Page 1412 - Week 05 - Tuesday, 9 May 2006
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tribunal can, without grave danger of injustice, set them on one side and resort to methods of inquiry which necessarily advantage one party and necessarily disadvantage the opposing party. In other words, although rules of evidence, as such, do not bind, every attempt must be made to administer ‘substantial justice.’
The scrutiny of bills committee went on to say:
The courts have a particular concern with displacement of the rules governing the reception of hearsay evidence … In a recent case in the Supreme Court of the Territory, Higgins J pointed to the general risk inherent in drawing an inference of factual truth from untested out-of-court statements by unseen declarants. … Generally, to rely on such statements as representing the truth is not only unsafe but also unfair as against parties who were not present when the declarations were made. This is particularly so when the truth or otherwise of the content of the declaration is an important issue in the trial.
I draw attention to those comments and the fact that the scrutiny of bills committee report reveals that the bill proposed by the Liberal Party to substitute that of the government’s would not guarantee a fair trial. What is at the heart of the system of justice in Australia and in the Western world? What is the most significant of these values, which the terrorists seek to undo? They wish to see us abandon our values. It is our values that abhor them. The Prime Minister reminds us repeatedly that the terrorists around the world are engaged in a war against Western values.
What is the greatest, in a legal sense, of the values which apparently these fundamentalist terrorists abhor? It is the rule of law. When we think of the rule of law, what do we first think about? We think about the right of every citizen to a fair trial. Here is the Liberal Party’s response to the threat of terrorism—terrorism which the Prime Minister reminds us repeatedly is essentially motivated by a desire to undermine our values; values which they abhor. What is the most significant of our values? A respect for the rule of law. What do we imagine? What is the first thing that comes into our minds when we think about the rule of law, this fundamental value? What comes first in this value?
Mr Pratt: The protection of life comes first.
MR STANHOPE: The right to a fair trial. Whether or not you have been locked up in a Serbian jail or by an ACT court, what do you want? What did you most wish for over there in Serbia? You wished, more than anything, for a fair trial—a hearing.
Mr Pratt: After the protection of life.
MR STANHOPE: You wished for a fair trial, which you were denied. That is what you wanted. We have a preventative detainee in the chamber. What did he want? What did he cry for? He wanted a fair trial, and he could not get one. Now he supports a legislative package which has at its heart, in the words of Mr Stefaniak’s own committee—the scrutiny of bills committee—a suggestion that the Liberal Party’s legislative package would deny the right of a fair trial to those caught up by it. I think that says it all.
MR STEFANIAK (Ginninderra) (5.48): It is amazing; we had a bit of selective quoting from the scrutiny report. As Mr Stanhope well knows, the scrutiny of bills committee has a charter or terms of reference which it faithfully adheres to. He has picked out a few
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