioners's advice; only where there is strong evidence suggesting that there has been a substantial under or over-valuation will the Departments query the information supplied. Any such follow-up would be by telephone or mail. Officers of the Departments will be available to help pensioners fill in the form in their own homes in circumstances of ill-health. In no case, however, will officers enter a home to value or check the valuation of household contents or personal effects. In cases where professional valuation of assets such as real estate, farms or businesses is required, the valuation will be arranged through the Australian Taxation Office at no cost to the pensioner. Special arrangements will apply to people who move from their homes into a nursing home, mental hospital or long term hospital care, and retain ownership of their former home, and to other people who are temporarily absent from their homes. In the case of people who move into a nursing home, the value of their former home will continue to be exempt for 2 years after they enter the nursing home or similar institution. This benefits mainly single people as the home is exempt for a married couple as long as one remains in the home. For those who are temporarily absent from their homes, the value of their homes will continue to be exempt for up to 1 year. Periods of absence prior to March 1985 when the assets test starts, are not counted in calculating these exemption periods. There are a wide variety of arrangements under which people enter aged persons' homes. Where such a home is the principal residence and pensioners have acquired a right or interest in relation to the home, such as a right to accommodation for life, they will be allowed the home owner's exemption, and any charge or donation paid to obtain such accommodation or equity in the home would be exempt . Other people in aged persons' homes who have no right or interest in the home, will be allowed the extra $50 000 exemption as non-home owners. The Bill contains provisions to ensure that the income or assets test is not circumvented by pensioners depriving themselves of income or assets without receiving adequate value in return. Similar provisions apply in the current income test but, in the absence of an assets test, they have had limited effect. However, to allow for modest gifts, such as to relatives or charities, pensioners will be permitted to dispose of assets to the value of $2 000 if single or $4 000 combined for a married couple, in each year without affecting pension entitlement. As I announced in the Senate on 1 June 1984, any gifts or other forms of divestment which occurred on or after that date can affect pension once the test is introduced. These provisions will not, however, prevent pensioners selling or reducing their assets for legitimate reasons, such as buying consumer goods, maintaining or improving their homes, or financing holidays. Their purpose is to ensure that people cannot avoid the test, and thereby continue to receive a pension, by transferring or gifting assets to family or friends. Public subsidy of such arrangements is not a purpose of the pension system. The exclusion of the principal home and the assets exemption levels means that the assets test will not affect the majority of pensioners. However, special provision is made to ensure that people affected by the assets test are not placed in severe financial hardship. In keeping with the intention of the assets test, these provisions will generally only apply where it would be unreasonable or impossible to sell or raise money on an asset, and that as a result of not exempting all or part of the assets, the pensioner would have insufficient income. They will be administered on a case-by-case examination of individual circumstances, but will not be generally available to people whose hardship results from having deprived themselves of assets or income. In addition, people of age pension age who are affected by the assets test and have at least 70 percent of their assets (excluding exempt property such as their principal home) in non-liquid form may, if they choose, be paid a loan. The loan is payable on the basis that the assets test does not apply, and is the difference between the pension payable under the income test and any pension that would otherwise have been payable under the assets test. In line with the recommendation of the Gruen Panel, interest on the loan will be levied at a commercial rate. For this purpose, it has been decided to use a rate related to the most common rate charged by trading banks on overdrafts of less than $100 000. This is currently 13.5 per cent. It is intended to apply the rate prevailing at July each year for each succeeding twelve months. The value of the loan, plus interest, will be a statutory charge on the person's assets. Generally, the loan will be recoverable only from the person's estate, but in no case will the value of an estate be reduced below $100,000. Social security pensioners unhappy with decisions made under the assets test will be able to utilise the established appeals system. In the first instance, they will have the right to have decisions which affect them reconsidered by a Department of Social Security review officer. If such a review is unsuccessful, they can seek further review by the Social Security Appeals Tribunal. An additional right of appeal exists to the Administrative Appeals Tribunal. Under the Repatriation Legislation Amendment Bill 1984, a review process will be provided for people dissatisfied with service pension decisions. Reviews will be conducted by senior delegates of the Repatriation Commission. If a further review on the merits of the case is desired, a service pensioner can appeal to the Administrative Appeals Tribunal. These provisions will apply from 1 January 1985 and, therefore, be in operation for service pensioners affected by the assets test. It is difficult to estimate the overall effect of the assets test on outlays, owing to the lack of data on pensioners' asset holdings and income distribution. When the assets test is in full effect in 1985-86, it is expected to save in the order of $60m in pension outlays. After allowing for the costs of administration, the net savings will be about $50m. Net savings will rise steadily in subsequent years with the number of pensioners, and increasing wealth of potential pensioners. For example, it could be expected that Australians in future will take more assets to retirement through the growth of entitlement to superannuation lump sums, and through the coming to retirement of a generation whose lifetime accumulation of assets, unlike that of their parents , has not been affected by depression and the Second World War. The savings in later years also will be greater to the extent that artificial schemes to avoid the income test would have proliferated in the absence of an assets test. Establishment costs are higher than on-going administrative costs. This, together with the commencement of the operation of the test in March 1985, means that there will be a net cost of about $12m in 1984-85. Savings in pension outlays are estimated to be about $18m and establishment costs are estimated to be about $30m. The assets test seeks to reduce significant inequities in the current pensions income test and to address the increasingly important problem of income test avoidance. Most importantly, it strengthens our capacity to provide further increases in assistance for Australians in need through the types of measures we have introduced in this Bill, in the period ahead when the ratio of aged to working Australians is going to be rising. The majority of pensioners will be unaffected by the introduction of the assets test. Those who will be affected will be those who will be able to adequately support themselves without a pension. The system of administration depends heavily on self-declaration, which makes the administration less costly and less intrusive. Overall, it is a simple and fair system of assets testing. Mr President, the measures contained in this Bill demonstrate the Government's commitment to assisting those most in need in our community. I commend the Bill to the Senate. Debate (on motion by Senator Reid) adjourned. Bill received from the House of Representatives. Ordered that the Bill may be taken through all its stages without delay. Bill (on motion by Senator Grimes) read a first time. Senator GRIMES(Tasmania-Minister for Social Security)(10.18) —I move: That the Bill be now read a second time. I seek leave to have the second reading speech incorporated in Hansard. Leave granted. The speech read as follows- The purpose of the Bill is to make provision for the financing of the prospective 1984-85 Budget deficit. In the Budget Speech the Treasurer announced that the Budget deficit in prospect for 1984-85 is estimated to be some $6.745 billion. This gives rise to a prospective deficit in the Consolidated Revenue Fund of about the same magnitude. As expenditure from the Consolidated Revenue Fund cannot legally exceed the moneys available to it, there is a need to seek authority to finance certain expenditures from borrowings to the extent that amounts appropriated by the Parliament for expenditure from that fund exceed estimated revenues. Successive governments have, for many years, introduced legislation in the form of a Loan Bill to authorise payments-or to reimburse the Consolidated Revenue Fund-from the Loan Fund to meet defence and certain non-defence expenditures. Under existing standing authorities some $2.7 billion of expenditure can be charged to loan fund leaving a shortfall of some $4.045 billion for which separate funding authority is required. This Bill seeks authority to borrow moneys accordingly. I should make it clear, however, that the Bill does not authorise defence or other expenditures additional to those otherwise authorised by Parliament. The amount of borrowings that may be undertaken pursuant to the proposed legislation is, in the case of defence expenditure, the amount for which appropriation is sought for defence purposes in the Appropriation Bill (No. 1) 1984-85-some $5.57 billion-and any moneys for defence purposes that may be approved in subsequent Appropriation Acts during 1984-85. The effective limit is likely to be significantly less than these amounts as defence expenditures cannot be charged to Loan Fund until the legislation is enacted. The legal limit for borrowing for non-defence purposes is determined by the level of borrowing authority approved by the Loan Council. Together, it is estimated that these limits will be sufficient to enable the financing of the Budget deficit. I commend the Bill to the Senate. Debate (on motion by Senator Reid) adjourned. Motion (by Senator Grimes) agreed to: That, unless otherwise ordered- (1) Government Business Orders of the Day Nos 1 to 3, (Sales Tax (Nos 1 to 9) Amendment Bills 1984, Sales Tax (Exemptions and Classifications) Amendment Bill 1984 and Customs Tariff Amendment Bill (No. 2) 1984) be postponed till a later hour of the day. (2) After consideration of Government Business, Order of the Day No. 4, for the reference of material to the Director or Public Prosecutions, intervening business be postponed till after consideration of General Business, Notice of Motion No. 114 relating to the appointment of a Senate Select Committee and General Business, Notice of Motion No. 115 relating to the appointment of a Commission. [COGNATE DEBATE: SELECT COMMITTEE ON ALLEGATIONS CONCERNING A JUDGE COMMISSION OF INQUIRY INTO THE CONDUCT OF A JUDGE] Debate resumed from 5 September, on motion by Senator Gareth Evans: That the Senate- (a) refer- (i) all evidence given before the Senate Select Committee on the Conduct of a Judge, and (ii) all documentary or other material furnished to the Committee, relevant to the Briese allegation, to the Director of Public Prosecutions for consideration by him whether a prosecution should be brought against the Judge; and (b) request the Director of Public Prosecutions, should he conclude that a prosecution not be brought, to furnish a report to it on the reasons for reaching that conclusion. Senator MISSEN(Victoria)(10.19) —This is a cognate debate relating both to the report which the Senate Select Committee on the Conduct of a Judge put down a fortnight ago and to motions which have been moved or notice has been given by the Attorney-General (Senator Gareth Evans) and by Senator Durack and Senator Haines in respect of the course that should be followed from this time onward. It is important to refer to all those aspects during the debate and, therefore, some discussion must be truncated. As we know, during the past 24 or so hours there have been developments and discussions on what should be the future course of action. What emerges will not be the ideal solution, but the response to and responsibility for the difficulties lie heavily in the Government's hands. Throughout these proceedings , which gave gone on since February this year, there have been obfuscation and attempts by the Government to avoid discussion and investigation. In recent days there have been attempts to avoid any facilitation by Government action for the inquiries which it is obvious the Senate now wishes to pursue. What emerges from the debate in the Senate will be the best that can be done in the circumstances. It is clear that something must be done. The Parliament cannot allow the position to continue wherein a committee has reported-unfortunately, divided on party lines-and has been obstructed from obtaining the whole of the available evidence. Among other things, the judge in question, His Honour Mr Justice Murphy, has refused to appear before the Committee. It was unfortunate that the investigation was conducted by an ad hoc select committee rather than the Senate Standing Committee on Constitutional and Legal Affairs, which normally has responsibility for considering constitutional and legal matters. Because the judge was a founder of that Committee and other Senate standing committees, it might have been easier to get him to come before a committee that has a record in these matters and which must live up to that record. Committees that are appointed for a specific purpose lack some of that command. However, that was not the course taken by the Senate. The Senate Standing Committee on the Conduct of a Judge is to be generally commended for the rational and sensible way in which it went about its duties and the time that it put into what is essentially a very unfortunate and unpleasant job. Those are my general comments on the Committee, from what I understand of its work. I shall make some critical comments on the Committee's findings, particularly the majority report-the report by Australian Labor Party senators, as they had a casting vote. Their findings are officially the Committee's findings. A number of important results flowed from the Committee's findings, including the fact that there is now certain evidence before the Senate which had not been given before. We have received material with respect to Mr C. Briese, the Chief Stipendiary Magistrate in New South Wales. That information requires the Senate' s continuing attention and, perhaps, examination by a more impartial body, before we make a final decision. Apart from the Committee's various reports, we have received in the attachments very useful advice from Mr C. W. Pincus, QC, the President of the Law Council of Australia and an eminent legal authority. His evidence confirms what we have been saying in the Senate for some months; namely, that the advice which the Committee received from Mr Temby, the Solicitor-General, Dr Griffiths, and the Attorney-General (Senator Gareth Evans) on the limitation of Parliament's power and duties in determining what may be proved misbehaviour was unwise and unsound . It is now clear from the excellent opinion that Mr Pincus, QC, gave to the Committee-unfortunately, that information was largely ignored by the majority of the Committee-that this is a matter for the Parliament alone to decide. The Parliament will, of course, act with all the sense of natural justice that is called for in that job. It is for the Parliament to determine whether actions of a judge display either moral turpitude or an inability to uphold the traditions of a judge such that he is no longer fit for that position. I am not forming any concluded view on that case, but there is no doubt that that is the Senate's power. All the limitations that the various Government advisers have tried to impose on the Senate have been shown to be inconsistent and faulty. I spoke on this subject on 5 March 1984-what I said is recorded at page 372 of Hansard-and also on 8 March in a summary way. I set out here in detail the mistakes which the Solicitor-General was making in his opinion and which the Attorney-General was following. I invite the media to read those speeches-I think the media people were too lazy to read them before-because they are on all fours with what Mr C. W. Pincus QC has now advised the Committee, and through it the Senate, as to the undoubted powers and duties of both parliamentary chambers . I will not say very much about the statement the Attorney-General made yesterday, and even less of the highly obscure supplementary opinion which the Solicitor-General put down. That opinion repeats the mistakes that he made before and disregards the clear intentions of the founders of the Constitution that Parliament should prevail and that courts should not sit in judgment on Parliament's decisions. That opinion reminds me very much of a ship which has been mortally wounded and is trying to disappear behind a smokescreen. It is a smokescreen opinion and is not very helpful to the Senate. The Attorney-General, in his statement yesterday, quoted from Quick and Garran commenting on the powers-a statement which, I think, is very dubious. He then stated: Some classes of ''misbehaviour'' may not be subsumed by the approach of Quick and Garran-for example, partisan political activity, or notorious private behaviour not directly related to, or affecting, the conduct of judicial office. So be it. What may be a cause for admonition by the Chief Justice of the Court in question, peer group pressure and like forces, should not necessarily be regarded as grounds for dismissal. The separation of powers principle demands that the power of Parliament to remove a Judge not extend to undefined residual areas of behaviour which are neither clearly illegally nor clearly related to the performance of judicial duties. The Attorney, in those remarks, repeats his old errors and makes the situation worse. The example, which was the example given by Mr Pincus, of partisan political activity by a judge may be most serious; it may destroy his whole authority in the community. Likewise one could take the purely hypothetical case of very serious personal derelictions of a judge engaged in prostitution in such a way as to flout the whole mores of the community. Such action may not be illegal; it may not be a criminal matter at all; but it would be a matter which would ruin the judge's public standing and ability. The precedents which have been set in England-they are very useful to us here despite what the Attorney- General says-show that those considerations very much face the English Parliament when it considers such matters. To suggest that if the matter is not a criminal offence the judge should be slapped on the wrist by the Chief Justice , or that there may be 'peer group' pressure that may cause him to change his ways, is a totally inadequate response. Indeed, one can imagine criminal convictions which would not be grounds for removing a judge from office. One could say that a judge of our superior courts found guilty of driving in Victoria when his blood alcohol level was in excess of 0.05 or 0.08, which, I think, is the allowable level here, is deplorable. However, that in no way would necessarily mean that the judge is not able effectively to carry on his duties and be upheld generally in the community. As I have said, criminal offences often are not of sufficient importance to justify such action, but action which is not criminal very often does, and that is the view of Mr Pincus. It is the view which this Senate has maintained and which, by its appointment of the Select Committee, it has confirmed. Later I will refer to the complaints of the Attorney-General about the Opposition's suggestions. Now I want to refer to something he said previously and which I think is important. I refer to an article written by Maximilian Walsh in the Age of 3 September headed 'Times might change but principles stand' . In the article Mr Walsh took the example of the attempts of the Attorney- General, then shadow Attorney-General, to take action against Sir Garfield Barwick in 1980. Honourable senators will recall an exchange between the Attorney-General and me yesterday when he said: 'Oh, that is about the judge's actions in the course of his duty'. Of course, that is not so. When one looks at the article and at the evidence one sees that the Attorney-General in 1980 was dealing with a judge whom he did not like so he was adopting a certain set of principles. But now he is dealing with a judge whom he does like, to whom he has some obligation and for whom he once worked, his principles have changed. In 1980 he quoted Sir Winston Churchill, as Senator Durack did yesterday, upon the severe restrictions imposed upon judges-different and higher standards from those placed on others. Of course, the important thing is that when in 1980 he moved a motion in respect of Sir Garfield's directorship of a family company he was concerned with a conflict between public duty and private interest and not with an allegation that the judge was not performing his job correctly. I will quote the terms of the motion he moved. He wanted to set up a joint committee of the Parliament which, among other things, would determine: whether in all the circumstances the actions of the Chief Justice have been such as to involve a conflict between public duty and private interest contrary to the high standards required of judicial office holders; He went on to say in his motion: whether in all the circumstances public confidence in the administration of justice has been imperilled by the Chief Justice; Of course, that is a very important consideration in dealing with any allegation made against a judge. Then he went on to say: if so, what action should be taken by the Parliament by way of censure, proceedings pursuant to section 72 of the Constitution, or otherwise; It is perhaps doubtful whether Parliament has a power to censure under section 72, which is a power for an address for removal. There is dispute as to whether he could do that but that is what he was seeking to do at that time, and he was seeking to do it upon the basis of arguments which, he said, made it necessary for the Parliament to take action. In view of the fact that people have criticised the possibility that Parliament might interfere in this way, let us look at what Senator John Button, who is very much away from and has not been seen in this debate, said in that debate in 1980: I am worried by any group of people which says: 'In a democratic society this is not a matter which should be looked into. It is not a matter for inquiry by anyone'. I think that any group of people which puts itself in that position looks a bit spooky. Leaving aside the grammar of the now Leader of the Government in the Senate on that occasion, one could say that he must now find a bit spooky criticism of honourable senators who say that an inquiry into allegations made against the judge should be brought to a firm conclusion and all necessary advice should be obtained. We will be interested to hear what Senator Button thinks today. In dealing briefly with the majority report of the Committee, I want to make certain comments of which I would like to have given references but which are in the report. People tend to forget that the Select Committee made findings as to whether the tapes were authentic or genuine. Of course, it was not able to find much about that. People did not come before it. The Committee did not call a witness who was overseas and the report does not show why he was not called. There have been suggestions, particularly in the National Times, that other policemen might have been called. I think the overwhelming thing about that finding is that the Premier of New South Wales, Mr Wran, and the Attorney- General made it very clear from the beginning, that they would do all they could to ensure that people did not come forward and give evidence because it was their desire to put into gaol those people who had broken the law by taping. They were concerned not so much about whether the contents of the tapes might lead, with further investigation, to proof of illegalities and disgraceful behaviour by organised crime figures in this country but with nailing those who made the tapes. So I am not surprised that so far people have not come forward to authenticate the tapes. Senator Chipp —There is no doubt that Mr Wran's threat to gaol stopped witnesses coming forward. Senator MISSEN —As Senator Chipp has said, there is no doubt that it would have that effect. I also have no doubt that that was the intention of doing it-to have the issue remain foggy so that it could be disregarded. That is one of the problems. There is another matter the concentration which we have here on the judge, which is important because it is the Parliament's own responsibility in this case, tends to make people forget that there are thousands of pages of transcripts and tapes that should be investigated. I believe-Bob Bottom has said publicly that he understands this to be the case-that those matters are not being investigated at the moment. Various executive authorities are relying on the question of authentication and are not going forward than that examination. While we are today debating what we will do about the judge, let us not forget that there are much larger issues that should be of concern to the community in regard to matters which have come to public knowledge due to the action of the Age and the National Times. I think they deserve public support for the dangerous course they have taken but it is necessary in the overall public interest. I want to say this, too, about the Committee report: We have the Committee's report and the evidence which the Committee has brought to our attention, but most of us in this chamber have no knowledge of the rest of the evidence. I have no knowledge of the tapes and the transcripts. I have never seen any of them. In particular, I have not seen the evidence that was before the Committee. This we may now be sending to Mr Temby for his consideration and that is probably all right, but before we in this chamber make any final decision in respect of the judge, we would need to see the evidence and make our judgment-not just the judgment of the members of the Committee-as to whether there is other evidence which is important. I want to make one or two remarks about the actual report and the curious inconsistencies in the majority report as it appears. It is important that this not be overlooked because we probably will not be debating this report further in this session of Parliament. In the first place, there is a very curious statement by the Committee in paragraph 33 where it deals with the tapes. Senator Tate —It is not a majority report. That is a unanimous report if you are quoting the tapes. Senator MISSEN —Yes, in regard to the tapes it was unanimous; I acknowledge that fact. In paragraph 33, the Committee states: This examination of the 'conduct as revealed' in the materials and evidence obtained by the Committee was undertaken with a 'no prejudice' acceptance of the interpretation placed on the meaning of 'proved misbehaviour' by the Committee's legal adviser,-- It went on to say that some Committee members did not hold that view, but that ' it was used as the guiding criterion' for consideration. I do not know what the 'no prejudice' acceptance is, but I think I get the general purpose of it. It is then said that it was used as the guiding criterion, but when we go on to the further part of the report-the majority part only-we find a different consideration. There is probably no part of the report which is more inconsistent than paragraph 79: The Committee did not need to conclude that misbehaviour unrelated to the duties of office must always be constituted by an offence against the general law. However, the Committee agreed that since the allegation of Mr Briese, if sustained by the evidence, was that the judge had engaged in conduct which constituted the offence of attempting to pervert the course of justice, . . . its proper inquiry was whether the evidence established the commission of such an offence. That is a very curious mixture of things. First, the Committee said that it does not need to decide that question. Of course, I know why the majority did not need to; it was because Mr Temby, Dr Griffith and counsel for Mr Justice Murphy all have completely different views on what is required in regard to a criminal offence. Senator Tate —Paragraph 79 was agreed to. It was unanimous. Senator MISSEN —The honourable senator has had his chance and I am now having mine. It will be recalled that Mr Temby thought it had to be an infamous offence . He advised the Senate very quickly on his views. He looked at the tapes and so forth very quickly. He told us that he thought we had to find that there had been an infamous offence, before a House could proceed against a judge. Also he said that there may have been some injudicial behaviour by a judge, which was important. On the other hand, the Solicitor-General, Dr Griffith, and the Attorney-General said that there must be a proved breach of the general law, whatever that may mean. Senator Harradine —Criminal law. Senator MISSEN —No, the phrase used was 'general law'. Presumably that would not include taxation law. I do not know what it means. I have not time to go down that burrow. He said that it dictated to the Senate what it must do. There must be a breach of the law, but he did not think a conviction was necessary; it had to be proved. I now come to Mr D. Bennett, QC, counsel for Mr Justice Murphy, and his written opinion in this report. He said that it must be a conviction recorded in the court. It is no wonder that the majority of the Committee, in paragraph 79, did not want to make up its mind about that. Of course the Attorney-General has no problem with this. As I understand it, that view is not a majority view. So far as a criminal offence is alleged, members of the Committee went on to consider that. The majority, having satisfied themselves that they could not find a prima facie case, thought that nothing further should be done. I regret the reference in the report to 'prima facie' cases because it seems to me that misconceives, to a certain extent, the duty of the Committee, which was to advise this Parliament, this Senate, just as what we do next will be to advise the Senate. The responsibility lies here. The Committee was not sitting, as it were, as a stipendiary magistrate, deciding whether there was a case to answer. I think it made that mistake, and therefore most of the members of the Committee probably debarred themselves from dealing further with this matter because it could well be alleged-I do not think necessarily with justice-that they had already made up their minds on the question by finding a prima facie case. The Committee's role was to say whether there were grave and weighty matters and concerns that might call for the Senate to go ahead with a motion for removal of a judge. The Opposition senators, in their statements and in the terms they laid down, displayed a very sound view of their responsibilities. However, I will not go into it in detail. In regard to the Committee report, it is clear that the Committee held firmly the view that Mr Briese gave his evidence sincerely and honestly and to the best of his recollection. He was examined twice. He made a statement. He appeared before the Committee, at its request. It is not necessary for him to become a prosecutor and launch prosecutions, as Mr Justice Murphy suggested in a very foolish political statement he made last week. Mr Briese came before the Committee as requested. He showed in his evidence that he was reluctant to come to conclusions as to what, in his view, Mr Justice Murphy was putting to him. I say in passing that the majority of the Committee did a grave disservice to Mr Briese by quoting only part of the Committee's examination of him in paragraph 97 of the report. Senator Chipp intervened with a further question and pressed Mr Briese further, but the majority report did not bother to mention that. He came to the conclusion that the judge was endeavouring to importune him and to get him to do things contrary to his duty. It is clear that Mr Briese believed there was a quid pro quo expected of him for things which the judge had done. One should sharply criticise the majority of the Committee for the distortion that appeared in their report, which fortunately was corrected in the report by Senator Chipp, who put forward the entire evidence. One must make another comment about the evidence. Whereas the Attorney-General now says, and the majority of the Committee say, that there is only one crucial point in the Briese evidence and that is in regard to the statement about 'my little mate', that, of course, is not so. I have been through the evidence and the summary of evidence by Mr Briese. There are at least 10 different aspects where they are in conflict. There are 10 important questions about which one has to believe someone or the other. They include such questions as whether or not Mr Briese was offered a car which, if it is true, was a very obvious form of inducement. Senator Georges —That is ridiculous. Senator MISSEN —I will not allow Senator Georges to interrupt me in the short period I have. I want to make these points. Those 10 matters all need to be cleared up. I do not say who is telling the truth and who is not. We have not heard from the judge. The judge declined to appear before the Committee and give evidence, and he has given his reasons for doing so. I hope he will have a future opportunity to do so. It is important for us to make the decision whereby we are going to give him that opportunity, complying, of course, with all the requirements of natural justice. I turn now to the question of what is to be done next. We know of the proposals that have come forward. It is suggested by the Attorney-General that the evidence will go to Mr Temby for examination. I do not care about that. I think I know what the result of that will be. Unfortunately Mr Temby, has already formed various conclusions about this matter-he has been pitched into this. He indicated last week that he did not want to become involved in this matter and that it ought to be a matter for the politicians to decide. Apparently now, at the insistence of the Government, he will be forced to be involved. He probably will not find sufficient evidence on which to ground a case at this stage. That will not surprise me. Of course, that is not the question that is before the Senate; the question is whether these matters of such seriousness ought to be considered by the Senate. More importantly, the proposal that is now the basis of some negotiation for agreement between the Opposition and the Australian Democrats is that the Senate take the matter further, for further independent examination by people of independence and standing able to question properly a judge of such eminence. There is a limited number of such people. It does not matter whether there be one, two, or three such commissioners; it is important that there be commissioners. I think it is agreed that there should be a committee to back up and give strength to the commissioners' investigation and which will facilitate their actions and report to the Senate. This will enable the Senate to make up its mind on hearing the evidence. This will be subject to such reasonable conditions which Mr Justice Murphy and his counsel impose. I think they are reasonable conditions. It should always be so that this Senate-as have the Houses of Parliament in England-should apply standards of natural justice when dealing with judges and their conduct. That is set out very clearly in Dr Shetreet's book Trial of Judges which I have studied closely and which, although especially applicable to England, shows that the same conditions apply to misconduct, as it is called, there as in Australia. Although the Parliament there has greater powers it limits itself and ensures that natural justice is observed. I trust that we will ensure that as well. Of course, in Canada there is an excellent precedent: Commissioner I.C. Rand in 1966 investigated a judge and his conduct on behalf of a committee of the Parliament. I am endeavouring to get that report. It is referred to as a reference in Canada and in other parliaments. I think that the use of outside experts to analyse and conduct an inquiry is recognised as a power of parliaments and its committees. It is important to realise that what we have here is a criticism which remains against a judge. I regret the judge's very political intervention last week in a statement which even distorted the terms of the Committee report. I hope the judge does not continue with that. I trust that people such as Mr Kerry Packer's counsel, Mr Malcolm Turnbull, who wrote on the matter and who was criticised by Senator Austin Lewis yesterday-Mr Malcolm Turnbull calls himself 'The Officious Bystander'-will not continue to make allegations which probably are in contempt of this Parliament. I do not suggest that we should worry about that at this stage. I believe that we should make sure that what is done now is done with all due consideration to the position of the judge and the danger it causes to the standing of the judiciary. I refer finally to something which the Attorney- General said on 29 April 1980 in Hansard. He stated: If public confidence in the absolute integrity and impartiality of the judges of the highest court in this land is in any way put at risk by the questions which have been raised here not being satisfactorily answered . . . there is little hope for the long run survival of public confidence in any democratic institution in this country. It is important that the Attorney-General apply those principles now in this case. It is important that the Government should co-operate with what the Senate decides in relation to a further investigation. The other House sleeps on and is allowed to do nothing about it. We must find out the facts and endeavour to see that the matter is heard and that we have competent advice. Thus it is left of course to the Senate to make up its mind. Whether to proceed is a matter for the Senate and no one else. Therefore, I trust we will adopt the proposals which the Opposition and the Australian Democrats by agreement are bringing forward today to ensure that this duty is satisfactorily performed by the Senate. Senator GEORGES(Queensland)(10.49) —When this matter was first raised in the Senate I took a strong stand against the establishment of the Senate Select Committee on the Conduct of a Judge on the basis that we would engage in a very partisan political exercise and that the Committee's findings would not be conclusive. So it has turned out to be. We are in a very difficult position in the Senate. This matter goes to the very heart of the reputation of the Senate and the use of the powers of the Senate. There is no doubt that the powers of the Senate are great. There is no doubt that the powers of the Senate will enable it to proceed as the Opposition wants it to proceed, but the view in this place in the years that I have been here has always been that it is better not to use them as they can be gravely misused. In my service on a variety of committees, and some have been substantial committees, we abided by standing order 304. Standing order 304 limits the role of committees merely to seeking out evidence, establishing certain facts and making recommendations. It does not allow any person who comes before a committee to be cross-examined by counsel or give the committee a judicial function. Committees took great care to protect witnesses who came before them, through the Chair, by allowing counsel to be present to protect their rights but did not allow cross-examination. Committees also took great care that no submission came before them containing unsupported allegations which would then gain the protection of the Senate. I remember the Senate Select Committee on Securities and Exchange which looked into the corporations and securities industry. A certain person made a submission before that Committee containing grave charges against the Chairman of the Melbourne Stock Exchange. They were very serious charges. If we had allowed this submission to go before the Committee it would have meant that the Chairman of the Stock Exchange would have had thrust upon him the onus of proving his innocence against charges made under privilege, cloaked by the power of the Senate. With the protection of the Senate, those charges would then have had currency and would have placed the accused in an extremely difficult position. The person against whom those charges were made was a leading member of the Liberal Party of Australia. I was a member of the Australian Labor Party. Great political benefit was to be gained by making that submission and those charges public. We resisted that. I think that the Senate Select Committee on the Conduct of a Judge should have resisted Mr Briese's allegations because they are not corroborated; they are the allegations of a single person and his recollection of certain events. By accepting those allegations, which incidentally were quite outside the terms of reference, the Committee gave them currency and strength and put a Justice of the High Court in a position of having to defend himself. That put him in a very difficult position because, as a High Court judge, he should not enter into the public arena. Perhaps he ought not to have entered the public arena in the way Senator Missen indicated earlier. There must have been tremendous pressure upon him to answer the charges that were made by Mr Briese. Mr Briese's evidence was made public. Evidence given in camera before the Committee was leaked and was published. When we look at that, we have to be careful that we do not discredit the Committee. I believe that the Briese evidence could only have been made public either by Mr Briese or someone who was advising him. There is no time to go into that at present. Senator Harradine —That is an unfair allegation. Senator GEORGES —It is not an unfair allegation. Senator Harradine —It is an unfair allegation. Senator GEORGES —Could the honourable senator explain to me how Mr Briese's evidence to the Committee was published? Senator Harradine —That is an unfair reflection on Mr Briese, the Chief Stipendiary Magistrate. He ought to be protected in this Parliament as well as anybody else. Senator GEORGES —Perhaps the honourable senator is correct. Perhaps I ought not to have brought the matter forward. It is before the Privileges Committee. Senator Crichton-Browne —Aren't you pre-judging that? Senator GEORGES —Well, I will withdraw all that. I withdraw any imputation against Mr Briese. Let me get back to the simple fact that Mr Briese's evidence is a public document; Mr Justice Murphy's rebuttal, his whole statement, is not. Mr Briese's evidence, in part, is in the report, but the two documents are not public documents and Mr Justice Murphy's statement is not before us as such. It has been said that Mr Justice Murphy did not come before the Committee. In fact, he did come before the Committee by way of that statement. It is said that it was not a sworn statement, but did anyone advise Mr Justice Murphy that a sworn statement was needed? The statement took on importance because the Committee accepted it. Senator Tate —It is proper evidence. Senator GEORGES —Yes, of course it is proper evidence. That is why I question Mr Pincus's opinion. I know him well. I know of his legal reputation in Queensland and I support it. I find it difficult to accept that, on the basis of sworn evidence made by Mr Briese before the Committee and a so-called unsworn statement, he comes down in favour of Mr Briese's position. Let me get back to the difficulty that the Senate faces. We have reached an absurd situation. We ought to place this matter at the bottom of the Notice Paper. We should bring an end to it. Really, we are at the mercy of a few people in this place who perhaps are retaliating to attacks made upon them by the other side of the House. There is no doubt that in this place over the past few years attacks have been levelled by both sides, one against the other. There is a confrontation now which makes it almost impossible to come to a reasoned decision on important matters. The real pity of this exercise is that there is an attempt to deal with the Attorney-General (Senator Gareth Evans) who, at times, has been most provocative. Some people would say: 'At all times he is provocative'. Senator Withers —Just boring. Senator GEORGES —Nevertheless, he seems to sting the honourable senator out of his languor from time to time. Let me put it to honourable senators that it does not pay to continually attack and denigrate. What happens? It becomes a two- sided argument. We have had denigration after denigration in this place and we cannot come to any reasoned position on very important matters which affect the reputation of others. It seems to me to be a pity that the future and the reputation of several institutions in our society will suffer as a result. It would be better if this abuse and counter-abuse ceased. But we are also at the mercy of a group of political novices in this place-those people who came forward yesterday with a proposition that we should now have a double-barrelled inquiry. They have stated that they will accept the proposition that the Government put forward but they will also accept the proposition that the Liberal Opposition put forward and combine them in some way. We are now faced with a double-barrelled inquiry. It is an absurdity and a misuse of the power of the Senate to set up a particular type of committee as a device to establish a royal commission. We will become a laughing-stock. I suggest to the Leader of the Australian Democrats, (Senator Chipp), that although his political experience is long, his understanding of the procedures within the Senate is limited. Yet he and the Opposition, by simple resolution, will set aside the Standing Orders that have stood us in good stead for so long and replace them with a new set of Standing Orders which can be misused in the future. They say: 'But it is only for section 72 of the Constitution. It is a constitutional matter. That is why we are entering into this arrangement'. It is quite possible that an opposition with the numbers can set up a similar inquisition-that is all this is; an inquisition-against any person in this community. I say to the Opposition that it is not a power that we ought to be exercising or using. Senator Withers —You should be giving this lecture to the trade union leaders. Senator GEORGES —Yes, it could be. I only half heard the honourable senator's interjection. It could be a trade union leader. Senator Withers —I said that you should be giving this lecture to the trade union leaders. Senator GEORGES —It could be a trade union leader. It could be any person within the community who is suddenly thrust into a position in which that person has to prove his innocence. Imagine what will be happening! We will be putting two people on the rack before a committee with all the powers of the Senate and supporting it with commissioners and giving them all the power and they will be cross-examining and counter-cross-examining them. Mr Briese will be on one side and Mr Justice Murphy will be on the other. If we are not careful and we proceed in this way we can make it one of the worst political exercises that has been experienced in this country. I am suggesting to both sides of the Senate that we adjourn this debate, drop the matter to the bottom of the Notice Paper and never let it survive again. If there is any great reason to proceed, there are other ways of proceeding. If the Opposition is so convinced of misbehaviour, let it make an address to the Senate and let the whole Parliament decide. Opposition senators may argue that the numbers are in the other place to frustrate that. But they have the numbers in the Senate to initiate debate in the first place. So let us get back to reason instead of depending on numbers in this very important matter. My experience of this place is that when we have come to a position of this sort the matter has been suitably resolved, not on the floor of this Senate but away from it by those of us who have the status, the standing and the intelligence. As I have said, we have such a confrontationist situation we cannot reach that sort of understanding any longer. From time to time the position of the Democrats can only be understood as political manoeuvring to keep themselves in the eye of the public. Perhaps that is the element which has come into this place and which has in some way altered the environment in which we work. I am surprised that we have not accepted the recommendations of the Committee. That Committee was set up under terms of references determined by the Opposition . It was the Opposition's committee. It operated in secret. To a certain extent it has been an affront to the whole of the Senate that we have had a committee sitting at all times in camera. But I understand why. It was done because certain material was coming before the Committee that would have done exactly what the Briese evidence has done. Aside from the evidence that has been published in the Age, that evidence has rightly been kept private. It is unsubstantiated, unauthenticated evidence, as proved by the Committee, and its release would have been highly damaging. We have Mr Briese's uncorroborated evidence which is equally damaging to a particular individual. The wreckage of this whole exercise has been considerable. I believe that the first to suffer was the Age. The Age is a newspaper to which we have always looked with a sense of respect and a sense of satisfaction. In the opinion of honourable senators on both sides of the Senate, at least there was one newspaper in Australia that maintained a high ethical standard and a high level of journalism. But the Age has been responsible for some very selective and often wrong reporting on this matter. If one considers that it was dependent upon the information and advice of one of its journalists, Mr Bottom, one can understand why. I do not have the time to go into the problems that people such as Mr Bottom present to our society. I believe that the next victims were the various other sections of the media, in particular the Australian Broadcasting Corporation, and I suppose that this will be the first time that I have been critical of the ABC. My criticism is not in relation to this matter but to the tone of the journalism and the tone of the operations in which journalists are now engaged. The other night on Nationwide we had a re-enactment of this matter based upon certain material, certain conversations and certain evidence. Faces were put to that material in a highly dramatic, sensational and damaging way. One of the people the program impersonated was a person against whom charges have been laid. That program descended to what I consider to be the poorest level of journalism that I have seen on that media for quite some time. Let us take a look at a report on page 8 of the Sun. What chance does a person have against the sort of journalism we find in that report? The report, which is headed 'The Tapes Affair', includes a cartoon of Mr Justice Murphy which is a complete insult to anyone. It is a disgrace. On that page there is also a photo of Mr Briese. Mr Justice Murphy and Mr Briese, the two protagonists, are shown. I say that the comparison is despicable. That is despicable journalism, and that is the level of journalism that has surrounded this affair. Now the Senate begins to suffer as a result of the charge and countercharge and the political manoeuvrings that have taken place. Of course, the High Court of Australia has also suffered. It is not just one of the judges but the whole of the institution that is being dragged down to a level of investigation from which it should be protected. I repeat that the matter ought to be brought to an end because it does us no good and it does our institutions no good. I refer again to the level of journalism and the trend that has developed among so many young journalists in that they seek out scandal. Where they find scandal they will magnify it. They will print a story with no regard to balance because it may spoil that story, and they have no regard for those who will suffer as a result. My view of the matter is that those who have some influence on the media must begin to look at the standards. Let me come back to criticism of this place. I think we must look at our own standards and the manner in which we apply them. Again, I suggest that it does no good to attack, to vilify and to drag down. I remember on one occasion being requested to ask a question about a Liberal Minister and something that concerned his personal life. I did not ask that question. Senator Walsh —Why not? Senator GEORGES —Because I am not of the Minister's type. When I was Whip, if I remember, I gave him some good advice. Senator Lewis —Tell us, George. Senator GEORGES —I could give Senator Lewis some good advice too. He was part of this Committee and he heard the evidence before it. As a lawyer, he should have recognised the problems that that evidence raised. Senator Lewis —You read the report, George. Senator GEORGES —I have read the report and I have read Briese's evidence-such of it as has been given here. I have read such of Mr Justice Murphy's statement as is given here. Senator Lewis —And it raises matters of grave concern. Senator GEORGES —Yes, I know, but the honourable senator knew of the benefit he would gain from emphasising that concern. I am saying that he was engaged in a political exercise. He came to the Senate with a minority report which said that there was a prima facie case. He should then have proceeded to an address, not to extend the agony. He has had a person on a pillory while he has sat in camera for so long. Senator Lewis —You blame your mates on your side of the chamber for not agreeing to that proposal. Do not blame us. Senator GEORGES —It is fairly obvious that the Committee-- Senator Tate —How about a bit of truth from Senator Lewis? Senator GEORGES —Do honourable senators see what emerges? I say that the reputation of the Senate and its committees is at stake. As I said, this Committee should not have been set up in the first place. No further such committees should be set up because the same problems will arise. My view of the matter is that it should not happen but it will happen. It is fairly obvious that the Australian Democrats have no further entrants. They made their remarkable compromise last night and are basking in the glory of that decision. They are just waiting for the vote. The vote will result in the setting up of two inquiries. I have never in my life, nor shall I, I doubt, in what remains of it, come across a more absurd situation than we have at present. Senator Harradine —Are you voting for the Temby inquiry? Senator GEORGES —Yes, of course I will. Senator Lewis —Why? Senator GEORGES —I will tell the honourable senator why I will vote for it. It is because a certain decision has been made by the Party and I will support that decision. If honourable senators opposite were prepared to free the vote-- Senator Dame Margaret Guilfoyle —Would you stay over here, George? Come on! Senator GEORGES —Where would Senator Dame Margaret Guilfoyle go? I know where she would go. Senator Dame Margaret Guilfoyle —I would go with you. Senator GEORGES —Yes, that is right. I am not going to listen to further interjections. I have used up my time and I think I have used up my energies. I have certainly restrained my emotion. I certainly contained my anger because if I had let my anger go I may have said some harsh things about the Committee. I would just have neglected the Democrats. The main thrust of my anger would have been against the two Liberals who I still believe took a partisan view on this matter and who I believe have magnified a problem to the extent that this Senate now faces the ridiculous situation in which we are going to have two inquiries continuing to keep one person in suspense and under considerable pressure. I believe that no matter what we do here the conclusion will be the same because a judge has nothing to answer. Senator LEWIS(Victoria) —Madam Acting Deputy President, I claim to have been misrepresented. The ACTING DEPUTY PRESIDENT(Senator Coleman) —I call Senator Lewis. Senator LEWIS —Senator Georges, in the course of his remarks, alleged that I came to my decision as a member of the Senate Select Committee on the Conduct of a Judge in some partisan political role. I totally deny that. I totally deny that I did not examine that evidence to the best of my ability. I say to the Senate that I honestly applied my mind to the evidence as Mr Briese gave it and as it is recorded in the transcripts, which are unfortunately not available for perusal by the Senate. I have not made similar allegations against the three Labor senators who made their decision on the basis of that evidence. But it is clearly recorded in the report, and it was the unanimous view of the Committee, that Mr Briese had given his evidence honestly and sincerely. That is not just my opinion; that was the unanimous decision of the Committee. The suggestion that it was for some base political purpose that I accepted that that evidence raised a case which put the judge in jeopardy of a conviction, and that that matter therefore ought to be resolved, is wrong. Senator Sir JOHN CARRICK(New South Wales)(11.19) —The matter before the Senate is of very great seriousness. That is agreed by both sides of the House. The Attorney-General (Senator Gareth Evans) in his statement said: The issues confronting the Government and the Senate arising out of the report of the Senate Select Committee on the Conduct of a Judge are about as serious as could possibly be imagined. Presumably everybody in this Senate accepts that. What is more, everybody in this Senate must know that the Senate cannot escape its duty in this matter. The Senate is given a duty and a responsibility by the Commonwealth Constitution which it cannot escape. It is not seeking for itself a responsibility or a power ; that responsibility is put heavily upon it. The matter must, therefore, be looked at with very great seriousness. What are the circumstances? The circumstances are that the Senate set up a select committee of its members to inquire into certain aspects of the so-called Age tapes. The Senate Select Committee on the Conduct of a Judge was asked to determine whether the tapes were authentic and, if so, whether anything arising from them meant that the conduct of a judge could constitute misbehaviour or incapacity. During its journey, the Committee took evidence on the tapes and was unable to come to a conclusion about the authenticity or otherwise of the tapes, primarily because of the non-appearance of the originators of the tapes and their evidence. So the tapes may or may not be authentic. During the Committee's inquiry a witness was summoned-the Chief Stipendiary Magistrate of New South Wales, Mr Clarrie Briese. He is on all sides accepted as a man of total integrity, great sincerity and honesty. The Committee itself recognised that. As shown in Appendix 5, Mr Briese indicated in his evidence that he believed the judge was attempting to influence him to influence the course of justice, and Mr Briese could not be shaken in that evidence. The Attorney-General has said that if that were so an attempt to pervert the course of justice was a grave charge. Mr Briese was summoned to the Committee and gave evidence and made a written statement. He was then voluntarily examined on oath. The Committee agrees that his evidence was not shaken-that fact is accepted by all. Mr Briese has as many rights as any other person. During this whole debate, there has been an attempt to say that, because the other person involved is a High Court judge, that person has particular privileges and protections in law that nobody else has. I say emphatically that a member of the High Court has no more privileges before the law than the least person in this land. The debate from the Government side of the chamber has centred on the fact that the judge is under attack. We must look into that matter. Unless this issue is cleared up factually, Mr Briese will suffer a very serious disability. He is already in some difficulty in his State. The Australian Labor Party Premier of New South Wales is voluble in his attacks on magistrates. Confirmation of Mr Briese's position in the chief magistracy is in abeyance. Mr Briese has as many rights as a High Court judge, and that should be absolutely clear. The Senate Select Committee comprised six senators. Three senators-half the Committee-using the Chairman's casting vote, concluded that the matter should not proceed further. Two Committee members-the Opposition members-said that they saw a prima facie case, but that the matter could not go further until the judge could be given the opportunity, as the judge's counsel outlined, to come forward , give sworn evidence and be cross-examined and enable the cross-examination of other witnesses. Senator Georges —You know better than that. Senator Sir JOHN CARRICK —I do not know better than that. Since this matter has been raised with me, I must clearly point out what was said by Mr Hughes, QC, who represented the judge. Paragraph 20 on page 4 of the dissenting report states: In his submission to the Committee on 14 August, Mr Hughes said forcefully that the judge would not appear before the Committee unless and until it embarked upon a hearing which observed the requirements of natural justice. This, Mr Hughes submitted, involved a hearing of all the evidence against the judge in the presence of the judge and his counsel, submitting witnesses to cross examination and leaving the judge free to determine at that stage whether or not he would give sworn evidence and be subject to questioning by the Committee. Mr Hughes also said that this process should be held in public. We now know clearly, from a former Attorney-General and senior member of the Bar , the terms under which the judge would give evidence. It is stated that the judge was saying: 'I did not give evidence before the Select Committee because those conditions were not met'. That statement implies: 'Create those conditions and that will be a different circumstance'. The Opposition said: 'We cannot conclude this matter or bring it back to the Senate in its totality unless and until there is an examination of the other witness, the judge, and unless natural justice persists so that the judge can be examined on oath and have his counsel cross-examine'. The Australian Democrats very forcefully put the whole of their dissenting report on this matter, and let us make no mistake about that. The Democrats said : 'We cannot conclude, because we have heard only half the facts. We have heard one witness who has impressed us enormously. He gave us evidence on oath. Another witness declined to come before us, but gave a written statement and had his lawyers talk to us.' The Democrats said that that was not the way to go about the matter, but rather there was a need for an inquiry that would bring about natural justice. An attempt has been made to say that there is a plot of numbers between the Democrats and the Opposition, but there is common ground between the Opposition, the Democrats and the judge's counsel in the proposal to set up a committee with power to summon witnesses, to examine and cross-examine, and to give the judge, Mr Briese and any others their opportunities. In effect, Mr Hughes, QC, is saying: 'Set this up, and we shall not refuse'. Let no one think that this is a situation in which the judge is being forced. Those are the terms that have been set out. Senator Georges —Why don't you go back to tradition and the Standing Orders? Senator Sir JOHN CARRICK —I shall go back to tradition and the Standing Orders, because that judge, when the Leader of the Government in the Senate, established in the Standing Orders the powers and conditions of Senate select committees that he and his counsel are now rejecting. Do not let us invoke tradition. This is a deadly serious matter. Senator Georges —He is wrong. Senator Sir JOHN CARRICK —I have a great affection for Senator Georges. I remind him of the perversion of natural justice that I discussed with him on the day on which one of the worst things happened in this place-when David Combe was crucified behind doors. Do not let any honourable senator on the other side of the chamber talk of natural justice, but let us get back to the absolute facts. The fact is that section 72 of the Constitution states: The Justices of the High Court and of the other courts created by the Parliament- . . . (ii) Shall not be removed except by the Governor-General in Council, on an address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity . . . Let us examine that paragraph. It does not give to any other body or individual the right, the power, the privilege, the responsibility to make the finding. The Constitution states that the Houses of Parliament must make that finding. Let us get that quite clear, because, with great respect, much nonsense is suggested by Senator Georges in saying that we are doing something that is outside our tradition and powers. The Parliament's tradition is contained in the Commonwealth Constitution. This chamber's responsibility is contained in the Commonwealth Constitution, and there it lies. It is for the Senate, whatever inquiries are made, to decide whether there is a case of proved misbehaviour or incapacity. It is fascinating but I will not go into whether the Solicitor-General's opinion or Mr Pincus's opinion is right. In my view the Constitution has left it entirely to the Houses of Parliament to determine what is the plain meaning of ' proved misbehaviour and incapacity'. If the Constitution meant the Parliament to act on misbehaviour proved by conviction, prosecution or criminality, or if it meant to exclude social misbehaviour, scandalous conduct or immoral conduct, it would have delimited it. But it does not do that and it states it quite clearly. It is the responsibility of this and the other chamber to establish whether misbehaviour is proved. It is not possible for this chamber to carry out its work because the information before us is not sufficient. Of course it is competent for this chamber to summon a witness before the Bar of the chamber but it is also necessary that we exhaust the facts. What an incredible situation it is that the Attorney-General, who has a subjective interest in this matter-honourable senators will remember that he decided he would be the judge, prosecutor and investigator of the original tapes concerning the judge-has ensured, in sending the documents to Mr Temby, that there is no opportunity to examine the judge. One must ask oneself what that means and why it was done. Mr Temby will have to make a recommendation based on evidence that half of what the Senate Committee said was extremely incomplete. What an extraordinary thing! Why has the Hawke Government decided to block any kind of examination of the judge, and to allow the judge the opportunity to what Mr Hughes, QC, said was natural justice? Senator Bolkus —Why did Senator Durack not insist on it? You don't know what you are talking about, with all respect. Senator Sir JOHN CARRICK —I understand that Senator Bolkus has had a subjective monologue on this issue ever since he sat on the Committee. Senator Bolkus —Mr Deputy President, I raise a point of order. I, for one, have been misrepresented by that statement but I also resent, as would other members on this side, the allegation that we have a subjective assessment of this matter whereas this person claims for himself an objective one. The DEPUTY PRESIDENT —Order! There is no point of order. Senator Sir JOHN CARRICK —The fact is this Parliament has an obligation it cannot escape. In the end this matter must come back with all the facts that are available to be assessed in this and another place. One thing is certain: The facts are not before us at the moment. Another thing is certain: They will not be available when Mr Temby makes his report. They cannot be because Mr Temby's terms of reference are deliberately limited. As the Australian Democrats have pointed out, he cannot investigate the matter. He has no coercive powers to call witnesses so all he can do is look at the evidence that has come before the Committee and make a judgment. It will be one man's judgment. In any case, that does not matter at all because in the end the matter must come back to this Parliament. Senator Georges has said how ludicrous it is to have two committees. That is absolutely right, but who has created two committees? The Opposition and the Democrats moved for a commissioner to inquire into the matter. It was the Government that put up the second proposition. Let me make it perfectly clear: Not only can Mr Temby not make a report of any substance, because he does not have the evidence, but he is now utterly compromised. He showed reluctance and unwillingness to have anything to do with this matter. Apparently he has been persuaded by his political masters to do so. However, he cannot possibly reach an opinion on evidence that is limited to what was received by this Committee when he knows that another committee taking objective evidence may have much wider evidence. He will have one responsibility which he will no doubt carry out . He will say: 'I can give a judgment only on what is limited evidence'. Clearly , more evidence must come. What a silly situation to ask me-- Senator Bolkus —You had a committee with all the powers you wanted to give it. Senator Sir JOHN CARRICK —Why did not Senator Bolkus move to summon the judge? He had all the powers in the world to do so. Senator Bolkus —Why didn't your Party do it? Senator Sir JOHN CARRICK —My goodness, the brain fever birds are active today. The DEPUTY PRESIDENT —Order! Senator Bolkus you are interjecting too frequently. Senator Sir JOHN CARRICK —Why does the Government not respond to the request of the judge's senior counsel to set up an inquiry which will give the judge natural justice? Honourable senators should ask why the Government chose the only solution that would block that. It is very interesting that the Attorney-General said that he would be the investigator, the policeman, the judge and the jury on the original tapes and he interviewed the judge. I took the view that that was an outrageous breach of an Attorney-General's duty, particularly an Attorney-General who had been an employee of that judge. An Attorney-General should be separated from that situation. He should in the end decide on the law and the facts. How can we say that we will leave this matter to a person, of whatever integrity-I do not question it-who is a servant of the Attorney-General? Let us talk natural justice. Let us ask why in New South Wales, when allegations were made about a district court judge, the Solicitor-General, as I understand it-I hope I am not stating the matter incorrectly; if I am I would be prepared to correct it-vigorously interviewed Mr Briese but not the judge and found on the facts that there was no case against the judge. That is very interesting. There were two parallel Labor governments with subjective activities on this matter. Let me take the next step, because some extraordinary things have happened. The most extraordinary situation is the Attorney-General's attempt to exclude from ' misbehaviour' or 'incapacity' any anti-social misbehaviour, any immoral or any scandalous misbehaviour; he confines it to criminality only. What nonsense it is to say that the only thing one can do to a judge who misbehaves scandalously, immorally or wrongly in the public mind and who shows he has not an independent judicial mind is to have the Chief Judge say: 'Tut tut, you are a naughty boy'. That is what is being said. What an immature, adolescent and misbegotten view an Attorney-General who says that has. Senator Bolkus —Are you making the same allegation of the Crown Solicitor? Of course you are not. He says the same thing. Senator Sir JOHN CARRICK —I am talking about Solicitors-General. I remind the honourable senator of the fact that solicitors-general are employees of the government of the day. If we want a decision on this matter let us get it beyond the reach of the government of the day. I want to make a very clear picture of the evidence. Senator Bolkus —Through coloured glasses again. The DEPUTY PRESIDENT —Senator Bolkus, I have warned you before; you must not interject. Senator Sir JOHN CARRICK —Of course no Government senator will object if I seek leave to incorporate in Hansard the four and a half pages of Appendix 5 of the report of the Senate Select Committee. Leave granted. The document read as follows- EVIDENCE OF MR BRIESE 1. Mr Briese first met Mr Justice Murphy at a dinner at the home of Morgan Ryan on 10 May 1979. This was a small dinner party attended by Mr Murray Farquhar, who was then Chief Stipendiary Magistrate of New South Wales, and Mr Mervyn Wood , then Commissioner of Police of New South Wales. 2. The nature and purpose of the dinner have been the subject of considerable evidence before the Committee. The only significance of this dinner in relation to the issue now remaining before the Committee is the fact that Mr Briese and Mr Justice Murphy engaged in lengthy conversations about various subjects concerned with the courts and the law including the administration of justice in New South Wales until 2 or 3 a.m. Mr Briese made the most of what he saw as an opportunity to seek the views of a High Court Judge for whom he had the highest respect. 3. Mr Briese and Mr Justice Murphy met again on several occasions at a Sydney restaurant, at the High Court and at Mr Justice Murphy's Canberra home over the period 1980-81, during which the principal topic of conversation was the question of independence for the New South Wales Bench of Magistrates, which Mr Briese was anxious to obtain and for which Mr Justice Murphy expressed his support. Mr Briese sought Mr Justice Murphy's intervention with the Premier and the Attorney-General of New South Wales. Mr Justice Murphy said he would take the opportunity of doing so. 4. Although one or two statements were made by the judge in the course of these various conversations to which Mr Briese now ascribes some significance to matters before the Committee, we do not believe that they are relevant to the question which the Committee must now decide. 5. Early in January 1982, Mr Briese received a telephone call at his home from the judge who, according to Mr Briese, said he had a matter which he would like to discuss, but not on the telephone. The judge denies this and explains the telephone call as being in response to several messages he had received from Mr Briese reminding him of a standing invitation to return his hospitality. 6. Mr Briese denies this but agrees that in response to the call from the judge he invited the latter and his wife to dinner with him and his wife at their home in Sydney. Prior to dinner being served, while Mrs Briese was engaged in its preparation, the judge, his wife and Mr Briese had a discussion in the lounge room. According to Mr Briese the judge raised the question of the social security conspiracy case, and criticised it in strong terms. 7. There is again some conflict between Mr Briese and the judge as to how this subject arose, but it is common ground that the judge criticised the case in strong terms, although there is no suggestion that any request was made by the judge to Mr Briese that he should communicate the judge's views to the magistrate who was hearing that case. 8. The judge states that Mr Briese said that he had not discussed this case with the magistrate handling it, and that he had made it an invariable rule never to discuss any case with a magistrate unless that magistrate came to him for advice. The judge claims he responded that this was the proper course. Mr Briese denies this conversation. 9. Mr Briese says that the judge then said to him ''and I will tell you about another wrong case of conspiracy too and that is against Morgan Ryan''. The judge denies this, saying that Mr Briese first mentioned the Morgan Ryan case. 10. The judge admits that he criticised the Crown for its habit of ''tossing in (a) conspiracy (charge) if a case is not very strong''. Mr Briese states that he had the impression from the judge that he had read the evidence and that it was very weak. The judge denies indicating anything more than a reading of newspaper accounts. 11. There is no suggestion that Mr Justice Murphy requested Mr Briese to speak with the magistrate hearing the Morgan Ryan case. Nevertheless Mr Briese indicated he would make some inquiries about the matter to see what the situation was. He says that he did so because he felt that he was under pressure to take some action in relation to the case because of the possibility of some wrong happening in his court. 12. Prior to the judge's departure from his home that evening, Mr Briese alleges that the judge told him that he might be able to do something about obtaining an official government car for his use. This embarrassed Mr Briese to the extent that he told the judge that he already had one, which was not the case. The judge denies that any such conversation occurred. 13. Shortly after this visit by the judge to Mr Briese's home, Mr Briese asked the magistrate hearing the case about the strength of the evidence against Morgan Ryan, and was told that there was enough for a prima facie case, although it was not that strong. Mr Briese did not tell the magistrate that any inquiries had been made of him about the matter, and emphasised to the magistrate that the case was one entirely for his own judgment. 14. A few days later, Mr Briese received another telephone call from the judge who, he says, asked him about the inquiries he had promised to make about the Ryan case. The judge denies this and said he rang Mr Briese to thank him for the dinner, though Mr Briese does not recall that. He questioned the likelihood of this because a huge bouquet of flowers had been delivered at his home the morning following the judge's visit. 15. Mr Briese asked the judge whether he would be attending a reception at the State office block that evening, and told the judge that he would see him there. At the reception Mr Briese told the judge that it was his impression that the presiding magistrate seemed to have a different view of the Ryan case than the judge and it was Mr Briese's guess that Ryan would probably be committed for trial. Mr Briese says that the judge responded ''the little fellow will be shattered''. Although the judge denies that he used the expression ''the little fellow'' he admits commenting that ''Ryan would be shattered''. 16. Mr Briese then went on to suggest two possible ways that Ryan had of getting around the problem. First, he could try to persuade the magistrate not to commit him under ''the second leg of section 41'', which is a reference to a section of the New South Wales Justices Act under which a charge may be dismissed if the magistrate is of the view that even though there is a prima facie case it is not of sufficient strength to commit for trial. The second matter mentioned by Mr Briese was an application for a ''No Bill'', which Mr Briese and the Judge then proceeded to discuss. 17. Several days later the judge again rang Mr Briese and told him that he had discussed the question of the independence of the magistracy with the New South Wales Attorney General, and that the government was going ahead with legislation to give effect to it. The judge states that he told Mr Briese that his conversation with the Attorney-General had taken place at the reception. Mr Briese does not recall this. 18. Mr Briese says the judge then said to him ''and now what about my little mate?''. In evidence Mr Briese was unsure of the exact opening words of the inquiry (''and'' or ''now'' or ''and now''), but was adamant that the question was asked with such emphasis as to suggest a link between the inquiry and the preceding conversation. 19. The judge's recollection is that he did not use the expression ''my little mate'', but that, not having heard the exact reference at the reception, he did make an inquiry about the section of the Justices Act there referred to by Mr Briese. 20. Mr Briese and the judge agree that Mr Briese then simply repeated the general advice he had offered at the reception. Senator Sir JOHN CARRICK —Having established ophthalmological objectivity on this matter, no doubt Hansard will bear out that the evidence is not in only one direction. Let us not forget that day after day the Attorney-General says in here that we are resting the whole of our case on one little phrase-'what about my little mate?' What nonsense! Because it is now in Hansard, I invite the Parliament and the public to read the evidence. There are something like 10 instances throughout this evidence where the judge and Mr Briese disagree on the facts. This is a very serious matter. They disagree not on one occasion, not just about 'what about my little mate?'. After all, what about the other one-' the little fellow will be staggered'? They are only two of about 10 grave situations. What about the inference that there was the offer of a car as a promise and a hope? The fact is that wherever one looks one sees such situations . Early in January 1982 Mr Briese had a telephone call at his home from the judge who said he had a matter which he would like to discuss-but not on the telephone. That is interesting. Why? What was the matter he wanted to discuss but not on the telephone? It does not come out from the judge because he was not cross-examined. Mr Briese therefore invited the judge to his house. Mr Briese says that the judge then said to him: 'And I will tell you about another wrong case of conspiracy too and that is against Morgan Ryan'. The judge denies this, saying that Mr Briese first mentioned the Morgan Ryan case to him. If that is so , how can we as a Parliament find on facts? We can go on. Mr Briese alleges that the judge told him that he might be able to do something about obtaining an official government car for his use. This embarrassed Mr Briese to the extent that he told the judge that he already had one, which was not the case. The judge denies that any such conversation occurred. How can we let at rest-- Senator Georges —What about the judge's statement in response to that? Where is the judge's statement? Senator Sir JOHN CARRICK —One has to ask Senator Georges one question: Why was the judge not asked, like any other person, like the least person in the land, whether he was willing to come forward voluntarily? Let me make it clear that there is nothing in the argument of separation of powers despite the nonsense of the Attorney-General's statement which said that the judge had privilege so that he could not be summoned to give evidence and could not come forward voluntarily and give evidence on oath. One has to ask oneself: Why did he not come forward voluntarily? He gave conditions. It must be made clear ad nauseam that we are asking for there to be set up an inquiry based on the terms and conditions said by the judge to be natural justice. Those opposite will not even fulfil that. Let me go further. Mr Briese said that he had found out that there was a prima facie case against Mr Morgan Ryan. A few days later Mr Briese received another telephone call from the judge who, he says, asked him about the inquiries he had promised to make about the Ryan case. The judge denies this and says that he rang Mr Briese to thank him. That is one case that the Attorney-General points to. Mr Briese said: 'I will see you at the reception if you are going there tonight', and he had a discussion. Mr Briese told the judge of the general view. Mr Briese says that the judge responded: 'The little fellow will be shattered'. Although the judge denies that he used the expression 'the little fellow', he admits commenting that Mr Ryan would be shattered. Several days later the judge rang again and told him that he had discussed the question of the independence of the magistracy with the Attorney-General. Later Mr Briese said that the judge then said to him: 'And now what about my little mate?' The interesting thing is that there is a comity between the judge and Mr Briese on dates and events. The difficulty is in respect of the substance of what happened. Mr Briese is part of the judicial system. He is no less a human being and has no fewer rights than the highest judge in the land, and that is a simple fact. Mr Briese's integrity will remain in question unless we flush this out. But in any case-- Senator Crichton-Browne —How did the Committee find Mr Briese as a witness? Senator Sir JOHN CARRICK —The Committee as a whole found that Mr Briese was honest and sincere. Members of the Committee have said that the judgment went further than that: They found his evidence compelling and sincere. The evidence shows that Senator Chipp asked Mr Briese-I paraphrase-whether Mr Briese believed he was being pressured in some attempt to influence the course of justice, and he said that yes, he did. Let me sum up. The fact is that on all sides it is admitted that this is a grave case. It cannot be argued against that the only body in the end to decide this matter is this chamber. There can be no doubt that the only body to decide what is proven misbehaviour and what is incapacity is the Parliament. Even if the Government stalls and puts it off, it cannot get away from the fact that in the end a decision will be made on the floor of the chambers. What are lacking are the facts. What is lacking is the Government's response to the judge, through Mr Hughes QC, asking for natural justice and stating the terms; and those terms are identical with those of the committee that the Opposition, in conjunction with the Democrats, is putting forward. Let us get that perfectly clear. It is no good Mr Temby proceeding. As I have said, Mr Temby has only one course and I am sure that he will carry it out. He now knows that there will be a committee and that it is very likely that that committee will have quite significant extra evidence. Which solicitor-general or special public prosecutor could make any recommendations on evidence that he knows is limited, restricted and might be completely altered in the future? So we have to ask: Why is the Government seeking to take the only course it could take to prevent the judge coming forward as a witness and being examined? Senator Georges —There's another way; you could lay a charge. Senator Sir JOHN CARRICK —Senator Georges knows that the individual citizen's capacity to lay charges is very limited indeed, and it is a wrong road. As I understand it, he has not done so. There can be only one solution to this-to accept the judge's conditions, the Opposition's conditions and the Democrat's conditions, and to set up a system of natural justice to get the facts. It will not be a committee to find anything or to prove anything. It will be a committee to bring the facts to the floor of this Parliament which, no matter how those opposite hedge or stall, is where it will be decided. That is where traditions, responsibility and absolute obligation lie, according to the Commonwealth Constitution, which says that this Parliament and no one else shall decide. Senator BOLKUS(South Australia)(11.48) —We have just listened to what is well and truly an indication of what the Opposition is on about in this debate. The Senate is embarking on nothing less than a political prosecution of a High Court judge. Senator Sir John Carrick, claiming to be an objective witness to all this , has indicated that he is nothing like that at all. He proved himself both judge and counsel for the prosecution in the way in which he presented his case, which of course reflects the way in which the Opposition and the Australian Democrats are behaving in this matter. They want the Senate to embark on a political prosecution based on unconstitutional, improper and illegal grounds. They are unconstitutional because what they are asking the Senate to do is, firstly, unprecedented and, secondly, probably an excess of Senate power. They are improper because the matter continues to drag into the political mire this allegation about one High Court judge. It is unfair to the person involved and to the judiciary. As we see often when the conservatives are in opposition in this country, those sorts of establishments and traditions are of absolutely no consequence to them. They are illegal because, let us face it, we have had one trial and we have been through one procedure. We have had one Senate committee. We have the procedure that the Opposition and the Democrats wanted. The result was that only two of the six members of that Committee, after the worst evidence possible against the judge, could find a prima facie case. What we are embarking upon now can be nothing less than double jeopardy. There are two distinct and clear alternatives : The Government's, which at least in referring the matter to Mr Temby is the proper and normal procedure to take, and the Opposition's, which is nothing less than a political prosecution-the word 'inquisition' was mentioned by the Melbourne Age this morning. Let us look at how we got into this situation. It started six months ago in this Senate when we set up a Senate committee. Despite what Senator Sir John Carrick says, in his ignorance of the way the committee worked, that committee worked with all the powers it needed to exercise-let us not dispute that. It called all the witnesses the committee wanted to exercise and got all the evidence it wanted. If we accept the fact that that committee is the best mechanism by which one can coerce people to appear before a committee of this sort or any inquisitive procedure, what are honourable senators opposite arguing about? The committee worked in the way they wanted it to work; there was no obstruction from Labor and Democrat senators. And at the end of it, what have we got? We have the Opposition saying: 'We do not agree with the judgment, as a consequence we do not like the umpire we ourselves appointed, so let us appoint another one'. Yesterday Senator Durack had the gall to say: 'If at the end of this next inquisition there are still matters to be resolved, maybe we can send them off to Temby. Let us have another inquiry after that'. And on the ball rolls. At the start, six months ago, there were bleatings from the other side that we needed to get this inquiry started and complete it quickly for the sake of the judge and the reputation of the judiciary. Six months later we are still talking about a continuing inquiry. Senator Walters —I wonder why. Senator BOLKUS —As I have said, Senator Walters, only two of the six members of the Committee could find that there was a prima facie case. When one looks at their decision-making process, one wonders how they ever reached that conclusion . What was the result of the Committee's deliberations? Let us look at what the Committee actually decided. In one part of the report the Committee decided- curiously, this does not appear in the Age reports of the Committee's deliberations-on the authenticity and genuineness of the tape. Let me quote paragraph 48 of the Committee's report just in case honourable senators opposite missed it. The Australian Federal Police transcripts contain many obvious and significant errors of transcription. In some cases these errors impinge upon the interpretation to be placed upon the conversations. For example, the transcript of the one alleged conversation involving the judge left part of that conversation open to an interpretation of sinister motives, an interpretation which was dissipated by the addition of a word which was clearly audible on the tape recording but which the Australian Federal Police transcriber omitted from the transcription. This experience of such inaccuracies finding their way into a transcript prepared in good faith by the Australian Federal Police alerted the Committee to the grave danger of accepting as accurate transcripts for which no tapes exist. We had one tape, we had one transcript to compare that to, and we found that there were dangers. It is a pity that Mr Briese, who based much of his evidence on recollection, hindsight, discussions with Bob Bottom and reading the Age tape material, did not come to that conclusion. He may very well have had a different interpretation on what he gave us. In respect of the Age tapes themselves, the Committee as a whole found that from the conversations depicted in those tapes there was no proved misbehaviour. In respect of the matter of the Australian Federal Police officer, the Committee as a whole once again found no proved misbehaviour on the facts before it. So one turns to the one outstanding matter, the Briese allegations. It is acknowledged, as Opposition senators have mentioned, that Briese came before us and intended to give honest and sincere evidence. But that does not dispute the fact that, with all the honest intention in the world, Mr Briese was confused. Mr Briese had discrepancies in his evidence. Mr Briese was very quick to make conclusions from which he had to resile. Mr Briese acknowledged that much of what he put to us was said in hindsight. This is in the report. At the end of the day there were only two people on that committee of six who found a prima facie case. Let Senator Chipp, if he wants to, explain his own manoeuvrings on the matter. Let us also examine Mr Briese's objectivity on this matter. Let us accept that it is not his responsibility to lay charges against the judge, but since that date he has had the opportunity. As a law officer he has a duty-not an opportunity but a duty-if he feels there is an offence committed, to convey evidence to the correct authorities. He does not have to institute the charge. It took him two years before, in his own mind, he felt the need to talk about the conversations with Mr Justice Murphy. One wonders what happened in that period. One wonders what in the end triggered it off, considering that he acknowledged that all that time he had been talking to people such as Bob Bottom . One wonders why two years later he felt obliged to raise it. All this does not impinge on the fact before the Committee that he came to us with sincerity and honesty, but I am saying that with all the sincerity and honesty in the world it does not mean that the person is accurate. At the moment , as I have said, he has had the opportunity. He has been approached by members of the Australian Federal Police. Not only would he not make a statement to them -as a law officer he has a responsibility to do that-but he would not even authenticate the evidence in the appendix of this report. What is he on about? If he believes that there is an offence, if he believes sincerely and honestly that there was pressure exerted, if he believes in his own mind that he can sustain that, he has a duty to convey that evidence to the law enforcement officers. If he has not, then one has to question not only his intentions now, but also what he is on about. It is rather curious that the law enforcement procedures are being frustrated by political intransigence. It is not good enough for Mr Briese to say: 'The politicians in Canberra are looking at this problem and, because of that, I will stay out of the law enforcement function'. It is not good enough for him to assume the role of a pawn in the political game . He is a law officer and has a responsibility. He should stay out of politics. I mentioned earlier that two members of the Committee came to a conclusion of a prima facie case. That highlights the problem that we as a committee, we in the Senate, and we in this country face with the Australian Democrats, who surely in this instance in this whole procedure should be the big losers. Not only are they indecisive-they have been indecisive all the way through-but they now come to us saying: 'The Government has one proposal, the Opposition another. We cannot decide, so we will support all of them. We will put up a hotchpotch of the whole lot and support it. Maybe out of all that mire some divine light will descend on us and we will find some way out'. It is no wonder some people are now referring to Senator Chipp as the Mickey Mouse of Australian politics. He does not know in what direction he is heading. What he is saying to us, and what he has said in his report, is that even on a lesser degree of proof, even on a balance of probabilities-that disregards the fact that in criminal cases one needs proof beyond reasonable doubt-he cannot find a prima facie case against the judge on all the worst evidence against him, he cannot find that the judge has committed proved misbehaviour in terms of the Constitution but, since he cannot find it, the judge has an obligation to come here and prove his innocence. If he does not come voluntarily he will force him to come along. Is it not curious for a defender of civil liberties to take that approach? Is it not even more curious that it was only six to eight months ago that this same person in the considerations of the Senate Standing Committee on Constitutional and Legal Affairs said, as part of a majority report on the National Crime Authority Bill: The privilege against self-incrimination should be recognised only if claimed by natural persons. Is he claiming that Justice Lionel Murphy is not a natural person, or is he being totally inconsistent again? The action proposed six months ago was unprecedented. The Committee embarked upon its work with good, honest and sincere intent and with the intention to protect the judge and to adhere by the rules of natural justice. But as we know from Australian history, as it has been indicated in the case of Fitzpatrick and Browne and elsewhere, good intentions alone do not mean that in delivery those principles will be adhered to. The Committee embarked upon an investigatory stage only. So the record holds only the evidence against the judge. The magistrate was not cross-examined by judge's counsel. The judge did not have an opportunity to put forward his case in response. Senator Walters —He had the opportunity and refused. Senator BOLKUS —He did not. So what are we saying now? As I said earlier, we are working on the basis of balance of probability. We now have a judge hanging out on the principles of natural justice for the whole case against him to be heard, for the opportunity to cross-examine witnesses and so on and to bring in his own witnesses. It is now being said that because those sorts of natural justice commitments were not met, and because the judge did not appear before us he was running away. That is the argument put by Senator Sir John Carrick. Further, in respect of the operation of the Committee and of politicians, I quote from a book by Mr Shetreet entitled Judges on Trial which has been referred to on a number of occasions. Shetreet discusses the rights of an accused under the law in these sorts of circumstances. On pages 124 and 125 of his book there are seven points which I wish to cite very quickly. I ask the Parliament to consider how a committee can operate in the light of these principles: The first principle is that the person ought to be brought to a speedy trial in order to be acquitted or condemned. The second principle is that in all cases of moment, the defendant shall have copies of all depositions, both pro and contra, and I shall come to that point later. The third principle is that there is a procedural safeguard to secure justice that all the lords must be present at the trial, and absence from the trial, without due excuse, is deemed a great and wilful neglect of duty. In that respect I refer honourable senators to the Bulletin last week and the statement made in response to it by Senator Lewis on 5 September when he claimed to have been misrepresented. It is stated in respect of the fourth principle: It seems that the hearing of the evidence and arguments could not be delegated to a committee- Which is rather curious in this instance. The fifth principle is that the trial should be confined to the charges contained in the articles of impeachment. Let us look at the motion of the Australian Democrats in the light of that principle . The sixth principle is given as follows: when in doubt about a question of law the Lords will consult the judges before making a final decision--- The seventh principle states: On the whole, it appears that impeachment is criminal in nature and the [House of] Lords considered as such--- I am saying that we as a Committee, with all good intention, cannot meet those particular obligations, for we are assuming the role of interpreters of the Constitution. We assume that we interpret what misbehaviour means, and what proved means in terms of the requirement of burden of proof in this matter. It is rather curious to consider where we would be left if we went ahead on a lesser burden of proof and found the judge guilty, and a court in a later case found him not guilty. Let me submit that the only proper approach in cases of misbehaviour external to the performance of judicial function is for the particular person be charged, found guilty and then the Senate and the House of Representatives together make some assessment of the gravity of the charge. So where are we now? We have before us a couple of motions from the Opposition- perhaps three in all-with no charges specified. We have Senator Sir John Carrick rambling on about instances of discrepancy between evidence. We have other honourable senators saying the same sort of thing. But in essence, no one has specified what the continuation of this inquiry will be all about. What are these charges? Are they limited to Briese? Are they limited to the specific part of the Briese evidence that the Committee highlights or do we take the approach of Senator Sir John Carrick and go wider than that? As I have said, we have two distinct alternatives. One will be dangerous when one assesses it in terms of natural justice. The other alternative, and to me the proper alternative, is to refer the matter to Mr Temby to see what he feels about the chances of prosecution. It should be noted that not only the Government is saying that. Let us acknowledge also that some Opposition senators are saying it. Let us look at what the Leader of the Opposition (Mr Peacock) has to say in respect of this matter. A report in the Australian of 30 August 1984 states: At the time the Leader of the Opposition, Mr Peacock, added support for the matter to be referred to the Director of Public Prosecutions, Mr Ian Temby, QC, but not as a final solution. He sees a role for Mr Temby to play at the moment. Let us compare that with what Senator Chaney has to say in this politically charged environment. Senator Chaney said that the proposal to refer the matter to Mr Temby served only to confuse the issue. He said that it was not for Mr Temby to launch investigations or to determine an issue that is the responsibility of Parliament. There is a clear contradiction between the two leaders of the Liberal Party in this Parliament, a contradiction which has not been highlighted previously but which is important, because if we are considering referring this matter to Mr Temby, obviously we have the support of the Leader of the Opposition. Why is the Opposition delaying the matter? It claims to be delaying it because it thinks that, firstly, Mr Temby does not have the powers to get all the evidence before him. I submit that I have already laid to rest that allegation. The second claim is that Mr Temby is looking only at misbehaviour in a criminal sense and not at misbehaviour as Mr Pincus in his opinion would describe it. It is important to dwell on that because if we are looking at the precise words alleged by Mr Briese to have exerted some sort of pressure on him: 'And how about my little mate', and if there was no intention by the judge to interfere, if those words do not stand up to be criminal in nature, they have to be innocuous. They cannot be anything else. One cannot have a halfway house. Either the action is criminal in nature or it is not. If we are looking only at that particular instance it does not matter whether one follows the Pincus approach, the Gavan Griffith approach, the Temby approach or the Gareth Evans approach. The allegation is that those words constitute a perversion of the course of justice. If those words do not stand up to that allegation, obviously the intention one has to ascribe to them is not there and obviously the change does not stand up. There cannot be a halfway house. If one is looking at other sorts of behaviour, for example at political involvement which Senator Sir John Carrick and others may claim to be appropriate, we have argument as to whether that constitutes misbehaviour and the disagreement between the Temby opinion, the Gavan Griffith opinion and the Pincus opinion is important. But in this specific instance we have a set of words which, if they are not criminal in nature, do not constitute anything. Senator Crichton-Browne —Where would you put criminal intent as distinct from criminal behaviour? Senator BOLKUS —I would put criminal intent in your mind often. Senator Crichton-Browne —Answer the question, or are you not competent enough to do that? Senator BOLKUS —I have been asked where I put criminal intent as compared to criminal behaviour. Senator Crichton-Browne —In terms of the argument. Senator BOLKUS —In terms of the argument, what I am saying-the honourable senator, I am sure, will see this when he gets around to reading the report-is that one sees that his people on the Committee mention one set of circumstances and allege that they could constitute a criminal offence, a perversion of the course of justice. If the words, together with the intent that is necessary for those words to constitute a criminal action, do not form that action then they do not form anything at all which can constitute misbehaviour. That should answer the interjection. What I wish to do-I suppose that I could talk for ever on this matter, having spent six months on it-is to close with one parting shot. I, as much as anybody else in this Parliament, have been concerned about organised crime in this country. It is interesting to note the bleatings now coming from the Opposition, which had eight years in government, eight years under which organised crime blossomed. We need not ask Senator Durack about the massage parlours that were operating with his own Attorney-General's Department during that period. I am concerned about organised crime. However, I think there is one group of people sitting back laughing at what is going on in this country and in this Parliament at the moment. That group is the real organised crime czars-- Senator Walters —What hypocrisy. Senator BOLKUS —Because they can see that Senator Walters and her mates over there are pursuing a course of triviality. Bob Bottom tells us that. Bob Bottom acknowledges that publicly. That is trivial, incidental. Those people, the real crime czars, have the heat off them. They can pick up the Sydney Morning Herald or the National Times each week and sit back and laugh at what is going on because the heat is off them. While the Opposition is preoccupied with a minor figure, with something totally incidental, organised crime can continue without scrutiny. In closing let me quote a paragraph by Ken Davidson in this morning's Melbourne Age. He said: If we are going to get at organised crime there are better ways than running witchhunts against reforming judges who are unlucky enough to get caught in an illegal phone tap by a police force which is notorious throughout Australia for the level of its corruption. Let us get back on to the main course that the agenda against organised crime should be on. Senator HARRADINE(Tasmania)(12.10) — I reluctantly enter this debate. My reluctance to do so would be understood if people were aware of what I said on pages 650 and 651 of the Hansard when the decision was taken to establish the Senate Select Committee on the Conduct of a Judge. However, I reluctantly enter the debate because I believe that the Senate is about to take a decision which will establish a precedent and which will besmirch the integrity of the Senate and hopelessly confuse its role. Yesterday Senator Tate, the Chairman of the Committee, said that we should take care because we are moulding a constitutional process which will provide a precedent for years to come. I believe that for the Senate to vote for the Government's proposition to refer the evidence, which is our property, to an officer of the Executive, namely, Mr Temby, would be to misunderstand our role, to besmirch our integrity, and hopelessly confuse our role. Before I prove that let me respond very briefly to something the previous speaker, Senator Bolkus, said. He characterised the whole matter of concern before the Senate as a political prosecution of a High Court judge, which is unconstitutional and improper. Apparently he had not read the first paragraph of the ministerial statement on Tuesday by the Attorney-General (Senator Gareth Evans), which said: The issues confronting the Government and the Senate arising out of the report of the Senate Select Committee on the Conduct of a Judge are about as serious as could possibly be imagined. It is not our doing that this matter is before us. It is not the Government's doing that the matter is before us. This matter was not generated by the Senate. As the Attorney-General said, 'it is about as serious as could possibly be imagined'. We must bring to bear on that problem an open mind but one which is guided by the principles that underline the Constitution. I refer particularly to the principle of the separation of powers between the Executive, the Parliament and the judiciary. The reason that the Constitution is so framed with its separation of powers is to ensure the integrity of the institutions of the Parliament, the institutions of government, and the institutions of the judiciary, and to ensure the independence of the judiciary. Roles have been established by the Constitution for each of these institutions so as to preserve their integrity. Of course, the role of the Senate in this case is set out in section 72 of the Constitution. That section is well known to all honourable senators but I think it bears reading again for the benefit of the previous speaker. Section 72 of the Constitution states: The Justices of the High Court and of the other courts created by the Parliament- (i) Shall be appointed by the Governor-General in Council: (ii) Shall not be removed except by the Governor-General in Council, on an address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity; Whether we like it or not-I for one do not like it-we are faced with a constitutional obligation, which has been imposed on us not from our own doing but in circumstances that have arisen out of the doings or non-doings of other people. I am not going to back away from my responsibility as a member of parliament to discharge ultimately my responsibility in respect of section 72, irrespective of the vivid memories I have about one of the persons concerned. I wish that I were not placed in this position but I am. There are others who may have a conflict of interest-for example, the Attorney-General himself, whose mentor we are talking about. I wonder whether the Attorney-General has confused the role of the Executive as compared with the integrity of the judiciary on this matter. Why did he initially go to see the judge after the revelation of the Age tapes? Is that not confusing the role of the Executive? Is that not besmirching the integrity of the judiciary? By what right did the Attorney- General sool the Commonwealth Police on to Mr Briese on 24 August 1984? The Attorney-General said in his statement, since the tabling of the report on 24 August 1984: . . . Mr Briese has indicated to the Australian Federal Police, on an approach initiated by me- Is not the Executive interfering with the responsibility that is properly ours, and only ours, under the Constitution? Why is he doing that? In the discharge of the Senate's obligations under section 72 of the Constitution, where is there a place for the Senate to refer this matter to an officer of the Executive? That is what we are being asked to do by the Government in its notice of motion on which we will vote. For what purpose is it to be referred to the Director of Public Prosecutions, an officer of the Executive? Senator Crowley —It has been made clear. Senator HARRADINE —Oh yes, it has been made clear. Let me deal with the two proposals that have been put: Firstly, that the DPP is the best person to test the allegations; secondly, that if in the opinion of the DPP the allegations and the admissable evidence are such that a prosecution for a criminal offence is warranted-this has not been made clear; it is said to be a criminal offence and there is no such word in law; whether it is meant to be a summary offence or an indictable offence, I do not know, but the wording refers to a criminal offence- and the judge is convicted, there is an a fortiori argument that he ought to be turfed out by us under our obligations under section 72. Senator Crowley —You don't dispute that, do you? Senator HARRADINE —I do. I will come to that in a moment and I will tell the honourable senator why. Those are the two reasons that have been advanced. Let us take the first one, the testing one. It has been argued that the DPP is in the best position to test the facts surrounding the allegations. Senator Crowley —When other people fail. Senator HARRADINE —As we all know, the criteria to be used by the DPP in determining whether there is a prima facie case for prosecution for a 'criminal offence' are different from the criteria to be used by the Senate in the discharge of its obligations under section 72. The DPP would be required, through the police, to obtain admissible evidence. How are the police going to do that? The only way they are going to do that is by getting an admission. They are not likely to get an admission. Even if they did get an admission the prosecution, were it launched, could fail on a technicality. One of those technicalities was referred to in the Senate yesterday in reference to an article by the Solicitor-General of New South Wales, Mary Gaudron, in which she was proposing that the allegation may not be regarded as a criminal offence because it involved a discussion between a High Court judge and the Chief Stipendiary Magistrate and not the magistrate dealing with the case. It could be thrown out because of that technicality. Indeed, a prosecution could fail because it failed to convince all members of the jury of the guilt of the person beyond any reasonable doubt-not on the balance of probabilities, but beyond any reasonable doubt. That is what the DPP is about but it is not what we are about. Let me remind the Senate of the effect of an acquittal. This was laid down in a decision of the High Court of Australia in the Queen v. Darby in 1982 before Gibbs C J, Murphy J, Aickin J, Wilson J, and Brennan J, which was a majority decision, Murphy J dissenting. It states: An accused is entitled to be acquitted unless the evidence satisfies the jury beyond reasonable doubt that he is guilty. Let me just outline the background of this case. It was a conspiracy case. Two people were charged with conspiracy; both were convicted and put behind bars. One appealed and his appeal was upheld. The other one was still behind bars. He said: 'That is not good enough for me'. The essence of conspiracy is an agreement between two people to break the law, in this case to steal. He appealed but his appeal was knocked off. It is a very interesting case, but that is an aside. The interesting part about it is that the High Court found: A verdict of not guilty may mean that the jury is certain that the accused is innocent, or it may mean that, although the evidence arouses considerable suspicion, it is insufficient to convince the jury of the accused's guilt beyond reasonable doubt. The verdict of not guilty is consistent with the jury having taken either view. The only effect of an acquittal, in law is that the accused can never again be brought before a criminal court and tried for the same offence. But the High Court went on to say: Anyone acquitted of a criminal conspiracy may still be sued in damages for the conspiracy of which he has been acquitted at his trial. What is the relevance of sending the matter to the DPP, because he will be using criteria that are not appropriate to the criteria that must be considered by the Senate? For example, it may well be that on an examination, admissible evidence is not able to be presented to a court; the jury is convinced there is overwhelming evidence of the guilt of a person but the admissible evidence is lacking or there is a technicality and the person is acquitted. So what is the purpose of sending it to the DPP? It is suggested that if there is a conviction for a criminal offence-as I said, the term 'criminal offence' has not really been defined-that is an a fortiori case for the judge to be turfed out by us on an address to the Governor-General under section 72. I dispute that too as being a valid reason for sending this matter to the DPP. What happens if a court convicts the judge? We immediately move, make the address and the judge is removed. He appeals. What do we do during the time of the appeal? We might have even removed him and he may have appealed but, more importantly, let us get to the conviction. Are the Attorney-General, and particularly the Chairman of the Senate Select Committee on the Conduct of a Judge, Senator Tate, saying that if a judge of the High Court is convicted of a criminal offence he must be removed? Let me pose an example: What if a judge is found smoking marihuana and in possession of cannabis? Senator Crowley —It depends what state he is in. Senator HARRADINE —That is very interesting. The honourable senator has interjected: 'It depends what state he is in'. He has been charged and convicted of possessing cannabis. We are talking about precedent now; I am not talking about the current situation. Honourable senators are saying: 'All right, if he is convicted of a criminal offence he ought to be turfed out'. What if he is convicted of that criminal offence? Is the Chairman of the Select Committee saying that that would constitute proven misbehaviour to the extent that he ought to be removed under section 72? There would be opinions to that effect elsewhere in the Senate but I doubt whether the Chairman of the Senate Select Committee, given his views on that topic, would adopt that view. Apparently a deal has been done. What are we doing voting for this matter to go off to the Director of Public Prosecutions? I submit that if we send the material we have to the Director of Public Prosecutions and if we carry the decision we are about to carry, we are besmirching our integrity and confusing our role. What are we being asked to do? Let me read the motion of the Attorney-General to show honourable senators what we are being asked to do. The motion states: That the Senate- the Senate mind you- (a) refer- (i) all evidence given before the Senate Select Committee on the conduct of a Judge, and (ii) all documentary or other material furnished to the Committee. relevant to the Briese allegation, to the Director of Public Prosecutions for consideration by him whether a prosecution should be brought against the Judge; . . . The Attorney-General is asking us to make the Parliament an informer to the Executive on the judiciary. I find it very difficult to accept that members of the Australian Labor Party or any honourable senator in this Senate want to adopt a motion which will turn this Senate simply into a common informer for the Executive. If ever there was a confusion of roles this is it. It is not our job to shop the judge. Our role is well stated and entrenched in the Constitution. Our role is to consider whether the behaviour or the conduct of a judge is such that that judge should be removed from the High Court of Australia. If we so consider we make an address and the procedures of the Constitution are followed. Senator Bolkus, who preceded me in this debate, said: 'To refer this matter to the Director of Public Prosecutions is the proper and formal way to proceed'. It is no such thing. It is improper; it is confusing the role of this Senate; and it is besmirching this Senate's integrity. Mr Acting Deputy President, I say to you and to honourable senators: We are faced with a very difficult constitutional situation but we must discharge it in the best way possible. We must understand that we are moulding constitutional processes which will establish precedents. I consider that the establishment of a committee which would be empowered to appoint parliamentary commissioners to test the facts is a constitutionally appropriate procedure to follow. On the other hand, to support the Government's proposal and refer the material that is in our possession to the Director of Public Prosecutions, an officer of the Executive, is to confuse our role as a parliament with that of a policeman. I for one will not be accused of voting in a way that will render this Senate as simply a common informer for the Executive. Senator CROWLEY(South Australia)(12.35) —I will resist addressing the points raised by Senator Harradine until later in my comments. I would like to start by picking up the remarks made yesterday by Senator Tate in his speech to the Senate. He made very clear why the Government is faced with putting this motion to the Senate. It seems to me that Senator Harradine has a remarkably selective way of arguing and dealing with the facts. It is important to recall that what Government senators are being asked to do is very straightforward. We are being asked to pursue the consequences of a divided vote of the Senate Select Committee on the Conduct of a Judge. Senator Harradine and Opposition senators are suggesting that the arguments they have put in the last few days show that all this is the first step in the process. They seem to be unaware of the six- month history of that Senate Committee. I say to Senator Harradine: The precedent is not starting now; it has long been in process. In fact I made a comment about exactly that when I spoke on Friday, 24 August. I said: The Committee had the task of examining section 72 of the Constitution as well as the terms of reference given by the Senate, while at the same time establishing a precedent for any such future inquiry. Not only did the Committee address the questions and the material under examination; it also addressed the procedures it adopted at every stage with equal seriousness. It was very aware of the precedent process in which it was involved. It was acutely aware that the question it had to address went to the very heart of the Constitution and directed itself to the separateness of the legislature, the Executive and the judiciary. While I am sure the people of Australia can thank Senator Harradine for his little lecture today, it is not the first time people involved in this issue have thought about it. One of the findings in the Senate Committee's report was the unanimous decision that all the matters initially given to the Senate committee of inquiry contained no evidence constituting proved misbehaviour. I will come to that later. We are left with a set of words claimed by Mr Briese to have been said by Mr Justice Murphy. Counsel assisting the Senate Committee, Mr Pincus, advised us that, if those words were said, they would constitute a criminal charge-that is, the charge of attempting to pervert the course of justice. It is quite clear that the dispute about what proven misbehaviour means will continue and, no doubt, will exercise legal minds, journalists and dinner party conversationalists for centuries to come. It was not really a continuing matter for the Committee precisely because the only matter for serious consideration was the words claimed by Mr Briese to have been said and the importance attached to them which, as our counsel advised us, would constitute a criminal offence of attempting to pervert the course of justice. So for precisely that reason it is reasonable for the Government to consider trying to exhaust all the options of a criminal prosecution before moving any further or in any other way. Further dispute about what proven misbehaviour may or may not mean for any case or any judge at any time is not for dispute or discussion in this chamber or under the terms of this motion. I noted with great unease the comments on the front of today's Age attributed to Senator Haines. I quote the article: Senator Haines said that while Mr Temby would be examining the narrow question of whether Mr Justice Murphy may have broken the law, the Senate inquiry 'is looking at the wider question of misbehaviour under section 72 of the Constitution'. I am amazed and appalled at Senator Haines's statement. We have here an example of an investigation into behaviour by Mr Justice Murphy that found no evidence of proven misbehaviour. The Opposition and the Australian Democrats are saying: 'We did not find anything there; we will change the charge'. Furthermore, if we follow the Democrats' motion, not only will we change the charge and have another shot but also we will change the people who are to do it. It will be not only a rehearing but also a rehearing by new people. It is a quite remarkable exercise in non sequitur. I simply put this to the Senate: How often does a person have to be proved innocent? I find the motions being debated now to be in some ways disgraceful. They are a disgraceful consequence of the difficulties some people had in the initial inquiry. I say again to Senator Harradine that this is not the precedent establishing moment. That happened when the Senate committee inquiring into these matters was initially set up. The Senate committee did its task. It examined the evidence, the tapes material and the conversations. It came to a unanimous decision: On the matters within the terms of reference of that committee there was no evidence of proved misbehaviour against the judge. In passing, I make reference to Senator Durack's pathetic and sloppy representation of facts in his speech yesterday. He claimed that the Attorney- General (Senator Gareth Evans) resisted the call for that inquiry earlier this year. Of course he did. He had the benefit of knowing what was in that material. He had the benefit of the advice of his Executive and Mr Temby. He had seen the material and he knew what was there. However, with the numbers as they are in the Senate, the Opposition could force that inquiry to proceed and it did. We have seen six months' work by six honourable senators who eventually came to agree entirely with the Attorney-General and the Government that on the material of the Age tapes, et cetera, there was no evidence of proved misbehaviour. The ex-Attorney-General, Senator Durack, says that one might say: 'Look what it has led to'. I ask Senator Durack: Is he saying that the Attorney-General knew that there was something more and was trying to cover it up or that as an alternative he should be a good explorer and open any inquiry at the Opposition's whim, for no good reason, on the off-chance that something might emerge? Our Attorney- General and this Government do not fit such a mould. The suggestion from Senator Durack that the Attorney-General knew and was covering up is a disgraceful suggestion. It is clearly wrong, because we did not know about Mr Briese or his evidence until he came before the Committee and told it. It would seem bizarre, to say the least, to follow the second possibility-that, knowing there was nothing there, the Attorney-General should have an inquiry anyhow. I ask again: How often do the Opposition and the Democrats require that the judge, Mr Justice Murphy, be proved innocent? The common law in this country-I think Senator Harradine should listen to this-requires that a man or a woman be deemed innocent until proved guilty. While we may read things about the meaning of acquittal, when there has been no evidence to prove a person guilty to the satisfaction of the court, that person is, under our law, innocent. It seems that that common justice is not applied to the judge. Senator Harradine —What about Mary Gaudron's statements? Senator CROWLEY —Is Senator Harradine asking me to rearrange the law of this land? I am not about to do that. Technicalities of the law have been with us since God knows when and no doubt they will stay with us. That is not a matter for dispute here. The matter of dispute is whether or not on the evidence a person is found guilty. If a person is not found guilty, then the presumption of that person's legal status is that that person is innocent. These are not the criteria that are being applied in this case. Mr Justice Murphy's name was on the tape, so the hunt was on. An inquiry was forced on the Government by the Opposition numbers in the face of independent evidence that there was no substantiation of anything regarding the judge on the tape or in the transcripts . This was subsequently confirmed by the Opposition in its unanimous vote on these matters. The Committee was given Mr Briese's evidence as a bonus but it is only on one set of words that the Opposition hangs its case. Even more remarkably, the Opposition senators have heard other Briese claims and dismissed them. They themselves say that other parts of Mr Briese's evidence do not stand up to the weight he gives it. There is no evidence to sustain many of his claims. Opposition senators themselves dismiss Mr Briese's evidence and yet place a totally different reliance on the one line at the end, in effect. They agree with the Attorney-General about the tapes and material, they dismiss most of Mr Briese's evidence and, left with six disputed words in a disputed context, they claim to have sufficient evidence to know that the state of Mr Justice Murphy's mind is clear enough for them to be able to say that there is a prima facie case against the judge. I find that quite remarkable. I am particularly mindful that Senator Chipp does not quite say that. He says that while he cannot say that there is a case, he cannot say that there is not a case and that this all depended on Mr Justice Murphy's refusal to appear. I seek leave to continue my remarks later. Leave granted; debate adjourned. Motion (by Senator Grimes) agreed to: That, unless otherwise ordered, until 2 p.m. this day, matters of public interest may be raised and discussed by senators, provided that no senator shall speak for more than 15 minutes. Senator KILGARIFF(Northern Territory)(12.46) —Mr Acting Deputy President, in this period of quiet debate on each Thursday, honourable senators are given time to speak on various matters that relate to Australia or, for that matter, any other matter that may arise that is of interest to them. Today I would like to speak on the recent Philippines typhoon. Honourable senators would be aware of the devastation caused in the Philippines last weekend in the wake of Typhoon Ike. Widespread destruction has been caused to areas of the central and northern Philippines, and President Marcos has declared a state of calamity in 21 provinces where electricity supplies and communication lines have been cut and roads and bridges have been washed away. Of course, the greatest tragedy is the tremendous loss of life, injury and homelessness which has been caused by this typhoon. I refer briefly to an up to date report in the Australian of 5 September, yesterday, which says that the typhoon's toll may reach 1,000 people. The report states: The strongest typhoon in a decade, which last weekend rampaged through the southern and central Philippines, killed more than 330 people, 200 of them in a devastated lakeside town, and drowned possibly hundreds more, local government officials said yesterday. The report went on to say: Giant waves churned up by 220 kilometre-per-hour winds swamped 27 coastal towns washing away hundreds of houses and an unknown number of people out to sea . . . Governor . . . of Surigo del Norte province in north-eastern Mindanao told newsmen: 'I fear they are all dead', adding that the final death toll could exceed 1,000. Perhaps we shall find that this figure of 1,000 will increase, too. The report went on to say that Typhoon Ike flattened huge areas of Surigao City, leaving half of its 135,000 residents homeless. Also, the toll of crop and property damage has been initially estimated at more than $6m. One can only say that that would have to be an initial report, and one would expect that to increase considerably. The typhoon will have a disastrous effect on the rice harvest next month, most of the country's rice bowl having been destroyed. Relief goods and foods and medical supplies are urgently required. This morning I was advised by the Philippines Embassy, when I inquired, that it was aware of two national organisations which have started relief funds to aid the victims of the typhoon. In view of the strong ties between Australia and the Philippines, already reflected in areas such as cultural exchanges, trade links and the level of aid already made available for projects in the Philippines-not to mention the very large number of Philippine people who have come to Australia , many of whom have been naturalised-I would urge that the Government establish a fund to aid the victims of the recent disaster. The Philippines is a very close neighbour of Australia, and, by the year, we are getting more and more contact with this nation of very lovely and happy people. Without such aid, the people of the Philippines, with their already troubled economy, who are now left even more desperately short of food and medical supplies, may be unable to prevent the toll of life from escalating. I can well remember, as a person from the Northern Territory, the aid that was given to Darwin in 1974 after Cyclone Tracy hit that city on Christmas eve. Very many people were made homeless and some people, I think it was 68, were killed in that very violent storm. Today the people of Darwin are still very grateful to Australia and to the people, some from overseas, who gave aid to that city. I note today that an appeal has been launched in the Northern Territory by the Lord Mayor of Darwin and the Chief Minister to aid the victims of the typhoon in the Philippines. In fact, what has happened over the years is that whenever there has been a calamity, such as that of Typhoon Ike in the Philippines, the Territory, to show its gratitude for the assistance that was given some 10 years ago, has always come forward and contributed. I am not giving the Territory a pat on the back. Territorians feel that as part of the Australian nation, this is something that they should do, bearing in mind also, as I have said before, the very many Filipino people who are living in Australia, have joined Australia and are contributing to the nation but who, at the same time, have very many ties with their homeland, the Philippines. I would hope-perhaps the action has already been taken-that the Federal Government and the people of Australia will see fit, in this period of stress in the Philippines, where there are many hundreds of thousands who are homeless and where so many crops and all those other necessities of life have been destroyed, to come forward with ample funds and assistance to bring some alleviation to the distress of these people. Senator PETER BAUME(New South Wales)(12.53) —Mr Acting Deputy President, this week is the forty-fifth anniversary of the outbreak of World War II. I want to speak briefly on some of the events of that time, but also on some recent events which should take our minds back and about which we should be cognisant. That war was a war one of whose phenomena was the Holocaust. I want to speak for a few moments, and in a way which I do not normally do, as a Jewish member of parliament and as a Jew. I want to remember the Holocaust and the six million people who died. I want to remember that the Holocaust was, in fact, state anti- Semitism put into practice. It was an event which the world recognised and saw with horror and to which the world responded with sensitivity and with generosity. As a result of events after the end of World War II, we saw the establishment of the state of Israel, in which this country and politicians from this country played an honourable part; we saw the securing of that state through a series of wars; and we saw its development as the only democracy in the Middle East. But now, 45 years later, there have been two recent events which have given me considerable concern, and I want to raise each of them in the Senate. I have mentioned anti-Semitism and I have mentioned the Holocaust. I have done so against the background that unless the Jewish people themselves are behaving with generosity, care and reason, they cannot complain if the world turns against them. But today there is evidence that anti-Semitism is alive and well. The first of the things to which I wish to refer concerns the decision of the Malaysian Government to forbid the playing in that country of certain music because it had been composed by someone who was Jewish. The composer, Mr Ernest Bloch, had written a Hebrew rhapsody, 'Schelomo', and it had been a decision or an intention of the New York Philharmonic Orchestra to play that piece of music on a visit to Malaysia. The Malaysian Government announced, I must say with some candour and honesty, that it had an official state policy of anti-Semitism and that it was not acceptable in that country for music or other works by Jews to be performed, and it indicated that that piece of music should not be played. To the great credit of the New York Philharmonic Orchestra, it determined not to go to Malaysia. I simply say that I am distressed that a country in our region should have that kind of state policy against any religious group. I am reminded that it is not only the Jews around the world who are having trouble. I have many, many representations from the Bahai people about the persecution they are suffering in Iran. But it is only a short step from the forbidding of the playing of certain music to the burning of the books, about which we were all so horrified during the 1930's. Yes-anti-semitism is alive and well. But the real purpose of my rising in the Senate was to say that we Jews also have to watch what we are doing. I want to say something about Rabbi Meir Kahana . This rabbi, a member of my religion, was elected recently by the people of Israel to the Knesset, the parliament of Israel. He has been elected on the most poisonous, destructive, narrow, intolerant grounds that I can imagine. He has been elected by people spreading a message of hatred. He displays all the evidence of a tortured and unbalanced mind. He is spreading a message about other people which if it were spread about Jews, he would be the first to complain about. It is a message of hatred directed towards people in Israel by a rabbi, by someone who should know better. Unbalanced rantings of this kind by Rabbi Meir Kahana will in the end serve to weaken the moral validity of the case that Jews put for tolerance and acceptance in what is a hostile world. Of course, it is a measure of the state of Israel that Rabbi Kahana, with his poisoned views, is still able to stand for election and to be elected to the Knesset. Whilst in the name of democracy it will be necessary for him to be allowed to speak and to spread his message, it is also necessary that Jews everywhere and the Jewish communities around the world stand up and repudiate what he says and the message he is trying to spread. I put on record my belief that Israel will prosper whilst it provides places for all its citizens, whether they be Jewish or Arab; that Israel will suffer if the message of the Meir Kahanas is listened to and is given any credence. Last week, in my own congregation, I heard my own rabbi, a tolerant and fearless community leader, who fled South Africa, urging each one of us to repudiate Rabbi Kahana and what he is doing not only to Israel, not only to tolerance, but to the Jewish people. I am pleased to do my bit to invite honourable senators in this place, whenever they see or hear about that rabbi, to realise that he is not speaking for the Jews of the world and he is not speaking for the Jews of Australia. We believe in tolerance, we believe in acceptance and we believe that the position of Israel will be secured only while the views of this man are rejected and seen for the nonsense that they are. This is, as I say, the forty-fifth anniversary, this week, of the outbreak of World War II. If we forget the lessons of that war and the horrors that came with that war, and if we forget what it meant for many, many people who were unlucky enough to fall within the nazi yoke, then it will be our own fault. I wanted to place on record, as a Jew-as I say, I do this very seldom in the Senate-my abhorrence of what is going on both in Malaysia, where state anti- Semitism is alive and well and being practiced, and, of course, in Israel itself , where an unbalanced member of the Knesset will do great harm to what has been built up by Jewish people over many, many years. Sitting suspended from 1.01 to 2 p.m. Senator WATSON —Does the Attorney-General agree that Mr Commissioner Costigan and his staff have made a major contribution to the fight against organised crime in this country? If so, why was the Costigan Royal Commission on the Activities of the Federated Ship Painters and Dockers Union terminated before the National Crime Authority began investigations-in fact, before two of the Authority members were even appointed? What justification could there possibly be for allowing a hiatus to develop in the fight against organised crime? Why was Mr Costigan not asked to continue until the Crime Authority was ready to begin investigations? Senator GARETH EVANS —As I have constantly indicated, I have a high regard for the work that has been done over the years by the Costigan Commission. I and other members of the Government have put that on record on numerous occasions. The rest of the question is based on a false premise, insofar as it talks about the termination of the Costigan Royal Commission. The reality is that the Costigan Royal Commission still has not been terminated. It is still in existence. We are experiencing a transition period which involves the handing over of on-going investigative activity together with the writing of a report. In the last few days I have answered questions on this subject at considerable length, and I do not believe that there is anything useful that I can add. Senator ELSTOB —My question to the Attorney-General concerns the in vitro fertilisation program. Have any of the States' artificial insemination by donor or in vitro fertilisation programs made any provision to enable children born under the program to know their genetic origin? Does the Attorney agree that there is a need for a national authority to monitor the entire test tube program and to develop uniform legislation? Senator GARETH EVANS —I understand that the Infertility (Medical Procedures) Bill 1984, which is now before the Victorian Parliament, has provisions with respect to record keeping by hospitals and the Health Commission and access by children to information about their genetic background. However, no legislation is yet in force. I certainly agree that there is a need for a multidisciplinary approach to consider the complex legal and social issues that are raised by medical developments in the AID and IVF areas. The Standing Committee of Attorneys- General has been involved in developing uniform status legislation, which is one of the key issues that arises in this matter. However, we have really been looking only at the legal aspects of these issues. A number of inquiries are already under way in the States, with the Victorian Waller committee having just issued its final report. I believe that the Commonwealth could play a useful role in monitoring programs, marshalling material and co-ordinating findings where ground has already been covered by other inquiries and covering areas that are not now being traversed. Recently, I suggested to the Minister for Health that officers of our two Departments should collaborate with a view to making recommendations on the scope and objectives of a specialist national body of inquiry in this area. Senator CHANEY —My question, which is directed to the Attorney-General, follows the question asked by Senator Watson and the Attorney-General's answer. Is the Costigan Royal Commission on the Activities of the Federated Ship Painters and Dockers Union still carrying out investigations or is it at this stage simply engaged in preparing reports and working on the handover to the National Crime Authority? Is it not a fact that there is a gap between the investigative processes undertaken by the Costigan Royal Commission and the commencement of any investigations by the new Crime Authority? Is it not a fact that the Government has allowed a hiatus to develop between those two sets of investigations? How does the Attorney justify that? Why was not Mr Costigan allowed to continue his investigative role until an alternative investigative body was in place? Senator GARETH EVANS —There is no foundation for the imputations, innuendos, sneers and suggestion that underlie that question. The truth of the matter is that it was always envisaged that there would be a transitional period during which most of the emphasis would need to be given to the acquisition by the new members of the Authority of an understanding and the information about these matters to enable them to make judgments about what should and should not be pursued and what should and should not be recommended to the new intergovernmental committee, and a period during which Mr Costigan would be winding up and tidying up the loose ends of his investigation. As I was a party to the discussions at various stages about that transitional period, I know that it was always anticipated that, to the extent that urgent matters arose requiring immediate investigation-perhaps, the possibility of someone going overseas who might be able to provide crucial evidence in relation to a particular investigation-it was important that there was both continuity of formal legal authority and a capacity to respond readily to the need for resources to be deployed in that way, should the occasion arise. As far as I am aware, no matter of great urgency has arisen which has not been able to be attended to during the transitional period. We are talking about investigations which, in some cases, have been going on for almost four years. It is by no means self-evident that the inevitable delays of a few weeks or two or three months that are associated with the transfer of resources and staff in investigations as complex as this will cause such great advantage to criminal elements in our community as seems to be suggested by people such as Senator Chaney. Senator CROWLEY —My question is directed to the Minister representing the Minister for Health. Has the Minister's attention been drawn to the dramatic and increasing numbers of cases of repetitive strain injury among keyboard operators in the Commonwealth Public Service? Can the Minister provide any figures from the various departments? Can the Minister say whether the Government is concerned at those figures and what steps are being taken to address the problem ? Will the Minister consider passing this matter to the National Occupational Health and Safety Commission for further consideration and recommendations? Senator GRIMES —The Government is aware of the high incidence of repetitive strain injuries among keyboard operators in the Commonwealth Public Service generally. As I think Senator Crowley knows, the figures vary considerably across the various departments. I noted during a hearing of an Estimates Committee the other night that in a couple of departments a very high percentage of people working on keyboards had suffered some form of repetitive strain injury. The Government and the Public Service Board are extremely concerned about this matter. As honourable senators know, during the last year or so actions have been taken through the introduction of ergonomic furniture and new work patterns to improve the situation. We do not yet know just how much those actions are likely to succeed. There is much to be investigated in this area. For example, it is very difficult to understand, why there is an apparently much higher incidence of repetitive strain injury in this country than in some European countries and particularly the United States of America where the introduction of keyboard machines has been just as rapid and just as extensive as in Australia. I shall obtain for Senator Crowley the figures from each department. I shall certainly refer to the Minister for Health the honourable senator's concern and the possibility of the National Occupational Health and Safety Commission looking at this problem, as I believe it probably is doing now. As I have no details before me, I believe that this question can best be answered by my referring it to the Minister. Senator MASON —My question, which is addressed to the Minister for Resources and Energy, follows the reply he gave to a question asked by Senator Coleman yesterday in the Senate. I quote from page 478 of yesterday's Hansard, in which the Minister states: My attention has been drawn to a letter that was published in the Australian on 20 August, signed by Jenny MacLeod, the New South Wales President of the Australian Democrats, in which it is claimed, inter alia, that for an extra 5 per cent to 10 per cent-presumably on the cost of an existing roof tile-a substance can be sprayed onto roof tiles which will supply the electricity needs of a household. The Minister went on to make gratuitous comments such as this: . . . we are, of course, accustomed to such intellectual froth and bubble from the Australian Democrats. It might be suitable for a Democrats afternoon tea party; it is quite inapplicable, however, to those who are seriously involved in the business of government. Do those who, like the Minister, are seriously involved in the business of government read the letters they are commenting on before they comment on them in this place? I remind the Minister that the letter in the Australian stated: The silicon can be sprayed on to a substrate (glass, metal or even a roofing tile) and the cost is only 5-10 per cent of the substrate. . . . . It is anticipated that within four years new Japanese homes will be covered in glass tiles sprayed with amorphous silicon and all electricity needs for the home will be supplied by the roof! Heating will be effected by natural gas. Can the Minister give us his reasons for misleading the Senate in his reply and using the privilege of this place to malign a person who has no right of reply to him in this place? Will the Minister indicate whether he is not guilty of the culpable intellectual sloth he himself mentions in failing in this capacity. Senator WALSH —I did read the letter. Senator Mason —Why did you misquote it? Senator WALSH —I did not not misquote it. I initiated an inquiry to the Department to seek the facts, as distinct from the froth and bubble that appeared in Ms MacLeod's letter and which has been regurgitated this afternoon by Senator Mason. The letter stated: The silicon can be sprayed on to a substrate (glass, metal or even a roofing tile)- that is technically incorrect- and the cost is only 5-10 per cent of the substrate. If the substrate is a roofing tile, the advice I am given is that, far from adding 5 to 10 per cent to the cost of the roofing tile, to apply this material in some other more difficult way-not to spray it on-would increase its cost two to four times. That is an increase of between 200 and 400 per cent, not an increase of 5 to 10 per cent as Ms MacLeod asserted and as Senator Mason has repeated. The letter does say that it is anticipated that within four years new Japanese homes will be sprayed with it, et cetera, and it does say that heating needs will be supplied by that. It certainly does not tell us by whom it is anticipated that Japanese homes will be equipped with such tiles within four years. I can only assume, in the absence of any other information, that it is anticipated by the wishful thinkers and dabblers in self-delusory nonsense who are so heavily concentrated in the Australian Democrats. The matter of heating by gas was not addressed yesterday in my reply, nor was it relevant to the reply I gave. The points I made were that even though it is technically feasible to produce electricity- Senator Chipp —What about the lies you told people about uranium mining in the last election campaign? Absolute lies, you told them. The PRESIDENT —Order! I ask Senator Chipp to withdraw those remarks. Senator Chipp —I withdraw the word 'lies' and substitute the words 'deliberate misleading untruths'. The PRESIDENT —Order! The honourable senator cannot use the words 'deliberate misleading untruths'. They are unparliamentary. I ask him to withdraw. Senator Chipp —In deference to you Mr President, I will withdraw the word ' deliberate'. Senator Georges —What about in deference to the rest of us? I suggest it ought to be in deference to the rest of us as well, Mr President. The honourable senator should not qualify his withdrawal in that way. The PRESIDENT —Order! The honourable senator has withdrawn. Senator Chipp —Tell us about uranium mining now-what you said during the last election. Senator WALSH —If the honourable senator wants to ask a question about uranium mining I will talk about it, but the question was about solar energy. In the reply I gave yesterday I pointed out that even though it is technically feasible to produce electricity in the way suggested by Ms MacLeod, it would inevitably be at a substantially higher cost. I added that unless there were an inverter, even during hours of daylight, it would be impossible to supply many common household electrical appliances. Unless there were also storage batteries one would have to go to bed with the chooks because the sun does not shine at night. The PRESIDENT —Order! This is all very interesting but I suggest it is a matter that should be debated in the adjournment debate rather than at Question Time. Senator WALSH —I am about to finish my answer, Mr President. Not even the new magical roof tiles which so appeal to the cargo cultists in the Australian Democrats can produce electricity when there is no daylight and no sun shining. Therefore, unless one wants to go to bed with the chooks one would have to have storage batteries to supply electricity, irrespective of the source of power for household heating. Senator MASON —Mr President, I ask a supplementary question. Does the Minister include among those whom he regards as putting froth, bubble and nonsense the large Sanyo corporation in Japan, which is putting $50m into this research? Does he deny that scientists there say that the research and its products are probably far more applicable to Australia than Japan? What is he doing, posturing here as the Minister for Resources and Energy, when he has not done his homework on this subject? Senator WALSH —The Sanyo corporation was the source of the estimate that a roof tile, so equipped, would cost two to four times as much as a roof tile not so equipped, not the 5 to 10 per cent that Ms Macleod had claimed. There are good reasons why the Sanyo corporation might apply a good deal of money to research funding into solar photovoltaic electricity. In a limited area there is a potential for, and indeed an existing use for, solar photovoltaic electricity. It is being used in Australia. However, it is not conceivable, certainly in the medium term, that such electricity would be cost competitive with the sort of electricity normally put into a grid in Japan, Australia or, I suspect, anywhere else in the world. Senator PRIMMER —Is the Attorney- General aware of the recent acquittal in the Australian Capital Territory Supreme Court of a 61-year-old man accused of assaulting a warder with a plate of baked beans? Was this man recently sentenced to eight months gaol for trespassing in government offices whilst distributing pamphlets on allegations of Public Service corruption and tenants' rights? Will the Attorney-General examine the whole background of this case in the light of the fact that the prisoner concerned sustained injuries at the hands of two strapping young warders? Senator GARETH EVANS —I am not familiar with the details of the case to which Senator Primmer refers but I will investigate all aspects of it and advise him accordingly, if I am able to do so. Senator TEAGUE —My question is directed to the Attorney-General. I refer him to reports about decisions handed down by Judge Foord of the New South Wales District Court. Is it a fact that every appeal against Judge Foord's decisions has been upheld in a superior court in the last 12 months? Is it also true that Crown appeals against the adequacy of sentences, apart from Judge Foord's decisions, are fairly rare in New South Wales? Have any of the appeals been in regard to Federal charges and is the Attorney concerned about the judge's decisions inasmuch as they affect the Commonwealth? Senator GARETH EVANS —I do not have any briefing immediately in front of me on this matter, but I certainly recall at least two or three matters in the last 18 months on which I have authorised appeals against sentences in relation to that judge. It is not a totally unusual occurrence for appeals against sentences to be initiated but it is unusual. I do not, however, draw any adverse inferences from that by virtue of the National Times article so far as the motivation that might lie behind that judge's sentencing practices. I think it is unfortunate that there has again been a degree of innuendo and imputations associated with it. There are, of course, people on the Bench-not very many of them-who adopt a very lenient approach to sentencing by virtue of their intense commitment to humanitarian principles and values as they see them and adjudicate accordingly. I think what the whole business does point to is a number of problems in disuniformity in sentencing practice around Australia, indeed within jurisdictions, and the need for some speedy further work both to implement the work already done by the Australian Law Reform Commission on sentencing and also to follow up the further reference which I have recently given to that Commission to try to develop proper guidelines, better information flows, better practices and better procedures relating to sentencing generally. Senator TEAGUE —Mr President, I have a supplementary question. Has the Attorney- General initiated any correspondence with respect to Judge Foord's decisions and the success of the appeals against his decisions? Senator GARETH EVANS —Not that I can recall, other than in the context of the particular individual matters which have been the subject of appeal, but I will check the matter and advise Senator Teague if there is anything which might answer that description and which it is appropriate to put on the public record. Senator HEARN —I address a question to the Minister for Veterans' Affairs. In view of the misinformation being spread by some people regarding the impact of the forthcoming assets test on pensions, and particularly the mischievous articles by Russ Gleeson which have appeared in recent weeks in the Melbourne Herald, can the Minister say what steps have been taken to reassure service pensioners who have been unnecessarily alarmed by this misinformation? Senator GIETZELT —I have seen the articles by Mr Gleeson containing a whole number of misleading statements and published in the Melbourne Herald in recent weeks. I can only say that those articles should be described as gutter journalism. They have caused unnecessary alarm amongst many service pensioners because, particularly for people in the southern States, they have completely distorted the Government's intentions in relation to the assets test. As a consequence, a whole number of distressed pensioners have been contacting my Department after reading the articles. I urge honourable senators to read the contribution made yesterday in the House of Representatives by Mr Steedman, who revealed that Mr Gleeson has a very powerful self-interest in publishing these articles and that his financial interests are threatened because he promotes income test avoidance through his link with a magazine called Prime Time and as a result of his relationship with an organisation called the Over-Fifties Friendly Society. I would rather describe it as the over-fifties unfriendly society to the degree that distress has been caused amongst the very group of people who ought not to be put in that position by the misleading information that Mr Gleeson has been promoting through the agency of the Melbourne Herald. As far as my Department is concerned, I have insisted that service pensioners be familiarised with the actual provisions of the proposed legislation. There have been 150 well-attended seminars throughout Australia over the past three months. We have put out information kits. We have established the assets test hot-line. Information leaflets have been prepared and they will go out to 250, 000 service pensioners immediately the legislation becomes effective. Forms will follow. One can only be appalled that any person would be writing consistently in a newspaper, articles designed to cause distress when it is not necessary. As I have indicated previously, only a small number of service pensioners will be affected by the legislation. Over 95 per cent will not have their pensions affected by the proposed assets test legislation. Senator BJELKE-PETERSEN —My question is to the Minister for Social Security. Is it a fact that the Government's assets test cost almost $25m last financial year without providing any revenue whatsoever and that this year it will cost a further $30m, making a total of $55m in its cost of implementation? Will this year's revenue from the assets test total only $18m, providing a net revenue loss over two years of $37m? After the first full year of operation of the Hawke assets test in 1985-86, will the Government have spent almost $65m and have raised only a net $13m? Will the Minister now admit that the only way in which the Government can achieve worthwhile revenue from the assets test is to increase the severity of its impact on pensioners? Will he give an unequivocal undertaking before the coming premature election that if the Government were returned, which of course I do not think it will be, it would not change the assets test to pensioners' disadvantage? Senator GRIMES —The answer to the last part of Senator Bjelke-Petersen's question is yes. Mr Hawke, Senator Gietzelt and I have in fact done that. Senator Walters is trying to interject. As I say every time that happens, I always find it surprising that someone like Senator Walters, who is becoming more and more notorious for her defence of privilege and the wealthy of this country, should join in this little debate. Senator Chaney —Stop protecting criminals then. The PRESIDENT —Order! Senator GRIMES —Senator Chaney knows all about protecting criminals. The PRESIDENT —Order! The Minister will resume his seat. The Leader of the Opposition will withdraw. Senator Chaney —Mr President, you ordered me to withdraw that yesterday and I will withdraw it today. I did it again because I am sick of sitting opposite sanctimonious hypocrites. The PRESIDENT —Order! I ask the Leader of the Opposition to withdraw the phrase 'sanctimonious hypocrites'. Senator Chaney —Mr President, I withdraw. Senator GRIMES —We will never have a greater example of Satan condemning sin than we have just had from the Leader of the Opposition. The PRESIDENT —Can we get back to Senator Bjelke-Petersen's question? Senator GRIMES —Yes, I will get back to it. I can give that guarantee to the good senator. Senator Withers —Yes, but it is not worth much. Senator GRIMES —If honourable senators opposite want more of it, I will give it to them, but it is their Question Time that they are taking up. Senator Walters —Mr President, is the Minister meant to be answering questions or is he meant to be abusing other people on this side? He has attempted to intimidate me so often and it is about time he realised that there is no way in the world he is picking on the right person to intimidate. He cannot intimidate me. Better men than he have tried, Mr President, and there is no way the Minister opposite can intimidate me to prevent me making my comments. The PRESIDENT —Order! There is no point of order. I ask the Minister to try to ignore the interjections and respond to Senator Bjelke-Petersen. Senator GRIMES —I will never try to intimidate Senator Walters. In fact I find her intimidating. If I can remember Senator Bjelke-Petersen's question correctly , yes, I believe the establishment costs of the assets test last year were in the order of $24m. I have not the exact figure but, as Senator Bjelke-Petersen was sitting in the Estimates committee the other night when all these answers were given, I thought she would have them exactly. In the first full year of the application of the assets test the quantifiable returns to the Government will be a net $50m. Senator Bjelke-Petersen may not think that is very much. I can assure her that we think it is a lot of money and that the taxpayers will think it is a lot of money. The second thing is that there are unquantifiable gains which are probably more important in the introduction of an assets test because since 1976, when the assets test was removed by the previous Liberal-Country Party coalition at the urging of the Country Party in particular, there has been a rapid increase in the number of artificial schemes introduced by various organisations, including the one mentioned by Senator Gietzelt in answer to a question a short while ago. The number of these schemes has been increasing so rapidly that it is impossible to read financial journals, journals aimed at pensioners or nationally distributed newspapers in this country without reading the sorts of advertisements which say: 'You can be a millionaire and still get the full pension and full fringe benefits if you join our scheme'. One of the purposes of the assets test is to curb the growth of those schemes, which would continue to grow as more and more people have larger and larger sums to invest. We do not think the $50m is an insignificant sum; we think it is a very significant sum, and it will increase our capacity to make our social security system more fair. That is what it is all about. If Senator Bjelke- Petersen wants to cite figures of that type, allegedly demonstrating that the assets test is inequitable, she can, but I suggest that not many people will believe her, and she will know that after the next election. Senator JONES —Has the Attorney-General's attention been drawn to the report in yesterday's Press that the Queensland Turf Club could be in breach of anti- discrimination law? It has been claimed that provisions in the rules of the Club introduced in 1981 allow women, as stated, non-effective membership of the Queensland Turf Club. Will the Attorney-General ascertain whether the claims made in the Press report are correct? If so, will he further investigate the rules of the Queensland Turf Club to clarify whether there is any breach under section 25 of the Federal legislation pertaining to anti-discrimination law? Senator GARETH EVANS —I have seen the Press report to which the honourable senator refers. It is the case that under the Sex Discrimination Act certain licensed clubs which have discriminatory membership provisions as between men and women are subject to the provisions of that legislation. At this stage I am not in a position to judge whether there has been a breach of the law on the part of the Queensland Turf Club. I will, however, ensure that the Human Rights Commission, whose function it is to investigate complaints made in these matters , is apprised of the Press article in question, to the extent that it is not already aware of it. I will ask the Human Rights Commission to investigate the matter as requested by the honourable senator. Senator PETER BAUME —I direct my question to the Minister for Education and Youth Affairs. I refer to her decision to abolish the per capita subsidy to students at residential colleges at Australian universities and colleges of advanced education. At the time the decision was taken was the Minister aware of a survey report by Professor David Beswick which revealed, firstly, that more than 80 per cent of college students come from non-metropolitan areas; secondly that in terms of their social and educational backgrounds they did not appear to be specially privileged and were typical of the university and college population; and thirdly, that the colleges played an important role in acclimatising students, particularly those from rural and isolated areas? Does the Minister contest any of the findings of Professor Beswick's survey? Indeed, on what basis was the Minister's decision made to remove the subsidy, and why did she ignore the advice of the Tertiary Education Commission that the money should continue to be provided to the colleges even if it were to be distributed by them in a slightly different way than at present? Senator RYAN —Senator Baume has raised a number of issues surrounding the Government's decision concerning subsidies for accommodation purposes for tertiary students. One of the questions he asked was, why did we make our decision. The answer is that the system we changed was inequitable. We have changed it to an equitable system. It is in pursuit of the objective of equity that we have made that decision, as we have made all other decisions in this area. Senator Baume referred to the Beswick report, which gave a socio-economic profile of students in residential colleges. I was aware of that, and the Tertiary Education Commission was aware of it at the time we changed the policy. But that report and that socio-economic profile, which I have no reason to challenge in any way, does not answer the question of how a government can make scarce resources available for the purpose of assisting needy students and for those resources to be distributed on an equitable basis. Senator Baume's series of questions leaves out the fact that under the previous scheme, which was in operation when Senator Baume was Minister for Education, the only form of subsidy to tertiary students went to those who were living in residential colleges. Everybody in the Senate knows that, although there may be some students in residential colleges who are not from wealthy backgrounds, there are certainly many more students from poor backgrounds who are not in residential colleges and who could never afford to be in those colleges. Yet no assistance was being directed from those funds to them. In fact, under the previous scheme only 6 per cent of all tertiary students benefited from this form of assistance. They benefited not on any sort of needs basis but simply on a per capita basis. So a college which had a large proportion of students from affluent backgrounds would get the same per capita assistance as a college, like some of our country colleges, which had a much greater proportion of students from needier backgrounds. There was no equity in the whole scheme; there was no acknowledgment of need. Although some students from less affluent backgrounds benefited-in fact, their colleges benefited; the students themselves did not benefit-the subsidy went to only 6 per cent of students. Under our scheme, taking up the direction of the CTEC advice, the money has been appropriated for a triennium but will be available for all institutions, all colleges of advanced education and universities, to participate in. Each institution will have an amount of money which it can administer by way of loans to needy students to assist them in accommodation matters. Senator Chaney —A loan scheme? Senator RYAN —An emergency loan scheme for accommodation purposes. There may be some other elements for which the emergency loans are made. I say to Senator Chaney that we oppose a scheme which would have caused poor students to have to borrow the entire money to undertake a degree. That is a quite different thing. We abolished that and have increased the tertiary education assistance scheme. The accommodation assistance will now be administered on a completely equitable basis. All CAEs will be able to participate in it-which was not the case under Senator Baume's scheme-as will all universities, and institutions will administer the loan funds on an emergency basis, with student participation. The details of how the scheme will operate will be announced later, but in principle that is what will happen. Nobody can say with any credibility that a scheme which was available to only 6 per cent of students, not on a needs basis, is better or more equitable than our scheme, which will be available potentially to all students on a needs basis. Senator PETER BAUME —I ask the Minister for Education and Youth Affairs a supplementary question on the last part of my original question, as I am interested in getting the information on why the advice of the CTEC was not accepted. That advice, as I understand it, was that the money should be made available to the residential college authorities and be distributed on the basis of need. Am I incorrect in my understanding-or have I misunderstood the Minister 's reply-that it is to be made available not to the residential college authorities, but to the college and university authorities? Why was the advice of the CTEC not taken up by the Government? Senator RYAN —That is a rather strange question. The advice of the CTEC was that the money should be administered on a needs basis, but it did not go beyond access to that money by residential colleges. Our Government wanted to go beyond that advice because we have a fundamental concern with equity and we wanted to make the scheme more equitable. The amendment suggested by CTEC would have moved some way towards removing the inequities from the scheme, but we have responded, according to our philosophy, by making those scarce funds available to all students on the basis of need-not only to students who are fortunate enough to be able to get a place in a residential college. Senator GILES —My question, which is to the Attorney-General, arises from an article in today's West Australian which gives an account of the greatly increased work load of the Human Rights Commissioner in Perth, following the enactment of the sex discrimination legislation. Apparently the Commissioner has received 500 calls in the month since 1 August, seeking information and making complaints, leaving him with little time in which to fulfil his other crucial role as educator. In view of the fact that the Perth experience is not isolated, I understand, can the Attorney-General say what steps are being taken to develop a structure and staffing adequate to the demands and expectations engendered by this long-awaited legislation? Senator GARETH EVANS —Substantial financial commitment was made to the Human Rights Commission in the recent Budget with an 82.5 per cent increase over 1983- 84, with funds of $4.5m for 1984-85. The Commission's overall staffing level was increased from 34 to 44 largely in anticipation of the increased demands that would be made upon it with the sex discrimination legislation. Certainly, through the Commission, we have been constantly monitoring work loads and staffing needs, and the Government is determined to ensure that the Commission's presence in each State is effective. That is part of our concern for the protection of human rights being made effective throughout Australia. The approach of the present Government is much to be contrasted with the support for the Human Rights Commission under the previous Government, which had a low priority indeed. Under the previous Government it is true that the Western Australian office suffered from lack of resources. This Government is reviewing the operation of the Human Rights Commission and, in particular, the operation of its officers in the outlying States, if they might be so described. I add in that respect Queensland, where obviously there are acute staffing problems at the moment which need urgent remedial attention. We will be introducing quite soon-I am now able to say this-legislation aimed at improving Human Rights Commission operations throughout Australia by virtue of a complete restructuring of the existing Commission. We are also working closely with those governments which have demonstrated some interest in protecting human rights. The Western Australian Government has advised that it is intending to introduce its own sex discrimination legislation soon. When that is done it may well be that co- operative arrangements similar to those which are already in place with Victoria , New South Wales and South Australia could be established. That would certainly help relieve the strain of dealing with anti-discrimination complaints, whether they arise under Federal or State laws. Senator REID —My question is directed to the Minister representing the Minister for Territories and Local Government. Will the $6m added to the Commissioner for Housing loan scheme since the Budget completely cover the 355 home buyers whose loans had been approved before 28 August 1984 and funds ran out? Will extra moneys be appropriated to maintain the operation of the Commissioner for Housing loan scheme during the remainder of this year? What is happening to the Westminster system under this Government? Who bears the responsibility for the fiasco in this area under the Minister's control? What are the terms of reference of the inquiry he has ordered? How long will present applicants whose applications have been received but have not been processed have to wait to find out whether or not they qualify? Will the Minister publish the guidelines for eligibility for a Commissioner for Housing loan? Senator GIETZELT —I think the Government accepts a delay is occurring regarding housing loan applications for the Australian Capital Territory. The Government's allocation of funds was designed to alleviate that problem. However, I am advised that it is not possible to be precise about the problems associated with waiting times, which have been in the past and obviously will be for a long time to come subject to the availability of funds. Funds are determined by the appropriation levels and the rate at which existing mortgagees reduce or discharge their debts. The number of new loans which can be serviced, therefore, is dependent upon the amount required by each successful applicant. Consequently , that is a variable over which the Government has no particular say and which it has to estimate from Budget to Budget. However, I am advised that market conditions are a significant factor governing the rate at which applications are received. Here again it is difficult for the Government to establish a clear and concise forecast. However, the Minister whom I represent in this place has commenced a review of the eligibility criteria and we hope it will affect and possibly improve the situation associated with the waiting times for those already on the list. I can assure Senator Reid that the Government is aware of the problem and is doing all that is possible to overcome the difficulty experienced by those waiting to have their loans processed and, after that is done, have the funds immediately available to them. Senator SIBRAA —Is the Minister representing the Minister for Employment and Industrial Relations aware that figures released by the Commonwealth Employment Service show that the number of people receiving unemployment benefit has fallen from 674,400 in December 1983 to 570,600 at the end of August 1984, and that this figure is the lowest since December 1982? Is the Government satisfied with this result? Is the trend likely to continue? Senator BUTTON —I am aware of the decline, as indicated in Senator Sibraa's question, of the number of recipients of unemployment benefit. That is, of course, welcome, representing as it does a substantially downward trend over a period of time in the number of unemployment benefit recipients. However, I should also say that the latest unemployment figures, which I think were published today, show a slight increase in unemployment and a decline in employment. The figures released today vary considerably, of course, from State to State. The pattern shows a significant increase in employment, for example, in Western Australia and a significant decline in employment in Victoria. I have said in this Senate on a number of occasions that the Government has always treated the announcement of the monthly figures in respect of employment and unemployment with a degree of caution. The pattern over the last three months shows a steady and comforting increase in employment and a decline in the number of unemployed. I believe that this month's figures have to be put in the same context as the monthly figures for months in which the Government might well have been entitled to be relatively happy about the results. All those figures have to be seen in that context. So, while the implications of Senator Sibraa's question are absolutely correct and there has been a steady pattern of decline in the number of unemployment benefit recipients, I qualify any answer I give about that by referring to the August figures in respect of unemployment. Senator CHANEY —I refer the Minister for Industry and Commerce to the very large stack of departmental papers he tabled yesterday relating to the Black Inquiry into the Circumstances Surrounding the Making of a Customs Declaration. I ask the Minister: Do the papers show that the so-called new evidence that led to the establishment of the Black Inquiry came from Mr Lanham, the Collector of Customs in South Australia? Did the Minister interview Mr Lanham for an hour in his Canberra office on 25 July 1984? At the end of the interview, did the Minister, in Mr Lanham's absence, dictate a summary of what Mr Lanham had said? Was that summary dictated in the first person, that is, as though Mr Lanham had composed it himself? Was that summary or statement then read to Mr Lanham and was he asked whether he agreed to it? Did he say that it was accurate? Was the document then forwarded to the departmental officers in Adelaide as the Lanham summary under the heading: 'Record of conversation of Mr Norman Lanham'? I ask the Minister: Does he normally deal with discussions with his departmental officers in this extraordinary manner? If a statement was required from Mr Lanham, would not the appropriate course have been to allow Mr Lanham to put his account in his own words and perhaps to have them taken down or to allow him to write them down, rather than having the words dictated by the Minister in his absence? Senator BUTTON —My recollection of what took place on 25 July when I interviewed Mr Lanham is as follows: I asked Mr Lanham a number of questions. I wrote down in my handwriting his answers to those questions as though they were expressed in Mr Lanham's own words. On that day Mr Lanham also produced to me a copy of a diary of another Customs officer, a Mr Jennings, I recall. I, frankly, could not read Mr Jennings's handwriting. Senator Walters —Have another-- Senator BUTTON —Let me finish. During the next 20 minutes or so, during which time Mr Lanham was in and out of my room, I dictated to my secretary what I had written down in my handwriting as being Mr Lanham's statement. Mr Lanham was then asked to dictate to a secretary in my office the contents of Mr Jennings's notebook. He did that. He was then asked to read the statement which I had written in my handwriting as it had been transcribed by a secretary and was asked whether he agreed that that was what he had said to me. That is what took place as I recall. Senator CHANEY —Mr President, I ask a supplementary question. The Minister has not actually dealt with my question. I asked whether the appropriate course, and perhaps I should add the normal course, would have been to allow Mr Lanham to put down his statement in his own words. The Minister also said in his answer that Mr Lanham was given the document to read. Among the papers tabled yesterday was a document from Mr Hayes, the Secretary to the Minister's Department, which states that, at the completion of the Minister's work, Mr Lanham was invited back and the Minister read the summary to him. I ask the Minister again: Which is true-what he has just told the Senate or what Mr Hayes put in the document which the Minister tabled yesterday? Senator BUTTON —My recollection of what took place in respect of the statement which I took from Mr Lanham and wrote down in my own handwriting and had typed was not that Mr Lanham was invited back. Mr Lanham was sitting in an annex to my room and was in and out, as I said. I went out to Mr Lanham with the statement. I spoke to him. Insofar as Mr Lanham subsequently did come back into my room, that is certain. I presume I invited him back into my room. As I recall it, the fact of the matter was that I went out to Mr Lanham with the statement. He then read it in the presence of one of my secretaries as he also read over the typed version of Mr Jennings's diary which the secretary had transcribed at Mr Lanham' s dictation. If the Leader of the Opposition finds any points in that answer or in anything else which he perhaps regards as material, I have no doubt he will pursue it. Senator FOREMAN —My question is directed to the Minister representing the Minister for Transport. I have received representations from the citizens of the railway town of Tailem Bend in South Australia who are concerned about the rationalisation of Australian National and who would like some reassurance regarding job prospects for the future. Can the Minister advise me whether Australian National is planning to allocate funds which will protect its staff in Tailem Bend from further job loss and which would in consequence help to keep the area economically stable? Senator GIETZELT —The Government shares the concern of Senator Foreman and the employees of Australian National about the difficulties that exist in Tailem Bend in South Australia. The need for staff stationed in that region has been steadily declining over almost the last 30 years since the introduction of diesel locomotives in the early 1950s. The decline unfortunately has been accelerated in recent years with operational changes such as the curtailment of services to Murraylands, the establishment of the Loxton freight centre and the advent of Intrans which is a co-ordinated freight timetable. All of these reflect the initiatives and the changing structures arising out of change to the industry and the current level of service provided in the area. Of course, the changes constitute an important part of the long term strategy of Australian National to improve general efficiency in what is a very competitive transport market. As provided in the legislation and supported by all parties in the Parliament, Australian National must operate as a commercially oriented transport authority. Therefore, this rationalisation and other changes that have taken place require constant review of the staffing requirements at all locations including Tailem Bend. I understand that any further proposals for staff reductions will follow a comprehensive discussion with the union representatives. The present proposals of transfer, redevelopment or relocation will not be implemented until such time as negotiations with the unions concerned are complete. I give that assurance to Senator Foreman. Senator JACK EVANS —I ask the Minister representing the Treasurer what the Government's intention is with regard to the Australian Democrats' Bill to prevent tax avoidance through section 23F relating to the cherry-pickers scheme which has been passed by the Senate. Having had the retroactive version of the same Bill rejected by the Senate already, why does the Government not proceed quickly to prevent this reprehensible practice from continuing by passing the Democrats' Bill in the House? Is the Government dinkum about destroying the cherry-pickers tax avoidance scheme or is it simply politicking with the legislation to provide it with a trigger for a double dissolution? Senator WALSH —I am afraid that there does not seem to be any brief on this and I have not discussed this matter with the Treasurer for some time; so I will have to seek a response from him. I will certainly take on board Senator Evans's suggestion that the Bill may be re-presented and used as a trigger for a double dissolution. I will see what the Prime Minister and Treasurer think of that. Senator COOK —Is the Minister representing the Minister for Employment and Industrial Relations aware that yesterday at a conference before the President of the Conciliation and Arbitration Commission, Sir John Moore, both the Australian Council of Trade Unions and the Confederation of Australian Industry voluntarily agreed not to proceed with the national wage hearings scheduled for this month? How will the fact that there will be no immediate wage increase to workers affect their living standards? How will the freedom from wage increases affect business confidence and performance, particularly in the pre-Christmas trading period? Senator BUTTON —I do not pretend to have any detailed knowledge of what took place at the Conciliation and Arbitration Commission hearing yesterday, but I have seen reports in relation to the ACTU and CAI complementary comments on this matter and that, as suggested by Senator Cook, there will be no proceeding with a wage case, as suggested by Senator Cook. With the tax cuts which will take effect from 1 November and a number of other measures which have been put in place by the Government and discussed at great length in the course of debate about this matter in the Senate, there will be no adverse effects on the standard of living of wage earners. This Government has been very concerned to preserve that standard of living during its 18 months in office. We see a continuation of that process through the provisions of the accord. That will be of prime concern in any re-negotiation of the accord which might take place over time. I think it is very important that there be continuity in respect of these matters because continuity in respect of wages and conditions of employment provides the opportunities for all sorts of other things which are important to the general welfare of Australian industry and the community. In regard to the effects on business confidence of the decision not to proceed with the national wage case in view of the consumer price index figures for the relevant quarters, I have no doubt that they will be substantial. I think it was only yesterday that I was asked a question about the level of industrial relations disputation in this country. Again, I make the point that the Government has presided over the most tranquil period of industrial relations in this country since 1969. Senator Crichton-Browne —At what a price! Senator BUTTON —Senator Crichton-Browne, who spent his first three years in the Senate bitching about industrial unrest during the period of the Fraser Government, now says: 'At what a price'. The real price, of course, is that he is sitting over there and we are sitting over here. That is the price he objects to. Senator Crichton-Browne —And is not the community suffering? Senator BUTTON —That is the price he objects to. The other fact that Senator Crichton-Browne objects to is that if the community is suffering as he alleges then he is totally incapable of persuading it of that fact. That goes back to the first part of the question as to whether the standard of living of the average Australian has been preserved. The answer is yes. The consequences of the current period of wage fixation have been very beneficial in terms of business confidence and that is reflected in a wide variety of indicators. They support that view. Senator HARRADINE —My question is directed to the Attorney-General and relates to a speech to the Media Law Association made at his request by Gae Pincus, the convenor of his departmental task force which is formulating the Bill of Rights. Does the Minister stand by the assertions made in that speech that the Bill of Rights will be a dynamic social document raising the consciousness of and intended to affect people, influence them and shape their ideas and behaviour? Does he stand by the assertion in the speech that the Commonwealth has no obligation to provide for the full limits to the rights permitted by the International Convenant on Civil and Political Rights and the subsequent inference in the speech that the task force, in drafting the Bill, has not departed too far from the Covenant. Just how far has the draft departed from the Covenant? Do the operative sections of the Bill omit the principle contained in article 23 (1) of the Covenant, namely, that the family is the natural and fundamental group unit of society and is entitled to protection by society and the state? Will the Minister give an assurance that that provision will be in the new Bill, because it was not in the Murphy Bill introduced into this place in 1973? How does the statement of the task force convenor that the Bill will be introduced in 1985 square with Senator Evans's statement earlier this year that his major single objective for 1984 is the enactment of an Australian Bill of Rights? Senator GARETH EVANS —The proposed Bill of Rights will be a dynamic document, provided that Senator Harradine and those who tend to be a bit obstreperous about these things do not make life too difficult when we get to the stage of getting it through the Parliament. That will occur, on present indications, early next year because of the quite extended consultative process we are going through at the moment and on which I have had occasion to report to the Senate in answer to questions from Senator Durack, I think, on a number of previous occasions. I do not think it appropriate under those circumstances to canvass any of the proposed detail about the content of the Bill, nor did Miss Pincus, as I recall it, in the terms of her speech. What she was doing, as I recall it, was simply making the obvious point that there is room for a degree of flexibility in the implementation of an instrument such as the International Covenant on Civil and Political Rights, provided that one retains a sufficiently close adherence to it to ensure its constitutional validity. One would not, for example, necessarily want at all to allow the full range of permissible derogations from the basic rights that the Covenant allows in a number of key areas, such as freedom of speech, assembly and so on, where obviously the international instrument was compiled in an environment of the lowest common denominator for the protection in question. There is room for some variation of that kind and, no doubt, there will be in the final language of the Bill. As to what is proposed in relation to the particular article to which Senator Harradine refers, I must confess I cannot recall at the moment how that area of the Covenant is transcribed into the Bill of Rights, but I do not believe that Senator Harradine will be too disappointed when he sees the final version in that respect. Senator BUTTON —On 21 August 1984, Senator Chipp asked the Attorney-General a number of questions without notice concerning the alleged downgrading of surveillance and inspection in 1974-75 by Customs and Excise officials of Sydney businessman Abraham Saffron. The question sought, in particular, to establish whether the then Attorney-General gave any instructions in regard to the matter. At the request of Ministers concerned, a committee of the Secretary to the Attorney-General's Department, the Comptroller-General of Customs and the Acting Commissioner, Australian Federal Police, met to investigate the matters raised by the questions and report to Ministers. The relevant files were examined and persons involved in the matter interviewed by officers of the departments concerned or the Australian Federal Police. The conclusions reached by the committee were: (a) the decision to reduce the Customs surveillance of Saffron to provide advice of travel details was reasonable and appropriate; (b) it is more probable than not that the decision to vary the Customs surveillance of Saffron was made by the then Comptroller- General; and (c) this does not rule out the possibility that the Minister spoke to the Comptroller-General, who may have reflected the Minister's views when speaking to departmental officers. The committee reported that it had not seen its role as extending to interviewing the former Minister, now Mr Justice Murphy , to ascertain whether Mr Justice Murphy could recall whether he was consulted at the time or gave directions in the matter and, if so, the considerations he took into account. The committee suggested to Ministers that a possible course of action would be to provide Mr Justice Murphy with a copy of the report, less the conclusions reached, and afford him an opportunity to comment in writing on the report. This has been done. The report, less the conclusions and paragraph 48 of the report, which raised the question of whether Mr Justice Murphy should be consulted, was made available to Mr Justice Murphy. In response to the report, Mr Justice Murphy states in a letter, which I will table, that he gave no directive to the Comptroller-General or anyone else. He states that he was not consulted about the direction that the Comptroller-General gave and his recollection is that he had nothing to do with it. I now table the report of the committee of permanent heads on allegations in the National Times of 10 August 1984 and the letter from Mr Justice Murphy, to which I have referred. These documents answer the questions asked by Senator Chipp. I have sought the relevant documents from the three departments. I now table the documents provided. In a question to me yesterday which reiterated the earlier question, Senator Chipp asked me about an alleged request from New Scotland Yard in relation to Mr Abraham Saffron. In response to that part of the question which was a new question, let me say that the former Commonwealth Police, now the Australian Federal Police, was the national central bureau in Australia for Interpol. In accordance with its responsibilities the Commonwealth Police responded to a number of requests for information from overseas law enforcement agencies during the period mentioned. There was a request for information from New Scotland Yard concerning Mr Saffron. That request was made in 1977 and, therefore, has no relationship with the matters raised in Senator Chipp's earlier question. I just make the point, not in any pejorative sense, but I wondered at the motivation. Senator Chipp-Is it about the same man? Senator BUTTON —Yes. I wondered at the motivation of the question. If it was sought to establish Mr Abe Saffron's reputation I can understand it as a relevant question, but if it was sought to say anything about Mr Justice Murphy I would regard it as a reprehensible attempt to do so, with respect. I do not believe it proper to comment on specific transmissions which may have been made other than to state that the passage of information is a normal practice between member nations of Interpol, consistent with the charter of that organisation. However, if Senator Chipp wishes to pursue that matter any further, I suggest that he do so through the Minister representing the Special Minister of State. As indicated, I table the report of the officers concerned, the documents received from the Department, and the letter from Mr Justice Murphy. Senator Chipp-Would the Minister be prepared to incorporate the documents in Hansard? Senator BUTTON —I seek leave to have the report and the letter from Mr Justice Murphy incorporated in Hansard. Leave granted. The documents read as follows- Canberra 6 September 1984 Senator the Hon. J. N. Button, Leader of the Government in the Senate and Minister for Industry and Commerce, Parliament House, CANBERRA. A.C.T. 2600 Dear Minister, Your Assistant Private Secretary attended on me this morning with a copy of the Report of Committee of Permanent Heads on allegations in the National Times of 10 August 1984. As requested, I provide a brief comment. I disagree with that part of the report which notes ''that the article did not impute any impropriety or incorrectness in the decisions made by Senator Murphy who at the relevant time was both Attorney-General and Minister for Customs and Excise''. In my opinion the National Times article (by Brian Toohey and Wendy Bacon) taken with the headlines ''Police Report: Murphy helped Saffron through Customs'' and ''How a civil libertarian Attorney-General eased Abe Saffron's Customs problems'' and the photographs, was a serious defamation made with deliberate malice to injure my reputation. The report shows that the complaint about surveillance and searches was made directly to the Comptroller-General of Customs, Mr Alan Carmody. Mr Carmody was an extremely efficient, highly respected Departmental Head who ran the Department from 1966-1976 under various Governments. He was an independent minded officer who later was appointed by Prime Minister Fraser to head the Department of the Prime Minister and Cabinet. Those who knew Mr Carmody would reject any suggestion that he would give (or accept) any improper direction. The report shows that the Comptroller-General gave a direction which he considered appropriate. I gave no directive to the Comptroller-General or anyone else. I was not consulted about whether he should give the direction. My recollection is that I had nothing to do with it. It also appears from the report that my office passed on to the Attorney- General's Department a request for advice, presumably about any legal implications of the complaint to the Comptroller-General of previous harassment. This would be the ordinary course for such correspondence. By the time the Department wrote seeking the comment and views of the Department of Customs and Excise and the Commissioner of Police (25 February 1975) I had ceased to be Attorney-General (9 February 1975). Yours sincerely, LIONEL MURPHY REPORT OF COMMITTEE OF PERMANENT HEADS ON ALLEGATIONS IN THE NATIONAL TIMES OF 10 AUGUST 1984 We, P. Brazil, T. P. Hayes and J. C. Johnson, being the Secretary to Attorney- General's Department, the Comptroller-General of Customs and the Acting Commissioner Australian Federal Police respectively, having been directed by our Ministers to inquire into a report on allegations contained in the National Times of 10 August 1984, now furnish the following report. Newspaper Article 2. The allegations are that Senator Lionel Murphy, Q.C. (as he then was) as Attorney-General in January 1975 'helped Saffron through Customs' directed the Customs Department to downgrade its surveillance of Abe Saffron following representations by his solicitor, Mr Morgan Ryan instructed that Saffron was not to receive a baggage search unless there was specific information justifying it and action under the Customs airport watch system was to be reduced to recording his travel details. 3. It must be noted that the article did not impute any impropriety or incorrectness in the decisions made by Senator Murphy who at the relevant time was both Attorney-General and Minister for Customs and Excise. Letters by Solicitors 4. From our examination of the relevant papers it is clear that on 14 January 1975, the Sydney solicitors, Morgan Ryan & Brock wrote letters to the Comptroller-General of Customs and the Commissioner of Commonwealth Police complaining that their client Mr Abraham Gilbert Saffron had been needlessly embarrassed and harassed by Commonwealth authorities particularly on his departure by plane from Sydney to Hong Kong on an unspecified date (which however appears to be 12 November 1974) and on his return on 20 November 1974 at Perth. 5. The solicitors on the same day sent copies of both letters to Senator Murphy as Attorney-General for his consideration and attention. Senator Murphy's office sent a copy to the Department of Customs and Excise 'for information' and the original to Attorney-General's Department with the direction 'advice to Minister '. Background events 6. On 29 July 1974, Mr Saffron, accompanied by his solicitors Mr Morgan Ryan and Mr Miles, participated at their own request in an interview at Commonwealth Police offices Sydney with Acting Superintendent Farmer. In this interview Mr Saffron complained that, at the Moffitt Royal Commission into Organised Crime in Clubs, evidence had been given by the Commonwealth Police adverse to him. Secondly, he complained of his treatment by Commonwealth authorities on his returning to Australia from overseas trips. No action appears to have been taken in consequence of the interview apart from noting the matters of complaint. 7. On 1 August 1974, Morgan Ryan and Brock wrote to Senator Murphy as Attorney- General asserting that evidence given by Mr Saffron at the Moffitt Royal Commission refuted the adverse report made by Commonwealth Police to the Commission in relation to Saffron and claimed that the report should therefore be destroyed. 8. On the basis of a report submitted by the Commissioner of the Commonwealth Police, the Attorney-General replied to Morgan Ryan and Brock on 14 September 1974 refusing to change or destroy the report submitted to the Royal Commission. Action within the Department of Customs and Excise following the solicitors letter of 14 January 1975 9. The departmental file shows that as at 14 January 1975 Mr Abraham Gilbert Saffron was included in the list of persons in the Passenger Automatic Selection System (PASS) and the Combined Passenger Check List (CPCL) because he was '' suspected of drug trafficking and of involvement in criminal activities''. 10. The PASS (Passenger Automatic Selection System) is a computer system introduced to provide users with a means of checking passenger names against a list of alerts for persons ''wanted'' for specific enforcement purposes. 11. With the introduction of PASS a consolidated listing of alerts was printed for use in ports where the PASS system is not available. It is referred to as the CPCL. 12. The alert asked that the following action in relation to Mr Saffron be taken by Customs Officers: ''if detected leaving Australia notify Executive Officer, Northern Region ( Narcotics Bureau) and Commonwealth Police Force immediately. On Arrival: 100 per cent baggage search only. Make every effort to make baggage search appear normal. Notify Executive Officer, Northern Region, Commonwealth Police Force and CIIB'' 13. The CIIB was the Central Intelligence and Information Bureau of the Department of Customs and Excise. 14. On 7 March 1975 Mr Kevin Wilson, the Chief Inspector of the CIIB prepared an internal report on the downgrading of the alert on Saffron. That report shows that, subsequent to the receipt of the representations from Morgan Ryan and Brock, the Comptroller-General of Customs directed a review be made of the alert relating to Mr Saffron. The report indicates that, in the period of 28 months prior to the complaint, Mr Saffron had arrived in Australia at least 7 times and his baggage had been searched on every occasion but no offences had been detected. 15. The Report also shows that the Narcotics Bureau, the Northern Region of which had raised the alert, was asked whether its requirements would still be met by an alert which directed that it be advised of travel movements only and which contained no instructions regarding baggage search. Advice was received that this arrangement would be satisfactory. 16. On 30 January 1975, a telex was despatched from the head office of the Customs to the appropriate operational areas advising that the action section of the alert should be amended to require, on the arrival or departmental of Mr Saffron: ''advice of travel details to Executive Officer, Northern Region, Commonwealth Police Headquarters and CIIB''. On the same day a further telex was sent in the following terms: ''Alleged harassment of Saffron by Customs and CPF has been subject of Ministerial Representations* believe that Saffron may travel within a matter of hours Comptroller-General has directed that under no circumstances is Saffron to be given a baggage (or body) search if at a later stage information is received which warrants upgrading this alert to include baggage search it will be amended for the duration of specific journeys only.'' * This must be understood as representations to the Minister which is the customary use of the expression in the Public Service. 17. Wilson's internal report of 7 March 1975 also attributes to the Comptroller -General the direction that under no circumstances was Saffron to be given a baggage or body search when next he travelled. Apart from this report and the telex there is no record on the file of the decision to vary the surveillance of Saffron. 18. On 4 March 1975 the Department of Customs and Excise received from the Secretary, Attorney-General's Department, copies of the Correspondence dated 14 January from Morgan Ryan and Brock to the Attorney-General and a request for comments and views upon the matters raised and a copy of any reply sent to Mr Saffron's solicitors. 19. On 11 March 1975 the Department replied to Morgan Ryan and Brock acknowledging receipt of their letter of 14 January and directing their attention to Sections 32 and 186 of the Customs Act (powers to search goods subject to the control of the Customs). 20. On the same day, the Department responded to the Attorney-General's Department, Canberra, advising that the letter of 14 January to the Comptroller- General from Mr Saffron's solicitors had been acknowledged and that no further action was contemplated. The letter also advised that Customs Officers were not involved in the examination of Mr Saffron when he departed for Hong Kong. 21. Mr D. O'Connor then Acting Assistant Comptroller-General (Special Services) recalls directing Mr Kevin Wilson, to review the alert on Saffron. Among considerations behind this decision mentioned by Mr O'Connor was the fact that, because the Suspect Alert List was growing rapidly, efforts were being made to cull the list of long standing alerts that could not be supported by specific current intelligence. 22. Mr O'Connor recalls that after consultation with the Comptroller-General ( Mr Alan Carmody now deceased) or the First Assistant Comptroller-General (Mr B. Ortlepp also now deceased) he instructed Mr Wilson specifically to draw the attention of Collectors to the downgrading of the alert on Mr Saffron. Mr O' Connor's recollection is that, without such an instruction being issued, Customs officers who recognized Saffron may have been inclined to search him on the basis of his reputation. 23. Mr O'Connor states that he had no communications with Senator Murphy in the matter and, to the best of his knowledge, Senator Murphy had no part in the decision. 24. Mr Kevin Wilson who sent the telex messages has since left the Public Service. He has no clear recollection of the relevant events but is disposed to think, on the basis of what he had written in the Department's file and the statement in the telex, that the Comptroller-General made the directions and that the Comptroller-General, rather than the Minister, made the decision. 25. While there is no record in the records of the Department of Customs and Excise of Ministerial involvement in the decision, the information available to us does not enable us to state positively that the Minister had no input into the decision; the possibility cannot be excluded, because of the deaths of Mr Alan Carmody and Mr Ortlepp, that the Minister spoke to one of them and this person may have reflected the views of the Minister when speaking to Mr O'Connor . Action within Attorney-General's Department 26. The solicitors' letter addressed to Senator Murphy together with attachments, was received in Attorney-General's Department on 21 January 1975. 27. On 25 February 1975 the Department wrote to both the Department of Customs and Excise and the Commissioner Commonwealth Police Force seeking their comments and views on the matters raised by the solicitors' letters and copies of any replies to those letters. 28. While the Department of Customs and Excise's file suggests that that Department on 11 March 1975 replied to Attorney-General's Department's letter, a copy of the reply does not appear on Attorney-General Department's file. 29. No other action was taken by Attorney-General's Department in the matter. There is no record of any involvement by the Attorney-General in the matter and the officer who handled the matter from 28 January 1975 has stated that he has no recollection of any consultation with the Attorney-General or any direction being given by the Attorney-General. He is sure that he would remember if a direction had been given by the Attorney-General to him or (since 28 January 1975) to any other person in the Branch concerning the matter. On the Department 's file, there is no record of further action except a notation dated 13 June 1975 which appears to be in the handwriting of Mr Johnston that Mr J. Ballard ( the Acting First Assistant Secretary) had instructed him to have the matter removed from the computer list, that is, the computer list of Ministerial correspondence. This decision in effect meant that no further action needed to be taken in respect of the matter. 30. Mr Ballard is overseas and nothing, it would seem, would be served by seeking to interview him by phone. Action within Commonwealth Police Receipt of Solicitors' letter of 14 January 1975 31. The solicitors' letter was received in the Commissioner's office on 16 January 1975 and a formal acknowledgment was sent on 24 January 1975. Prior action 32. Commonwealth Police interest in the activities of Abraham Gilbert Saffron can be traced back to the formation of the then Criminal Intelligence Unit of the Commonwealth Police under Commissioner R. Whitrod, and later Commissioner J. M. Davis. Saffron is a reputed organised crime figure in Australia. He had featured in the Moffitt Royal Commission into Organised Crime in Clubs, and was referred to by Justice Moffitt in his findings. 33. Witnesses recently interviewed and police documentation of the period point to the fact that in 1974 the Commonwealth Police were only interested in learning of Saffron's travel details and of his movements into and out of the country. There is no record to suggest that the Commonwealth Police requested Customs to conduct body or baggage searches of Saffron, or approved of such searches. 1974 Commonwealth Police Force Search of Saffron: 34. Saffron departed Australia for Hong Kong from Sydney International Airport on 12.11.74 on Qantas Flight 276. Prior to his boarding Saffron was subjected to a currency check initiated by then Senior Constable I. A. McDougall who was accompanied by then Constable E. A. Harrison. McDougall was interviewed on 23 August 1984, and, although he had no vivid recollection of the event, stated that he had not received any direction from any person to conduct a currency search of Saffron, but that it was done on his own initiative knowing that Saffron was recorded as a suspect alert. A document recording the search of that date bears out that the search of Saffron took place and proved negative. Commonwealth Police did not search Saffron on his return to Perth late in November 1974. However his luggage was searched by Customs officers. Action in Commonwealth Police following receipt of solicitors' letter 35. On receipt of this letter, inquiries were instituted to establish the circumstances of the previous searches of Saffron. 36. Inquiries were conducted by then Sergeant First Class Michael John Martin with the assistance of then Senior Constable Eric Curtis. 37. It was established by those inquiries that Commonwealth Police interest was confined to learning from Customs the arrival, departure and overseas travel details of Saffron. 38. Initially the member who searched Saffron, Senior Constable I. A. McDougall , could not remember the incident as it had occurred on 12 November 1974 and he was not approached about it until some five months later. When he did recall the incident he was firm in his belief that he had not been directed by any person to search Saffron, but that he did so of his own volition. It is understood that currency searches were carried out but were not confined to people such as Saffron. 39. Constable E. A. Harrison, present during the search of Saffron, submitted a report the same day (12.11.74), recording that Senior Constable McDougall conducted the search and that it had proved negative. 40. An unsigned minute on the Commonwealth Police file by the Chief Commissioner addressed to the Secretary, Department of Police and Customs reported receipt of Attorney-General's memo requiring information in relation to the Morgan Ryan & Brock letter, the currency search of Saffron on 12 November 1974 and suggested that Attorney-General's Department be apprised of this information. However it appears that this minute was not sent. 41. Apart from one document entitled 'note for file' prepared by Sergeant First Class Martin on 30 July 1975 discussed below there is no record in Commonwealth Police records of any Ministerial direction or involvement in discussions to vary Customs surveillance of Saffron. The note for file of Sergeant Martin 42. The following document appears in the Commonwealth Police papers '30 January 1975 saw Kevin Wilson of Customs who told me that both the Department and the Minister have received letters from Saffron's solicitor complaining about certain events at Sydney and Perth airports. I stated we have received similar correspondence. Wilson stated the A.G. has directed that Saffron is NOT to receive a baggage search on future travel unless there is specific information on which to base same. He continued that as a result their C.P.C.L. entry is to be downgraded immediately to recording of travel details only and asked our view. I replied that the existing alert only calls for travel details on our behalf and that that has always been our position. We have never requested a search. Consequently advice of travel details is all we require now. It is believed that Saffron will go overseas 31 January 1975. Wilson is contacting Sydney airport to ensure Customs Officers give him a clear run. M. Martin Sgt I/C'. 43. The significance of this document lies in the fact that it is the only reference in the official papers of any Department or Force to any Ministerial involvement or direction in this matter. Mr Wilson's version 44. Mr Kevin Wilson referred to in the note has a limited recollection of the episode and indicated that he would very much rather rely on what he had written at the time in the departmental file than on remarks attributed to him in Martin 's note. While it was possible that the Attorney-General was the source of the direction, in all his dealings with the matter, Mr Wilson believed that the direction came from the Comptroller-General. He said that he quite often used the expression 'CG' for Comptroller-General, in fact more than 50% of the time and he used it regularly in his discussions with Sergeant Martin. It was quite possible in his view that Sergeant Martin used the wrong abbreviation when preparing the file note. Mr Martin's version 45. Mr Martin has since left the force. Interviewed on 27 and 30 August 1984, he could not now recall the conversation which the note purported to record; however he rather thinks that what Wilson said, he (Martin) typed; he cannot recall Wilson using the expression 'CG'. While he could not say that Wilson had not said Comptroller-General that was unlikely because if he had he (Martin) was sure that he would have put Comptroller-General as the term 'CG' was not commonly used in the Police Force. Comment 46. It may first be noted that the document is at best a fourth hand record of what happened. Further, while it would not be unusual for Wilson to say it would be most unlikely that he would have described a decision of his Minister as 'a decision of the AG'. Therefore in our view, it is more probable than not that Wilson said 'the CG has directed' and Martin misheard him and recorded it as ' the AG has directed' Merits of decision 47. It appears to have been accepted in both the Department of Customs and Excise and the Commonwealth Police Force that the decision to reduce the Customs surveillance on Saffron was not unreasonable and not inappropriate. This was because the best way to alert a suspect was to check his baggage every time he travelled nothing was therefore likely to be achieved by continually searching such people; it was more sensible to search only when there was specific justification for search on that occasion too many entries on PASS would clog the system; vigilance had to be exercised to ensure entries were retained only for good reason. Therefore there appears to have been no opposition at the time in either the Department or the force to the decision. Should Mr Justice Murphy be interviewed 48. We have seen our role as extending to the examining of departmental records and arranging for the interview of officers and ex-officers involved but not to interviewing the former Minister, now Mr Justice Murphy. Our conclusion that the decision in question was appropriate and reasonable reduced the need to interview Mr Justice Murphy but Ministers may nevertheless wish to consider whether Mr Justice Murphy should be approached to ascertain whether he can recall if he was consulted at the time or gave directions in the matter and, if so, the considerations that he took into account. One possible course would be to provide Mr Justice Murphy with a copy of this report less the conclusions reached and afford him an opportunity to comment in writing on the report. Conclusions 49. On the material available to us we have therefore reached the following conclusions- (a) for the reasons set out in paragraph 47, above, the decision to reduce the Customs surveillance of Saffron to providing advice of travel details was reasonable and appropriate (b) it is more probable than not that the decision to vary the Customs surveillance of Saffron was made by the then Comptroller-General; and (c) this does not rule out the possibility that the Minister spoke to the Comptroller-General who may have reflected the Minister's views when speaking to Mr O'Connor. 50. Having regard to our firm conclusion as to (a), the possibility mentioned in (c) loses much of its significance. Dated the 4th day of September 1984. Senator CHIPP —(Victoria-Leader of the Australian Democrats)-by leave-I move: That the Senate take note of the statement and papers. I seek leave to continue my remarks later. Leave granted; debate adjourned. Senator GARETH EVANS —In answering questions about coastal surveillance from Senator Robertson and Senator Kilgariff yesterday I said some things based on written briefs then in front of me which produced a suggestion of possible apparent discrepancies which I think it would be appropriate to clean up for the record. When answering Senator Robertson yesterday the figures I used measured the programmed Budget estimates of coastal surveillance spending against actual spending in 1983-84. These figures, which had only just been made available to the Government yesterday, give a true picture of the Government's commitment to coastal surveillance and clearly indicate that claims by the Opposition that we have cut spending on coastal surveillance are completely without foundation. Later in Question Time Senator Kilgariff asked a long question, which honourable senators will recall ranged far and wide covering defence matters as well as matters relating to coastal surveillance. In answering that question I relied on an earlier brief provided to me. This brief contained figures which measured only this year's estimate against the estimate of last year. On these figures there appears to be a very slight reduction in funds committed to coastal surveillance for the coming year. However, the later figures show that we intend to spend more this year than we actually spent last year. With the Government's increased commitment to coastal surveillance demonstrated by the direct involvement of the Australian Federal Police in co-ordination and control of coastal surveillance, this target expenditure will certainly be met. I should add that the Minister for Defence advises, by way of a further answer to another matter that was raised in Senator Kilgariff's question, that in this year's defence budget there will be a 2 per cent real growth in operating expenditure which includes Royal Australian Air Force flying hours. Contrary to some misguided comments, there have not been any cuts in operating costs either in this year's Budget or in last year's Budget. RAAF flying hours will increase by about 8 per cent over the figures for 1983-84. Senator COATES(Tasmania) —On behalf of the Standing Committee on Regulations and Ordinances I present the seventy-fifth report of the Committee dated September 1984 on legislation considered for the period February to June 1984. Ordered that the report be printed. Senator COATES —by leave-I move: That the Senate take note of the report. This is the third report of the Regulations and Ordinance Committee to be tabled this year. The seventy-fourth report was tabled in March and the Committee's special report on certain regulations and an ordinance, dealing with censorship, was tabled in May. The seventy-fifth report gives a full account of the Committee's scrutiny of delegated legislation over the period February to June 1984, during which time the Committee, on behalf of the Senate, examined 268 statutory instruments. The Committee has sought and obtained promises of amendments to a number of instruments. Typical of provisions regarded by the Committee as defective are subjectively based decision making processes, persuasive burdens of proof on defendants, lack of appeal rights against decisions by public officials, penalties which go beyond the limit authorised by the principal legislation and conclusive certificates based upon a single judgment rather than that of an expert panel. This report includes a full account of the Committee's pursuit of the amendment of these and other provisions. I point out that during the period under consideration the Committee moved on only three occasions to give notice to disallow an instrument but on no occasion did it have to proceed to move to disallow any instrument. On behalf of the Committee I thank the Ministers and officials who co-operated with its inquiry, who agreed to amendments which will overcome provisions which, for the reasons outlined in the report, the Committee regards as defective. I draw the attention of the Senate to a discussion chapter in the report on principle (d) of the Committee's terms of reference as they affect the Australian Capital Territory. I ask those interested in this issue to read that chapter and to let the Committee know if they have any views affecting the operation of principle (d). This will enable the Committee to finalise the application of that principle to the Australian Capital Territory by the time it reports again. I seek leave to continue my remarks later. Leave granted; debate adjourned. [COGNATE DEBATE: SELECT COMMITTEE ON ALLEGATIONS CONCERNING A JUDGE COMMISSION OF INQUIRY INTO THE CONDUCT OF A JUDGE] Debate resumed. Senator CROWLEY(South Australia)(3.15) —Before the suspension of the sitting for lunch I was saying that the Senate Select Committee on the Conduct of a Judge had been given Mr Briese's evidence as a bonus in the pursuit of the terms of reference originally given to it by the Senate. I reminded the Senate that the Opposition hangs its case on only one set of words. Even more remarkable is the fact that opposing senators have heard other claims from Mr Briese and they have dismissed them. They have said that other parts of Mr Briese's evidence do not stand up to the weight he gives them. There is no evidence to sustain some of his claims. Members of the Opposition dismiss his evidence yet they place a totally different reliance on one line at the end of his evidence. In summary, Opposition members agree with the Attorney-General (Senator Gareth Evans) and the Government about the tapes and the material contained therein. They dismiss most of Mr Briese's evidence and are left with six disputed words in a disputed context. They claim to have sufficient evidence to know that the state of Mr Justice Murphy's mind was clear enough for them to be able to say there is a prima facie case against the judge. I am particularly mindful that Senator Chipp does not say that. Rather he said that, while he cannot say there is a case, he cannot say there is not one either. That is dependent on Mr Murphy 's refusal to appear. I turn now to deal with what is proposed by the Opposition. Yesterday Senator Durack was at his most lollipop like; all sweet reason, begging to be licked. He said: 'If only the Government would agree with us there would be no problem'. Bless his heart! Does he not know that being in opposition means that he is no longer the Government? If ever I heard a case for the demand of blatant continuation of power, even in opposition, I heard it yesterday. The cartoon of the outside of the Establishment Club which is not only doing Mr Justice Murphy in but is being seen to be doing him in was brilliantly illustrated in this chamber and across the airwaves of Australia by Senator Durack yesterday. I quote from Senator Durack's own words in Hansard. He asked: Why does the Government not co-operate- he said this waving his arm around- and pass the necessary legislation to put the matter beyond doubt? He continued: If the Attorney believes that it is of such importance, why does the Government not co-operate? He also said: Select Committee on the Conduct of a Judge Select Committee on the Conduct of a Judge Select Committee on the Conduct of a Judge Select Committee on the Conduct of a Judge Select Committee on the Conduct of a Judge Select Committee on the Conduct of a Judge Select Committee on the Conduct of a Judge Select Committee on the Conduct of a Judge Select Committee on the Conduct of a Judge Select Committee on the Conduct of a Judge Select Committee on the Conduct of a Judge Select Committee on the Conduct of a Judge Select Committee on the Conduct of a Judge Select Committee on the Conduct of a Judge Select Committee on the Conduct of a Judge Select Committee on the Conduct of a Judge It is so simple to give effect to the ideal solution. In short, Senator Durack was saying: 'Do it my way'. I thought that was a tired slogan for the Liberal Party of Australia. Senator Durack said further: Those are the facts that we want to have proved specifically for us; we do not want simply to be told whether someone is guilty or not or whether or not he will be prosecuted by the Director of Public Prosecutions. We want the facts established for us to make our judgment as to whether misbehaviour has taken place. What does Senator Durack think he was doing for the last six months? He continued: . . . we would have independent experts of high authority exercising their completely non-political judgment in regard to these matters. I draw the attention of the Senate to that comment to make sure that any political participation of members of the Senate Committee referring to the judge was in the minds of members of the Opposition and not in the minds of members of the Government. I ask again what Senator Durack wants with the motion he put on behalf of the Opposition yesterday? In summary, more of the same, only different. He is saying: 'We want a Senate committee. We do not want six members , we now want three and we want new terms of reference'. The Opposition is saying: 'Let us do it again. We had six months, we heard the evidence but you never know what happens if you do it again. This time, though, we will not have six members but three'. Senator Durack is proposing that there be one member from the Government, one member from the Opposition and one member from the Australian Democrats. Yet Senator Durack and I heard Senator Chipp say on a number of occasions how difficult it was being the solitary member of a party on that Committee addressing such matters of importance. This Committee, he notes in a further item, would have a quorum of one. A quorum of one to address an issue of such significance and importance? He further allows a casting vote to the Chair. If this Committee were constituted in the way in which Senator Durack proposes, the Government would never expect to win a point at all when the Opposition, including the Australian Democrats, decided to unite and say no-and we have had some evidence to make us suspect that they do that and will continue to do that. So the Government, in accepting that proposition, would be facing at best a tied vote and then only if the Chair used a casting vote. So the Government would face the proposition of being able only to negate motions, not propose them. I think it is a quite remarkable-in fact, a disgraceful- proposition, particularly as the honourable senator was a member of the existing well balanced, properly constituted Senate Committee. Senator Durack went on to say that he would like to appoint a commissioner to do all of those things necessary and as listed in his notice of motion. The Committee would have a commissioner, and, further, it would have a counsel. The Committee's role, it would seem from that notice of motion, would be left at one remove, orchestrating the commissioner and the counsel. Yet members of the Opposition argued at length that this is a matter of great seriousness and a matter for the Parliament. I ask: How can they possibly ask Parliament to do it when they are proposing a motion that asks Parliament to be at one remove, with commissioners and counsel and all sorts of people between us and the decision? Again I ask those honourable senators: If they think it is a matter for Parliament, why did they not do it when they had the occasion? They were there. Senator Durack was there and he had his opportunity. Now he wants to keep it but to give it away. Moving to the Australian Democrats' notice of motion, the Democrats actually want to appoint a commission, again of the magic number of three, as apart from three senators. As I examine the Democrats' proposal, all I can see is that they are seeking a Senate committee without senators. Both of these proposed motions point to the weakness of the Opposition's case and highlight the Government's problem. The Opposition does not know what it wants, but it knows that it does not want the Government to have what it wants, and the Opposition has the numbers. Of course this matter is a matter for the Senate. The Opposition agrees , yet both its notices of motion propose to do other than that. Members of the Opposition claim that they want responsibility in the Senate and then put up proposals that substitute for the Senate. We have had the Senate committee; we have heard the evidence; we have made a decision. Four members did not find proven misbehaviour. A cloud of innuendo and smear by suspicion has been hanging over the High Court, the judiciary and Mr Justice Murphy for nearly nine months. We have addressed questions pertaining to section 72 of the Constitution and agreed on what had to be determined. The Committee so determined. But the Opposition ignores all of this and says: 'We do not agree with the umpire'-which surprisingly included themselves-'and want to play the match again and again until we win'. This is a rehash and running-over again. I ask again of this Senate: How often does Mr Justice Murphy have to be proved innocent? I might add, as I said earlier in this debate, that Senator Harradine and others seem not to understand that in our society one does not have to prove innocence; one is presumed innocent until guilt is proved. It seems to me that the Opposition does not allow that right and that ordinary natural justice proposition to pertain to every person in the land. Senator Harradine —Do you need it for a High Court judge? Senator CROWLEY —I hear Senator Harradine asking whether it is needed for a High Court judge. Of course it is. It is needed for every member of society. That rule of common justice provides for every member of our community. None are exempt. Senator Harradine —The common denominator of acquittal. Senator CROWLEY —And to the highest common denominator. In summary, we have an appalling waste of time and money, an appalling prolongation of personal distress for the judge, an appalling prolongation of the doubts prevailing on the judiciary, an appalling exercise in blatant power politics and an appalling set of Opposition motions that actually run against the Opposition's own arguments. I dismiss the Opposition's proposals and I commend the Government's motion. Senator WALTERS(Tasmania)(3.25) —We have just heard Senator Crowley, who sat on the Senate Select Committee on the Conduct of a Judge for six months, prove to this chamber that she still has not the faintest idea of what was in the Committee's report. She said that four members did not find proven misbehaviour. Indeed, six members-every member-of that Committee did not find proven misbehaviour. No one attempted to do so. An attempt was made to find out whether the judge had a case to answer. No attempt was made to prove anything of Mr Justice Murphy. The Committee's role was just to determine whether there was a case for him to answer. Senator Crowley has just proved by those words that she has not the faintest idea of what the Committee was all about. Parliament is in a very difficult position. Not only the Parliament but also the Government and Opposition party members are in a difficult position. We have had the Age tapes headlined in this country now for months and months. Accusations of criminal actions have kept coming forward, as every member of this society knows. The judge's identity is very well known. From the beginning Senator Gareth Evans has tried to cover up, and that is why the position is as it is today. It is really quite tragic that he took that action. Senator Evans said that he had never tried to cover up. I will just make a few quotes from Hansard. In February this year Senator Evans said in answer to a question: I do not propose to satisfy the salacious and politically motivated curiosity of those on the other side of the chamber in that respect. He would not give information. He would not come clean; he would not acknowledge anything. That is how it has been from then on. In March he said: There is no basis whatsoever on which I will assist the Opposition in its desire to trail imaginary stinking fishheads across the noses of the Australian public for every sordid and immediately obvious political motivation. I do not propose to assist the Opposition further in this enterprise. These were answers to the questions that the Opposition was putting. Indeed, this is why we are in the position we are in today. Senator Evans even answered a question that was put to him about his interview with the judge. Senator Lewis asked: 'Did the judge say that it was his voice on the tapes?' Senator Evans said: 'I had a conversation with him. The question simply did not arise.' Senator Evans claimed that he did not even ask the judge whether it was his voice on the tapes. We received all these answers from Senator Evans right up to yesterday when he could not contain himself on the air and accused Senator Chaney of being a political scavenger rubbishing around rubbish bins. He has attempted at every turn to hide the facts and to cover up. It seems to me that if in the very beginning he had decided to co-operate with just questions put by the Opposition we would not be in the situation in which we are placed today. As I said, Parliament is in a very difficult position. None of us like the job we are doing, none of us like the particular sort of controversy that is going on in the Senate at the moment. Nobody likes to acknowledge that there are questions out there in the community about our system of justice. Nobody in Australia likes this. It does Australia so much harm. But if we decide that because we do not like it we will cover it up and not ask questions, if the Senate decides not to accept the responsibility on its shoulders, the people of Australia will have no respect for us. They do not want us to cover it up and they cannot expect us to cover it up. We have to deal with what, unfortunately, is before us. We must take action against crime in any form in this country. We can start by looking at the areas in which the majority report agreed. It agreed in a number of areas. Senator Bolkus attempted to throw much doubt on Mr Briese's integrity. Senator Crowley was very selective in her quotes. Indeed, she even said that there was only one area of doubt-the comment 'now, what about my little mate?' That is absolutely untrue. Senator Missen went to great lengths to say that there were 10 different areas of disagreement, including whether the judge did or did not try to have a car made available to Mr Briese. There were 10 different areas, not one area, of disagreement. Let us look at the major areas of agreement, because it is important to acknowledge that there were areas of agreement between the majority report and the two minority reports. The majority report said very clearly that Mr Briese was an honest witness. The majority report clearly stated: The Committee was of the view that Mr Briese gave his evidence sincerely and honestly, and to the best of his recollection as to actual events and conversations and the interpretation he placed on them at the time. Senator Chipp made a great point of that in his minority report. The Opposition' s minority report stated: It is our firm view that Mr Briese was not shaken by such questioning despite its length and, at times, vehemence. All members of the Committee agree that he was an honest and sincere witness. There was no doubt or disagreement, until two Committee members started in the Senate to question Mr Briese's evidence. Every Committee member wanted Mr Justice Murphy to come before the Committee. Not just the Opposition and Senator Chipp-not their two parties on their own-but the whole Committee thought that it was appropriate for Mr Justice Murphy to come before the Committee. They were disappointed that he did not do so. That is a quite important point. They were not prepared to force the issue. Senator Georges —If they all wanted it, why didn't they subpoena him? Senator WALTERS —Senator Georges should ask his Party's members of the Committee , because the whole Committee said in the report that it wanted Mr Justice Murphy to come before the Committee. That was a matter of agreement. Let us look at what Mr Pincus, QC, said, because this again is a crucial area. Mr Pincus, who was the counsel assisting the Committee, when referring to Mr Briese's evidence, said: . . . it really does make a difference whether the judge gives evidence or not, because if the judge does not give evidence . . . the evidence remains uncontradicted and it is all the more difficult to reject. Mr Pincus went on to say: As to the suggestion you made Mr Chairman, that the case of uncontradicted evidence is altered if a written submission is made, I simply do not agree with it. As Senator Chipp said in his minority report, until the judge gives sworn evidence he cannot say that what Mr Briese said was incorrect. I agree entirely with that statement. It is important to point out the areas in which the whole of the Committee agreed. Let us look at the areas in which members of the Committee disagreed. The Government members of the Committee placed greater emphasis on Mr Justice Murphy 's written evidence, almost taking it as sworn evidence, than did Senator Chipp and the Opposition senators. The Government senators said that they accepted that written evidence as full evidence, but that view was not supported by the Queen's Counsel whom the Committee employed to advise it. The Opposition agreed that unless Mr Justice Murphy came before the Committee there was a problem. As I have said, at no stage was there a suggestion that Mr Justice Murphy was found guilty in the minority reports. He was not found guilty in those reports, even though Senator Crowley attempted today to mislead us into believing that that was the case. We have had divided reports. The Australian Labor Party senators said: 'It is all done. We did not find anyone guilty. There should be an end to it.' Unfortunately, we cannot leave that political decision, which is seen as a political decision by the public, as the final decision, and, therefore, it is up to the Senate to come up with something else. The Government agrees with that , and its answer is: 'We shall send all the evidence that we have collected to the Director of Public Prosecutions'. The Government decided to send the evidence to Mr Temby. If Mr Temby does not find enough evidence to say a prima facie case exists, we are back to square one and the Senate will have to look at the issue again. The Opposition said that there was no way that could be done and that justice must be seen to be done. The Democrats said: 'You cannot send the matter to the Director of Public Prosecutions'. An article in yesterday's Sydney Morning Herald which is headed 'Evans runs for cover' states: A Senate committee inquiry is not the best way to deal with the allegations against Justice Murphy. The Democrats wanted that independent inquiry, and we agree that an independent inquiry would be the best way of dealing with the allegations. The article continued: But if the Government continues to refuse to hold its own independent inquiry then the Senate is left with no alternative. That is, the Senate would have no alternative but to set up its own committee. The article went on clearly to state: Mr Temby would be inappropriate. Mr Temby is not an investigator. He can only take the material already at hand . . . and decide if a criminal charge is justified. The idea that Mr Temby is not the right person to conduct the investigation is not just a political decision-many sections of the media are saying just that. They are saying that justice must be seen to be done. The Government wanted to send the evidence to Mr Temby. The Democrats wanted the ideal position-an independent commission. The Government will not co-operate and give us that commission. The Government will not allow an independent commission to consider the matter; it wants to have control. Because there has been no co-operation from the Government, the Opposition's less attractive but necessary amendments must be implemented. A Senate committee is to be set up. That committee will be able to delegate its powers to an independent commission, and that independent commission can then take over. There has been much criticism to the effect that that step would not be constitutional. The precedent for doing so has, however, been set. Some committees in Canada employ permanent legal counsel who can be directed by a committee to conduct an inquiry . Senator Missen has already spoken about that sort of procedure and given examples. That process is something that Canada does regularly. Canada has set a precedent that we would do well to follow. For a Senate committee to delegate its responsibilities to a commission is a very suitable process, and that is what is about to happen. We have reached the position where we are talking about the misconduct of a judge. The Attorney-General has accepted Mr Temby's decision that the misconduct must be a criminal offence. He goes even further and says, 'Of course, it is not even considered misconduct by a judge' referring to a judge of the High Court of Australia, if that judge is involved in a partisan political activity. This Attorney-General would say: 'That still is not misconduct'. I find that a most extraordinary attitude for the Attorney-General to take. We have the situation in which the minority report is less restrictive than would be the case with a criminal offence. Mr Pincus, QC, who was appointed by the Committee, also agreed with the minority report. That is stated in the report. I do not have time to read what he says but he makes it very clear that he disagrees with the three Government members on the Committee and agrees entirely with the minority report on this piece of evidence. We are back to the responsibility of the Government. We all agree that under the Constitution- Senator Evans said so today-Parliament is the place where this matter must finally be decided; it cannot be done outside. No matter what occurs, it is this place that must make the decision as to whether there has been misconduct and whether the judge should continue to hold office. I believe our judges must be in a position in the community where people can look up to them. They must be above criticism. If we destroy that respect, we are in real trouble. If we say that it is all right for a judge to do something but it is not all right for Joe Blow to do it, we are in real trouble. If we cannot say to the Australian people that we expect a higher standard from all judges in the Australian community, but particularly from judges of the High Court, we are really in trouble. Finally, I will quote what Sir Winston Churchill said when he gave his view on judicial conduct. Senator Durack spoke of this a couple of days ago in this place. Sir Winston Churchill stated: A form of life and conduct far more severe and restricted than that of ordinary people is required from judges and, though unwritten, has been most strictly observed. They are at once privileged and restricted. They have to present a continuous aspect of dignity and conduct. Far more freedom is granted by the convention of our way of life to Members of Parliament, to Ministers or to Privy Councillors. The judges have to maintain, though free from criticisms (in parliament), a far more rigorous standard than is required from any other class that I know of in this Realm. Senator RICHARDSON(New South Wales)(3.43) —After some six months of tedious and lengthy investigations the Senate Select Committee on the Conduct of a Judge finally came down with a report. Three of its members had one opinion, two another and one a further opinion still. Some of us queried the necessity, indeed the propriety, of setting up the Senate Committee in the first place. Some of us were of the view that a result like the one that eventually came down may well have been inevitable. If there was one thing that all of the honourable senators who served on that Committee were unanimous in finding, it was that the authenticity of the Age tapes could not have been substantiated. I do not think that we needed six months of investigations to come up with that conclusion. When one is presented with but a handful of tapes and hundreds of transcripts that purport to be of conversations but which could never possibly be verified, one wonders why we decided to proceed any further. But having had six months of investigations-apparently all of us are convinced that the authenticity of the Age tapes cannot be verified-we seem, yet again, to be heading down the path of a further investigation. If we had looked six months ago at the probabilities of what the Committee might find and look now at the probabilities of what setting up a committee of this nature might find, I am afraid, once again, that we would come back to thinking that very little can possibly be achieved. Two prominent men of high public position are stating contrary views about an alleged conversation. No matter how long, no matter how deeply one probes the word of those two men, in the end someone has to decide who to believe. Traditionally in our system of justice one needs more than just one accuser. There must be more than just one person saying: 'You did the wrong thing'. Yet very sadly, in the Senate, not just over the last six months of this inquiry but over the last 18 months, during the flurry of allegations that have been flung back and forth across the chamber we have seen the steady erosion of a very basic principle of British justice-a principle that has stood the test of centuries-that is, that a person is innocent until proven guilty. In the end, what all these inquiries seek is for Justice Murphy to prove that he is innocent. That is a standard that no one should have to live up to, whether that person be a judge of the High Court of Australia, a housewife or someone who digs ditches. In the end we should all be equal under the law. Justice Murphy should have the right of someone examining, with the proper criminal onus of proof, whether or not he has committed any criminal action. Let us face it, it is a criminal action that is being alleged. Any allegation that he attempted to interfere in the conduct of a case before the courts in the end must be a criminal offence. Why should a different standard of proof apply to that which would apply in a normal criminal proceeding? The first problem that we come across is a constitutional one. The words 'proven misbehaviour' in section 72 of the Constitution mean that a criminal offence must be proved. Senator Peter Rae —It says 'incapacity' also. Senator RICHARDSON —And incapacity, I grant that, although I am not hearing Senator Rae too often. I do not think that anyone is alleging that Justice Murphy is incapable. I have yet to hear that allegation advanced. However, I get back to my point on proven misbehaviour. There is obviously some controversy over what that means. We have had eminent legal brains applying their minds to it. We have had different opinions. We can get one highly paid professional lawyer to say those words mean that an ordinary criminal onus of proof should apply; we can get other highly paid and well qualified lawyers to say that some lesser standard, like the balance of probability, or words to that effect, should apply. But no matter who we now seek to give us an opinion, we should go back to the Constitution, to what the founding fathers-or as it might better be said in today's climate the founding persons-had in their minds when they drafted the Constitution. Senator Hamer —They were all men. Senator RICHARDSON —That is irrelevant. However, that is another debate. The founding persons went to very great lengths in all of the provisions that they put into the Constitution to separate the Parliament from judicial functions. I would have thought up until just a few days ago that they had been successful, that no one was in any doubt that the founding fathers did not intend this Parliament to give to itself some right to adopt a judicial function. However, now we have seen that position advanced at length. We will do more than just have a judicial function. That is not just a retrograde step; it is one which we will all regret for many years to come. I wonder just what qualifies politicians to act as judge and jury, let alone take upon themselves the role of investigator. I have not had great police experience and, looking around the chamber, I can see that there are not too many ex-policemen among us. There may be some in the lower House and I may be doing a disservice to some honourable senators, but I do not know of anyone here who has an investigative background. Yet in spite of that lack of background, suddenly we take unto ourselves the role of supersleuth. The Sherlock Holmes mentality sets in and we can all solve complex legal problems. Really the problem here has never been legal. The problem here is political. What is happening is a purely political exercise. To achieve political ends the steps which some people, particularly the Opposition, would have us take involve new and treacherous ground which for 90 years we have been able to avoid. Why now at this late stage should we take any of those steps? The Attorney-General has suggested, in my view quite properly, that the only appropriate course for the Senate to take is to refer the allegation of Mr Briese to the Director of Public Prosecutions, Mr Temby. In the end, where else could it go? Where else than to the Director of Prosecutions can a criminal allegation ever properly go? I can remember Senator Evans, in answer to a question in the last few weeks, speaking of robust exchanges between himself and Mr Temby, exchanges he referred to as appropriate for exchanges between a Minister and an independently-minded servant such as Mr Temby. I find that refreshing both because of Senator Evans's honesty in admitting that not all has been rosy in the garden and because it should demonstrate to us all that no one can possibly question Temby's independence of thought in a matter of this kind. His reputation, from all that I have been able to check, is unchallenged. I cannot find anything that even remotely enables us to question. He has been given the job of conducting an investigation into the allegation and I submit that his experience and his qualifications make it far more likely that he will do a better job than anyone in this chamber. If Temby says 'No, there is not sufficient evidence to prosecute', and we are assured that this investigation can run for only something like 10 days, it is still within the prerogative of the Senate to have another look. Why is it necessary therefore to jump the gun and not wait even 10 days for Temby to finish, unless of course too many people here suspect that there is little likelihood of criminal charges being laid and they want the issue to go on? Really all we are seeing now is a tawdry exercise to make sure the issue goes on . The rights of Mr Justice Murphy, so sorely trampled on for so long, are now being completely discarded. The Senate is gradually making up its mind that in fact he has none, that even the rights of the ordinary citizen are long gone and that no longer can Mr Justice Murphy rely on them. If Temby were to say yes, we would have the situation which in a sense Mr Justice Murphy has already invited, because he quite properly had the courage to stand up and say to Mr Briese: 'If you have evidence, if you believe you have a legitimate complaint against me, take it to the police. If they lay charges, I will defend them in court'. When I read that, I thought to myself: Why has that not happened over the last six months, since this allegation first surfaced? Why does not anyone go to the police with it? Mr Briese apparently had these conversations years ago. I am not sure of the exact dates upon which they are alleged to have taken place, but it is a very long time ago. Why could he not go to the police with the information and find out whether he had a case that could stick? The reason I suggest he has not done so is that no such case exists. I do not believe any other conclusion can be drawn from his failure to come forward. What sort of spectacle will we have if, during the 10 days Temby has said he will take, we have two inquiries running simultaneously? What sort of spectacle will that present to the Australian people of the propriety, indeed the intelligence, of those who sit on the red benches of the Senate? I think more highly of the Senate than that. I hope it is an action we do not see. Last Sunday in the Sydney Sunday Telegraph Laurie Oakes wrote a short piece covering this very spectacle, what he saw as the difficulties inherent in the steps being talked about last week and what might go on in the chamber during our deliberations. The first point he made was that, with criminal allegations, in the normal course of events there has to be proof beyond reasonable doubt. Suddenly in the Senate we have seen the balance of probabilities entering into the argument. His simple statement was: Why should a lesser standard of proof be required if the Senate takes it upon itself to be investigator, prosecutor and judge? That is a question Laurie Oakes has not had answered and it is a question I have not seen answered anywhere yet, certainly not to my satisfaction and, I would have thought, not to the satisfaction of the Australian people. Time and again in recent days we have heard from more and more legal authorities. The Council for Civil Liberties and more and more people are questioning why Mr Justice Murphy's rights can be so easily thrown aside. Until the Senate and the Australian people have had a proper answer to that question, I suggest the action contemplated by the Senate is not only improper but will also for centuries drag down the basic principles of British justice and we will all live to regret it. Senator HAMER(Victoria)(3.58) —We are dealing with a very serious matter. Perhaps, when it is looked back upon, it will be seen as one of the most serious matters ever dealt with by the Senate; and as far as possible we have to deal with it with dignity and restraint. I wish that we could deal with it on a non- party basis, but that does not seem very easy. We are dealing with a fundamental principle of the Constitution-the separation of judicial power and legislative power. A further point we must keep in mind in all we do is that, to put it at its very lowest, there is a very real possibility that the judge may be totally innocent of any offence. In all we do we must always remember that. Nevertheless , what is alleged is a very serious charge which, if true, would in my view render the judge concerned quite unsuitable for the High Court. It is the Parliament's responsibility to determine whether this is so. Section 72 of the Constitution provides for removal of judges: They shall not be removed except by the Governor-General in Council, on an address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity: I repeat: 'both Houses'. That is a considerable safeguard, the lower House by definition is controlled by the Government and the upper House usually is not controlled by the Government. I cannot accept the limited, narrow legalistic view put by the Attorney-General (Senator Gareth Evans) and the Solicitor- General on the meaning of the words 'proved misbehaviour or incapacity'. We must remember that it is only this Parliament which can remove a judge who has proved his unsuitability. If a judge espoused the cause of the League of Rights, say, and was anti-Jewish and anti-Aboriginal, in the Attorney-General's view that would not be a ground for removal. If he were an habitual companion of notorious criminals, that would not be a ground for his removal. According to the Attorney -General, so be it; nothing could be done. I do not believe for a moment that that, as I read the Convention debates, was the purpose of the authors of the Constitution. It is not in my view a commonsense reading of section 72 of the Constitution and I do not believe that attitude is compatible with the requirements of the administration of justice in this country. I think these three points make the attitude of the Attorney-General an absurd proposition- because the buck stops here. We cannot pass it on. We have to decide whether an offence is proved or not. We have to decide whether the level of misbehaviour or incapacity is sufficient to warrant passage of a petition, an address, for the removal of the judge. That is the responsibility of the Parliament and no one else can do it. What has happened? The Senate Select Committee on the Conduct of a Judge, as we have heard, sat for six months and reached no firm conclusion on the facts. In the absence of the judge and evidence from him under cross-examination, I do not believe any other conclusion was possible. In normal circumstances that would be the end of the matter. No one is looking for self-incrimination, and the fact that the judge did not give sworn evidence before the committee is not a ground for pursuing it any further. That should be the end of the matter. There is not sufficient evidence so far for anyone to come to a firm view. That would normally be the end of the matter, but this is not a normal case. It would also normally be the end of the matter if the complainant was not such a prestigious person as a chief magistrate. With someone of less prestige, it would not be pursued. But we have the two factors: One that a High Court judge is involved, and the second that the complainant is a man of some standing in the community, the Chief Stipendiary Magistrate of New South Wales. The judge is on a different plane. Senator Richardson spoke of the rights of the ordinary individual, but a judge must be on a much higher plane. I should like to read something the Attorney-General said in 1980, regarding the standards required of judges: It might be thought that the standards I am suggesting are unreasonably high and not such that lesser mortals could reasonably be expected to attain. But the fact remains that the standards we require of our judiciary are higher than might be reasonable to require of everyone else. He went on to quote with approval some words of Sir Winston Churchill, who said of judges: A form of life and conduct far more severe and restrictive than that of ordinary people is required from judges and, though unwritten, has been most strictly observed. They are at once privileged and restricted. They have to present a continuous aspect of dignity and conduct . . . The judges have to maintain, though free from criticism, a far more rigorous standard than is required from any other class that I know of in this realm. That is why this matter must be resolved. It cannot in the interests of the administration of justice be left in the category of not proven. We must resolve it one way or the other. The question is where do we go now? The Government would like to refer the matter to the Director of Public Prosecutions, but he has no coercive powers. He could do no better than the Senate committee. He would not and could not resolve the issue. It may well be that purely as a criminal case it is inherently unprovable. Referring to the Director of Public Prosecutions the evidence on which the Senate committee was unable to reach a clear resolution will get us no further forward at all without evidence from the judge-which could be cross-examined given in person. The Government should set up a royal commission to look into the matter. But the Government refuses; it does not accept its responsibilities. The Opposition proposes as the second best alternative to set up a Senate committee with two independent commissioners, people of prestige and standing in the community, to conduct the investigation on the Senate's behalf. That committee will report the conclusions of the commissioners to the Parliament. It is the second best solution. We would much prefer the royal commission, but the Government refuses. The Government will not face up to its responsibilities. The Attorney-General raised what seemed to me to be a thoroughly trivial objection: namely, that the finding of the commissioners would not be binding on the Senate . Of course it would not; nor would the finding of a court be binding on the Senate. It is up to the Senate in every case to satisfy itself that the matter is proved and that the misbehaviour is adequate to justify removal. The fact that it is not binding is self-evident, and it is extraordinary that it should be raised as an objection by the Attorney-General. Government senators have pointed out that Britain, from which we take our customs and privileges of parliament, has not used this committee system of investigation this century. I am sure that is true, but the reason is that the British Government has never refused, and would never refuse, to set up a proper independent inquiry into a matter which the majority of an elected house of parliament thought merited investigation. This course of action is necessary only because the Government will not face up to its responsibilities to investigate these matters properly. I conclude by quoting some words by the Attorney-General. I do not often agree with him, but I entirely agree with these words which he used in a different context about another judge but which are just as true of this situation. He said in 1980: If public confidence in the absolute integrity and impartiality of the judges of the highest court in the land is in any way put at risk by the questions which have been raised here not being satisfactorily answered, there is little hope for the long-run survival of public confidence in any democratic institution in this country. I agree with those words. We are taking the best course of action available to us to resolve this matter, in default of responsible action by the Government. Senator PETER RAE(Tasmania)(4.08) — Madam Acting Deputy President-(Quorum formed) In the light of certain statements, in particular those made by Senator Richardson on this matter, and in the light of certain precedents relating to Senate committee behaviour, I wish to refer to the precedent that was established in the Australian Dairy Corporation and its Asian subsidiaries inquiry and report. I also refer to action taken by the Senate Standing Committee on Finance and Government Operations, of which the present Attorney- General (Senator Gareth Evans) was a member, and a consenting member, concerning the behaviour that took place. There was conflicting evidence on the part of a witness who came before the Committee and who gave evidence on oath. The Minister declined to come before the Committee, declined to give evidence on oath, and in fact replied by letter. The Committee pointed out, in further correspondence and in a statement in this chamber, that it was left with the dilemma that sworn evidence was given to the Committee which was contradicted only by an unsworn letter. The Committee made a finding on the balance of probabilities as is appropriate in Senate committee inquiries. Again, the present Attorney-General was a party to that finding, which is set out in paragraph 9.38 of the Committee's report. Having weighed the relevant considerations of the direct sworn evidence of one witness and the unsworn evidence of another person who could have been a party to a particular conversation-and they were the only two parties to that conversation-the Committee, on the balance of probabilities, preferred the recollection of the person who had given direct sworn evidence to the unsworn evidence of the other person. I mention all this only because I believe that it is inconsistent for either the Attorney-General or supporters such as Senator Richardson to argue to the contrary. I do not wish to reopen any of the matters which were relevant to that inquiry but simply to say that the precedent is there. Senator Georges —You have not convinced me it is the correct precedent. Senator PETER RAE —The precedent is there. It was accepted by the Senate. A special statement of the Committee's action in relation to this matter was made to the Senate on behalf of the Committee. The report was accepted by the whole of the Senate without question when it was presented. Senator MACKLIN(Queensland) —by leave-An amendment by the Australian Democrats to the motion moved by the Attorney-General (Senator Gareth Evans) has been circulated by me. I move: At end of motion, add: '(2) That the papers referred to in sub-paragraphs (a) (i) and (ii) be produced to the Director of Public Prosecutions following the appointment of the Commissioners Assisting the Select Committee on Allegations Concerning a Judge and on the day next succeeding the day on which that Committee first meets'. If this amendment is carried, the Government's original suggestion of sending this matter to the Director of Public Prosecutions and the Opposition's original intention of sending it to a committee of the Senate, which would have attached to it certain commissioners assisting it, would occur at the same time. The wording 'on the day next succeeding the day on which that Committee first meets' , is necessary from the point of view of the hours of meeting. Hence, it is not possible to frame a motion requiring the two proposals to commence on the same day without taking away the right of the committee to meet at a time and place of its choosing. If this amendment is carried we believe that it will bring together both proposals. Both inquiries will start at the same time. I think that probably would be the maximum possible consensus able to be achieved by this chamber on this issue. Senator CHANEY(Western Australia-Leader of the Opposition)(4.13) —The Opposition will support the amendment which has been moved by the Australian Democrats. It is an amendment which, in the course of a series of discussions with the Democrats, we agreed was a way of removing the arrangement which the Government had proposed, which was that the matter should be sent off to Mr Temby as some form of condition precedent to any further parliamentary action. For reasons which have been substantially aired in public over recent days, I think that there is no need to go through the reasons again as to why the Opposition believes that the direct reference to Mr Temby without any further parliamentary action being taken is not appropriate. However, I make a number of comments about the proposition which the Attorney-General (Senator Gareth Evans) has been arguing for both in this place and publicly. The Attorney has stressed that as there is a possibility of a criminal matter it lies within the responsibility of the Director of Public Prosecutions. I certainly agree that if there is evidence of criminal behaviour the Government is certainly entitled to put it before the Director of Public Prosecutions to see whether a prosecution should lie. We have, of course, emphasised however that the business of this Parliament is not to determine that question and that the Parliament has a different task to perform. I am concerned that the Attorney-General has been able to give us assurances during the course of the public debate that Mr Temby will take only 10 days to do this job. Quite frankly, I am very curious as to how Mr Temby, or indeed how anyone else, can know how many days will be required to examine a matter where the evidence has not yet been put before him. I suppose the procedure will be that at the time this committee meets, assuming that this amendment is carried, and when it has commenced its work, Mr Temby will get the same material as is available to the committee. He will then have to examine that material and determine not only what weight he puts on it but also what other information he might require or believes should be obtained before a decision is made as to whether or not a prosecution should be brought. I would have thought that, without having access to the material, without knowing what additional material might be sought and without knowing what the response of those who might be asked to provide further information would be, really one would be dealing with a pig in a poke. One cannot possibly know what the time scale would be unless the assumption is that the Director of Public Prosecutions would do no more than rely on the evidence which is already available through the work of the original Senate Committee, the Senate Select Committee on the Conduct of a Judge. For my part, I would have thought it doubtful that the Director of Public Prosecutions should necessarily be satisfied that the ambit of the inquiry undertaken by the Committee so far is as far as the matter needs to be taken. The other point which perhaps needs to be borne in mind is that, as the committee will be commencing work on the inquiry, and as, according to the motion which is to be moved, that inquiry will be in public, it is obvious that further material which may be relevant to the separate question being referred to the Director of Public Prosecutions may well come to hand day by day during whatever period the Senate inquiry runs. In that case, I would have thought it doubtful that the Director of Public Prosecutions would have come to a concluded view on the matter before the totality of the evidence which will be available is available. So I am a little puzzled. Unless the Government proposes to instruct the Director of Public Prosecutions that he will consider the matter in the light of the now available evidence and no other evidence, I am very doubtful that the sort of time limit which the Attorney-General has publicly assured us has been suggested can be guaranteed in advance. The Opposition welcomes the fact that this amendment has been moved by the Australian Democrats. As we have made clear, we believe that the reference to the Director of Public Prosecutions should not be used as a subterfuge or excuse to remove the Parliament from its area of responsibility. On that basis we will support the amendment which ensures that the reference to the Director of Public Prosecutions is contemporaneous with the select committee commencing its work and that there is no question, therefore, of the Director of Public Prosecutions being substituted for the Parliament in carrying out the Parliament's functions. I note that outside commentators have made a series of comments on the desirability for this matter to be dealt with in the broadest possible way and not merely treated as a matter for prosecution. I still believe, and I have not spoken in the formal debate in this House so far, that this matter could have been dealt with far better had we had a government attitude which was determined to deal with it in a satisfactory way rather than having it put to bed. We have a government which is not prepared to co-operate with the Opposition and the Australian Democrats. What has been proposed here, both by this amendment and what will be proposed in the subsequent motion to be moved by Senator Durack, will achieve as much as can be achieved in the face of a totally unco-operative government. Senator DURACK(Western Australia)(4.19) —I have given notice of a motion which is being debated cognately with the motion of the Attorney-General (Senator Gareth Evans). The notice of motion standing in my name is, I think, General Business item No. 115. A fresh copy of my new motion is now being circulated. It shows the amendments to the notice of motion in bold black type in order to contrast with the original motion of which I gave notice. Without going through the rigmarole of moving a whole string of amendments, I seek leave to amend my notice of motion in terms of the present motion, which I table. Leave granted. Senator DURACK —There is one amendment that I wish to make to the amended notice of motion I have just circulated. It concerns paragraph (19), which reads: That the Commissioners report to the Committee and advise it in writing . . . I wish to delete the words 'report to the Committee' so that it reads 'That the Commissioners advise the Committee in writing . . .' Later in paragraph (19) I wish to delete the words 'report and' so that it reads 'include in its report the advice of the Commissioners Assisting'. Senator GEORGES(Queensland) —by leave-I wish to ask Senator Durack a question concerning paragraph (20). I ask Senator Durack to clear up for me something which is slightly confusing to me, although it might be a simple matter. The last part of paragraph 20 states: . . . documents submitted to the Select Committee on the Conduct of a Judge and relating to the Committee's inquiry . . . The word 'Committee' is used four times in that paragraph. I ask: To which committee is the last mentioned reference referring? I take it that it is a reference to the Senate Select Committee, but that is not quite clear. Senator DURACK(Western Australia) —by leave-The Committee referred to there is the Senate Select Committee on the Conduct of a Judge. The proposed committee is to be called the Senate Select Committee on Allegations Concerning a Judge. The words 'relating to the Committee's inquiry' refer to the proposed Committee. Senator GARETH EVANS(Victoria-Attorney-General) —by leave-I wish to ask a couple of further questions of Senator Durack regarding clarification of the text of the amendment he has just circulated. The first point is that paragraph (12) of the amendment, as circulated, states: That witnesses before the Committee may be examined by counsel assisting the Committee . . . My understanding is that the expression 'counsel assisting' there appearing should be deleted and the words 'Commissioners Assisting' should be substituted. Certainly that was my understanding of what the Australian Democrats intended. We might have 'counsel assisting' as well if we retain the reference in paragraph (11). The difficulty is that there has been a lot of consultation on the terms of the notice of motion to make it, in our case, less offensive than it might otherwise be and from the point of view of the Australian Democrats to improve it to a status greater than it might otherwise have, but with the general objective of getting something which, as far as possible, represents some agreement, if not in principle, at least in detail. I did understand that paragraph (12) was to have a reference to the witnesses being examined by the Commissioners Assisting. Senator Haines —That is in paragraph (10). Why do you want to repeat it? Senator GARETH EVANS —Maybe it is sufficiently-- Senator Chaney —That is not by the Commissioners but by counsel. Senator GARETH EVANS —That is the point I am making. The Commissioners are not sitting there like a mini royal commission, which is my understanding of the Democrats approach; the Commissioners are actively participating on behalf of the Senate Committee, which is the real decision-maker in this enterprise, in examining witnesses amd assisting the Committee in that set of ways. There is a quite significant point of principle involved here which the Opposition is perfectly well aware of and I suspect it has been quite-- Senator Chaney —Paragraph (10) covers that point. They may participate in the Committee's deliberations and examine witnesses. It is already covered. Senator GARETH EVANS —As long as that is not to be regarded as in some way incompatible with the language in paragraph (12). It is my understanding of paragraph (12)-- Senator Chaney —Paragraph (12) is extending the right to counsel for the various parties as well. Senator GARETH EVANS —As long as that is on the record and it is understood that the primary examination role will be by the Commissioners Assisting, I am happy with that. It was also my understanding-Senator Haines might assist us further on this-that wherever the word 'Commissioners' appeared in this document it was to be in the form 'Commissioners' with a capital C and 'Assisting' with a capital A. Senator Haines —Maybe the word processor has choked on that. Senator GARETH EVANS —If that is a word processor omission, I ask Senator Durack whether he would be prepared, without the necessity to move a formal amendment, to accept that as yet another slip in the drafting of it? Senator DURACK(Western Australia) —by leave-I do not mind them being referred to always as 'Commissioners' with a capital C and 'Assisting' with a capital A. If that makes the Government happy, I will agree to it. I would like to get the state of mind of the Attorney-General (Senator Gareth Evans) clear as quickly as possible. I have been trying to ascertain what it is for a very long time. I take up Senator Georges's point because I am not quite sure what is worrying him . Paragraph (20) states: That the Committee- that is, the new Committee- the Commissioners, witnesses and counsel appearing before the Committee have access to the records of, transcripts of evidence taken by, and documents submitted to the Select Committee on the Conduct of a Judge- that is, the other Committee- and relating to the Committee's inquiry . . . That is, the transcripts of the Select Committee which relate to the inquiry of the new Select Committee on Allegations Concerning a Judge. Senator Georges —To spell it out, is Senator Durack saying that all the Committee will be getting is the Briese information and nothing else? Senator DURACK —Yes, that is right. That is all the Committee could ever look at . Senator CHANEY(Western Australia-Leader of the Opposition) —by leave-Madam Acting Deputy President, since I responded to the Attorney-General (Senator Gareth Evans) across the table and since I think he has some concern about the matter, I thought it would be better if I put on the record what I said. Senator Durack also should be quite clear on what I have said in case there is any concern later. The question which the Attorney-General raised related to the rights which were given to counsel assisting the Committee under paragraph (12). It seems to me quite clear that if we read paragraph (10) and paragraph (12) together, paragraph (10) ensures that the two Commissioners Assisting the Committee will be entitled to be present, to participate and to examine witnesses. Further, various legal counsel-people other than those Commissioners- and in particular the legal counsel assisting the Committee, counsel for Mr Justice Murphy and counsel for witnesses will be entitled to examine witnesses before the Committee. Paragraph (12) and paragraph (10) together do not precisely define the extent of participation by the Commissioners Assisting or by counsel. That is a matter which would be worked out before the Committee. I think the Attorney was saying that this indicated that the actual legwork of examining witnesses would be carried out directly by the Commissioners themselves. I do not think that is necessarily true. I think under this the matter could be subject to examination by counsel with the Commissioners sitting and intervening as they thought fit. Senator Gareth Evans —Madam Acting Deputy President, I raise a point of order. I suggest that it might suit the convenience of the Senate in wrestling with this particular document and trying to get the language right if we were to treat this as a Committee stage debate and move for the suspension of so much of the Standing Orders as would prohibit the consideration of it on that basis. I presume we will be able to get through it quickly enough on that basis, otherwise we will be seeking leave every two seconds for another half an hour while we sort it out. Senator Haines —Madam Acting Deputy President, speaking to the point of order, I am not quite sure how we can do that at the moment without getting rid of the preceding notice of motion which concerns the reference to Mr Temby. The ACTING DEPUTY PRESIDENT(Senator Coleman) —That is right. I will now have to proceed to putting the amendment and then the motion. We can then go into the Committee stage and all of these matters can be sorted out. Senator Gareth Evans —Under those circumstances, I want to reply to the debate and respond to the amendment. Senator Missen —Madam Acting Deputy President, I would like to take up the matters Senator Chaney mentioned. I will do it after this debate when we get back to the motion that is before us. I want to say something in connection with the matter. Senator Gareth Evans —Yes, so do I. The ACTING DEPUTY PRESIDENT(Senator Coleman) —Are you speaking to the amendment , Senator Missen? Senator Missen —No. I think it would be better if I take up the matter at a later stage after we have disposed of this motion. Senator HARRADINE(Tasmania)(4.31) —I wish to speak to the amendment that has been moved by the Australian Democrats to the motion of the Government to refer the matter to the Director of Public Prosecutions. I do so at this late stage in order to appeal to the Senate to consider very carefully what we are about to do and how this affects our role and our integrity as a chamber of this Parliament. The amendment that has been moved by the Australian Democrats does not, in any way, reduce my fear that the acceptance of the Government's proposition will besmirch the integrity of the Senate and will confuse its proper role. We are about to say to the Parliament that it should become an informer for the Executive about the judiciary. I believe that that is a very damaging attack on the separation of powers in the Constitution. I do not wish to canvass the matters that have already been canvassed in the debate so far-indeed, I might be out of order in so doing-but I wish to emphasise that this very serious challenge with which we are faced is not of the Senate's doing; it is not of the Government's doing. The allegations that have been made and are widespread, that we are exercising some political action in what we are about to do, are unworthy. I believe by this whole affair that we are now reaping the whirlwind of the type of political appointment that was made in 1974 to the bench of the High Court of Australia. I would like the Attorney-General (Senator Gareth Evans) when responding to refer to what I have said in relation to the apparent confusion of the role of the Executive Government in respect of the judiciary. I have referred to the action taken by the Attorney-General, subsequent to the tabling of the report of the Senate Select Committee on the Conduct of a Judge, to get the Commonwealth and the Australian Federal Police to speak to Mr Briese. I also refer to the Executive Government's decision to pay for the costs of counsel for the judge. Is that not a confusion of the roles of the Executive Government? Should not the Parliament, if it carries the Government's subsequent motion, agree to pay for counsel not only of the judge but also of the witnesses who may be summoned to appear before the Senate Select Committee by summons so that we can discharge our responsibilities under section 72? As I said before, I for one am not going to be party, as I believe I would be in voting for this Government proposition, amended by the Democrats, to reducing the Senate's role to a common informer to an officer of the Executive about the judiciary. Senator GARETH EVANS(Victoria-Attorney-General)(4.35) —Let me wind up this debate by replying to a number of the points that have been made in it without, I hope, covering ground that has been trodden over many times in the last 48 hours. I should say at the outset, however, that the amendment moved by the Australian Democrats to require the reference of material to Mr Temby to occur not earlier than the establishment and first meeting of the Senate Select Committee is, as I foreshadowed yesterday, wholly unacceptable to the Government . It is unacceptable to the Government because the whole principle of simultaneous reference to Mr Temby and to the proposed re-established Senate committee is itself unacceptable to the Government, is itself a complete nonsense for reasons that I have sought to explain and articulate on numerous occasions in the course of this week. The reason it is a nonsense is that it does confuse the proper roles that ought to be played by the various institutional players on the present scene. The situation might be different if the allegation of misbehaviour that was here involved was something other than misbehaviour of a criminal kind. But given that the allegation in question here is one of a kind which, if substantiated, would clearly constitute criminal misconduct of a kind prohibited by the Crimes Act, it is very important indeed that we have very close regard to the principles appropriate for dealing with that kind of allegation. The way in which allegations of a criminal kind are normally dealt with is by reference to the ordinary criminal processes and the ordinary criminal institutions which means nowadays, in the first instance, Mr Temby. If the matter in issue had, as I have said before, involved an assault of some kind or an obvious fraud of some kind, there would be very little doubt, I suspect in most people's minds, that that would be the appropriate course to follow-to exhaust the criminal option first before going down the track of parliamentary consideration. The criminal institutions, the criminal processes are the ones best equipped to apply the appropriate standards of proof and they are clearly constituted by that provision in the Constitution which talks in terms of proved misbehaviour, not just misbehaviour without more, but proved misbehaviour, anticipating some method of proof that would be appropriate to the circumstances of the kind of misbehaviour that is in issue. When we talk about criminal misconduct or allegations of criminal misconduct, it cannot be doubted that the most appropriate way of testing that conduct is through the ordinary criminal process and that is why we have emphasised and re- emphasised, repeated and gone on repeating the desirability in principle of the criminal prosecution route being first exhausted before bouncing the issue back into the parliamentary arena. That is why we think it is appropriate that the matter ought to be referred to Mr Temby before there is any question of considering the reincarnation of a committee to further deal with this particular matter. I will not go into any more detail about the kind of investigation or review that Mr Temby will necessarily be carrying out, except to repeat in a sentence that it is exactly the kind of job that he does every day of the week. The evidence before him on this occasion will be substantial and very bulky as a result of the work that has already been done. The investigative work, with rather greater powers than are available to the Australian Federal Police, has already been done by the pre-existing parliamentary Committee. We can expect a sensible, reasoned conclusion on the basis of the material and one that will be forthcoming in a short time so as not to produce unnecessary delay in the final resolution of this matter. Senator Harradine —Using different criteria. Senator GARETH EVANS —Using the criteria that are appropriate to a criminal prosecution because if it is the case that on the material, the allegation here demands a criminal prosecution, that is the best way, the most appropriate way, the most principled way of establishing proved misbehaviour within the meaning of the Constitution. That is why we want to go down that particular track. Let me now address quite directly the arguments about confusion of the institutional role, which Senator Harradine has been putting vociferously in the course of this day. Senator Harradine is asking us to accept that reference of the matter to the Director of Public Prosecutions confuses the role of the Senate and the Executive Government and somehow undermines the role that this Parliament is vested with by virtue of the provisions of section 72 of the Constitution. Let me make it clear, as simply and as succinctly as I can, that that just does not follow; it is not so. The allegation is of serious criminal conduct, for a start. The Constitution, under section 61, if I need constitutional reinforcement for stating the obvious, vests responsibility for the maintenance of the criminal law of the Commonwealth in the Executive Government. Senator Harradine —That is right, not us. Senator GARETH EVANS —In the Executive Government. Insofar as what we are concerned with here is an allegation of misbehaviour concerning a judge, and alleged to be such and argued to be such as to justify the removal of that judge from his position on the Bench, the situation becomes more complicated and we have a choice intruding into the situation. It has never been denied by me, or by anyone else in the Government, that it is appropriate for Parliament to have the last word. It has never been denied by me, or by anyone else in the Government, that Parliament is technically capable of itself dealing with and establishing to its own satisfaction proof of the misbehaviour in question. We have argued that it is inappropriate, given the availability of that criminal process. It is not appropriate for the Parliament to go down its own track first . It ought to exhaust that process before getting into the very deep and very muddy water that is involved. I simply cannot accept that there is any fundamental diversion from basic principles in what is here being involved. Let me address-I do so in a piecemeal way-some other matters that have been raised in the debate, including in the first instance by Senator Harradine when he asked: 'By what right did the Attorney-General ask the Australian Federal Police to approach Mr Briese?'. The suggestion is that again somehow there has been some confusion of role, confusion of institutional responsibilities and, indeed, some imputation of impropriety in the way in which the matter has been handled by me and by the Government. Let me again say that the allegation is of serious criminal conduct. That is a matter which it is appropriate for the Executive Government to investigate under section 61 of the Constitution. The Senate Committee report, in paragraph 79, agreed that the allegation was that a criminal offence had been committed. Under those circumstances it is appropriate for the Commonwealth to pursue in the ordinary way, through its ordinary executive instrumentalities, investigations of this kind. Senator Chipp is indicating that I should wind up the debate. I am addressing, in the debate as a whole, a number of other points that have been raised, including the ones that are in issue in relation to this amendment. They are matters which, if not corrected, will stand undenied and unresponded to on the record and that would be wrong. The only information that was otherwise available to the Government was the summary in the Senate Committee's report. The situation confronting the Government was the necessity to make a judgment as to whether some criminal prosecution should in any event flow. The Australian Federal Police were instructed to limit their approach to asking whether the evidence that Mr Briese would give, in the event that a prosecution was brought against the judge, would be to the effect of the statements attributed to him in Appendix 5 of the report of the Senate Committee. He was asked also whether he wished to make a formal complaint. That is as far as the police went on that occasion. I suggest that any imputation that the Executive Government was behaving somehow inappropriately in its conduct of this aspect of the matter is quite ill-founded . Many other points were made in the course of the debate about the meaning of misbehaviour and whether it should properly be regarded as extending to behaviour other than purely criminal behaviour or matters that are squarely related to the conduct of judicial office. Maybe that is something that will recur in the debate at the Committee stage. I think I have said enough to explain clearly what the Government's position is. I think it should be said that the objection about partisan political activity, for example, not justifying removal from office is one that overlooks the constraints and the pressures that would operate against such activity occurring on the part of the judge. I am not talking only about the disciplinary kind of role that the Chief Justice of an institution can always apply; if there is any question of political bias being evident in a judge which might flow through and influence his determination of a particular case in which those issues might be relevant, clearly that would either be misbehaviour in the conduct of his office such as would justify it, or it would certainly justify his removal from the Bench in the hearing of that case, in accordance with familiar principles. There are many other points. I think it is probably redundant at this stage to track over them, although I am very reluctant indeed to leave them unanswered on the record. Let me simply assert that they are all capable of answering, within the terms either of the original statement or the various glosses on it that I have been making all over the place. I commend to the Senate the original motion about the reference of the matter to Mr Temby. I urge the Senate to reject out of hand the amendment that has been proposed by the Democrats, in consort, of course, with the Opposition, which would have the effect of requiring that reference to proceed simultaneously with the establishment of the Committee. It is quite premature at this stage to establish the Committee and the Senate should reject that approach. Question put: That the words proposed to be added (Senator Macklin's amendment) be added. The Senate divided. (The President-Senator The Hon.Douglas McClelland) Ayes . . . . . . . . . . . 30 Noes . . . . . . . . . . . 28 —— Majority . . . . . . . . . 2 —— Archer, B. R. Lajovic, M.E. Baume, Peter Lewis, A. W. R. Boswell, R. L. D. MacGibbon, D. J. Carrick, Sir John Macklin, M. J. Chaney, F. M. Martin, K. J. Chipp, D. L. Mason, C. V. J. Collard, S. J. Missen, A. J. Crichton-Browne, N. A. Rae, PeterDurack, P. D. Reid, M. E. (Teller)Evans, Jack Scott, D. B. Haines, J. Teague, B. C. Hamer, D. J. Townley, M. Hill, R. Walters, M. S. Jessop, D. S. Watson, J. O. W. Kilgariff, B. F. Withers, R. G. Bolkus, N. Hearn, J. M. Childs, B. K. Jones, G. N. Coates, J. McClelland, DouglasColeman, R. N. Maguire, G. R. Cook, P. F. S. Primmer, C. G. Crowley, R. A. Ray, RobertElstob, R. C. Reynolds, M. Evans, Gareth Richardson, G. F. Foreman, D. J. Robertson, E. A. (Teller)Georges, G. Ryan, S. M. Gietzelt, A. T. Sibraa, K. W. Giles, P. J. Tate, M. C. Grimes, D. J. Walsh, P. A. Harradine, B. Zakharov, A. O. Messner, A. J. Colston, M. A. McIntosh, G. D. Guilfoyle, Dame MargaretButton, J. N. Bjelke-Petersen, F. I. Question so resolved in the affirmative. Motion (Senator Gareth Evans's), as amended, agreed to. Senator Harradine —Mr President, under the Standing Orders I wish to be recorded as voting against that motion. Senator DURACK(Western Australia)(4.53) —I move: (1) That a select committee, to be known as the Select Committee on Allegations Concerning a Judge, be appointed: (a) to inquire into the allegations made by Mr C. R. Briese, the Chairman of the Bench of Stipendiary Magistrates of New South Wales, concerning Mr Justice Murphy of the High Court of Australia, made before the Select Committee on the Conduct of a Judge and referred to in Appendix 5 of the Report of that Committee , and, after conducting such inquiry; (b) to report to the Senate its findings of fact upon those allegations; and (c) to report in relation to those allegations whether Mr Justice Murphy engaged in any conduct which could amount to misbehaviour providing sufficient grounds for an address to the Governor-General in Council by both Houses of the Parliament praying for his removal from office pursuant to section 72 of the Constitution. (2) (a) That the Committee, in its report, indicate whether there was conduct which could amount to misbehaviour in accordance with the interpretation of the meaning of 'misbehaviour' contained in: (i) the option of the Solicitor-General of the Commonwealth, and (ii) the opinion of Mr C. W. Pincus, Q.C., attached to the report of the Select Committee on the Conduct of a Judge; and. (b) That the Committee, in its report, indicate whether there is proof of conduct amounting to misbehaviour: (i) beyond reasonable doubt, and (ii) upon the balance of probabilities. (3) That the Committee consist of three Senators, as follows: (a) one to be nominated by the Leader of the Government in the Senate; (b) one to be nominated by the Leader of the Opposition in the Senate; and (c) one to be nominated by the Leader of the Australian Democrats. (4) That the Committee proceed to the despatch of business notwithstanding that all members have not been duly nominated and appointed and notwithstanding any vacancy. (5) That the Chairman of the Committee be the member nominated by the Leader of the Government. (6) That the Chairman of the Committee may, from time to time, appoint another member of the Committee to be the Deputy Chairman of the Committee, and that the member so appointed act as Chairman of the Committee at any time when there is no Chairman or the Chairman is not present at a meeting of the Committee. (7) That, in the event of an equality of voting, the Chairman, or the Deputy Chairman when acting as Chairman, have a casting vote. (8) That the quorum of the Committee be one member. (9) That the Committee have power to send for and examine persons, papers and records, subject to paragraph (18) of this resolution, and to meet notwithstanding any prorogation of the Parliament or dissolution of the House of Representatives. (10) That there be two Commissioners Assisting the Committee, appointed by resolution of the Senate upon terms and conditions approved by the President, and those Commissioners shall be present at all meetings of the Committee, and may participate in the Committee's deliberations and examine witnesses before the Committee on any matter relevant to the Committee's inquiry. (11) That the Committee appoint counsel to assist it, subject to the approval by the President of the terms and conditions of the appointment, and such counsel shall assist the Committee in relation to questions of law, evidence and procedure, and for that purpose may attend all meetings of the Committee and participate in the Committee's deliberations. (12) That witnesses before the Committee may be examined by counsel assisting the Committee, by counsel for Mr Justice Murphy, and by counsel for witnesses. (13) That the President be authorised to reimburse witnesses, for reasonable costs of legal advice and representation by counsel in respect of the Committee' s inquiry. (14) That the examination of witnesses before the Committee and any submissions made to the Committee by counsel be heard in public session unless the Committee by absolute majority otherwise determines. (15) That the Commissioners Assisting may recommend to the Committee that a particular witness be summoned. (16) That all witnesses before the Committee be heard on oath or affirmation. (17) That the Committee, after receiving recommendations from the Commissioners Assisting, determine procedures and rules for the examination of witnesses before it, having regard to the procedures and rules followed by the Supreme Court of the Australian Capital Territory, and subject to paragraph (18) of this resolution. (18) That the Committee conduct its inquiry in accordance with the following procedures: (a) Mr Justice Murphy shall not be summoned to give evidence; (b) all examination of all witnesses shall take place in the presence of counsel for Mr Justice Murphy and of Mr Justice Murphy if he chooses to attend; (c) when all examination of all witnesses has concluded, Mr Justice Murphy shall be invited to give evidence; and (d) if Mr Justice Murphy gives evidence, he shall be sworn and subject to examination in accordance with this resolution. (19) That the Commissioners Assisting advise the Committee in writing, in accordance with paragraph (2) of this resolution, upon the matters into which the Committee is to inquire and upon which the Committee is to report, and the Committee include in its report the advice of the Commissioners Assisting. (20) That the Committee, the Commissioners Assisting, witnesses and counsel appearing before the Committee have access to the records of, transcripts of evidence taken by, and documents submitted to the Select Committee on the Conduct of a Judge and relating to the Committee's inquiry, and may refer to those records, transcripts and documents in the course of the Committee's proceedings. (21) That the Committee report as soon as possible but not later than 11 October 1984. (22) That, if the Senate be not sitting when the Committee has completed its report, the Committee may send the report to the President, or, if the President is unable to act, to the Deputy President, and, in that event: (a) the report shall be deemed to have been presented to the Senate; (b) the publication of the report is authorised by this Resolution; (c) the President or the Deputy President, as the case may be, may give direction for the printing and circulation of the report; and (d) the President or the Deputy President, as the case may be, shall lay the report upon the Table at the next sitting of the Senate. (23) That the foregoing provisions of this Resolution, in so far as they are inconsistent with the Standing Orders, have effect notwithstanding anything contained in the Standing Orders. Having moved the motion, as amended, if there is any need for further questioning presumably the Senate will facilitate that operation. Senator Gareth Evans —I take it that the amendments to which Senator Durack refers are all the linguistic amendments that were accommodated in the last 20 minutes of debate as well as the terms of the document he circulated earlier. References to Commissioners Assisting are peppered throughout and the word ' report' is deleted. Does the honourable senator formally move the motion in that form? Is there no need for any further clarification? The DEPUTY PRESIDENT —I think there is some need for further clarification. I think it would help if Senator Durack went through the amendments to the document as circulated so that all honourable senators are clear as to what has been moved. Senator DURACK —The motion I have moved is the document that honourable senators have had circulated to them on which dark type indicates the amendments to my original motion. The lighter type indicates the original motion, if anybody is interested in that any more. I have sought to make an amendment to paragraph 19 of that motion to leave out the words in line (1) 'report to the Committee and' and to add in line (2) the words 'advise the Committee'. Paragraph 19 now reads: That the Commissioners advise the Committee in writing . . . In the last line of paragraph 19 I have sought to take out the words 'report and ' so that the final part of that paragraph reads: . . . and the Committee include in its report the advice of the Commissioners. Senator Gareth Evans also made a request, to which I agreed, that there be two commissioners assisting the Committee. I think the first reference is in paragraph 10. He is anxious that, wherever there is reference to 'Commissioners' , they be called 'Commissioners Assisting'. That does not mean any change to paragraph (11), which refers to the Committee being able to appoint counsel to assist it. He will be a different being. Where reference is made to the Commissioners, as in paragraph 15, which reads in part, 'that the Commissioners may recommend to the Committee', the word 'Commissioners' should be replaced by 'Commissioners Assisting'. The same thing applies in paragraph 19, which should read 'That the Commissioners Assisting advise the Committee . . .'. Wherever the word 'Commissioners' appears it should be 'Commissioners Assisting'. Paragraph 20 should read . . . 'the Commissioners Assisting, witnesses and counsel . . . '. I have agreed to replace wherever the word 'Commissioners', wherever it appears, with the words 'Commissioners Assisting'. Those are the only amendments that I am aware of that were under discussion. I presume that Senator Georges is now satisfied with the explanation that I gave him. Senator Georges —As long as it is on the record. Senator DURACK —Yes. Senator Gareth Evans —I wish to have one further point of clarification, if I may. The first line of paragraph (11) reads: 'That the Committee appoint counsel to assist it . . .'. The expression 'counsel' is, of course, ambiguous as to whether the singular or the plural is meant unless the context makes clear one thing or the other. Here the context does not do so. As I understand it there is a general acknowledgment, at least on the part of the Australian Democrats, that we are talking about a counsel, singular, to perform the particular function that is here identified. There has also been some discussion as to whether that person should have a fancy title, but there seems to be a further fancy title to add to the long list of people with fancy titles in this enterprise. Senator Chaney —You get the fancy title of 'Chief Obfuscator-capital 'C' and capital 'O'. Senator Gareth Evans —There is some resistance, as I understand it, to a fancy title in this instance so I do not pursue that. But I think it is important, if there is a mandatory provision here-not a discretionary one-that the Committee appoint, that it be clear whether one counsel or more than one is contemplated as fulfilling this role. Accordingly I ask whether Senator Durack is prepared to accept the force of that and to insert the word 'a' before 'counsel' in the first line. The DEPUTY PRESIDENT —Is that acceptable, Senator Durack? Senator DURACK —No, it is not. If the Committee wanted to appoint a Queen's Counsel of some distinction he might want a junior. If anything is clear to lawyers it is the phrase 'committee appoint counsel'. What is meant will be perfectly understood. I cannot see the slightest difficulty. When all is said and done, we know that one party before this Committee will probably be serviced by two Queen's Counsel at the expense of the Government, so I do not know why there should be any concern about leaving it to the Committee to decide on the number of counsel. The probabilities are that the Committee will obtain the services of a suitable Queen's Counsel without the requirement of junior counsel , but if it were not able to do so I do not see why we should exclude the Committee from making the arrangements which suit it best. The DEPUTY PRESIDENT —Attorney-General, that amendment is not acceptable. If you wish to pursue it you will have to move it by way of formal amendment. Senator GARETH EVANS(Victoria-Attorney-General)(4.59) —I do not discern any enthusiasm elsewhere in the chamber for moving an amendment so I am not sufficiently masochistic to pursue it. I appreciate the point that has now been put on the record that it is clearly within the discretion of the Committee. Beneath the apparent maze of pedantry that has been perpetrated by me on this issue there lurks a point of real substance. That point is perfectly well appreciated by the Opposition, but I think it is less well appreciated by the Australian Democrats. At least that point should begin to be appreciated by the Fourth Estate and others who have an interest in this matter. The point is that in this terminology, even though most of the substance has been completely stripped away from it by the terms of the motion, the Opposition is continuing to try to create an image of a mini royal commission under the umbrella of the parliamentary committee listening to, adjudicating upon and writing advice about the issues involved in this matter. That particular mini royal commission will consist of commissioners, or commissioners assisting, as we are now able to describe them. The Opposition is trying to persist in creating the impression-it is creating as much machinery as possible to go with that impression-that this matter is about some kind of independent group of people, now designated as commissioners assisting, who will sit listening to the material presented to them and in effect adjudicate and make determinations upon it. That image is very much advanced if one develops as further machinery the concept of a bevy of counsel-senior and junior counsel-doing the hard work of examining witnesses on, as it were, the floor of the chamber where the matter is being determined. The concept that I understand the motion is about is rather of the commissioners themselves doing the work of conducting examinations of witnesses and basically assisting the committee to reach its determinations and make its findings. Senator Chaney shakes his head. He cannot have it both ways, because the language of the motion which he has been obliged to accept does not enable him now to make the claim that he is speaking of an independent commission. That is just as well because if that claim could be made it would very rapidly be challenged in the courts. I am trying in all of this to pursue expeditious resolution of the matter in a way that is consistent with high principle. Expedition is not advanced when machinery is created that is ambiguous in character and capable of collateral challenge in the courts. Unless we are very careful about the way in which we draft this motion it will be challenged, and that will prolong unmercifully this whole unhappy affair. I say no more about that matter, except to make it clear for the record that the Opposition cannot continue to create the image of an independent commission when the terms of the motion, despite some minor variations, as are involved with this counsel assisting business, do not allow that conclusion to be drawn. If the terms of the motion allowed that conclusion to be drawn, that would be a most unhappy state of affairs. Of course, the Government will oppose the motion because we have made it clear that it is inappropriately premature at this stage for us to contemplate any kind of committee to determine these issues. As I have said over and over again- I shall not repeat it-these are matters appropriate in the first instance for determination through the criminal process. If we are to create a committee we should at least make it a committee with precisely defined terms of reference and a membership of four, evenly divided between the Government and the Opposition. As I understand it, the Australian Democrats will move an amendment to that effect which the Government will support. If we are going to create a committee, let us make it the least worst committee it is possible to imagine, but let nobody be under the impression that the Government is otherwise than opposed to the creation of any committee at this stage. Senator CHANEY(Western Australia (Leader of the Opposition)(5.04) —It is important to put the remarks of the Attorney-General (Senator Gareth Evans) into their true context. The Attorney-General has just made a speech in which he criticised the form of the motion put forward by the Opposition and which will, I understand, substantially have the support of the Australian Democrats. The Attorney-General has foreshadowed some amendment that the Australian Democrats will move. The Attorney-General has been at pains to stress the difficulties posed by this motion. It is important to remember that the Attorney-General was offered a simpler, more straightforward approach to this matter. If he had really wanted to deal with the matter simply, expeditiously and in the way that he has suggested in his recent remarks, he would have been more interested in the proposition which the Australian Democrats put to him and which we indicated we would support. Senator Gareth Evans —Which was legally unsound, and you know it. It would take it straight off to the courts. Senator CHANEY —Of course it was legally unsound. The Democrats put the proposal forward on the basis that it would require the Government to co-operate in amending legislation. We indicated that we, too, saw that as a very good course to follow. We sought the Government's co-operation, but there has not been a single sign that the Attorney-General wishes to co-operate or wishes to see this matter dealt with in a more straightforward way. The motion moved by the shadow Attorney-General, Senator Durack, is in its present form because that is the form available to us in the Senate, given the non-co-operation of the Government in this matter. To the best possible extent, that form ensures that people who are not politicians will have a view put through the committee, and it will be part of the committee's report that that view is received. That measure will at least give us another window into this matter. Frankly, if we are concerned to ensure that this matter is satisfactorily and speedily dealt with, we shall have less of the sort of approach that we have seen from the Attorney-General publicly here in the chamber this afternoon, and privately in the many discussions about this matter, and we shall see an attempt genuinely to put this mechanism into place as quickly and effectively as possible. It is appalling that the Prime Minister-even I am subject to oral slips with respect to the member for jabber-jabber; I understand that the honourable senator is ahead of progress on every front, and he may well be Prime Minister within a matter of months. Let me be the first to use that expression with respect to him. It is appalling that the Attorney-General should choose to make a speech on this matter stressing what he produces as difficulties which, if they are difficulties, exist because of his approach and because the Government has not been prepared to co-operate with the alternative approach put forward by the Australian Democrats, an approach that the Opposition said it would be happy to embrace in lieu of this one. The simple fact is that we tabled our motion in the pessimistic frame of mind that we would not receive co-operation from the Government. The Australian Democrats gave notice of their motion in the optimistic assumption that the Government would co-operate with them and facilitate that approach. Their optimism has not been justified, and I regret that; our pessimism has been justified, and I regret that also. I believe that it ill lies in the mouth of the Attorney-General to adopt the stance he has just adopted. I believe that the Senate should support the motion and that we should have continued parliamentary consideration of a matter which is obviously and clearly within the province of the Parliament and which we all wish to be dealt with in a satisfactory, sober and proper manner. Senator GEORGES(Queensland)(5.08) —I make one final appeal in a rather sliding situation. Senator Walters —More in hope than in anger. Senator GEORGES —More in a vain hope. I hope that the Senate will accept that we should not make it mandatory for the committee to appoint counsel. I hope that the measure will state: 'The committee may appoint counsel to assist it in any way it sees fit with the co-operation of the President'. We have gone far enough by appointing two commissioners and by allowing people to be cross-examined and counsel to appear on behalf of witnesses and interested parties. To make it mandatory for the committee to appoint counsel who then would engage in cross- examination on behalf of the commissioners and, therefore, on our behalf is to strip further the powers of the Senate and the Senate committee. Senator Macklin —That counsel has a different job. Senator GEORGES —I know he would have a different job but the job is unnecessary in the circumstances. If this Committee meets and this chamber is available it will have the right to sit in this chamber. This chamber would be converted into a court, a royal commission, with three or four senators sitting as dummies virtually; they could not participate. We have transmitted that power to the Commissioners and now counsel will be present. Can honourable senators imagine what this chamber will be turned into or, if it is not this chamber, what the committee rooms of the Senate will be turned into? Senator Haines —Only if you are on it. Senator GEORGES —I do not know what would happen if Senator Haines were on it. All I am suggesting is that at least a small amendment, leaving it to the discretion of the Committee to make the decision as to whether it should appoint counsel, should be made and that paragraph (2) should provide that the Committee may appoint counsel. The rest should follow. Senator MISSEN(Victoria)(5.12) —When we were debating the previous motion I endeavoured to enter the debate because of remarks which the Attorney-General ( Senator Gareth Evans) made about what he understood was on the record as to the procedures. He has repeated and expanded those remarks in the debate on this matter. I will not traverse the area which the Leader of the Opposition, Senator Chaney, has covered and with which I agree. As I understand the proposal which is before us and which is likely to be carried, the Attorney was suggesting that we downgrade the work of the Commissioners Assisting- Senator Gareth Evans —They are counsel assisting and that is all they are and that is all they can be if it is going to survive legal challenge and you know it, whatever you call them. Senator MISSEN —That is what the Attorney-General says. I do not happen to agree with him. I see that is his purpose and his point. I am just saying that I do not agree with his purpose or his point. As I see this matter we do not expect a repetition of what occurred under the previous Committee with the divided political views and finally divided opinions. Rather we hope to get valuable and independent advice which will come through the Senate Select Committee on Allegations Concerning a Judge. I hope that we will therefore not see in this motion anything that downgrades in any way the importance of the appointment of Commissioners Assisting and the work they will do through the Committee. That Committee will then refer to this chamber the facts with which it becomes satisfied on the advice which it receives. This chamber will then proceed on that. I do not accept the Attorney's view of the small value of the work which one would expect to come from the Commissioners Assisting. I would imagine that they are the greatest hope we in this chamber have of getting non-political advice based on the facts. The purpose of this motion is to keep that very much in mind. Senator BOLKUS(South Australia)(5.14) —I am bemused by all this. I cannot understand what is going on in the Senate at the moment. What we have is a proposal which, in essence, gives us a rerun of what we have had already. What have we got? An argument has been put to us for the last week that it is important to get evidence from the judge and that, as a consequence of that importance, we should set up another committee, another commission, another inquiry or whatever, to get that evidence before us. From reading this motion one gets an assurance that Mr Justice Murphy will not be summoned. We have that particular problem. We also have the problem that the Senate Select Committee on the Conduct of a Judge had. There is no provision at all in this resolution for Mr Justice Murphy, if he chooses to participate in this farce, to lead witnesses as a counterbalance to the evidence against him. In essence, paragraphs 2 (a) and 2 (b) say to the proposed Committee: 'Go ahead . Do not make any determination on what the accurate law is because you have an option on what you believe is misbehaviour. Do not make any accurate assessment of the burden of proof that is relevant because you have an option-it can be either beyond reasonable doubt or on the balance of probabilities. Come back with a report on any one of those four combinations. If you do not find the judge guilty on one of those four combinations, none of you are doing your job'. What else does the Opposition want? Also we have a provision that the hearings will be held in public unless the Committee, by absolute majority, otherwise determines. If the whispers around the place are true, Senator Missen is the Opposition senator who will be on this Committee. We all know Senator Missen's approach to these sorts of hearings. We have the National Crime Authority investigation and report to substantiate it. What we will have is a full open hearing subject to no restriction on what the pertinent law will be and where all sorts of evidence can be dragged forward, relevant or irrelevant, arising out of the allegations of Mr Briese without any specific allegations being defined, as the laws of natural justice demand. We are being asked to support such a motion. When I said at the start of my remarks that I could not understand what is going on here today, maybe I should have refined that. I can understand what is going on here today. I said it earlier. It is a public persecution of the judge and all honourable senators opposite ought to be ashamed of themselves. Senator HAINES(South Australia)(5.17) —by leave-I move: Paragraph (3) leave out 'three', insert 'four'. Sub-paragraph (3) (a) leave out 'one', insert 'two'. Paragraph (5) leave out 'the member', insert 'a member'. Paragraph (8) leave out 'one member', insert 'two members'. I thought I had talked myself out on all the ramifications of the last few days but, given that a learned colleague opposite does not understand what this is all about and seems to believe that in some way the course of natural justice will be perverted, perhaps I ought to make it clear to honourable senators why some of us are looking slightly haggard. First of all, as the Leader of the Opposition, Senator Chaney, has pointed out, the Government had the opportunity to put this matter into a totally independent arena, to take it right out of politics, to make it a perfectly simple and straightforward inquiry. It refused to provide us with the legislative protection that was required for the witnesses. There was hardly any way that a responsible House of Parliament could proceed under that set of circumstances. Instead, in an attempt to get the greatest amount of consensus possible, honourable senators on this side of the chamber at least have done everything possible-I think far more than could have been expected of them-to achieve as much as possible for as many people as possible. For example, counsel for Mr Justice Murphy has always made it perfectly clear that the reason he could not appear before the Senate Select Committee on the Conduct of a Judge was that his counsel had no right to cross-examine witnesses. This motion gives him that right. Furthermore, Mr Justice Murphy demanded that he have the right to choose, after his counsel had cross-examined, whether or not he would appear. This motion gives him the right. It invites, rather than demands his presence. We could not have been fairer to Mr Justice Murphy than we have been in the paragraph of the motion that pertains to him. Furthermore, we have done everything possible to accommodate the constitutional niceties, not to say the constitutional hang-ups of the Attorney-General ( Senator Gareth Evans). In doing so, I think it only fair to acknowledge the tremendous amount of assistance we have received from the parliamentary officers , without whom none of us, particularly the Attorney-General, could get by. Furthermore, again in a spirit of attempting to placate, as it were, the Government and to indicate that we were not on any sort of hunting expedition, we accommodated the Temby reference as long as it was what we had always demanded and not the only, the final or even the outright first direction. We achieved that in the previous motion. We are about to give the Government its demand for four senators on the Committee, not three. We have given it the chairmanship and at some- Senator Georges —Great news! Senator HAINES —We did not need to. There are recent precedents in this place to indicate that that is not necessary. Those opposite were party to such an arrangement some years ago. Furthermore, the Government has the casting vote. That brings us to the absurd debate that the Attorney-General has been conducting about the wording of paragraph 11. We are confronted with a committee over which the Government has control and yet the Attorney-General is still prepared to talk about capital Cs and little Cs and whether the counsel should be special or just ordinary. He is behaving like a little boy. We have done everything we could to make sure that Mr Justice Murphy's request, indeed his demand, that the requirements of natural justice be complied with, has been met. It has been met in paragraph 17 of this motion, amongst other paragraphs. As I said before, we have attempted in every way to meet the requirements of all sides of this place and the needs of Mr Justice Murphy. I remind honourable senators that it was not necessary to do that. But in an attempt to keep as far as possible away from overt politicism-although how we can expect to do that with the Attorney-General I am not sure-we have accommodated as many of those needs as possible. We now have counsel assisting the Committee. We have included learned outsiders. We have accommodated Mr Temby, provided that he runs in parallel with what we want. We have done as much as we can to ensure that Mr Justice Murphy will feel free to appear in front of the inquiry. More than that, I believe, it has been impossible to do. Senator DURACK(Western Australia)(5.24) —The Opposition will oppose the amendments moved by Senator Haines because it believes that the Government has forfeited any right to be in control of the Senate Select Committee on Allegations Concerning a Judge. This Government from go to whoa has behaved disgracefully. In particular, the Attorney-General (Senator Gareth Evans) has been a disgrace to his office in the way in which this matter has been dealt with. It is not often that an Opposition in the Senate seeks to prevent a government having control of a committee of the Senate, but there are precedents -- Senator McIntosh —In 1974. Senator DURACK —We do not have to go back until then. We need go back only two years when those opposite were in opposition and set up a committee, which the then Government did not control, to investigate the then Government's proposals for major amendments to the Conciliation and Arbitration Act. That is a very clear and recent precedent, and there are plenty of other precedents. In this case the reason that the Opposition is not prepared to agree to the Government having control of this Committee is that the Government has forfeited that right because of the attitude it has exhibited to this problem from the word go, particularly its attitude in relation to the matter before us this week when the Attorney-General has deliberately gone out of his way, supported by the Government to my astonishment because I thought the Prime Minister (Mr Hawke) might have been able to take a slightly more statesmanlike view of this problem, to deny any co-operation to the Senate. Over and over again that denial of co- operation has been made by the Attorney-General inside and outside this chamber. In those circumstances the Opposition frankly does not trust the Government to behave in an honourable way in relation to this Committee. I am sorry to have to say that, but that is the situation revealed by the approach of the Attorney- General. We are not going to support any amendments which give the Government, in its present mood and in view of its likely attitude to this Committee, control of the Committee. Senator GARETH EVANS(Victoria-Attorney-General)(5.27) —I simply want to indicate to Senator Durack for the record that the distrust and distaste that he has expressed towards this side of the chamber and me in particular are fully reciprocated. Let me move more specifically to the reasons that the Government has taken this course and has been unco-operative, in the terms which Senator Durack has just expressed. Of course, the reasons are twofold: firstly, the enterprise of setting in train a committee at this stage before the criminal processes have been exhausted for what is essentially a criminal allegation was wrong in principle, as I have said over and over again; and, secondly, to establish the proceeding in that particular way, particularly in the way in which the Opposition has sought co-operation through legislative support for an independent commission, would have been constitutionally unsound, highly unlikely to withstand scrutiny in any challenge under section 72 and therefore not only would create a situation in which this Parliament or the criminal courts would have to second guess that process but also would prolong an agony for the people and institutions in question that has already gone on too far. Let me just correct for Senator Durack the record about the way in which this sort of situation has been dealt with in recent years. I asked the long- suffering parliamentary officers to tell us circumstances over the last 10 years in which select, joint or joint select committees had been created with government and non-government members being equal and how that issue had been resolved in terms of the casting vote of the government of the day and the chairman of the day. In other words, I asked for situations in which the government had had control of a committee, notwithstanding the absence of numbers in this chamber in many instances. In 1984 there were two instances: The Senate Select Committee on Volatile Substance Fumes, established on 10 May this year, with two government and two non-government members, the Chairman having a casting vote; and of course the Select Committee on the Conduct of a Judge established in March this year, with three government and three non-government members, the Chairman having a casting vote. The Select Committee on Animal Welfare was established in November 1983 with two government and two non- government members, the Chairman from the Government having the casting vote. In 1982 the Joint Select Committee on Parliamentary Privilege was established on a five government and five non-government basis with a government chairman. When we went into government and the then Government became the Opposition, by agreement and by grace and favour, as it were, we acceded to a position where the non-government Chairman remained in that position. John Spender stayed the Chairman and I stayed the Deputy Chairman for reasons of comity, good faith, harmony and getting on with the business with a proper degree of continuity. That has been the only exception, the only time in the last 10 years, where somebody other than a government person has chaired a select, joint, or joint select committee. Let me give the others just for the record: In 1981, the Private Hospitals and Nursing Homes Senate Select Committee; in 1981 again, the South West Tasmania Senate Select Committee, three and three; the Government Clothing and Ordnance Factories Committee in 1981, three and three; the Parliamentary Appropriations and Staffing Select Committee, on 23 May 1980, three and three, chairman with a casting vote; the Passenger Fares and Services to Tasmania Senate Select Committee, two and two, chairman with a casting vote; in 1976, the Aborigines and Torres Strait Islanders Senate Select Committee, three and three, with the chairman casting; Operations of the Mount Lyell Company Senate Select Committee, November 1976, three and three, with the chairman casting; 1974, Foreign Ownership and Control Senate Select Committee, four and four, chairman casting. In every single instance the government of the day, notwithstanding a variable situation so far as concerned the composition of the Senate over that period, has had the formal, technical control of the Committee. There is only one set of principles that would be broken by passage of the motion in the form in which Senator Durack has moved it today, and those are the long-standing convention and principles which have governed the business of this chamber in the composition of committees. Senator Durack —What about the committee two years ago? Senator GARETH EVANS —I have not heard about that committee of two years ago. It does not feature in the briefing that I sought and received from the independent parliamentary officers of the Senate. Maybe it was a committee in which there was a majority rather than equal numbers. I do not know the circumstances of that. All the precedents I have had drawn out of the records point to a situation which, as we all know, has been the commonly excepted practice in this place. There is no question of the Government manipulating numbers on this Committee with any prospect of effect, any more than that has ever been the case with committees of this kind-any more than it was the case with the Committee at the first stage of this inquiry. Of course, the realities of the matter are that everybody has to behave with common sense, moderation and respect for principles . That is the way we will behave. We only wish to goodness that was reciprocated on occasion in this place. Senator WALTERS(Tasmania)(5.34) —It is very convenient that the Attorney- General (Senator Gareth Evans) has not heard of the committee, of which Senator Harradine was chairman, where the Government-this was a couple of years ago-did not have the numbers. I happen to have been a member of that committee, as was Senator Withers. We did not have the numbers and, as I say, Senator Harradine was chairman. It is convenient that the Attorney got all the information from his sources, who chose to ignore that incident of which the shadow Attorney was speaking. I would ask that the Attorney-General's research be a little more thorough in giving the information which he puts before this chamber. He should get stuck into his research officers and ask them for the correct information in future. Senator GARETH EVANS(Victoria-Attorney-General) —by leave-For the benefit of the Clerks of this place, who are being maligned, what the Clerks were asked by me to do was to look at situations where committees had been created that were evenly divided between government and non-government members and to tell me what the situation had been with respect to a casting vote and, accordingly, who in turn was in control. The reason why the conciliation and arbitration committee referred to did not turn up, I am now advised, was not because of a situation of even numbers; it was a situation of three, three and one. I am indebted to honourable senators for correcting the record and making clear not only the integrity and credibility of the Clerks but also their competence. They did very well indeed the job that was asked of them. The principle still remains exactly the same. In every instance over the years where committees have been created with equally divided membership, they have been created in circumstances where the Government keeps control. In any event, I imagine, with respect, that Senator Harradine was the next best thing to being in the Government at that stage. Senator CHANEY(Western Australia-Leader of the Opposition) —by leave-It is important to note that while the Attorney-General (Senator Gareth Evans) was blaming those who had provided assistance to him, he asked them the wrong question. It was never the proposition of the Opposition that there should be a committee made up equally of members of Government and Opposition; it was never the proposition of the Opposition that there should be a committee which was dominated by this Opposition. The proposition we put forward in Senator Durack's motion was that there should be one representative of the Government, one of the Opposition and one of the Australian Democrats. In other words, there was no question of this Opposition having control. There was the question of no party- not the Democrats, the Opposition or the Government-having control. It is important to note, if one is interested in genuine parallels between what we were proposing and what has happened in the past, that not only was there the recent example mentioned by Senator Durack-overlooked by the Attorney-General because he had asked the Clerks the wrong question-but there was also something I would have thought would be within the memory of the Attorney-General because I think that he was working as a consultant at the time it occurred. I refer to the Committee on the Civil Rights of Migrant Australians. I think that was a very contentious Committee and I should have thought that a scholar like the Attorney-General would remember it. On that occasion also there was not a government majority or a government chairman. Because the Attorney set out to blame those who advised him, I want to make it quite clear that the Attorney, as usual, has asked the wrong question. As a result he has given us the wrong answer. Senator CRICHTON-BROWNE(Western Australia)(5.38) —I notice that the Attorney- General (Senator Gareth Evans) referred to the Bendigo Ordnance Factory. As events evolved, the government of the day did chair the Committee with Senator John Martyr, but only after a confrontation at the first meeting. Senator Button was nominated as chairman and he accepted the nomination. It was only after it was pointed out with some vigour that an arrangement had been made, as I understand it, by Senator Chaney with the Opposition at that time that a Government member would chair that committee that finally Senator Button was prepared to accept Senator Martyr as Chairman. At that point in time, Senator Button was dead keen to chair it, and it was no thanks to any co-operation, goodwill or precedent that the government of the day chaired that meeting. Question put: That the amendments (Senator Haines's) be agreed to. The Senate divided. (The President-Senator the Hon.Douglas McClelland) Ayes . . . . . . . . . . . 33 Noes . . . . . . . . . . . 25 —— Majority . . . . . . . . . 8 —— Bolkus, N Jones, G. N. Childs, B. K. McClelland, DouglasChipp, D. L. McIntosh, G. D. Coates, J. Macklin, G. R. Coleman, R. N. Maguire, G. R. Cook, P. F. S. Mason, C. V. J. Crowley, R. A. Primmer, C. G. Elstob, R. C. Ray, RobertEvans, Gareth Reynolds, M. Evans, Jack Richardson, G. G. Foreman, D. J. Robertson, E. A. (Teller)Georges, G. Ryan, S. M. Gietzelt, A. T. Sibraa, K. W. Giles, P. J. Tate, M. C. Grimes, D. J. Walsh, P. A. Haines, J. Zakharov, A. O. Hearn, J. M. Archer, B. R. Lajovic, M. E. Baume, Peter Lewis, A. W. R. Bjelke-Petersen, F. I. Martin, K. J. Boswell, R. L. D. Missen, A. J. Carrick, Sir John Rae, PeterChaney, F. M. Reid, M. E. Collard, S. J. Scott, D. B. Crichton-Brown, N. A. Teague, B. C. Durack, P. D. Townley, M. Hamer, D. J. Walters, M. S. Hill, R. Watson, J. O. W. Jessop, D. S. Withers, R. G. Kilgariff, B. F. (Teller) Colston, M. A. Guilfoyle, Dame MargaretButton, J. N. MacGibbon, D. J. Question so resolved in the affirmative. Motion (Senator Durack's), as amended, agreed to. Senator Gareth Evans —Mr President, I make it clear to the Opposition-I do not want to waste time calling divisions-that obviously the Government opposes the passage of the motion as amended. We supported the amendment to get the least worse option but I want it clearly recorded for the record that, although there has not been a division, we oppose the passage of the motion in its amended form . Senator HAINES(South Australia) —Mr President, I withdraw notice of motion No. 115 standing in my name, it now being redundant. The PRESIDENT —I advise honourable senators that I have been advised that there is a major fault in the telephone system external to Parliament House. It is presently not possible to make outgoing calls from the building. Telecom technicians are working on the problem but at this stage there is no indication as to the time it will take to rectify the fault. The telephone system within the building is working normally. [COGNATE BILLS: SALES TAX (EXEMPTIONS AND CLASSIFICATIONS) AMENDMENT BILL 1984 CUSTOMS TARIFF AMENDMENT BILL (No. 2) 1984] Debate resumed from 5 September, on motion by Senator Gareth Evans: That the Bills be now read a second time. Senator PETER RAE(Tasmania)(5.47) —As I understand it, we are debating cognately the Sales Tax (Nos 1 to 9) Amendment Bills 1984, the Sales Tax ( Exemptions and Classifications) Amendment Bill 1984 and the Customs Tariff Amendment Bill (No. 2) 1984. I wish to clarify whether that is the Government's intention. Senator Gareth Evans —By all means. Senator PETER RAE —I speak to all of the Bills, which are Budget measures. In that context the Opposition does not oppose any of them. However, the Opposition wishes to criticise some of the actions taken by the Government in relation to certain of the Bills and to make some comments on the overall question of the Budget and its likely impact on the Australian economy. In speaking to these measures, which are all part of the Budget and which traditionally give one the opportunity to talk at large on the Budget, I point out that this year it is anticipated that total revenue collections will rise by no less than 10.7 per cent in real terms. People sometimes get confused as to what is meant by 'in real terms' or other such expressions. Let me say in the broadest possible way that that rise is very significant. It is a rise which means that over and above inflation the revenue collection is anticipated to increase-that is, an increase in the total impost of government on the community-by nearly 11 per cent. The Budget Papers show that that increase is the largest increase in revenue collections which has occurred since the end of the Second World War. This Government has told us that it is a government which, because of the accord and its management, will cover all the problems of the community. We heard the Minister for Industry and Commerce (Senator Button) happily stridulating away here this afternoon about what a wonderful success rate the Government has. We find that in fact its Budget will impose the largest increase in revenue collection which has occurred in any year since the Second World War. We note that this is a special situation because the Government is basing its Budget strategy on a one-off increase in revenue collections. However, the problem is that in doing that it is storing up immense problems for the following years. One of the things that has been said recently which is very hard to deny is that from any one drought it is possible to have only one recovery. We cannot keep spending the recovery, time and again. What this Government appears to be attempting to do is spend the product of the recovery from the Australian drought again and again. I notice that Senator Walsh is in the chamber. I will be interested to hear any response he might make in due course in relation to this point. The Government is spending windfall money. It is spending it not on investment but on extra programs for extra votes for its retention. In summary, that is what this Budget is all about. Senator Walsh —We don't need to pork barrel. Senator PETER RAE —If the Government does not need to pork barrel I do not know why it is doing so much of it. Perhaps the Government might like to reconsider its Budget. I believe I could say with absolute confidence of support from the totality of the Opposition that if the Government reconsidered its Budget and cut out all the pork barrelling in it we would give the Government leave and assist in any way for it to be recommitted. If ever there was a pork barrelling Budget, this is it. The Budget was formulated for short term benefit. There is no doubt whatsoever that the Budget will not be able to be maintained or sustained. If by some misfortune the people of Australia are misled into re- electing this Government, of the few for the few, the Government of the accord- so called-- Senator Robertson —No response. How disappointing. I bet you worked that one out for days. Please carry on. Senator PETER RAE —I could send Senator Robertson some articles which I have written about this in the last few months if he would like to read more about it . I did not work it out in just the last few days. It might help Senator Robertson's education if I did so. I know he spends a lot of time cut off from the real world of communications because he puts his head in the sand. However, if Senator Robertson would like to pull his head out of the sand from time to time to hear what is going on in the real world he would find that it is not the first time that I have used that expression in this chamber and in the media. Senator Robertson —You usually get a response, don't you? Senator PETER RAE —I am glad to have got a response from Senator Robertson and I thank him for it. I go back to the point I was making. This year total revenue collections will rise by no less than 10.7 per cent in real terms. What is alarming is that the 44.7 per cent increase in provisional tax collections will contribute to the total revenue collection increase of 10.7 per cent in real terms. That is a very significant impost upon the relatively few people in Australia who pay provisional tax. From what we can gather, the reason the increase will apply is that there will be a large cross section of the rural sector who, having made losses before, will now make a profit. Therefore, these people will start paying provisional tax. They will be required to pay very substantial provisional tax. This is where we come to the point made a moment ago which is that it is possible to recover only once from one drought. It is possible to have more than one drought and more than one recovery but we can have only one recovery from each drought. The point I am making is that the Government's economic philosophy is based on some sort of continuation of some thing descending from heaven which will, in some cargo cult way, provide us with a means of continuing without running into a gigantic deficit. I was absolutely amazed when sitting at a table at a dinner of the Confederation of Australian Industry in Sydney just a few days ago to hear the Prime Minister (Mr Hawke) say that when he restructured the tax scale that would not involve an overall increase in tax. He said: You do not need to reduce expenditure in order to reduce the deficit provided economic growth exceeds the rate of growth in government spending. That sounds quite logical and simplistic. However, if we are budgeting on the basis of a projected growth which is in excess of a growth in income, how is that done? It does not seem to me be possible to project a tax cut and to restructure the tax scale-that is beneficial in the ways in which the Prime Minister was referring to-at a time when the growth rate in the economy, as projected in the Budget Papers, is lower than the growth rate of taxation expenditure, projected in real terms as 6.1 per cent. I was so surprised when I heard the statement made by the Prime Minister at the dinner in Sydney that I wrote on a piece of paper to a leading businessman next to me: 'Is it your understanding that what he has just said is . . .?' I then set out certain equations. He put ticks beside each one of them. The other point he made-one which I think is of very real significance and one to which I think this Government must address itself-is that the Government is endeavouring to budget on a basis of decreasing interest rates and decreasing government borrowing rates at a time of increased loan debt roll-over, both of Commonwealth and State debt, and at a time of increasing difference in the real interest rate , the difference between inflation and the rate of interest being charged. Any government which budgets on that basis must be budgeting on the basis of skating on what can only be described as the most incredibly thin ice. I do not want to spend a lot of time talking about the Budget because I need to spend a little time talking about the other Bills. One of the Bills introduces two taxes in relation to beer. The Government has varied the tax on low alcohol beer by reducing it. That is to be welcomed. The Government has introduced a new tax on very low alcohol beer. I understand that only one company is producing very low alcohol beer. However, if it continues to be as successful as it has apparently been no doubt the technology and chemistry involved will be taken up by others reasonably quickly. In this process we get a beer with virtually all the alcohol extracted from it which, while tasting like beer and to the consumer gives the impression of normal beer, is without the alcohol impact of normal beer. In the interests of road safety and in the interest of matrimonial harmony -for the sake of children and wives in the community-I would have thought the consumption of that beer should be encouraged, not discouraged. I am concerned that this Government has seen fit to impose an extra tax on very low alcohol beer even though I acknowledge there was an argument put that it was in competition with soft drinks which were in an unfavourable tax relationship to the very low alcohol beer. I will not go into the matter further because I understand one of my colleagues will be doing so. I simply make the point that it is a disappointing result of the Budget that this step has been taken. My next point is the introduction of a sales tax on wine. Most people will not regard the broken promise by this Government on this issue as extraordinary because they have grown fairly adjusted to the broken promises of this Government. Let me just take honourable senators back into the history of the Prime Minister, the man who made the promise in Griffith on 20 February 1983 when he stated: The wine industry is beset with problems. The industry is faced with a need to make bold decisions at a time of low profitability if the industry is to be in a position to meet the opportunities of the 1980s Labour has pledged not to impose a sales tax or an excise tax on wine. That was said by the present Prime Minister at a meeting held in Griffith on 20 February 1983. Along with all the grape growers and wine producers, I find it a matter of some considerable disappointment that that firm promise has been broken at this time. That is not to say that there is not some equity in having alcoholic beverages taxed on some sort of uniform basis or some basis which does not give an unfair advantage to any particular one at a particular time. Beyond doubt, Australia is beset with an onslaught of what is alleged to be dumping. This matter is subject to investigation at the moment and there is preparation for further investigation as to the extent to which dumping is taking place. I refer to the onslaught of exports from Europe to Australia of subsidised products of the common agricultural policy countries that allegedly are being dumped onto the Australian market. It is inappropriate to introduce a wine tax at a time when there is a promised inquiry into the wine industry, at a time when the wine industry is still reeling from what was done by the introduction of the tax on brandy and the non-repayment as yet, although promised, of some of the revenue which was drawn out of the people who were involved in brandy production, at a time of destabilisation in the wine industry and at a time when concern is felt by so many people about the uncertainty of the future of the wine industry and the industry is under major international onslaught. This is a very inappropriate time to be introducing a wine tax. The Opposition regards this tax as objectionable. I will be moving an amendment in the following terms to the motion for the second reading of the Sales Tax ( Exemptions and Classifications) Amendment Bill 1984: At end of motion, add ', but the Senate is of the opinion that the impact of the government's new tax on wine, when taken in conjunction with changes in the taxation treatment of imports of wine, unreasonably and unfairly disadvantages the Australian wine producing and grape growing industry at a time when imports of surplus protected and subsidised European wines are disrupting the Australian wine industry and when there is an inquiry proceeding into the future structure of the industry'. I have no doubt that every honourable senator has received a request from various people associated with the wine industry throughout Australia to ask the Government to delay the application of a 10 per cent sales tax on wine until after the proposed inquiry into the wine grape industry. I have received messages such as that from a broad cross-section of the wine growing industry of Australia. In response the Opposition has moved this amendment as it is not in a position to move for the rejection of this Budget measure. Will the Minister for Resources and Energy (Senator Walsh) have regard to and give a specific answer to the request from the industry today that the introduction of the tax be deferred? Senator Walsh —What request? Senator PETER RAE —That the introduction of the tax be deferred until after the inquiry into the wine growing industry has taken place. I referred to that a moment ago. The Minister may not have heard me. A request has been made by representatives of the wine grower associations and the wine producers throughout the various States of Australia. It is a very widespread industry with the prospect of being a major growth industry and a major export industry. At a time when that industry is trying to stabilise itself, the imposition of this tax has had an extremely destablising impact and is extremely undesirable at this time. On behalf of the Opposition I have moved an amendment and on behalf of the Opposition I make this formal request to the Minister: Will the Government consider deferring the introduction of this tax until after the inquiry has been completed? I hope that I can obtain a specific answer to that question. Senator Walsh —You have. The answer is no. Senator PETER RAE —The answer is no, I record, by way of interjection, but I would like it to be part of the Minister's final speech as well. Senator Jack Evans —He would have to explain it then. Senator PETER RAE —I thank the honourable senator. I am inviting him to explain it. Why will the Government not consider deferring the introduction of the tax until the inquiry has been undertaken? If it is that the inquiry will take too long, I have no doubt that measures will be taken to expedite the inquiry. If it is that the problems of dumping are taking some time to determine, I have no doubt that a Government with the industry's goodwill and best interests at heart would be able to facilitate and expedite that inquiry. I refer again to the broken promise on the wine tax. I note that in Tasmania on 4 November 1974 the present Prime Minister, whilst President of the Australian Council of Trade Unions, told the Whitlam Government that it should break its election promise in relation to the reduction of taxes and increase tax as that was the appropriate way to overcome the current economic conditions prevailing in Australia. It is quite clear that for a period of at least 11 years the Prime Minister has done two things. First, he has regarded election promises as matters of convenience only and not as promises he feels bound to comply with. Secondly, he can promise anything and hope to get away with it. If people are foolish enough to believe that this Budget is what this Government really means to do for Australia in the ensuing year, this Government will have proved the majority of Australians to be more foolish than I take them to be. I believe that most of them will see through the confidence trick which is the accord. They will see through the confidence trick which is this Budget. They will see through the confidence trick which is the arrangement for the benefit of the industrial wing of the Australian Labor Party. The Australian Council of Trade Union members are entering into an arrangement with the political wing of the Australian Labor Party, the present Government, for the benefit of the few and to the disadvantage of the many. I only regret that, because we have given an undertaking not to oppose Budget Bills, I cannot take stronger measures. Senator JACK EVANS(Western Australia)(6.11) —I commence by making it quite clear that the Australian Democrats are not opposed in principle to the gradual or planned transfer of taxes from personal income tax to consumption taxes. I will not be speaking as vehemently against the Sales Tax (Nos 1 to 9) Amendment Bills 1984 and the Sales Tax (Exemptions and Classifications) Amendment Bill 1984 as I might against other forms of taxation. But this transfer of taxes needs to be undertaken on a planned basis. The ad hoc and band-aid approach which this Government and previous governments have used, will be endemic in our present tax system until we get the whole system sorted out. That is really very regrettable because it means that nobody in industry has much of an idea of his or her future or even whether there is a future from Budget to Budget. I can best demonstrate that by talking about some of the taxes that were imposed last year by this Government which have had a quite disastrous impact on the industries concerned. The fibreglass and pre-engineered pools industry suddenly found itself facing a massive tax increase which put it at a distinct competitive disadvantage with the concrete pool industry. It pleaded, requested, reasoned and explained to the Government why it was necessary to leave out the fibreglass pools sales tax and instead have a sales tax on components of all pools introduced which would have brought in the same amount of revenue to the Government but which would not have given that competitive edge to the concrete pool industry. Of course, it needs to be recognised that, in the main, the concrete pool industry is the supplier of pools to the wealthy areas, although not exclusively. But if one looks across the board at the general introduction of pools, one sees that the concrete pools go into the expensive, high cost areas of most metropolises. On the other hand, fibreglass pools usually go into the middle class areas, the working class areas and the country areas. What did this Government do? It gave a competitive advantage to the concrete pools industry by leaving concrete pools alone, untaxed, and taxing the fibreglass pools. I find it quite incredible that a government of this complexion could do that. Of course, the result has been not only to affect drastically the fibreglass pool industry to the point that its comparative sales have dropped in Western Australia by 14 per cent of overall pool sales. Incidentally, sales in Sydney have dropped by 29 per cent. It has meant, in addition, that some of the fibreglass pool manufacturers, usually relatively small businesses, have either gone out of business or have had to retrench staff . That does not seem to me to be a reasonable approach by a Labor Government. Today I again appeal to the Government to look once more at what it has done. Last year I forecast that this would be the result of this type of action. The proof is now there. I appeal to the Government to look again and consider the damage it has done to small businesses around Australia. The Government should give the fibreglass pool manufacturers an opportunity to breathe again and the people in the middle and lower income groups a chance to buy their pools at reasonable prices. A similar thing has happened with air-conditioning ducting. This was an industry which was starting to grow in Australia because of the increasing need for air-conditioning, particularly in remote areas. A government which has proclaimed that it is supporting regionalisation, decentralisation-the spread into country areas-suddenly introduced a tax on air-conditioning ducting which is most likely to be felt in those remote, hot country districts. The immediate effect was a cost increase of about one per cent on all people building homes with air-conditioning ducting. It was not a one per cent increase in the cost of air-conditioning ducting but a one per cent increase in the cost of a home. It also had the effect of adding to the costs of high rise buildings. That might not have worried this Government. I am not sure whether it has a feeling of antagonism towards the high rise commercial building industry but I would have thought that it would have given every incentive possible to industries putting up factories to air-condition those buildings. It did not. This is a further disincentive. If one wants to air-condition a building and use ducting, which is necessary in most factories, one has to pay extra. This Government has provided people with an incentive to treat their employees worse. That is a cop out for a Labor government if ever I saw one. The small industry which was really savagely hit by this Government in its last Budget was the tyre retread industry. I made some forecasts at the time of the last Budget when this sales tax was confirmed. I said that there was the potential for massive retrenchments in the tyre retread industry around Australia. I went beyond that. I said that it could cause the bankruptcy of some of them, all because of a changing definition by the Taxation Office. What has happened? This Parliament and this Government gave a competitive edge to the multinational importers of new tyres. Does that sound like a Labor government to honourable senators? Senator Peter Rae —With DC preferences and the much delayed decision in relation to DC preferences affecting this along with a lot of other things. Senator JACK EVANS —I accept Senator Peter Rae's addition. This is not just an industry problem. Once more, as a result of action by this Government, we have given an advantage to the big industries and the big multinational importers. But we have given a competitive disadvantage to the little Aussie battler out in the back of beyond in all the little country towns or the moderate-sized country towns and we have put a lot of them out of business. Senator Peter Rae —But that is because they are interested in big business and big unions and not in the small businesses. Senator JACK EVANS —Absolutely. It makes it quite obvious that only one party is interested in small businesses-I hate to rebound on Senator Peter Rae-the Australian Democrats. Both the conservative Australian Labor Party and the conservative Liberal Party of Australia are supporters of big business; the evidence is there before our very eyes. What has happened with the tyre retread industry? On top of the disadvantage to the industry itself and the retrenchment of staff from that industry, a lot of country towns have lost a very valuable and useful service. Tyre retreading was an instant or an immediate service available to people who wanted a tractor wheel or utility wheel retreaded, who wanted something fixed quickly but did not want, in the case of Western Australian country towns, to wait for a new tyre to be brought up from Perth or over from the eastern States. Such people needed somebody to get on to their problems pronto, and the tyre retreaders were able to do that. They are just going down like ninepins now and that service is being denied people in country towns. That is a very sad thing for many country people-employees, employers, farmers, people just trying to eke out a living in country areas. Let us look at some of the people who have been hit in the cities, where we have the potential for one of the great sunrise industries to leap ahead. As a result of the genius-I put it at that level-the creativity, the entrepreneurial capabilities of Australians in computers, we had and perhaps still have the opportunity to leap ahead in a high tech industry. But what did we do? We imposed a sales tax on computer programs and software. Rather than encourage this new high tech industry, we decide that we will discourage it. I suspect, although I do not have the evidence in front of me, that we would be the only country in the world that looks on a high tech industry in this way. We will give it a disadvantage as it tries to leap into the 1990s-a brand spanking new industry that can get us exports around the world and can show what we in Australia are made of. We will hit it to leg before it even gets off the ground by imposing a sales tax. This is the reality compared with some of the gestures that have been made by this Government to assist high tech. There are two or three items that I will touch on briefly because they are part of a schedule of amendments I will be moving in the Committee stage. These include deaf aids for the moderately deaf, special aids for disabled or physically or mentally handicapped people, and sunscreen agents in cosmetics. I will not go into those in detail because Senator Macklin has made an appeal to this Government to help people in these particularly disadvantaged areas and in health areas. He has researched and become quite expert in championing the cause of these people, who seem to have nobody in this Parliament-or in this Government, anyway-looking after their interests and who need relief from sales tax in those three groupings. I wish to touch on the problem of the wine tax which was introduced by this Government. I am getting the feeling that the Government is already regretting, for the second time, its attempts to kill off the wine industry. That is a pretty savage expression to use and I should use a gentler one when referring to the Government's actions. I do not think that it had in mind the killing off of the wine industry, but I also do not believe that it understood that that would be the effect of its measures. Its earlier attempt, to impose an excise from which it subsequently withdrew, was recognised subsequently to be potentially very damaging to the industry. This is its second endeavour, and again it becomes obvious that the homework has not been done. I will not go through the background to this chapter and verse because Senator Rae has done that admirably. He has obviously had the same kinds of approaches from his constituents and constituents around Australia that I have had. In my case the approaches have been particularly from constituents in Western Australia, where there is a feeling not only that a number of the smaller wineries will go under but also that the industry itself is in danger of collapsing. I refer not to the wine industry but to the small vineyards industry . The small vineyards are trying to build a quality export wine that will enhance this country's reputation around the world. We all know the kind of reputation that a good quality wine can give to a country. We have seen it for years, if not for centuries, from France in particular. Australia could have that kind of reputation on world export markets if it encouraged the wine industry to grow and to develop the way it has over recent years. It has developed as a result of the small specialist grape growers and wine producers who have made it their business to concentrate on a very high quality product. Plenty of grape growers around Australia are satisfied-I do not denigrate this for one moment-to sell their product, mass-produced and in bulk, to the producers, who put it into casks and flagons and sell it as cheap wine to a bulk market. The sales tax on that low cost wine will not hurt the market nearly as much as it will hurt the high cost quality end of the market. Not only will the effect flow on to those small businesses around Australia and to the export industry, but also it will have an overall impact on the industry which will cause a restructuring. I ask the Minister for Resources and Energy (Senator Walsh) whether this is the hidden agenda, the real meaning of this new tax. Is it intended that the wine industry be restructured? I know that an inquiry is taking place at the moment, but is it intended that the wine industry be restructured in such a way that we will cater for a bulk wine industry, a cheap wine industry and gradually phase out the quality wines? That will be the effect of imposing the tax in this way as a sales tax. Senator Walsh —Come on, Jack. What have you done with your income redistribution principles? Senator JACK EVANS —I thank the Minister for that interjection. If it is aimed at income redistribution, that is an acceptable objective for a Labor government , as long as the Government recognises that in that income redistribution approach it is restructuring the industry by definition. It is saying: 'Low cost wines, low taxes; high cost wines, high taxes'. That is obviously what will come out of this. High cost wines are produced by small businesses, small enterprises . The Government is saying: 'Bulk producers, low tax; small producers, high tax' . The small producers are the ones who are trying to get into quality wines. The Government is saying, in effect: 'We will look after big businesses but we will tax small businesses as hard as we possibly can because they are supplying to the quality market, and under our principles as a Labor government those who supply to a quality market will be hit with a savage tax'. In 10 years time that might well be an acceptable approach. If the wine producers were up and running, if the industry were a healthy one, that would be an acceptable approach, and I would not deny it to the Government to use that approach; but right now it is an industry struggling to get off the ground. I ask that the Government give it a chance to get off the ground before it taxes it, otherwise it will have no industry there to tax. Sitting suspended from 6.30 to 8 p.m. Senator JACK EVANS —Before the sitting was suspended I was describing to the Senate the difficult position in which wine producers and grape growers have been placed as a result of the imposition of the new wine tax. I do not wish to take up the Senate's time by pursuing that matter any further, other than to give notice of an amendment that I shall move in Committee which reads: That the House of Representatives be requested to make the following amendments in the Sales Tax (Nos 1 to 4 and 9) Amendment Bills 1984: Page 2, sub-clause 3 (1), proposed new paragraph 4 (d), line 8, leave out '10 per cent', insert '2.5 per cent'. I shall explain my reasons. I had hoped that the Opposition would move a more substantive motion on this issue and give all of us the opportunity to express, by request, our strong desire to the Government that this tax be delayed. Regrettably, that is not the position that the Government has taken. As the Government has already indicated through the Minister for Social Security ( Senator Grimes) that it will not accept the proposal for a delay, we are left with no alternative but to introduce an amendment that would provide a phase in of the tax, commencing at 2.5 per cent and giving the industry an opportunity to adapt to a sales tax system at the lowest possible rate initially and then, over a period of years, to a higher sales tax regime. I believe that that is the fairest way of introducing this tax. In fact, the Australian Democrats wish that governments were sufficiently adept at forward planning to be able to phase in and phase out all taxes on a graduating basis such as this. If we accept the 10 per cent tax, we are in the process, as I indicated earlier, of literally destroying or setting back by many years a sunrise industry, and a sunrise rural industry to boot. Senator Peter Rae —It has been booted. Senator JACK EVANS —It has been booted very severely. I shall be moving a motion on behalf of the Democrats to the effect that we should give the industry a chance to survive, accepting the fact that the Government insists on having some tax, by providing for the tax to be at the new low level of 2.5 per cent. I shall be moving a number of other amendments in the pattern that I described earlier reflecting the Democrats' disappointment at the continuation of taxes which interfere with, and in some cases destroy, certain businesses and industries. Those taxes will cover the range of fibreglass and pre-engineered pools, air-conditioning ducting, recapped tyres and retreads, computer programs and software, deaf aids for the moderately deaf, special aids for the disabled or physically or mentally handicapped and sun screen agents in cosmetics. We believe that there is a valid and genuine case for the elimination of sales taxes for each of those industries and items. Senator Peter Rae —Will the honourable senator explain the philosophy in relation to interfering with the Government's right to prepare its Budget? I am debating not the issues but the philosophy. What is your attitude towards the right of the Government? Senator JACK EVANS —Does the honourable senator mean the attitude of the Australian Democrats towards the Government's right? Senator Peter Rae —Yes. Senator JACK EVANS —The Democrats have been quite consistent. We have said all along that there is a need for a gradual transfer of taxes from personal income taxes to consumption taxes. There is no problem with that, except that those taxes must go hand in glove. There is no point in just building up sales taxes and increasing the total tax package if one does not concurrently have a real reduction in personal income tax. There has been no real reduction. There has been a substantial increase in personal taxes, so we are not at all happy with the proposed increases in sales taxes. Each honourable senator must make up his mind about the Government's right to determine what shall be taxed. We should decide whether we are prepared to go to the brink or beyond the brink in disagreeing with the Government's approach to those taxes. Senator Peter Rae —Do you regard that as a reason for withholding Supply, and if not, why not? Senator JACK EVANS —I think we have proven that we do not agree with withholding Supply, but that it is possible for us to amend the sales tax legislation, as we did when we amended the sales tax proposals with regard to the necessities of life, without having a massive impact on the Government's Budget. Those measures looked after those who were genuinely, and in some instances desperately, in need of protection from the government of the day. That position applies to each of the categories that I listed tonight just as it applied, perhaps to a greater degree, to the proposal to impose sales taxes on the necessities of life. I have no problems with that. I would hope that philosophically the Liberal Party could agree that there is a role for the Senate in amending a sales tax Bill by a request to the House of Representatives. I am advised-I accept that advice-that that measure has the full impact of an amendment to the Bill. I sincerely hope that the motion that I shall be moving in Committee for a reduction in taxation from 10 per cent to 2.5 per cent will have the support of the whole of the Opposition in the Senate. We need to test whether the whole of the Senate is willing to live with that tax or whether we shall get together to say: 'Look, there is somebody in the Federal Parliament willing to protect you innocent people out there who have suddenly been hit to leg and are about to lose your livelihoods and about to have an industry destroyed'. I look to Senator Peter Rae and his colleagues to join with us. Senator Peter Rae —That amounts to reducing government revenue. Do you have a proposal to replace that government revenue with some other form of revenue? Senator JACK EVANS —The measure would bring about an infinitesimal reduction in the Government's revenue but would be a massive interference with the industry concerned. We do not have a problem. Senator Jessop —But you don't believe in rejecting Supply. Senator JACK EVANS —We lived comfortably with the withdrawal of taxes on the necessities of life when the Liberal Party was in government; we shall live comfortably with enabling a small, vital sunrise rural industry to survive. I think that Senator Jessop could live comfortably with that as a senator for South Australia. Senator JESSOP(South Australia)(8.09) —I rise to discuss the Sales Tax (Nos 1 to 9) Amendment Bills and the Sales Tax (Exemptions and Classifications) Amendment Bill. I intend to devote my time to dealing with the 10 per cent tax on wine, because the imposition of that tax will have a very serious effect on a major industry in South Australia and other States that are emerging as wine producing States; Tasmania and Western Australia are developing an industry that is valuable and producing some very good wines. Senator Peter Rae —Henschke and Piper's Brook are excellent. Senator JESSOP —I recall that at a wine competition Piper's Brook won the prize for the best riesling produced on that occasion. The red wine that won the prize on that occasion came from South Australia. Over the years it has been common knowledge in the wine and grape growing areas of Australia that governments of all persuasions have rarely listened to the advice and warnings given by the people and organisations in the industry. Over the past 14 years there have been no fewer than 11 government inquiries into the wine and grape growing industry. A long list of recommendations has been brought down by these inquiries, very few of which have been accepted by governments. None of these government inquiries recommended putting a tax on wine. It is interesting to observe what is happening at present. I believe it is typical of the anti-grower, anti-small business Labor Government that it imposes a tax on local Australian wines and at the same time promises to set up yet another inquiry into the grape growing and grape product industry. Why should the Government need another costly inquiry into this industry having regard to the past dismal experiences of inquiry recommendations? One would have thought that the Government, having abandoned the discredited excise on fortified spirits which was so disastrous to grape growers-- Senator Peter Rae —It was introduced by the discredited present Treasurer. Senator JESSOP —That is exactly right. It was a discredited tax introduced by the now discredited Treasurer (Mr Keating) who has admitted that it was not in the interests of the industry to have inflicted that tax on it. One would have thought that far more thought would have been given to the matter before inflicting yet another imposition on that industry. I recall the words of the Treasurer, Mr Keating, when he gave the reason for setting up this other inquiry . It was to: . . . investigate all aspects of the structure of this industry with a view to making recommendations to government to overcome the industry's economic and regional problems. That is what the now discredited Treasurer said. By imposing this tax the Government has disregarded the recommendations of past inquiries. It seems incredible that it should now put the cart before the horse in setting up yet another investigation into the wine and grape growing industry after the introduction of a 10 per cent sales tax. Obviously, the Government still does not understand the intricacies of the wine and grape growing industry. It should not need another inquiry. This Government is totally irresponsible in introducing a tax without fully understanding the implications that it will have on the future of the industry. On the other hand, if it does claim to understand this industry, the only reason I can see for setting up an inquiry at this time would be to determine the short term negative effects of this tax. Such deleterious effects will undoubtedly occur. We have seen that happen. It has been publicly stated by representatives of the industry and by no less a person than the Labor Premier of South Australia. An article in the Australian on 4 September, under the headline 'Bannon slams Government over Federal wine tax', states: The South Australian Premier, Mr Bannon, yesterday lashed out at the Federal Government's new wine tax and said one could be forgiven for thinking the closest the Government had come to the wine industry was ''their claret over lunch''. Mr Bannon was speaking in Sydney at a luncheon for members of the Sydney Chamber of Commerce. The article continued: He said few people understood Australia's economic health depended on the strength of its regions. The article went on to make other comments about the Government's attitude as follows: . . . decisions at the national level are often made without full regard to their regional impact. This problem is exacerbated by the phenomenon we are now experiencing of a whole generation of decision-makers having been born, educated and having lived all their lives in Canberra. On the same day in the Herald a headline states: 'Budget wine tax leaves a sour taste'. The article goes on to say what damage this tax will do to the small wine producers of Australia. I will quote part of that article: If wineries cut production they must cut their intake from growers. 'Another thing that will hurt is that imported wines will stay the same price', stated the spokesman, Mr Thomson. 'And its nonsense to say the Australian wine industry has been untaxed. In 1983 -84, the Australian wine and brandy producing industry paid $118.5 million in taxes. Not bad for an industry which doesn't pay any tax.' It is also interesting to observe comments made by the Premier of South Australia in a letter on this subject to the Treasurer. There have been Press comments regarding this letter. In the letter, Mr Bannon states: I am astounded that the Federal Government could have made this decision given the arguments that have been put before it over the past twelve months in relation to this industry. Particular aspects of this tax that seem to have not been properly evaluated in making your decision are: 1. The discriminatory impact on this State which is likely to occur because of reduced Australian wine sales and hence grape intake following the 10% sales tax impose. South Australia produces over half of the wine made in Australia and harvests more than half of wine grapes grown. 2. In view of the well-authenticated existence of the vast ''wine-lakes'' in European Economic Community countries and their heavy subsidisation of wine exports, it is surprising to read at page 21 of your speech: ''This reduction in protection is not expected to result in any significant increase in wine imports.'' This is likely to be one further occasion when Federal Treasury forecasts of the effects on industry of their suggested measures proves to be grossly inaccurate. The inaccurate fortified wine duty forecasts are testament to uncertainties in these predictions. The third point made by the Labor Premier of South Australia, Mr Bannon, is this : 3. The Riverland Region has considerable problems in finding adequate markets for its range of products and obtaining above subsistence incomes for many small -scale enterprises. 4. The wine industry in South Australia is both a valuable source of decentralised employment and a central focus of tourism. The last point the Premier made is this: 5. A succession of previous reports on aspects of the industry have consumed a lot of time and industry resources, and seem never to be followed up by any worthwhile commitment. Mr Olsen, the Leader of the Opposition in South Australia, totally supports the Labor Government in that State with respect to these matters. The whole Parliament of South Australia has demonstrated its attitude through a unanimous resolution condemning the Federal Government for this measure. It is also interesting to observe that the Bureau of Agricultural Economics has calculated that a 10 per cent tax on local wine will lead to a long term loss in wine sales of about 13.5 per cent, which represents 40 million litres more per annum. Consequently, grape growers will have a reduced wine grape market of at least 65 ,000 tonnes, which will result in lost income to grape growers of $15.6m a year. Some people estimate that that tonnage could rise to about 80,000 tonnes. It is also interesting that fears are being expressed by various sectors of the industry with respect to the dumping of French wine on the Australian market. Senator Peter Rae referred earlier to that very significant point. The Australian Wine and Brandy Producers Association has produced a document which I showed to Senator Walsh when he was in the chamber earlier and which he agreed could be incorporated in Hansard. It has two pages and I believe that it contains very interesting information. It is headed: 'How do the Budget changes affect imported wines and their relationship to Australian wines?' I seek leave to have that incorporated in Hansard. Leave granted. The document read as follows- HOW DO THE BUDGET CHANGES AFFECT IMPORTED WINES AND THEIR RELATIONSHIP TO AUSTRALIA WINES? With reference to imported wine, the 20% sales tax has been converted to a 10% sales tax and additional ad valorem customs duties equivalent to a discriminatory tax of 10%. The particular changes to customs rates are: Current tariff New item Goods rates 22.03.900 All Goods GT: 37% FI: Free DC: 22% 22.05.100 Champagne containing more than 1.15% by volume of alcohol 11%, and $0.48/L 22.05.200 Sparkling wines, NSA containing more than 1.15% by volume of alcohol 13%, and $0.65/L 22.05.310 Wine, NSA, containing more than 1.15% by volume of alcohol but not more than 20% by volume of alcohol, in packs not exceeding 5L 11%, and $0.25/L 22.05.390 Wine, NSA containing more than 1.15% by volume of alcohol but not more than 20% by volume of alcohol, in packs exceeding 5L 16%, and $0.40/L 22.05.900 Other wine 11%, and $0.70/L 22.06.000 Vermouths, and other wines of fresh grapes flavoured with aromatic extracts, containing more than 1.15% by volume of alcohol 12%, and $0.25/L 22.07.000 Cider containing more than 1.15% by volume of alcohol GT: 23% and $0.30/L FI: Free * Papua New Guinea rates remain unaltered. New Zealand rates remain unaltered. The duties on other goods contained in the relevant classification remain unaltered. The changes basically mean that if an importer previously imported a champagne, the importer would have paid 48 cents per litre customs duty and 20% sales tax; now the importer would be paying 11% of the customs value (defined in sections 156-161B of the Customs Act) + 48 cents per litre customs duty and 10% sales tax . An example illustrating the changes for imported wine is shown below: IMPORTED CHAMPAGNE Average unit value (1983/84) $8.51 per litre Before After Budget Budget $ $ Customs value (C.V.) 8.51 8.51 Customs duty .48 .48 .94 (11% of CV) 8.99 9.93 Add 20% as specified in Section 4 (1) of the Sales Tax Assessment Act (No. 5) 1.80 1.99 Value for sales tax purposes (VFST) 10.79 11.92 Add sales tax 2.16 (20% of VFST) 1.92 (10% of VFST) Wholesale value 12.95 13.01 AUSTRALIAN CHAMPAGNE Suppose a wholesale value (equivalent to value for sales tax purposes) of $10.79 per litre Price 10.79 10.79 + 10% (=$11.87) This shows that the price for the imported product has not changed while the Australian wine has increased in price by 10% and therefore Australian wine is 10% disadvantaged relative to imported wine. Please note that the example on imported champagne was based on Sales Tax Assessment Act (No. 5). Examples were not given with respect to Sales Tax Assessment Acts (No. 6), (No. 7) and (No. 8) as the Association holds no information on costs and margins. However, it should be noted that if the costs and margins are greater than 20%, the importer now pays less total tax than before. Conversely, if the costs and margins are less than 20%, the importer now pays more total tax than before. The above explanation applies for all types of imported wine except New Zealand wine where the rates remain unaltered. Canberra sources indicate that the changes to the taxation of wine and, in particular imported wine, will be acceptable within GATT as there was a 10% discriminatory duty at the time of implementation of GATT in 1947. Senator JESSOP —I suppose that the Government thought the only way to test this devastating scenario was actually to introduce a 10 per cent tax on wine and see what happened. One never knows, the long term effects may not be quite so bad and the Government may get a fair percentage of the estimated $60m-odd it expects from the tax revenue. But I just fear-this has been substantiated by comments made by producer organisations-that the reverse will happen and that many small grape growers and producers and small wine producers will go to the wall. Senator Jack Evans —Did you say that that was $60,000m revenue? Senator JESSOP —I beg your pardon; I should have said $60m-odd. It seems to me to be a wrong calculation and as far as I am concerned, as I said earlier, the cart has been placed quite improperly before the horse. Senator Peter Rae —I am sure that with this big spending Government anybody would excuse you for getting confused between millions and billions. Senator JESSOP —Having regard to the tremendous interest payments on the public debt at the moment, I think anybody could be excused for being confused. To spend 8.8 per cent of the Budget on the repayment of interest on the public debt amounting to something like $5.6 billion is quite incredible. I do not believe our local industry will be able to sustain sales, as demonstrated by the Bureau of Agricultural Economics, and I think that, for it to stay alive while the Government is milking it, something drastic has to happen. Earlier Senator Peter Rae asked the Minister whether he would delay the introduction of this measure until such time as the committee that will be appointed, if it has not already been appointed, to investigate the industry has a chance to present yet another report to Parliament. I think that is the way the Government should go. Although I sympathise with the suggested amendment by the Australian Democrats, I do not think the answer to the problem is to reduce the tax from 10 per cent to 2.5 per cent. Senator Macklin —It will help. Senator JESSOP —The point is that when the Democrats were elected to this place they said they were not going to do anything about rejecting Supply. Senator Macklin —That is Supply; it is not revenue. They are different. Senator JESSOP —My view will be reflected in an amendment which I will move at the appropriate time and which will reinforce the Opposition's attitude with respect to this tax. We will say that the Government should not introduce the tax until the report is presented to the Parliament. We have already said that as the alternative government we will repeal this tax after the next election. Senator Macklin —You have the chance of doing something now. Senator JESSOP —I know what the Democrats will scream out if we do not support their amendment. They will say the South Australians are not interested in the wine industry. That is exactly what they will say; I can anticipate that. But I believe that the South Australian senators have repeatedly stood up for the industry in our State and will continue to do so. Senator Macklin —Do it with your vote. Senator JESSOP —I will deal with that when the honourable senator moves that amendment, and I will move an amendment which I hope the Democrats will support. To the motion that the Sales Tax (Exemptions and Classifications) Amendment Bill be now read a second time, I will move the following amendment: At end of motion, add ', but the Senate is of the opinion that the impact of the Government's new tax on wine, when taken in conjunction with changes in the taxation treatment of imports of wine, unreasonably and unfairly disadvantages the Australian wine producing and grape growing industry at a time when imports of surplus protected and subsidised European wines are disrupting the Australian wine industry and when there is an inquiry proceeding into the future structure of the industry and calls upon the Government to delay the commencement of the tax subject to receiving and considering the report of the said inquiry'. Senator Peter Rae —Mr Deputy President, I wish to indicate that the the amendment just foreshadowed by Senator Jessop will take the place of the amendment which I foreshadowed. Senator HILL(South Australia)(8.27) —I wish to speak briefly on this matter tonight to associate myself with the remarks made by my South Australian colleague Senator Jessop and particularly to support the amendment he has foreshadowed, which amendment has the effect of calling upon the Government to delay the introduction of this new sales tax until the Government has received and considered the report of the inquiry into the industry it has set up. I said I would speak only briefly because I spoke at some length on the subject on Thursday, 23 August, immediately after the Budget. I attempted to put the South Australian position and the cost to the South Australian industry and the South Australian economy of this foolish new tax. I mentioned the significance of the industry to South Australia. I think this Government has failed to appreciate the current state of the South Australian economy and the particular significance of this industry within South Australia. I remember that I made particular mention of the effect of this tax upon the Riverland area in South Australia, an area which has been struggling for some years because of the difficulties with the dried fruit industry and its other products and an area which will be hit particularly strongly by yet another taxing endeavour by this Government. I made the point that this tax will be particularly destructive of small business, the area with the greatest potential for employment growth in this country. I mentioned that it is not simply small wineries that will be detrimentally affected but that the Government should also have considered the small grape growers in South Australia and the tourist industry that has grown up around the small wineries. It is an area of particular growth within my State which will be detrimentally, if not destructively, affected by this tax. I mentioned the figures. It has been estimated that up to 4,000 jobs in South Australia could be lost by this tax which, as my colleague said, will result in a comparatively small amount of revenue to the Government. Approximately $15m will be lost to these small businesses in South Australia and at the moment the State cannot afford to suffer such a loss. I mentioned the promises given by the Prime Minister (Mr Hawke) before the last election and by the present Minister for Primary Industry (Mr Kerin) that this Government would not introduce a wine tax. Those promises have simply been forgotten, but they will not be forgotten by the electors of South Australia. We will make sure that those electors are continually reminded of them. The importance of this industry to South Australia lies in the fact that it is a growth industry. There are not many industries in my State that are presently growing and have the potential for greater growth. However, the industry is being curtailed so unnecessarily by this foolish tax. The Government clearly recognises that it is an industry that is facing problems. Indeed, it recognises that fact by setting up an inquiry. It appears to us so illogical that on the one hand the Government imposes a new one-off tax on this industry in the form of a 10 per cent sales tax, but on the other hand acknowledges that this industry is facing difficulties and institutes an inquiry into them. That appears to us, as Senator Jessop said, to be putting the cart before the horse. We believe it to be foolish and we cannot understand why the Government does not do what appears to be so logical-that is, first to have the inquiry to determine whether the industry is able to withstand a new burden of this kind and to consider what would be the best way to impose a tax that would have the least detrimental effect on the growth of the industry. But the Government did not go that way. Rather, contrary to its promises, it simply slapped a new tax on the industry. Then in an effort to placate voters, it said: 'Do not worry; we will inquire into the industry and see what the position is in regard to its difficulties'. Senator Jessop —It did not worry about the possible impact of dumping. Senator HILL —There has been no consideration of the dumping of foreign wine on the market. That is something the Government did not face when it made this decision. We believe that the best action that we can take in this instance is to call on the Government to delay implementation of this tax until it has the results of its inquiry-an inquiry which I think it is yet to set up. The Government should set up the inquiry, obtain the information, make it public and then look at the question of taxation. That is what the amendment moved by Senator Jessop calls upon the Government to do. As a matter of interest, I would point out that is what the industry is calling on senators to do. No doubt, Mr Deputy President, you and other senators today received telegrams from the industry throughout Australia. They were not saying that there should be no tax but, rather, that the tax should be delayed, that the inquiry be held, and then the question of tax looked at. What we propose tonight is consistent with what the industry is seeking. I know that this will serve no worthwhile end because the Minister for Resources and Energy (Senator Walsh) indicated earlier, in an interjection in the speech of my colleague Senator Peter Rae, that the Government will not consider this alternative. That is a disappointment to us, but we believe that it is nevertheless our responsibility to press it again on the Government. It is not too late for us at least to live in hope and urge the Government to consider our proposal. We trust that the Democrats will support our amendment, that they will see it as the logical course of action to be taken that this tax be delayed until the inquiry is held and completed. We hope that is the position the Democrats will take in this debate. Senator CRICHTON-BROWNE(Western Australia)(8.35) —In this cognate debate I shall be referring to the Sales Tax (Exemptions and Classifications) Amendment Bill. I shall address my remarks to that part of the Bill which makes provision for the introduction of a 10 per cent sales tax on Australian alcoholic grape wines. Broken promises are something of a feature of this Labor Government, but I find it incredible that only two years ago the Prime Minister (Mr Hawke) said in his rural policy speech at Griffith-a speech which has been referred to by other senators on this side of the chamber: The wine industry is beset with problems . . . Labor is pledged not to impose a sales tax or an excise tax on wine. It was said in that unqualified fashion. However, in only its second Budget, Labor has announced that wine will now be subject to a sales tax of 10 per cent. One does not need a fertile imagination to speculate what other broken promises there will be and what other taxes will be imposed in the unhappy and unlikely event that Labor is returned to office in the next election. This change of policy can only be described as utterly cynical. At the same time as the Government announced the new tax on wine, it is interesting to note that it also announced the holding of an independent inquiry into the grape growing and grape product industry. The Treasurer (Mr Keating) said that the inquiry would: . . . investigate all aspects of the structure of this industry with a view to making recommendations to government to overcome the industry's economic and regional problems. That in itself recognises that there are problems-economic problems most of all. Many people would find it hard to believe that the Treasurer is really genuine in his desire to help the industry. Certainly a 10 per cent sales tax on wine is unlikely to help. Indeed, it is likely to cause enormous damage, especially to the small wine producers. At the very least, the Treasurer might have been expected to delay any decision on taxing wine until after the outcome of the inquiry. I fully support the amendment moved by Senator Jessop-an amendment which has been supported by other honourable senators, including Senator Hill. The sales tax of 10 per cent will be applied to the wholesale price of wine. I refer in a non-parochial but practical sense to Western Australia. The Western Australian Grapegrowers and Winemakers Association has estimated that the increase in the retail price of wine will be somewhere between 13.5 per cent and 15 per cent, if one adds the extra bank account debit tax and the financial institutions duty which the money banked to pay that new tax will attract. The Australian Wine and Brandy Producers' Association has produced an estimate of the likely fall in sales of wine as a result of the new tax. On the basis of the Bureau of Agricultural Economics estimates of the price elasticity of demand for wine, it is calculated that in the short term wine sales will fall by approximately 4.2 per cent. In the long term the imposition of the 10 per cent sales tax will result in sales falling by approximately 13.5 per cent. The Association points out that this will result in a long term annual loss to wine makers of sales of 40 million litres, with a resultant reduction in intake of grapes of some 65,000 tonnes. This amounts to $15.6m per annum in lost income to the grape growers. In my own State of Western Australia wine producers will be particularly hard hit because our wine industry is still in the fragile, early stages of development, with many growers and producers facing heavy loan repayments. According to the Bureau of Agricultural Economics, it costs about $10,000 per hectare to establish a vineyard, and takes three to five years for it to come into production. The estimates, which I do not think have been refuted, are that it takes about eight years to build up stock, sales expertise in the market and several more years before a return on capital is likely to be seen. In Western Australia many of the 75 wineries are small concerns which have been operating for between five to eight years. However, the economic contribution of the industry is substantial. Total investment in the industry in the Margaret River area alone has been estimated by the Western Australian Department of Agriculture at something like $5m for vineyards and $10m for wineries. Senator Walsh —How much of that was Denis Horgan's? Senator CRICHTON-BROWNE —I do not know but, as I understand it, Denis Horgan has made a substantial commitment in the south-west. Unless I am wrong, he has made it with his brother, John Horgan, who has been employed by Senator Walsh's colleague the Labor Premier of Western Australia, Brian Burke, as the Chairman of the Western Australian Development Corporation. As I understand it, they were both shareholders and directors of Metro Industries Ltd at the same time that Senator Walsh was slandering one, but there was a deafening silence regarding the other one. He might make up his mind where his integrity stands. Does it stand on the one hand or does it stand evenly balanced? As Senator Walsh blushes and gurgles with anxiety, the truth of the matter is that there seem to be double standards. As I understand it, last year-let Senator Walsh condemn it if he will-the Horgan brothers produced a wine, a chardonnay, which won first prize in Paris on the world market. If Senator Walsh wants to condemn that and criticise it, let him say so quickly and say so now. Senator Jack Evans —Quickly? I am going deaf. Senator CRICHTON-BROWNE —It is the only way. Senator Walsh —You and all your other Liberal Party tax evading mates on that Liberal Party finance committee. No wonder you are protecting them. The ACTING DEPUTY PRESIDENT(Senator Elstob) —I ask Senator Crichton-Browne to address his remarks to the Chair. Senator CRICHTON-BROWNE —Mr Acting Deputy President, I have some difficulty in comprehending what Senator Walsh is saying. He seems to be talking, in a debate on the wine tax, about tax evasion and avoidance by a member of the Liberal Party. I repeat only what I said before. John Horgan, Denis Horgan's brother who is also a shareholder, is now employed by the Premier of Western Australia and is Chairman of the Western Australian Development Corporation and is making major decisions about Western Australian taxpayers' money in such matters as investment in the Argyle diamond industry and a whole range of areas. I hear a deafening silence from Senator Walsh about that. Senator Walsh —Tell us about Christo Moll. Senator Peter Rae —I take a point of order, Mr Acting Deputy President. The interjections which have been coming from those on the Opposition side of the chamber as far as we are concerned-that is, the present temporary government- ought to bear in mind some of their past problems. I wonder whether we ought to extend the inquiry into the activities of a judge into tax avoidance, trading in relation to shares, and other areas, if we are to have the sort of interjection that has been coming from Senator Walsh. The ACTING DEPUTY PRESIDENT —Order! There is no point of order. I ask that the interjections cease. Senator CRICHTON-BROWNE —In the Margaret River area at least 200 people are directly employed in the wine industry. That may be some revelation to Senator Walsh. Of course, that takes no account of the indirect employment in related industries which is created by the wine industry. The most recently available figures on employment in the industry in Australia are those from the 1981 census which took into account establishments which employ fewer than four people. At that time there were 7,235 people employed in the grape growing industry. A further 4,590 people were employed in the wine and brandy producing industries. Undoubtedly, many of those jobs will be placed in jeopardy by the proposed 10 per cent sales tax on wine. It is difficult to put a figure on the number of jobs which will be lost at this stage. However, the Western Australian Grapegrowers and Wine Makers Association, for whom I personally have considerable regard, has suggested that employment in the Western Australian industry will fall as much as 10 to 15 per cent as a result of the new tax. Senator Walsh —They are the other tax evaders. Senator CRICHTON-BROWNE —Through you, Mr Acting Deputy President, if I heard the interjection correctly, Senator Walsh was saying that they are also tax avoiders and tax evaders. I will be very happy to circulate his speech and his interjections in due course to those grape growers. The development of the wine industry in Western Australia has provided a tremendous boost and encouragement to the tourist industry in that State and is a major source of regional employment and development. Of course, much of the attraction lies in the free tastings at the cellar door. One Margaret River winery gives away something like 15 per cent of its stock in free tastings. I understand that the average amount of wine given away is something like 10 per cent. Another producer in the Swan Valley estimates that at least seven dozen bottles of wine are used each month for free cellar doors tastings. The proposed tax on wine, applied as it will be at the wholesale level, will be levied on the wine that is used for these tastings. In my view, that is grossly unfair and will have a clear result. Many wineries will simply be unable to support the cost of free wine tastings, something which has been a very considerable tourist attraction in Western Australia and something which, as I understand it, at least, superficially has been encouraged by the Premier of Western Australia, Brian Burke. The Federal Labor Government's wine tax will therefore not only penalise the industry but it will also be extremely damaging to the tourist industry. Another result of the sales tax on wine will be to encourage the sales of imported wines and thereby reduce the share of the wine market available for locally produced wines. Before the Budget, imported wine was subject to Customs duty at a flat rate of between 25c and 75c per litre. In addition, a Customs duty equivalent to 20 per cent was levied. The new arrangements for imported wine announced in the Budget leave the flat rate of Customs duty essentially unchanged. The existing 20 per cent sales tax, however, is to be replaced by an ad valorem Customs duty which will be equivalent to a sales tax of 10 per cent. In addition, imported wine will, of course, be subject to the 10 per cent sales tax on locally produced wine. The tax on imported wine therefore remains largely unchanged, but the imposition of the sales tax across the board means that Australian wine will now be relatively more expensive vis-a-vis imported wine. For that reason I find it hard to accept the view of the Treasurer (Mr Keating), which stated: This reduction in protection is not expected to result in any significant increase in wine imports. Certainly that was not the experience of the brandy producers after the application of the tax on grape spirit. In January this year Mr Roger Hoar, Chairman of the Murrumbidgee Irrigation Area Wine Grapes Marketing Board, pointed out to the Bureau of Agricultural Economics National Outlook Conference: An evaluation of ABS data reveals that, as excise on brandy increases there is a reduction in the usage of Australian grapes for brandy and a significant increase in imports of brandy. I suspect that that will be very much the experience of the wine industry if the Labor Government continues with this tax. The Australian Wine and Brandy Producers Association has produced an estimate of the effect of the Budget measures on imported champagne, for instance, compared with locally produced champagne. Those calculations are based on assumptions of costs and margins of 20 per cent in calculating the value for sales tax purposes. One should compare the tax on a litre of champagne with a Customs value of $8.51-that is the average unit value of imported champagne in 1983-84-with the tax on a bottle of Australian champagne of equivalent value. The Australian Wine and Brandy Producers Association found that before the Budget the tax on imported champagne , which I point out accounts for something like 29 per cent of all wine imports, would have been $2.64 per litre. After the Budget the same litre of champagne will attract virtually the same level of tax-$2.61 in their calculations. By comparison an equivalent litre of Australian champagne, with a wholesale value of $10.79-with an equivalent value for sales tax purposes as the imported champagne-after the imposition of the 10 per cent tax in the Budget will increase in price by $1.87. In other words, the price of imported wine will not change while the price of Australian wine will increase by 10 per cent through sales tax. Australian wine therefore will be at a cost disadvantage relative to imported wine. This action is particularly worrying at a time when there is the well documented existence of a European wine lake. I believe there is a justified fear that this Government's action is only easing the way for the appearance on the Australian market of large quantities of subsidised European wines. Imports of wine to Australia already are showing signs of a significant increase. Figures from the Australian Bureau of Statistics show that in 1982-83 Australian imports of table wine totalled some 62,869 litres. By 1983-84 table wine imports had increased by 50 per cent to 94,336 litres. Senator Peter Rae —Full reason for deferring the tax until after the inquiry. Senator CRICHTON-BROWNE —Absolutely. What is the use of having an inquiry if one presumes to make judgments before it is completed? With regard to Mr Keating's pronouncement that the sales tax on wine will not increase wine imports, I quote the comments of the Labor Premier of South Australia, Mr Bannon. I think he has been quoted, and accurately quoted, in the Senate before. He said: This is likely to be one further occasion when Federal Treasury forecasts of the effects on industry of their suggested measures prove to be grossly inaccurate. The inaccurate fortified wine duty forecasts are testament to uncertainties in these predictions. The argument that seems to have been used in respect of the tax on wine is that somehow it is justified as a result of the tax on beer. I recall our vocal Senator Walsh making some rather pathetic and inappropriate remarks along these lines in the Senate two weeks ago. As I recall, he made the observation that Liberals hated beer drinkers. We might be selective about which beer drinkers we dislike but as a general observation I find that totally inaccurate. What is overlooked by this argument is the fundamental difference both in the industries themselves and in the nature of the tax to be applied. Of course beer is a product which can be relatively quickly and easily supplied and regulated in response to demand. On the other hand wine, of course, takes years to mature and to develop in a sophisticated way. In addition the wine producing industry is inextricably linked to the grape growing industry. As I have already said, vines take many years to become established. Fluctuations in demand for Australian wine cannot be speedily responded to by either the grape growers or the wine producers. Furthermore, the regional nature of the grape growing industry is such that many rural communities are heavily dependent on the wine industry for their survival. I refer to the tax on beer, which is a flat tax of 66c a litre. Of course, the tax on wine will be a percentage or progressive tax. Thus we will have a situation in which wine makers who concentrate on top quality premium wines will pay more tax for their efforts. I am sure it does not escape Senator Walsh that in the south-west of Western Australia some very fine quality wines-perhaps some of the finest wines in Australia-are produced. In effect what we are talking about is a tax which will penalise the pursuit of excellence. In many respects it will support mediocrity. In my view this will have serious ramifications for the future development of the wine industry in Australia. Encouraging the production of lower quality wines by default may mean that the reputation which the wine industry has succeeded in building up could be badly knocked. In turn, this could have a detrimental effect on our exports of first quality wines. It is a matter of very great concern to me that the Labor Government should be introducing a measure which could prove disastrous to a very real sunrise industry in Australia, particularly in Western Australia, the State whence Senator Walsh comes and which presumably he represents. The quality wine industry in Australia could develop into a major and prestigious export earner. Imposing this sales tax on that industry can only hinder that development. I conclude by saying that I find it bizarre to hear Senator Walsh and other's arguing in support of increasing the tax on low alcohol content beer. Swan Gold is perhaps the classic example. I am sure that it is a fact of life recognised by most responsible people that as a result of the introduction by Swan Brewery of Swan Light the social pattern of drinkers in Western Australia has changed very significantly. Its influence on drink driving has had a material and consequential effect. It is something that ought to be supported, not taxed. Senator Chipp —Why don't you get stuck into Walsh again. Senator CRICHTON-BROWNE —He is looking hammered to death over there. I do not think the average person in Western Australia would recognise Swan Light as a syrup or a cordial. By and large it is recognised as a sophisticated beer having a low alcohol content. As I said, drinking patterns have changed very dramatically. That has had consequential and beneficial effects on social patterns and drink drivers in Western Australia. It has been commended by the State Government of Western Australia. It ought to be commended by anybody who has care and concern for drink driving and for alcohol-related fatalities on roads. I can find no justification or civil rationale for imposing a levy on low alcohol beer simply because there happens to be a tax on cordial. If we are serious about reducing the level of alcoholism and road deaths we ought to be supporting, in a practical and tangible way, beer which has a reduced alcohol content. I conclude by saying that I can see no merit in the Government's proposition of imposing a tax on wine and increasing tax on low alcohol beer. Senator TEAGUE(South Australia)(8.58) —It should be no surprise to the Senate that I, as a Liberal senator from South Australia, am totally opposed to the wine tax imposed in the Budget. I said so in a speech in this chamber the day after the Budget was brought down. The Minister for Resouces and Energy (Senator Walsh), who is now in the chamber, put up a pitiful defence of this breaking of an election undertaking by the Labor Government. I am thoroughly opposed to the wine tax, as are the people, the Government and the Opposition parties of my State of South Australia. The South Australian Parliament has passed motions directly condemning the Hawke Labor Government for breaking a promise that gave an undertaking to the wine industry, and indirectly to South Australia, not to impose this penalty. Some 60 per cent of the wine industry is in South Australia . Therefore, 60 per cent of the burden of this penalty must be borne by my State . We will not take this lying down. Of course the debate which started the day after the Budget was delivered is continued now in this chamber. This measure will actually bring this $62m per annum tax into effect. Today, in addition to earlier representations, letters, phone calls and views put to me principally by South Australians, I received a series of telegrams from the wine industry in Victoria, Western Australia and, not least, South Australia. I will read one of the telegrams. It is from Mr Greg Trott who represents MacLaren Vale Wine Makers Inc. He is from the southern vales in the electorate of Kingston. I know Greg Trott. I have visited his winery. I have seen the grapes on his vines. He is an honourable representative of the grape growers and wine-makers of my State of South Australia and he has, very moderately, sent this telegram which states: We asked for you to move for a delay in the Wine Sales Tax Legislation until after proposed inquiry into wine grape growing industry. It was received by the Usher of the Black Rod at 2.15 p.m. today and sent directly to my office. I will illustrate, through this telegram, the series of representations that have been received as late as today by all senators in this chamber. It is not just the moderation and good sense of the industry's statements to us year by year that leads me to give credibility to the telegram, and I want to see it reflected in the Opposition's amendment to this Bill in this second reading stage of the debate. I want to identify myself fully with it . The Senate already knows my direct opposition to this wine tax. When an inquiry was promised by the Australian Labor Party before the election and that inquiry was announced in this Budget, why bring in the cart before the horse? Why bring in a tax before the structure, future growth pattern and nature of opportunities and difficulties in that industry are fully assessed? It is an inappropriate time to bring in, off the cuff, such a $62m problem to an industry. Everyone in this chamber acknowledges that the industry has difficulties. The advisers from the departments, who are with us in the chamber to advise the Minister, must acknowledge that the industry has problems. Their advice has reinforced the requests of the Opposition and the industry for a full inquiry. I remind the Government that, prior to the election, a spokesman for the Labor Party on primary industry gave an undertaking that Labor would not impose a sales tax or an excise on wine. I remind the Labor Government that that direct promise, which has been broken by this decision, and for that matter by the excise on fortified wine in the last Budget, was presaged by a firm statement. It states: The wine industry is beset with problems. Labor will seek co-operation with the States to facilitate the establishment of grower Regional Councils to collect basic statistics and to allow growers to gain a better idea of which varieties can best be grown in their areas; Labor will examine the special problems faced by co-operative wineries and supplying growers; Labor will maintain the Wine and Brandy Corporation. The taxation disadvantages suffered by the winemakers with respect to stockholding will be objectively examined on the basis that wine making is a primary production process, not a manufacturing industry. It is acknowledged that there are direct problems in the wine growing industry and the Government is to have an inquiry. Why not wait until after the inquiry before some proposals can be put to the industry and, for that matter, to this chamber and to the governments of South Australia, Western Australia, Victoria and New South Wales, and even to those representatives of the wine industry, although small, in Tasmania and Queensland? Why not have the inquiry put forward some options to these representative bodies-it may even include some revenue measure, if that is what the Government still has its heart set upon-and then see in a rational way, on the basis of the evidence, whether the industry will co-operate with some kind of revenue measure? I can only reiterate the good sense of the representations so moderately put by wine industry spokesmen as late as these telegrams today: That the Government delay the measure we have before us in the Senate; that there not be this sales tax on wine. This will enable us to see where the grape growing industry has come over its recent years of difficulty. I want to illustrate in this brief contribution to this debate-I understand it must be brief as there has been an undertaking by the Opposition to allow the Government to make some progress with the legislation this evening-that we will do all in our power to stop this wine tax being implemented short of the conclusion of this inquiry. We will make sure that the people of Australia, not least South Australia, are reminded of the clear undertakings prior to the election by the Labor spokesmen and their direct abrogation by the measures in the last two Budgets. Senator Macklin —They haven't got a mandate. Senator TEAGUE —There is no mandate for this tax. It is directly contrary to the clear undertaking-it was acknowledged by the Labor Party-of the special problems of the wine industry. This may be special pleading but I will plead for my State of South Australia. The lion's share of the industry is in my State and we, with one voice, will oppose this measure. At this late stage I again ask that the amendment to the motion for the second reading of the Bill will be acted upon by the Government so that no jobs will be lost, so that there will be no decline in sales, and so that up to 60,000 tonnes of grapes will be left on the vine. If that pattern follows the passing of legislation such as this the problems should be left at the feet of the Labor Government. When the Australian people see grapes still on the vine, see thousands of jobs lost and see the penalty, particularly in my State of South Australia, let them then expect the Government to lose votes and suffer a real penalty. Senator WALSH(Western Australia-Minister for Resources and Energy)(9.08) —I do not know what to make of that speech. If I recorded it correctly, Senator Teague said that the Opposition will do all in its power to stop this tax being implemented short of the conclusion of an inquiry into the wine industry. I do not know whether that means he will vote against it. He will vote for the motherhood amendment, I presume, which has been moved by the Opposition, but is he going to vote against the second reading. He and the rest of the Opposition members have the power to vote against the second reading of this Bill if they choose to do so. I simply observe, for the record, that they did not choose to do that in the House of Representatives. If Senator Teague and his colleagues are going to vote against the second reading of the Sales Tax Bills, and since that would be in direct conflict to the action taken by the Opposition in the House of Representatives, one can only assume that John Howard, who favours the wine tax, has been rolled at the meeting of the Liberal Party of Australia and that the opportunists have won. Mr Howard is on record as saying that he believes that there should be a tax on wine. The fundamental mistake made by Senator Teague and most others who have spoken on these Bills is that the tax will be a tax on producers. From that false assumption comes Senator Teague's conclusion that 60 per cent of the burden of this tax will be borne by South Australia because 60 per cent of the wine is produced in South Australia. In fact, by any rational assessment, supported by the empirical evidence of the experience in Victoria in the last 12 months, the tax will be borne by the consumers. There are very sound underlying reasons why this will be a tax on consumers rather than a tax on producers. Senator Jack Evans mentioned the high priced end of the market-the quality wines as he called them. Does Senator Jack Evans seriously believe that people who are willing to pay and can afford to pay over the counter $9 a bottle for wine and in an upmarket restaurant $15 a bottle-I have even seen $30 a bottle charged in this city and if one goes to really upmarket restaurants they could even be higher-will be deterred by the imposition of a 10 per cent tax at the wholesale level, which will be something less than a 10 per cent price increase at normal retail levels and something less again in the restaurant market? Does he believe that people who are willing to pay and can afford to pay even $10 a bottle for these quality wines will be deterred from doing so because the price has been increased by 60c or 70c a bottle? Senator Jack Evans —Overseas, yes. Senator WALSH —Overseas! Senator Jack Evans —Yes, the export market. Senator WALSH —The sales tax does not apply to exports. Exports, by definition, are exempt from sales tax. I was going to point that out later but I am glad that the honourable senator reminded me of it now. Exports are exempt from the sales tax. It applies to domestic wholesale transactions or, where there is no arm's length domestic wholesale transaction, to a deemed wholesale price. Exports are categorically exempt. I am sure that if Senator Evans at least reflects on this he will recognise that, at those price levels, people will not be deterred from buying a bottle of wine simply because the price has increased, depending on just how far up market one goes, by something between 60c and, at the maximum, $2 a bottle. Anybody who can afford to pay $10 or $15 in a restaurant for a bottle of wine will not be deterred from buying a bottle because the price has gone up by 60c or $1. People might be deterred from buying another bottle because they are frightened of being breathalysed on the way home or for some other reason like that, but they will not be deterred by the very modest increase in price. When any tax is imposed on consumption the basic economic rule is that in some proportions the cost of that tax will be shared between the producers and the consumers. Because of the structure of the wine industry, the evidence is quite overwhelming that the tax will fall overwhelmingly on the consumers, in which case it will have a negligible impact on the prices received by producers. There is another possible effect of an increase in prices because of the tax and that is that consumers will substitute other alcoholic beverages for wine that is presently being purchased. Under certain circumstances that could arise but for a high substitution effect to be feasible there must be a readily substitutable product which is price competitive. If we look at the realities of the wine market we see that the cask wine, depending on which grog shop it is purchased from, sells from $4 for a four- litre cask-sometimes a bit higher and sometimes a bit less-which will attract a sales tax of the order of 30c a cask. The alternative for that sort of wine buyer or person who drinks other than wine is beer, which will cost about $14 for an equivalent amount of alcohol. When the disparity between the prices of the two products is as wide as that it is not conceivable that there will be any significant substitution of beer for wine. I understand that, before I returned, Senator Jessop cited some figures from a Bureau of Agricultural Economics officer whose name I have forgotten-I think it was Tsolakis-which were based on obsolete data recorded from 1955 to 1959 and from which he made estimates of elasticity; that is, consumption responses to price changes. Firstly, the estimates themselves are fallible, as I am sure Mr Tsolakis would readily admit. Secondly, the structure of the industry and its marketing organisation applicable to the time from which he made his estimates is no longer applicable today and cannot or ought not to be regarded as reliable . As I mentioned earlier, Senator Jack Evans implicitly made the same mistake as Senator Teague has made; that is, he assumed that the cost of this tax would be borne by producers rather than consumers. From that he concluded that because the tax fell relatively more heavily per unit of alcohol-he is correct in that- on the wines upmarket in price there would be a severe deterrent to the production of those wines. I have dealt with the improbability of his assumption being correct; that is that the burden will fall on producers. But he opened up, as indeed he acknowledged, a very important point; that is, the progressivity of this tax. At the lower priced end of the market the tax effectively is of the order of 7c per litre-the upper end of the market runs off almost into infinity- and at the upper medium level of the market where wine is sold retail for $10 to $12 a bottle the tax is likely to be of the order of $1 a litre. That draws attention to the important fact that the higher income groups which are capable of paying and willing to pay those very high prices pay a very much higher amount in tax on the same proportion of alcohol than the people who buy cask wines. That is correct and I make absolutely no apology for it. I claim that it is a virtue of this tax that it is highly progressive. Indeed, it is conceivably more progressive than the income tax. Senator Teague —Have you put those arguments directly to the industry? Senator WALSH —The problem with the industry is that it has been fed on a steady diet of nonsense for longer than anybody can remember by people such as the honourable senator. Turning to the second reading amendment which the Opposition has moved and to that section of it which refers to the reduction in the protection margin on imported wine-- The DEPUTY PRESIDENT —To avoid misunderstanding, no second reading amendment has been moved to the Bills before us. The only Bills before us at the moment are the Sales Tax (Nos 1 to 9) Amendment Bills. That amendment will have to be moved later. Senator WALSH —But it is a cognate debate, is it not? The DEPUTY PRESIDENT —It is a cognate debate but the amendment has not been moved. Senator WALSH —Thank you for correcting me on that point of fact, Mr Deputy President. The amendment which the Opposition has given notice of moving to the Sales Tax (Exemptions and Classifications) Amendment Bill refers to the effect of the simultaneous changes of the imposition of this sale tax and import duty on the wine industry. It is correct that the effective margin of protection that the Australian industry has against imported wine, as a result of this package of changes, will be reduced from 35 per cent to 23 per cent. However, that is a step which would of necessity have been taken regardless of whether there was a general sales tax on wine. It would of necessity have been taken for this reason : Australia, for a very long period, indeed some time back in the 1950s and much more importantly because the margin has substantially increased since 1981, has been in breach of the General Agreement on Tariffs and Trade because, due to the linkage of the discriminatory sales tax on imported wine and the intermediate rate of sales tax, the sales tax over the last two Budgets of the Fraser Government was increased from 15 per cent to 20 per cent. Our GATT partners are aware of that breach of the GATT. They made known their awareness of it as early as March this year. I guess one could argue that Australia was not necessarily obliged to correct that breach of the GATT. Had we not chosen to do so, however, we would have invited retaliation against, among other things, Australian beef and dairy exports. The possibility-indeed, the probability-of retaliation by the other GATT signatories against Australian beef and dairy exports was so severe that the only course available to a responsible government was to terminate the long-standing breach of the GATT by Australia and reduce the discriminatory sales tax or its import duty equivalent on imported wines to the level of 10 per cent which applied in 1947 when the GATT was first concluded. So that is a completely separate issue. Even, however, if we were not, the effects of that reduction in the margin of protection to the domestic industry have been greatly exaggerated. The Bureau of Agricultural Economics estimates presented to the Government were that there would be a change of, at the most, 14 per cent in the volume of sales of imported wines. That is to say, given that imported wines currently hold about 3 per cent of the market, at the most there would be an increased market share of less than 0.5 per cent accruing to imported wines because of this change. It is possible, I suppose, that if the great surplus of wine in the European Economic Community were pushed on to the Australian market at extraordinary low prices that percentage could increase. Again, that is a separate issue from both the imposition of the general sales tax and the reduction in the margin of protection available to domestic producers. If that sort of action were taken, the normal anti-dumping provisions could be invoked. The Australian Democrats' amendments to the specific Bills with which, as the Deputy President has pointed out, we are dealing is designed to reduce the rate of tax from 10 per cent to 2.5 per cent. Really, if the rate of tax were 2.5 per cent, I do not believe that it would be worth proceeding with any tax at all. The Government will be opposing that amendment. I note that the Democrats have given notice of their intention to move a number of other amendments to the Sales Tax (Exemptions and Classifications) Bill, which is not in the formal sense before the Senate at the moment but which is the subject of a cognate debate. If the Democrats wish those amendments to be taken seriously, I wish they had presented them to me or to the Treasurer (Mr Keating) at least at the beginning of this week or preferably the previous week. But I understand that consideration of those is to be deferred until tomorrow. Senator Jack Evans —How much time would you like before we get the Bills? Senator WALSH —The Bills were in the House of Representatives some time ago. I wish to make a couple of comments concerning Senator Crichton-Browne's remarks. It is not surprising to anyone who knows Senator Crichton-Browne's record or, indeed, the record of the Western Australian Liberal Party as a whole, that Senator Crichton-Browne is opposed to paying tax. Indeed, most of the prominent members of the Western Australian Liberal Party took very elaborate precautions to ensure that they paid no tax on their incomes over a very long period. One of the wine producers for whom Senator Crichton-Browne expressed particular concern tonight-Mr Denis Horgan, the former Chairman of the Finance Committee of Western Australian Liberal Party-took evasive action to the extent of $7m, according to an article that was published in the Sydney Morning Herald a couple of years ago . So it comes as no surprise to those who did not know it before or to those who already knew it, to be told that Senator Crichton-Browne is opposed to paying tax. Given that, however, the arguments that he put up were essentially puerile. Firstly, he claimed to be presenting a particular Western Australian perspective on this matter because, he said, of the importance of wine production in Western Australia. In fact, the Western Australian wine production represents just over two per cent of total production which is about one-quarter of Western Australia 's proportion of the population. So although Senator Teague is correct in saying that the wine industry is proportionately quite important in South Australia, in Western Australia it is proportionately unimportant. The ratio of wine production to population as a percentage share of the national total in South Australia is of the order of 6 : 1, whereas in Western Australia it is of the order of 0.25 : 1. So Senator Crichton-Browne was wrong about that as well. The other rather extraordinary argument that he raised was that because it takes five years to bring a vineyard into production and another three years before sales can be made, this is not the time to impose a wine tax as it will, so he said, discourage the establishment of vineyards. Given that anybody who may be contemplating establishing a vineyard or a winery now, by Senator Crichton-Browne's own admission, would not be exposed to this tax for a minimum period of eight years, I do not see that that is a particularly powerful argument against applying the tax now. The sort of hysterical and ill-founded comments that Senator Crichton-Browne made may be provoked or at least reinforced by the equally hysterical and irrational comments that have been coming from some of the Western Australian wineries to which he referred. In particular, at least one and I think two or three Western Australian wineries have been putting advertisements in newspapers announcing that as a result of the imposition of this tax they will be closing their doors as from tomorrow. It is irrational, to say the least, that a winery should decide to close its doors before it has had any chance whatsoever to assess the impact of the tax on its cash flow or net income. If, however, the winery was about to close because of the incompetent management of its owners or for some other reason to do with the shortage of liquidity, it is hardly rational to blame the wine tax for its closure. Senator Crichton-Browne —Are you saying that is why they are closing? Senator WALSH —We know very well that Senator Crichton-Browne does not believe in paying tax. We also know that that is one of the reasons-indeed, I would say the reason-responsible for his association with Christo Moll. Senator Crichton-Browne —Mr Deputy President, I take a point of order. Senator Walsh, in his normal revolting, common, crude, unattractive manner in this Senate-- The DEPUTY PRESIDENT —Order! That is not a form in which-- Senator Crichton-Browne —Which has given him a reputation throughout Australia, made the allegation against me-- The DEPUTY PRESIDENT —Senator Crichton-Browne, you must not take a point of order in those terms. You may explain what your point of order is without commenting on the matter. Senator Crichton-Browne —I am arriving at it as quickly as I can. He suggested that I did not believe in paying tax. I take that as suggesting that I do not pay tax. I will not compare what I assume to be the trivial amount that the Minister pays with what I pay. It is an implication that I evade tax. I think that is a reflection upon me and I ask him to withdraw the statement. Senator Button —With respect, Mr Deputy President, that is surely a matter for a personal explanation rather than a point of order. The DEPUTY PRESIDENT —I think I can rule on this, thank you, Senator. I think it is true that none of us like paying tax but I think the context in which Senator Walsh made the remark was a reflection on the motives of Senator Crichton-Browne ; so I think he should withdraw it. Senator WALSH —Very well. In deference to you, Mr Deputy President, I will withdraw. The point I was making when I was interrupted-I must say that I am surprised that it took Senator Crichton-Browne two or three minutes to react; his reaction time was two or three minutes behind the clock-- Senator Crichton-Browne —I thought the dribble might stop running out the side of your mouth, that is all. Senator WALSH —I am tempted to suggest why Senator Crichton-Browne may be so passionate about paying higher prices for wine and why his reaction time might lag by a couple of minutes, but I shall refrain from doing so as I am sure that Mr Deputy President would not approve of that either. The point I was making immediately before I was interrupted was that those wineries that have been inserting Press advertisements announcing their closure because of the tax are managed either by incompetents who are not sufficiently rational to wait to see the effect of the tax on their business operation or-I suspect that this is more likely-by incompetents of such magnitude that the wineries are facing insolvency anyway and thought that this would be a convenient way of dumping the blame on the Australian Labor Party and blaming somebody else for the consequences of their own incompetent management. On the question of Swan Light, many people-this is a major concession-may agree that a case can be made against imposing a sales tax on a beer that has an alcohol content less than that of many of the ginger beers on the market. To the extent that drinkers, who would otherwise consume normal beer and then drive home drunk, could be persuaded to drink Swan Light and drive home sober, there is something to be said for encouraging them to drink Swan Light. I believe that the price factor is not a major consideration in the choice that people make between Swan Special Light and Swan something else. The real motivation behind that choice is the fear of being breathalysed on the way home rather than the fact that the prices of the two types of beer may differ by 10c a can. As far as I know, no Opposition senator has attempted to defend the principle of neutrality in the tax system. Given that already there is a sales tax of 20 per cent on lemonade, ginger beer, soda water and, I believe, mineral water-I am open to correction about that-it is difficult to sustain the case that the tax exempt status of Swan Special Light should be allowed to persist. Swan Special Light has an alcohol content of less than 1.1 per cent, and therefore it is exempt from excise under the existing law and is also exempt from sales tax because it is a beer. I do not believe that any reasonable person would argue that that anomaly should have been allowed to persist. The Government will not accept the amendment to the motion for the second reading or the amendment to reduce sales tax from 10 per cent to 2.5 per cent. Senator CRICHTON-BROWNE(Western Australia) —Mr Deputy President, I claim to have been misrepresented. The DEPUTY PRESIDENT —If the matter is about something that you said in this debate, you have a right to speak. Senator CRICHTON-BROWNE —I do not wish to get to the level of debate of the Minister for Resources and Energy (Senator Walsh) which is so familiar to all of us and for which he has a notorious reputation. Under the circumstances, I am moved not to defend myself but to defend the implications of his comments. I paraphrase roughly what he said. Senator Walsh said that he could understand why I represented the tax avoiders and tax evaders in Western Australia. He said that they were members of the Liberal Party and, by implication, that I was defending myself and the Party. There is nothing in my record of voting or the manner in which I have conducted myself in Parliament to justify that comment, but the truth has never been something that has stood in the way of Senator Walsh's arguments. As Senator Janine Haines says, we should never let facts be put in the way of a good argument. Senator Walsh has persisted for some time with this argument. He seeks continually to refer to the relationship between Denis Horgan and the Liberal Party and, by implication, myself. He chooses to ignore the fact that Denis Horgan's brother is employed by the Western Australian Labor Party as the Chairman of the Western Australian Development Corporation. He was a major shareholder and decision-maker in Metro Industries Ltd and was involved in every decision it made on its tax arrangements. I take great exception to any implication that I have a special interest in tax avoidance and tax evasion. If I were tempted, Mr Deputy President, to rely on your indulgence, I might retrace the steps of one John Dawkins, whom Senator Walsh has described in the Parliament as a close personal friend and who has demonstrably been shown not only to have avoided tax but possibly to have evaded tax. The DEPUTY PRESIDENT —Order! Senator Crichton-Browne, you may not pursue that line. You can explain only how you have been misrepresented. Senator CRICHTON-BROWNE —I shall say no more than that, except that, in the normal, reprehensible, grubby, common, vulgar fashion which is becoming a standard and patent part of Senator Walsh, I and the people of Western Australia reject out of hand what he says. Question resolved in the affirmative. Bills read a second time. Senator WALSH(Western Australia-Minister for Resources and Energy)(9.37) —I move: That consideration of the Bills in Committee of the Whole be made an order of the day for the next day of sitting. I move that motion for the reasons I explained in my second reading speech, that is, to give the Opposition and the Government time to consider amendments proposed by the Australian Democrats to a subsequent Bill. Senator PETER RAE(Tasmania)(9.38) —In case there is any misunderstanding, I understood that the Attorney-General (Senator Gareth Evans) would have the opportunity to introduce the amendments and to give his reasons for doing so. We have heard the amendments before, and so, if the Attorney-General is happy, I am happy with the proposals of the Minister for Resources and Energy (Senator Walsh ). Question resolved in the affirmative. Debate resumed from 5 September, on motion by Senator Gareth Evans: That the Bill be now read a second time. Senator PETER RAE(Tasmania)(9.39) —I move: At end of motion, add ', but the Senate is of the opinion that the impact of the Government's new tax on wine, when taken in conjunction with changes in the taxation treatment of imports of wine, unreasonably and unfairly disadvantages the Australian wine producing and grape growing industry at a time when imports of surplus protected and subsidised European wines are disrupting the Australian wine industry and when there is an inquiry proceeding into the future structure of the industry and calls upon the Government to delay the commencement of the tax subject to receiving and considering the report of the said inquiry'. Words have been added to that motion at the request of Senators Hill and Jessop and with the Opposition's support. Question put: That the words proposed to be added (Senator Peter Rae's amendment) be added. The Senate divided. (The Deputy President-Senator D. J. Hamer) Ayes . . . . . . . . . . . 31 Noes . . . . . . . . . . . 28 —— Majority . . . . . . . . . 3 —— Archer, B. R. Lajovic, M. E. Baume, Peter Lewis, A. W. R. Bjelke-Petersen, F. I. MacGibbon, D. J. Boswell, R. L. D. Macklin, M. JCarrick, Sir John Martin, K. J. Chaney, F. M. Mason, C. V. J. Collard, S. J. Missen, A. J. Crichton-Browne, N. A. Rae, PeterDurack, P. D. Reid, M. E. (Teller)Evans, Jack Scott, D. B. Guilfoyle, Dame Margaret Teague, B. C. Haines, J. Townley, M. Hamer, D. J. Walters, M. S. Hill, R. Watson, J. O. W. Jessop, D. S. Withers, R. G. Kilgariff, B. F. Bolkus, N. Hearn, J. M. Button, J. N. Jones, G. N. Childs, B. K. McIntosh, G. D. Coates, J. Maguire, G. R. Coleman, R. N. Primmer, C. G. Cook, P. F. S. Ray, RobertCrowley, R. A. Reynolds, M. Elstob, R. C. Richardson, G. F. Evans, Gareth Robertson, E. A. (Teller)Foreman, D. J. Ryan, S. M. Georges, G. Sibraa, K. W. Gietzelt, A. T. Tate, M. C. Giles, P. J. Walsh, P. A. Grimes, D. J. Zakharov, A. O. Messner, A. J. McClelland, DouglasChipp, D. L. Colston, M. A. Question so resolved in the affirmative. Original question, as amended, resolved in the affirmative. Ordered that consideration of the Bill in Committee of the Whole be an order of the day for the next day of sitting. Debate resumed from 5 September, on motion by Senator Gareth Evans: That the Bill be now read a second time. Senator PETER RAE(Tasmania)(9.49) —The Customs Tariff Amendment Bill (No. 2) 1984 is complementary to and entirely integrated with the provisions of the sales tax legislation with which we have been dealing. The arguments which could be made in relation to this Bill have all been made in relation to the questions which have been debated in the chamber tonight. I therefore do no more than indicate that the Opposition, for the reasons which it has already stated-it thanks the Australian Democrats for their support-is opposed to the measures which have been taken which will advantage imported wines to the disadvantage of the Australian domestic wine growing industry. The measures will also have other effects in relation to other areas of Customs tariff that have already been discussed. I believe that all the aspects which need to be discussed have already been discussed. These measures are simply part of a total package. I reiterate all the reasons why the Opposition has moved the amendment, which was supported by the Australian Democrats, and which has been carried by the Senate in relation to the Sales Tax (Exemptions and Classifications) Amendment Bill 1984. The amendment reads: At the end of motion, add ', but the Senate is of the opinion that the impact of the Government's new tax on wine, when taken in conjunction with changes in the taxation treatment of imports of wine, unreasonably and unfairly disadvantages the Australian wine producing and grape growing industry at a time when imports of surplus protected and subsidised European wines are disrupting the Australian wine industry and when there is an inquiry proceeding into the future structure of the industry and calls upon the Government to delay the commencement of the tax subject to receiving and considering the report of the said inquiry'. I do not believe it is necessary to make the point by moving the amendment to the motion for the second reading of this Bill. It has already been carried and the intention of the majority of the Senate is quite clear in relation to these matters. I therefore simply indicate that, whilst not opposing the Bill, we reiterate the objections and the matters dealt with specifically in the amendment to the motion for the second reading of the Sales Tax (Exemptions and Classifications) Amendment Bill 1984. Question resolved in the affirmative. Bill read a second time. The Bill. Senator JACK EVANS(Western Australia)(9.51) —I move: That progress be reported. I have moved this motion because I believe that there is a carry-over effect from the amendment to the earlier Bill which was debated cognately with this Bill. I suggest that it would be in the interests of the Senate if it considered all three Bills tomorrow. Senator WALSH(Western Australia-Minister for Resources and Energy)(9.52) —I do not see why, but I am quite happy to go along with it. Question resolved in the affirmative. Senator SIBRAA(New South Wales)(9.53) —I move: That the Senate take note of the paper. Last week the Prime Minister (Mr Hawke) attended the fifteenth South Pacific Forum Meeting in Tuvalu. Next month in New Caledonia the South Pacific Conference will be held. In 1983 I had the privilege of leading the Australian delegation to the South Pacific Conference held in Saipan, Northern Mariana. As the issues discussed at both the Forum and the South Pacific Conference tend to be similar, I was extremely interested in the decisions reached at the Forum on Tuvalu. The annual South Pacific meeting of heads of government provides a unique opportunity for the 13 leaders to discuss informally their mutual concerns, to seek solutions to regional problems and to enhance regional co- operation. I think it is fair to say that Australia's standing in the South Pacific has improved greatly in recent years. No longer is Australia looked upon as a big brother or as acting in the interests of the metropolitan powers as opposed to the small island states. Undoubtedly the two most important issues discussed at the Forum were nuclear matters and the decolonisation of New Caledonia. The establishment of a South Pacific nuclear free zone has been a prime objective of this Government since coming to office and was initially raised by Australia at last year's Forum meeting which was held in Canberra. The recent Forum accepted principles which embodied the opposition of Forum member countries individually and collectively to the manufacture, storage, use and testing of nuclear weapons and the storage and dumping of nuclear waste in our region. The meeting served notice on the United States, the Soviet Union, China, France and Japan that they are no longer prepared to see the South Pacific used as a testing ground for nuclear weapons and a dumping area for nuclear waste. There is no doubt that many Australians would also like to see a South Pacific nuclear free zone which would ban nuclear-powered warships in the region, and whilst New Zealand would probably favour this course, it is not politically feasible, given the opposition of a number of states in the region. Treaties such as ANZUS are not affected by the nuclear free zone proposal accepted by the Forum. However, the nuclear free zone will strengthen and supplement the Treaty on the Non-Proliferation of Nuclear Weapons. I was pleased to see in the Prime Minister's statement that individual states will continue to protest to France concerning its nuclear testing program and also to Japan concerning its proposal that nuclear waste be dumped in the Pacific. The second important issue to be discussed was the subject of New Caledonia. New Caledonia represents one of the last vestiges of colonialism in the South Pacific. Australia and all Forum countries are anxious to see New Caledonia join the community of independent countries in the South Pacific as soon as possible. I hope that the transition to independence is peaceful. Local elections in the territory are to be held in the next few months and a referendum of the territory's population to decide the constitutional status of the country is to be held by 1989. I am convinced that the French socialist Government wishes to see New Caledonia obtain its independence. However, I believe that it is in all of our interests that this process be accelerated. The Melanesian community in New Caledonia, the Kanaks, has special problems. However, I believe that those people within the independence front who at this time are advocating a boycott of the territorial elections are adopting the wrong course of action. If the French Government were to wash its hands of New Caledonia, the Melanesians unfortunately would not have the votes or the guns, and widespread violence and outside interference would result with disastrous repercussions for the Melanesians in that region. What Australia must do is to give New Caledonia as much assistance as possible while at the same time putting pressure on the French to grant independence as soon as is practicable. Senator PETER RAE(Tasmania)(9.59) —I support most of the remarks made by Senator Sibraa and will add one or two of my own. I agree that, irrespective whether it is a socialist French government or any other French government which wishes to see independence in New Caledonia, it is important to the south-west Pacific that the problem of independence for New Caledonia be sorted out much more expeditiously than is planned by the French Government at the moment. I encourage the remarks that have been made, but I doubt whether there is a difference in attitude to the fact that it is desirable to achieve that independence. I think it is a matter of how quickly it can be done without creating the sorts of troubles which have been created in a number of other countries where independence has been expedited without the due transformation processes being worked out. As far as a nuclear free zone is concerned, I wish to be heard to be objecting as strongly as anybody else to the French tests. I do not believe it is a legitimate use of a vestige of colonialism for a European power to use its colonial areas in a completely different part of the world for the forms of testing of nuclear weapons which it would not be prepared to do in its own metropolitan area. I am concerned that we are not misunderstood. Senator Sibraa —It would not go down well in the Mediterranean. Senator PETER RAE —If one tried to do these things in one of the French Islands in the Mediterranean I do not imagine that it would be greeted with wild enthusiasm by people in the vicinity. As everybody in this chamber knows, I happen to be a supporter of nuclear energy as a clean and free-by 'free' I mean free from pollution and free from all sorts of problems-source of energy. I distinguish completely between the development of nuclear power and the development of nuclear weapons. I am commenting on the use of misuse of the historically advantageous situation enjoyed by France in being able to conduct nuclear weapon experiments where it should not be able to do so. I believe Australia's future in the south-west Pacific and western Pacific region is obvious and clear. It should not be understood that we are other than keen on the development of closer economic relations and that we are keen to develop the south-west Pacific forum and relations with Papua New Guinea, in particular, and the other members of the south-west Pacific forum. One of the suggestions I have made, which unfortunately was not accepted by the committee which examined the future use of this Parliament House, was that Parliament House might be used as the Palace of Europe in Strasbourg is used-mainly as an international centre for the whole region. The Palace of Europe, which is the centre for the Council of Europe, the European Parliament, the Human Rights Commission and a number of other bodies, plays an important part in the development of international relations. I think it is important that we should develop such relations in our region. I think one of the things Australia should do is help develop some degree of permanency and some degree of relationship without employing any big brother type attitude by providing a permanent home for the various bodies from the political to the agricultural, including fishing, and other matters which would develop a whole cross-section of related bodies. I refer to anything from the South Pacific Forum to the south-west Pacific, the South Pacific Regional Trade and Economic Co-operation Agreement and various other types of contacts-I have not time to name them all. I simply take this opportunity to welcome this report . One of the most important things Australia must do is to ensure that we make the most of the opportunity to play our proper part in our region. Our sub- region can play a proper part in our total region. Certainly the south-west Pacific area can play a proper part in the total western Pacific region. Question resolved in the affirmative. In Committee Item 2. Scrutiny of Bills Committee. Consideration resumed from 1 March. (Quorum formed) Senator MISSEN(Victoria)(10.07) —On 1 March this year I was dealing with this item when debate was adjourned. It has been on the Notice Paper and has threatened to come on for debate on innumerable occasions since then, but never has appeared. I must admit that I knew only a quarter of an hour or so ago that the matter was about to return to this chamber for debate. I see that Senator Tate is present, and I know that there are other members of the Scrutiny of Bills Committee who would like to speak on this item. I propose to move that further consideration of this item be postponed until after the completion of the rest of the Standing Orders matters. I trust that this item will continue in debate for a considerable time. There are many arguments to be considered and I was in the process of replying to a number of points made by honourable senators . Therefore, I think that in the interests of the Senate it would be more useful if all the other items in regard to this Standing Orders Committee report were to be proceeded with. We can spend a considerable time on this item. I move: That further consideration of item 2 be postponed. Question resolved in the affirmative. Item 3. Access to Senate documents. Senator ROBERTSON(Northern Territory)(10.08) —I move: That the Committee agree with the resolution contained in Attachment C of the Standing Orders Committee report. The history of this matter is stated in paragraph 10 of the report. In summary, the Committee considered whether the Presiding Officers should be empowered to grant access to in camera evidence on documents submitted to committees on a confidential or restricted basis. The Committee believes that it would be appropriate for the Presiding Officers to be authorised to grant access, subject to the same restrictions as are embodied in the Archives Act; that is, that the material must be at least 30 years old. If the Committee's recommendation is adopted, it would mean two things: Firstly, that in camera evidence of either House over 30 years old could be released with the concurrence of the Presiding Officers; and secondly, that in camera evidence which is less than 30 years old could only be released by resolution of the relevant House or both Houses as appropriate. The Committee recommends the adoption of the resolution contained in paragraph (c) of the report. Senator PETER RAE(Tasmania)(10.09) -There is an addendum to that which was discussed by the Standing Orders Committee and, as I understood it, agreed to by everybody. It is to the effect that it would be advantageous where a committee takes evidence that should never be released for it to be marked in that way. That would then be a guiding factor for the Presiding Officers in the implementation of the proposal which Senator Robertson has just mentioned. I have in mind certain documents which were received by a committee with which I was associated some 12 years ago. Those documents were received on the basis that they would never be released and that was the only basis on which they were likely to be available to the committee. Great use was able to be made of those documents by the committee in informing itself of information on a background basis. So, while I support the motion, I add the addendum that it would be useful if any committee were in a position where it received documents which should not be released, that those documents be marked as such at the time the committee finishes its work so that a later Presiding Officer would have some basis upon which he could make a decision if he was asked to do so 30 years later. Having added that addendum to Senator Robertson's comments, I support the motion. Senator ROBERTSON(Northern Territory)(10.12) —I take it, Madam Temporary Chair, that there is no intention to try to draw us into the recommendation but simply to have it recorded. I support entirely what has been said. Question resolved in the affirmative. Item 4. Proposed amendment to Standing Order 406. Senator ROBERTSON(Northern Territory)(10.12) —I would like to speak briefly to this item before I move the suggested recommendation. The Committee has given consideration to the possibility of amending standing order 406 so as to recognise explicitly those occasions of present sanction by practice where an honourable senator may read his speech. The Committee presents a proposed amendment to the Standing Orders to cover such occasions for the Senate's consideration as attachment D to the report. I do not intend to read through it. Senator Peter Rae —You are speaking extempore? Senator ROBERTSON —Exactly. I suggest that the Senate accept the proposed amendment as put forward by the Standing Orders Committee. I move: At the end of standing order 406, add: ' : Provided that this Standing Order shall not apply to a Senator when that Senator is (a) moving a motion for the second reading of any Bill or speaking to such a motion as first speaker for the Opposition or a minority group; (b) making a Ministerial statement or a statement on behalf of a Committee; (c) making a response to a statement referred to in paragraph (b), as first speaker for the Opposition or a minority group; or (d) speaking as first speaker on any matter of public importance or moving a motion to debate a matter of urgency, pursuant to standing order 64. Senator MACKLIN(Queensland)(10.13) —The terms of the motion which Senator Robertson has moved, are, I think, slightly misleading. It is not, in fact, currently the practice that honourable senators covered by the situations outlined in the motion are able to read their speeches. Let me consider the motion in detail. Paragraph (a) provides that standing order 406 shall not apply to an honourable senator when that honourable senator is: moving a motion for the second reading of any Bill or speaking to such a motion as first speaker for the Opposition or a minority group; Indeed, the practice of the Senate has been that the mover of a motion for the second reading of any Bill, whether that person be a Minister or a member of the Opposition or from any other group in the Senate, may proceed to read the second reading speech on the Bill. I think that the wording of that paragraph is ambiguous because I believe that it suggests that a response to such a motion would be included in paragraph (a). I do not think that was really the intention . I think that the way that paragraph has been worded gives it a wider application than I believe was actually the intention. I think that the intention was, in fact, to propose what is currently the practice in the Senate. That would extend, for example, in the case of the Australian Democrats, to every time we spoke. We would be able to read speeches. I do not think that was the intention of the Standing Orders Committee. I think that what is proposed here may be going beyond that. Paragraph (b) states: making a Ministerial statement or a statement on behalf of a Committee; That is definitely part of the conventions that currently exist in this place. I believe that it is important that they continue and that they be written into the Standing Orders in the way described here. I believe that a ministerial statement or a statement on behalf of a Committee often may have to be word exact. That seems to me to be the criterion that we ought to seek in regard to where we depart from the current standing order. The second reading speech is now really part of statute and becomes part of the interpretation of the Bill before the courts. That is why it should be read. It is an extremely important part of the Bill now, whereas previously when the Standing Orders were first drawn up, the second reading speech was not part of the Bill or the interpretation of the Bill. It is no longer possible for a Minister or anybody else to engage in an extempore speech in relation to a Bill because it is now part of the statutory requirements. Similarly, in regard to paragraph (b) I think it is often of extreme importance that the Minister making a ministerial statement be word perfect because many ministerial statements are extremely important and really ought to be delivered in a much more deliberate way than would be the case with an extempore speech. I really think that paragraph (c) goes beyond anything that has ever occurred previously. Paragraph (c) states: making a response to a statement referred to in paragraph (b), as first speaker for the Opposition or a minority group--- That, indeed, duplicates the second part of paragraph (a) and extends far beyond any convention in this place what has been accepted by the Senate up to date. I believe that it is an unjustified extension in that I thought that what the Standing Orders Committee was seeking to do was, in fact, to try to write standing order 406 what had been the case. Paragraph (d) would be in conflict with paragraph (c) if both were allowed to stand. However, in some ways it would probably be acceptable. But again I suggest that it goes beyond what is currently the case. I say that it is in some way acceptable because while matters of public importance have tended to be less and less matters of public importance over the past few years and have become matters of political importance, I dare say that still under the Standing Orders we may from time to time actually hear a matter of public importance. Hence it may very well be that if the matter is a matter of public importance, the first speaker may wish to read his speech. I do not think that I would necessarily dissent from that. However, I think that in the current climate it is rather odd because matters of public importance are no longer really matters of public importance but rather matters of political importance. The moving of a motion to debate a matter of urgency-this relates to paragraph (d)-falls under the same rubric as matters of public importance and, I think, probably could be dealt with in the same way. I would be loath to accept paragraph (d). Hence, I intend to move that attachment D to the report of the Standing Orders Committee, be amended so as to delete the words in paragraph (a) , 'or speaking to such a motion as first speaker for the Opposition or a minority group' and to delete paragraphs (c) and (d) so that the motion would read: Provided that this Standing Order shall not apply to a Senator when that Senator is (a) moving a motion for the second reading of any Bill; (b) making a Ministerial statement or a statement on behalf of a Committee. Therefore, I move: Paragraph (a), leave out all words after 'Bill'; and paragraphs (c) and (d). Senator PETER RAE(Tasmania)(10.17) —I believe that it would be unfortunate if this matter, to which Senator Macklin has taken objection, were debated in detail in the chamber tonight rather than be sent back to the Standing Orders Committee for reconsideration. I believe that Senator Macklin has made some points which warrant consideration. I support the idea that the proposed amendment to standing order 406 be reconsidered rather than the chamber debating it now. Senator Macklin has moved, in effect, that the recommendation in relation to the proposed amendment to standing order 406 be referred back to the Standing Orders Committee for reconsideration. A further recommendation can then come forward. I believe that it is unwise to try to draft standing orders in the Committee of the Whole. It is rather better to take the view around the chamber, send the matter back, and come up with something which may accommodate the general view. I therefore support the proposal. Senator MISSEN(Victoria)(10.19) —I certainly support Senator Peter Rae's proposal, provided we have the opportunity of telling the Standing Orders Committee what we think about this matter so that it has the ambit view. As I understand it, it will not cut off debate. I am in general support of Senator Macklin. But, of course, my objection goes very deep because I fear that I have spawned the monster which is now before us. I think it was I who originally moved to try to stop the reading of speeches and made the original proposal that we should enforce the Standing Orders, that they should not be a dead letter. Actually, to see the first two parts in general, perhaps with the deletion of what Senator Macklin has moved, is all right. That at least shows the present situation. Of course, the last two positions add widely to the fact that there will be a lot more read speeches. I do not resile from the position I took a couple of years ago that the reading of speeches is an abomination generally in this chamber and that we should not be following the House of Representatives down the path to doom. I see that I cannot look for any comfort from the Standing Orders Committee because obviously that Committee is not seized with the danger there. I think what I will look for is the coming of television to the Parliament. We will find then that people will not dare to read speeches in the way that sometimes happens. I must say that there has been a very considerable improvement in the situation . I think there is much less reading of speeches, and I believe this happens with greater experience of new senators. When they have been here for a while they are prepared to abandon the tight effect of speaking from something prepared by them or somebody else, something which ties them down and does not allow them to engage in argument or allow the interruption of interjections. Despite the homilies in the Standing Orders about how wicked interjections are, I believe they are part and parcel of Parliament. To the degree that interjections do not become abusive they are valuable. I believe that the colour of parliamentary debate is greatly restricted by the reading of speeches. Moreover, it means that honourable senators come into this chamber and take no notice of the person who has spoken before them. They do not alter their speeches in any way and thus do not engage in debate. I think that has been one of the troubles of the other House for some years. The Standing Orders Committee has not come to the view that it should enforce this standing order and has come back with this proposal, which I think really compounds the situation. One can imagine Senator Macklin, perhaps being quite happy with something that seems to be in his best interests to have if he wants to read material at any time. The real purpose of the reading that is allowed and which has been allowed is, as he has said, the major nature of second reading speeches and ministerial statements, where the accuracy of the statement is important and may be relied on by the public and, to some extent, in the interpretation of statutes. However, the other provisions (c) and (d) do not have that basis. They have a basis whereby replies will be made without the colour and force which would otherwise appear. Very few people are able to read speeches well. Naturally, the debate takes on a very dull tone. I see no rescue, from my point of view, from anywhere but the televising of Parliament, which I hope will come, and which would naturally require the use of notes and certainly not the use of read material. Senator Watson —Continuous televising? Senator MISSEN —Perhaps I should not stray into that argument tonight. Yes, I think there could be continuous televising. Senator Childs —And action replays? Senator MISSEN —Perhaps that could be speeded up so that we only took the highlights, using the interesting parts and leaving out the dull parts. I think there are a lot of problems with it, but we will come to it. We will catch up with the Japanese and others in due course. However, that is not the immediate subject of this debate. I welcome the fact that this matter may go back to the Standing Orders Committee for further consideration. If the Senate is to put this into the Standing Orders, I hope it will not extend the range of read speeches, and perhaps ideas such as Senator Macklin's can be given very close consideration. Senator PETER BAUME(New South Wales)(10.25) —In the last few moments of this debate I will be brief. I would not like the Senate Standing Orders Committee when it reconsiders the matter to think that its approach has not found some support around the chamber. I acknowledge the force of the arguments in relation to proposals (c) and (d). I think they are matters which need to be looked at again. As I read the proposed amendment to standing order 406, I see something quite different from my colleagues. I see an attempt to provide that all speeches, except those that are listed here, are not to be read. It is an attempt to give some extra capacity to the Chair to enable it to say that the speech which is being given does not fall within certain classes designated here . I see this as a means by which we can hope to see standing order 406 applied more effectively. Identifying certain conditions where speeches can be read gives us a capacity to be rather more diligent in trying to observe standing order 406. I recall some of the debates which have taken place here when honourable senators have stood up and said that they want standing order 406 ignored completely. This attempt to go down this road is in fact the first time I have seen a proposal from the Standing Orders Committee to the Senate which will put teeth into the Standing Orders. I support the reference being sent back to the Standing Orders Committee. I hope the Committee can deal with it expeditiously. I like the Committee's approach, and I look forward to seeing the proposed standing order soon. Senator ROBERTSON(Northern Territory)(10.27) —As the senator representing the Senate Standing Orders Committee, I indicate that certainly we will not oppose the motion that this matter be referred back to the Committee. However, the point has to be made that this surely must be a most ineffective way of operating. We must find some other way of getting an input from the Senate before going back to the Committee. It is rather disturbing and frustrating for the Committee to spend some time, as we did, on trying to draft something and taking into account the comments made when the matter was debated previously, and to have the first speaker stand up and say that the matter ought to be referred back to the Committee. I accept the point Senator Macklin made and the reason why he made it. However, I make the point, and I will be raising it with my colleagues on the Standing Orders Committee, that we must find some other way of operating, otherwise we will never achieve any change in our Standing Orders. With the greatest of respect, it is quite clear that basically the honourable senators who have spoken in this debate tonight are those who sit around the table of the Standing Orders Committee trying to work out these things-although there have been other contributions. It is a great pity to me that we have not had a great many more honourable senators sitting in the chamber tonight or that we cannot program the debate at a time when it would excite a little more enthusiasm. This is the skeleton on which we work. These set the guidelines that we must follow. I would like to speak at some length on this, but I simply say for the benefit of those other senators on the Committee who are sitting in the chamber-I appreciate the comments made by Senator Baume-that we must find some better way of bouncing these ideas off. After all, there is no attempt by the Standing Orders Committee to impose anything at all. There is an attempt to come up with a form of words on the basis of what has been said before which might be found acceptable to the Senate. Again, it is very disturbing that when I am trying to have something to say, I keep glancing at the clock because I have only two or three minutes in which to present a case. I think that illustrates what I have been trying to say. I support Senator Macklin's proposal to have this matter sent back to the Committee. Senator MACKLIN(Queensland)(10.28) -Time is short, so it might facilitate matters if I seek leave to withdraw my previous amendment. Amendment-by leave-withdrawn. Motion-by leave-withdrawn. Senator MACKLIN —I move: That the proposed amendment to standing order 406, as set out in Attachment D to the Standing Orders Committee report, be referred back to the Standing Orders Committee for further consideration. Senator PETER RAE(Tasmania)(10.29) —I support the motion and I also support what Senator Robertson has said. I hope we can work out a better way. The reason I called a quorum tonight was because I had a misunderstanding that we were to debate an important and serious matter. The Scrutiny of Bills Committee matter is important and serious and ought to be discussed with every honourable senator having the opportunity to be here and knowing that the matter is to be brought on. I guess the misfortune was that the matter came on with honourable senators not prepared to debate it. I totally support the proposition that we have to work out a better system. I suggest that maybe the party rooms could be used as a better filter system in that we could schedule, through the managers of business in the Senate, the bringing on of Standing Orders Committee reports to ensure that they are discussed in the party rooms, with the Independent senator being given notice, before they are brought on for debate. I could not agree more that the present system is not entirely satisfactory. I join Senator Robertson as one of those who sit around in the Senate Standing Orders Committee and try to do something useful for the sake of the efficiency of this place. I support the motion. Question resolved in the affirmative. Resolutions reported; report adopted. The DEPUTY PRESIDENT —It being after 10.30 p.m., under sessional order, I put the question: That the Senate do now adjourn. Senator WATSON(Tasmania)(10.32) — Quite often good intentions, good initiatives and desirable legislation in one area, designed to help a particular group, are frustrated by the operation of other legislation affecting disadvantaged people, taxpayers or even industries. I think the problems often arise from the enthusiasm of particular Ministers or departments to effect their particular change or to bring about some improvement. They lose sight of the impact of legislation in other areas. I think that there needs to be a better liaison between all departments when amendments or new Bills are introduced into the Parliament. It should be mandatory that such a liaison does take place to overcome a conflict of interest which often can reduce the full effect of a desirable objective. With initiatives or incentives to industry we quite often find that tax legislation can have an impact which does directly affect the original intention. So often the problem arises as a result of the impact of the income tax legislation. I wish to refer to the problems faced sometimes in social security legislation and the impact that taxation has in reducing a benefit. The particular example that I wish to bring to the attention of the Senate tonight is the family income supplement. This was originally paid to the family breadwinner but fairly recently this was changed; it was paid to the person who is in receipt of the family allowance. In most cases this meant the mother. For income tax purposes we find that this family income supplement is not exempt income or non- assessable income to the mother in the sense that it can affect the rebate that the father would otherwise get the benefit of. I remind the Senate that this family income supplement is designed to help the very low income families. The family income supplement, therefore, for income tax legislation purposes becomes parts of the wife's separate net income. Although the benefit currently payable is $12-I understand that it is to be increased from November-the greater that amount is, the greater the impact of the problem. Approximately one third is lost as a result of income tax liabilities which attach to the father. The point I am making is that the very people the Government is trying to help, in this case the low income families who receive the family income supplement, have the amount effectively reduced through effects on the spouse rebate. On the one hand we appear to be generous in giving something to a needy section of the community-the lower income earners-in the form of a family supplement, but because we do not amend the income tax Act at the same time there is a reduced benefit. Once the increase takes place-I think it is from November-the impact will tend to be greater. I ask the Minister for Veterans' Affairs (Senator Gietzelt), who is in the chamber tonight: Will the Government look into this problem with a view to rectifying this difficulty? Will the Government also ensure that, in future, when legislation is introduced into the Parliament designed to benefit an identifiable group it will look at other impacting legislation to make sure that the full benefit is not lost? Senator Peter Baume —The Minister might tell us whether this was intentional or accidental? Senator WATSON —I hope that it was purely accidental and an oversight. I would not think that any government would deliberately do it. We have had such problems before. For example, the definition of 'de facto' for social security legislation was different from the definition for tax legislation. The analogy is not as good in that case. I ask that the Minister look into this matter in order to help the disadvantaged group who receive the family income supplement. I ask the Government also to assess the wide impact that this problem could have in future legislation which is designed to help particular industries, individuals or groups in society. Senator GIETZELT(New South Wales-Minister for Veterans' Affairs)(10.39) —The matters raised by Senator Watson relating to social security payments and taxation have, to some extent, been redressed as a result of the Budget decisions. I do not think they completely eradicate the problem that Senator Watson has raised, but the new categories of tax schedules and the increased rebate which are features of this Budget do reduce the difficulties that Senator Watson has raised. They do not eradicate the difficulty, but they do reduce the incidence. The Minister for Social Security (Senator Grimes) constantly spoke about these matters when he was a shadow Minister and they did have some weight when the Budget was being prepared. But whether the Government is in a position to go all the way along the track to overcome the difficulties of tax payments for those who receive benefits is a Budget consideration. I believe that the Government is taking some cognisance of the problem in the current Budget. We now have five tax scales instead of the previous three. The rebate that has been given to low income earners is designed to assist in this area. As this question falls within the jurisdiction of the Minister for Social Security and also falls within the province of the Treasurer (Mr Keating)-it relates to taxation-I will see that the matters specifically raised by Senator Watson are drawn to the attention of these Ministers. Question resolved in the affirmative. Senate adjourned at 10.41 p.m. The following papers were presented: Conciliation and Arbitration Act-Regulations-Statutory Rules 1984 No. 224. Excise Act-Regulations-Statutory Rules 1984 No. 219. Health Insurance Act-Regulations-Statutory Rules 1984 No. 217. International Organisations (Privileges and Immunities) Act-Regulations- Statutory Rules 1984 No. 216 Loan (Income Equalization Deposits) Act-Regulations-Statutory Rules 1984 No. 218. Maternity Leave (Commonwealth Employees) Act-Regulations-Statutory Rules 1984 No. 220. Members of Parliament (Staff) Act-Regulations-Statutory Rules 1984 No. 221. Radiocommunications Licence Fees Act-Regulations-Statutory Rules 1984 No. 222. Wireless Telegraphy Act-Regulations-Statutory Rules 1984 No. 223. The following answers to questions were circulated: (Question No. 992) Senator Bolkus asked the Minister for Resources and Energy, upon notice, on 22 August 1984: How many nuclear power stations were (a) ordered; (b) cancelled; and (c) deferred in each year since 1979 in: (i) Japan; (ii) the United States of America; (iii) the United Kingdom; (iv) France; (v) the Federal Republic of Germany; (vi) Canada; (vii) Italy; and (viii) OECD countries and in each case what was the generating capacity. Senator Walsh —The answer to the honourable senator's question is as follows: (a) Nuclear power reactors ordered by year Number of units/MWe (net) 1979 1980 1981 1982 1983 Japan 3/2506 2/2134 2/2133 1/1115 2/1854 USA . . . . . . . . . . UK . . 4/ 2444 . . . . . . France 6/6530 5/6060 4/4695 3/3415 3/4020 Germany F.R. . . . . . . 3/3746 . . Canada . . . . . . . . . . Italy . . . . . . . . . . Total OECD 9/9036 11/10638 6/6828 7/8276 5/5874 (b) Nuclear power reactors cancelled by year 1979 1980 1981 1982 1983 Japan . . . . . . . . . . USA 7/8050 17/17917 6/5887 19/22054 6/4798 UK . . . . . . . . . . France . . . . . . . . . . Germany F.R. . . . . . . . . . . Canada . . . . . . . . . . Italy . . . . . . . . . . Total OECD 7/8050 17/17917 6/5887 19/22054 6/4798 (c) Nuclear power reactors indefinitely deferred by year 1979 1980 1981 1982 1983 Japan . . . . . . . . . . USA . . . . . . 3/3760 2/2400 UK . . . . . . . . . . France . . . . . . . . . . Germany F.R. . . . . . . . . . . Canada . . . . . . . . . . Italy . . . . . . . . . . Total OECD . . . . . . 3/3760 2/2400 Notes: (i) The data are based on the Australian Atomic Energy Commission's assessment of available information. (ii) The data are for individual reactor units. A ''station'' can refer to a number of reactors at the same site. (iii) Cancelled units are those for which a firm order had been placed and later cancelled. The data do not include units which were subsequently re- ordered from another supplier. (iv) Indefinitely deferred units are those for which a firm order had been placed but work later suspended. They do not include units subsequently cancelled. (Question No. 993) Senator Bolkus asked the Minister for Resources and Energy, upon notice, on 22 August 1984: (1) What are the details of new orders for nuclear power stations in each of the following countries since 1972: United States of America, Japan, West Germany, France, United Kingdom and Organisation for Economic Co-operation and Development countries. (2) How many of those stations have been either cancelled or deferred in the same period. Senator Walsh —The answer to the honourable senator's question is as follows: (1) Nuclear power reactors ordered in the period 1972-1983 inclusive are: Number of units/ MWe (net) United States of America 114/129,848 Japan 19/ 16,947 Germany F.R. 14/ 16,574 France 52/ 54,183 United Kingdom 4/ 2,444 Other OECD 33/ 28,878 Total OECD 236/248,874 (2) Of the orders referred to in (1), 87 units (98,415MWe) were cancelled or deferred. These were all in the U.S.A. Notes: (i) The data are based on the Australian Atomic Energy Commission's assessment of available information. (ii) The data are for individual reactor units. A ''station'' can refer to a number of reactors at the same site. (iii) Cancelled units are those for which a firm order had been placed and later cancelled. The data do not include units which were subsequently re- ordered from another supplier. (iv) Indefinitely deferred units are those for which a firm order had been placed but work later suspended. They do not include units subsequently cancelled. (Question No. 1034) Senator Macklin asked the Minister for Resources and Energy, upon notice, on 22 August 1984: (1) Is the Government considering setting up a special compensation scheme following a report from the Kerr Committee with the view of paying adequate compensation to those involved in the British nuclear tests in Australia. (2) What are the details of this special compensation scheme. (3) Why has the Government ignored a request from the Australian Nuclear Veterans Association to appoint Professor Kerr to the proposed Royal Commission. (4) Will the Government reconsider its decision and include Professor Kerr as one of the Commissioners. Senator Walsh —The answer to the honourable senator's question is as follows: (1) and (2) The Government intends awaiting the findings of the Royal Commission on British Nuclear Tests in Australia. (3) In making its recommendations on the appointment of members to the Royal Commission the Government considered a number of eminent persons and sought to identify people with independence from previous advice and reports given to Government on the British nuclear tests. Professor Kerr's report on the review of data on atmospheric fallout will, however, provide an important source of information to the Royal Commission. (4) It is not intended to appoint any additional commissioners to the inquiry. (Question No. 1069) Senator Bolkus asked the Minister representing the Minister for Trade, upon notice, on 24 August 1984: (1) How many word processors, stenographers and typists are employed in the Minister's Department. (2) As of 1 September 1984, how many such staff have been, or are, off work with repetition strain injury or suspected repetition strain injury. Senator Walsh —The Minister for Trade has provided the following answer to the honourable senator's question: (1) There are a total of 196 word processing typist, stenographers and typists employed in the Department of Trade. (2) As at 1 September 1984, 17 such staff have been, or are, off work with repetition strain injury or suspected repetition strain injury. Senator Walsh —On 7 June 1984 (Hansard, page 2751) Senator Sir John Carrick asked me, as Minister representing the Treasurer, in a question without notice whether individuals would be prevented, by taxation legislation then before the Senate, from issuing annuities, and whether the legislation would force the purchase of annuities from specified institutions. The Treasurer has provided the following answer to the honourable senator's question: First, may I apologise for the delay in providing this information to the Senate. The information was available for use during the subsequent debate on the legislation but was inadvertently not made available to the Senate at that time. Nothing in the Government's legislation, which received royal assent on 25 June 1984, interferes with the practice of persons being able to purchase annuities privately, provided that the transaction does not infringe any provisions of the Life Insurance Act 1945. What Senator Sir John Carrick may have had in mind is the question of whether such a purchase would qualify as a roll-over of an eligible termination payment under the proposals and thereby free the payment from tax. The answer is no. To qualify as a roll-over of an eligible termination payment, an amount used to purchase an annuity for the benefit of the taxpayer (or, in the event of the death of the taxpayer, for the benefit of his or her dependants) must be paid to a life assurance company or a registered organisation as defined in the legislation. The purpose of restricting the concession in this fashion is primarily to safeguard against tax avoidance practices that would otherwise be available to individuals who could, for example, arrange to exchange eligible termination payments with one another as consideration for matching annuities. Each individual would effectively have his termination payment returned to him immediately without having paid tax on it. Finally, I note in this context that the Government has announced a review, intended to be completed by 30 September 1984, of the scope for wider participation in the issue of annuities.