APPENDIX 3
STATEMENT BY CHAIRMAN, SENATOR MICHAEL FORSHAW, TO THE
SENATE, 15 MAY 1997
I make this statement to the Senate on behalf of the Senate Foreign Affairs,
Defence and Trade References Committee to respond to recent disturbing
and incorrect media reports about the Committee's conduct of its inquiry
into consular assistance for Australians travelling abroad. These media
reports arose out of attempts by the Committee to take evidence in camera
from Mr Alastair Gaisford, who was serving in the Australian Embassy at
Phnom Penh, Cambodia, at the time David Wilson was captured and murdered
by the Khmer Rouge in 1994. The Committee understands that Mr Gaisford
is still an officer of the Department of Foreign Affairs and Trade, but
is under suspension. Mr Gaisford refused to give evidence in camera.
Before dealing in detail with those media reports and the events which
gave rise to them, I want to provide some information about the conduct
of the inquiry to put them into context.
Although originally conceived as an inquiry into matters relating to
the David Wilson hostage crisis in Cambodia, the scope of the inquiry
was broadened when the Senate referred the matter to the Committee on
25 August 1995. Under its terms of reference, the Committee was required
to conduct an inquiry into the Australian Government's consular services
and, as part of that inquiry, examine issues and problems in dealing with
difficult and complex cases, including that of the David Wilson hostage
crisis.
The Committee advertised the inquiry in the national press and called
for written submissions to be lodged with the Committee. A number of detailed
submissions contained adverse comments and these were dealt with by the
Committee in accordance with the Senate Privilege Resolutions. The Committee
decided to release submissions as their authors appeared before the Committee
in public hearings. Where possible, and in the interests of natural justice,
responses to adverse comments in submissions were released at the same
time as the submissions.
The federal election in March 1996, subsequent changes in membership
of the Committee, including that of Chairman, and the need to finalise
three other inquiries, resulted in delays in commencing the public hearings
in this inquiry.
The Committee began public hearings on 9 September 1996 and first took
evidence from the family of David Wilson on 24 October 1996. The Department
of Foreign Affairs and Trade gave evidence to the Committee on the Wilson
case on 25 November 1996. The Wilson family was given an opportunity on
11 March 1997 to give further evidence and to respond to the Department's
evidence.
It was not until 11 March this year, during his second hearing with the
Committee, that Mr Peter Wilson, the father of David Wilson, requested
the Committee to take evidence immediately from Mr Alastair Gaisford.
Mr Wilson stated that Mr Gaisford had been the Australian Consul in Phnom
Penh at the time and was involved with the hostage crisis. He thought
Mr Gaisford could make a significant contribution to the inquiry. In the
Canberra Times the next day, Mr Gaisford was reported to have said
outside the hearing that "I have no doubt David Wilson would be alive
today if we had firmly controlled negotiation pressure".
The Committee notes that the Wilson family had not nominated Mr Gaisford
in their detailed written submission as a person from whom the Committee
should take evidence. They also did not refer to Mr Gaisford in their
first appearance before the Committee. We mention this, not as a criticism,
but because it is relevant to consideration of subsequent events regarding
Mr Gaisford.
Nevertheless, the Committee responded to Mr Peter Wilson's request that
evidence be taken from Mr Gaisford by inviting him to make a written submission
in the first instance. It was explained to Mr Gaisford in the letter of
invitation that the Committee was following normal committee practice
by first seeking a written submission and then deciding, after consideration
of the submission, whether to seek further oral evidence at a hearing.
It should be emphasised that Mr Alastair Gaisford did not make any formal
approach to the Committee about giving evidence until he responded to
the Committee's letter of 25 March 1997 inviting him to make a written
submission. He did not respond to the advertisements in the national press
calling for written submissions. The fact that he knew about the inquiry
and the evidence given during the course of the inquiry is beyond doubt.
He attended many of the public hearings, including the two days in Melbourne
when members of the Wilson family gave evidence.
It is understood that Mr Gaisford approached informally the former Chairman
of the Committee, Senator Bob Woods, in the early stages of the inquiry
but no record of these discussions was passed to the Committee. He also
approached informally at least one other current member of the Committee,
who responded that he should make a written submission to the Committee.
However, despite what was said in any private conversation with a member
of the Committee, that does not constitute any approach to the Committee.
After the Committee invited him to make a written submission, he began
to put obstacles in the way of his contributing to the Committee's inquiry.
He claimed that he would be giving evidence as an officer of the Department
of Foreign Affairs and Trade and not in a personal capacity. It was pointed
out to Mr Gaisford that if he did not have authorisation to appear on
behalf of the Department, he would have to appear in a personal capacity.
There is no other capacity in which he could appear. The Committee also
made it clear to Mr Gaisford that if he wanted to appear on behalf of
the Department, it was his responsibility to seek the necessary authorisation
from the Secretary of his Department.
Mr Gaisford told the Committee in his letter of 31 March 1997 that his
address was the North Asia Division of the Department of Foreign Affairs
and Trade. He has refused to give the Committee any other address or telephone
number. However, as stated earlier, the Committee understands that he
is an officer under suspension from the Department and is not entitled
to enter departmental premises. The Committee did not believe, in the
circumstances, that the address that he had given the Committee was an
appropriate address for official correspondence, particularly as the Department
did not have a forwarding address for him. Mr Gaisford collected the Committee's
mail directed to him from the Committee's secretariat. The Committee has
on occasion had to use intermediaries to contact him.
The Committee notes that Mr Gaisford used departmental letterhead for
all his letters to the Committee, despite the fact that he is under suspension
and is not writing on behalf of the Department.
Mr Gaisford advised the Committee in his letter of 31 March 1997 that
he believed Parliamentary Privilege would not protect him adequately and
that action under other Commonwealth legislation might be taken against
him in respect of evidence given to the Committee. He requested the Committee
to obtain written advice from the Clerk of the Senate to clarify the protection
afforded by the Parliamentary Privileges Act. Such advice was obtained
from the Clerk and attached to the Committee's letter dated 17 April 1997
to Mr Gaisford.
Mr Gaisford eventually lodged his written submission with the Committee
on 29 April 1997.
Contrary to Mr Gaisford's assertion in his submission that he was the
Australian Consul in Phnom Penh, the Committee was informed recently by
the Department of Foreign Affairs and Trade that Mr Gaisford was not the
Consul at the time of the Wilson hostage crisis. According to the Embassy's
Diplomatic List dated 18 July 1994, which was provided to the Cambodian
Ministry of Foreign Affairs and International Cooperation on 28 July 1994,
Mr Gaisford was listed as Second Secretary. Another officer was listed
as First Secretary and Consul.
The Committee gave careful consideration to Mr Gaisford's submission,
which was only a summary submission, with a list of topics that he said
he would address in a hearing. Despite the incomplete nature of Mr Gaisford's
submission, the Committee nevertheless decided to invite Mr Gaisford to
give oral evidence at a hearing. It was further decided that the hearing
would be held in camera. Accordingly, on 6 May 1997, the Committee invited
Mr Gaisford to give evidence to the Committee on 12 May 1997.
The next day, Mr Gaisford handed the Committee a letter seeking reasons
for hearing his evidence in camera. The Committee responded on 8 May 1997
stating, among other things, that:
Unlike other parties in this inquiry, who responded to public advertisements
by giving the Committee detailed submissions, you have provided a summary
submission late in the inquiry. Some of the other submissions contained
adverse comments which were dealt with in accordance with Senate procedures
to ensure that the right of individuals to natural justice was not prejudiced.
In your case, after further consideration and a detailed study of your
summary submission, the Committee is not satisfied that your evidence
will not reflect adversely on another person. Accordingly, under Privilege
Resolution 1 (11), the Committee has decided to hold the hearing in camera.
It will decide subsequently whether to release the transcript of evidence.
In his letter of 7 May 1997, Mr Gaisford requested that in any hearing
he be accompanied by counsel at the Committee's expense. Although the
Committee was unconvinced by Mr Gaisford's need to be accompanied by counsel,
it did not object to counsel being present at Mr Gaisford's expense. It
is not the practice of Senate references committees to pay counsel's costs
and expenses.
About 3.15 pm on Friday, 9 May 1997, Mr Gaisford delivered another letter
to the Committee saying that he would not give evidence to the Committee
in camera. In the letter, Mr Gaisford requested the Committee to revoke
its decision to hold the hearing in camera. At about 5.10 pm that day,
he returned to the Committee's secretariat asking whether the Committee
had revoked its decision. He was told that as members of the Committee
were travelling back to their homes in their respective States, it was
impossible to convene a meeting of the Committee between 3.15 pm and 5.10
pm to consider Mr Gaisford's letter. He was also told that any revocation
of the Committee's decision to hold the hearing in camera would require
a further decision of the Committee; the Chairman did not have authority
to revoke unilaterally the Committee's decision. He was told that the
Committee could not meet before Monday. Mr Gaisford then handed over a
further letter to the Committee regretting the Committee's decision.
It is apparent that Mr Gaisford made contact with Mr Tim Wilson, the
brother of David Wilson, and told him that the Committee was requesting
that he give evidence in camera, not in public. Mr Wilson then made a
statement to the media, which was reported on ABC PM (early edition),
saying that he had lost faith with the Committee and that the Committee
was a waste of time. In the later edition of ABC PM, I made a statement
confirming that Mr Gaisford had been invited to give evidence in camera,
that this was being done in accordance with normal committee procedures
but that I was not in a position at the time to go into details of why
the Committee had decided to take Mr Gaisford's evidence in camera.
On Monday, 12 May 1997, Mr Peter Wilson and Mr Tim Wilson appeared on
the Channel 9 Today Show and continued to disparage the Committee's decision
to take evidence from Mr Gaisford in camera. They accused the Committee
of taking part in a cover-up.
Press reports in several newspapers over the weekend and Monday also
reported the comments of the Wilson family and Mr Gaisford on this matter.
On Monday, 12 May 1997, the Committee met to consider the next step in
this matter. It decided to direct Mr Gaisford to appear at an in camera
hearing on 14 May 1997. Although the Committee passed a message to Mr
Gaisford through an intermediary that it wanted to communicate with him,
Mr Gaisford has not made contact with the Committee. The Committee reached
the conclusion yesterday that this approach would not be worth pursuing.
The Committee believes, however, that it cannot remain silent because
the comments of the Wilson family, provoked by Mr Gaisford, cast serious
aspersions on the integrity of the Committee and the Senate. The Committee
therefore decided that the appropriate course of action is to place the
facts of this matter before the Senate.
The Committee prefers all evidence to be given in public as is the practice
of Senate committees. As the Wilson family made a detailed submission
to the Committee early in the inquiry in response to the Committee's advertisement,
the Committee was able to act in accordance with Senate Procedure Resolutions
and, where necessary, seek responses from people who were subjected to
adverse criticism. Mr Gaisford's very late contribution by way of a summary
submission with no details or evidence to substantiate his claims is a
matter of concern to the Committee.
The Committee gave careful consideration to Mr Gaisford's summary submission.
Mr Gaisford made a number of serious general accusations about the handling
of the David Wilson hostage crisis without any evidence so far to support
his claims. He provided as an appendix to his submission a list of topics
on which he wants to address the Committee. The emotive way in which he
cast some of those topics suggested to the Committee that he might publicly
make adverse comments about individuals involved in this case. The Committee
had reservations about the nature of the evidence he would give at a hearing.
However, the Committee wanted to take evidence from him as he was involved
in the hostage crisis and may be able to contribute to the Committee's
understanding of the issues in this case. On the basis of the submission
alone, the Committee was not satisfied that he would not make adverse
comments based on unsubstantiated claims at a hearing. Should Mr Gaisford
make adverse comments in his evidence, those affected by his comments
would not be able to defend their actions and reputations at the time.
They would be denied natural justice.
The Committee also took into account Mr Gaisford's approach to the Committee.
Unlike the Wilson family and other witnesses, who tried to assist the
Committee in its inquiry, Mr Gaisford's approach was quite the contrary,
aggressively raising obstacles at every turn. It reached a point where
I had to warn Mr Gaisford twice not to harass members of the Committee
and the secretariat and that if he continued this aggressive approach,
I would report the matter to the Clerk of the Senate, which I eventually
did.
Given the nature of his submission, his aggressive approach to the Committee
and his focus on procedural matters rather than the content of his evidence,
the Committee decided that it should hear Mr Gaisford in camera. It was
the intention of the Committee that if Mr Gaisford's evidence conformed
to normal standards of evidence, it would be released publicly. The Committee
is quite prepared to release criticisms of the actions of individuals
if there is evidence to support those criticisms and there is an opportunity
for those people subject to adverse comment to respond in accordance with
Senate procedures. The Committee is not prepared to allow unsubstantiated
claims to be made against individuals under Parliamentary Privilege.
Since making its original decision to hear Mr Gaisford in camera, the
Committee has been made aware of evidence given by Mr Gaisford and other
members of the DFAT Reform Group to the Senate Standing Committee on Finance
and Public Administration on its inquiry into the management and operations
of the Department of Foreign Affairs and Trade in 1992. In its report,
the Committee concluded that:
- many of the specific allegations made by the DFAT Reform Group were
seriously inaccurate;
- in none of the cases reviewed by the Committee was there sufficient
evidence to justify action against any individual and, in a significant
number of cases, the allegations against individuals were clearly disproved;
- those cases which were partly or largely substantiated, including
one nominated by Mr Carroll as significant, were of minor importance;
- there was no evidence of any cover-up of improper or illegal behaviour.
The Committee believes that these comments lend weight to the Committee's
concern about evidence which might be given by Mr Gaisford in this inquiry
and the Committee's decision to hear Mr Gaisford in camera.
I want to make it quite clear on behalf of the Committee that the Committee
is considering seriously all the issues in this inquiry. With its decision
to take evidence in camera from Mr Gaisford, the Committee was following
established Senate practice of ensuring the protection of innocent people
from possible unsubstantiated claims made under Parliamentary Privilege.
The Committee has no intention of withholding significant relevant information
from the Senate or the public.
Mr Gaisford has had ample opportunity to make a contribution to this
inquiry going back to August 1995 when the inquiry was established. If
he had had any concern about protection afforded by Parliamentary Privilege
in respect of evidence he might give to the Committee, this could have
been resolved quickly at any time, as it was when he recently sought from
the Committee written advice from the Clerk of the Senate on this matter.
The Committee believes that if Mr Gaisford had pertinent information about
the handling of the David Wilson hostage crisis which could assist the
Committee, he should have come forward early in the inquiry as did other
people. But even when the Committee invited him to make a submission at
the request of Mr Peter Wilson, he began a series of procedural arguments
with the Committee rather than make a substantive submission which contained
his views and the evidence to support them. A person wanting to give evidence
would normally assist and co-operate with the Committee to ensure that
the Committee received relevant information. In this case, this did not
happen.
The Committee is very concerned that the actions of Mr Gaisford have
unnecessarily put additional pressure on the Wilson family. The fact that
they felt compelled to speak out on this matter is regrettable. It was
frustrating for me and the Committee that we were not in a position to
assuage the doubts of the Wilson family at the time. By making this statement
today, this important matter is brought into the public arena in its proper
context. This obviously could not be done and nor should it be done through
the media.
I wish to point out that all decisions made by the Committee in relation
to Mr Gaisford were unanimous.
I seek leave to table all the correspondence between the Committee and
Mr Gaisford, Mr Gaisford's submission, other relevant correspondence and
transcripts of media reports.