Duncan Kerr (Denison, Australian Labor Party) Share this | Hansard source

I thank the Parliamentary Secretary to the Prime Minister for his response to my earlier remarks. I acknowledge his experience in royal commissions; I come to this place with experience in litigation also. It is difficult to properly pursue a number of legal proceedings without access to original documents. I gave two instances in my earlier comments: a deed—which, on its face, is the document upon which legal proceedings will be commenced or proceeded with—and a cheque. If those are the documents which are held in the custody of a commission and later in the custody of a custodian, the business efficacy of the organisation or persons that are provided with that document are much reduced. That has been recognised in the past by this government and dealt with in a very straightforward and fair way. I am merely asking that the same provision apply in this instance. It seems to be one of those extraordinary ironies of political life that the government has given greater protection to the business efficacy of trade unions under the Building and Construction Industry Improvement Act—legislation which we described as draconian—than it will to others who may be the subject of other proceedings.

Given the lengthy periods of time in which these documents may be held and the fact that organisations would be placed in difficulty in their litigation, it does seem quite an unnecessary burden. Indeed, there may be instances in which it is not merely litigation which is made more difficult when you cannot produce the original of a document. People may produce documents which they do not recognise the significance of, not retain originals and later have the significance of the documents become more apparent. It is not sufficient, with great respect to the parliamentary secretary, to say that, if a prosecution is actually brought, copies of documents are provided with the prosecution brief. It is potentially at an earlier point that those documents need to be reassembled as the business records or the historic records of a person or organisation so that they can defend themselves in public against, for example, allegations made in the media and the like.

So I do think there is a problem. I understand the government dealing with this in some haste, but I do not believe that the parliamentary secretary’s response really addressed the issue that may emerge and the reality that it is likely to emerge. Royal commissions are frequently held into circumstances which involve business dealings of persons. They are frequently held into circumstances in which a large amount of records are held for significant periods of time, and it is not always the case in law that the possession of a copy can be utilised with the same efficacy and ease as the original. I am not even certain how a worthy person who wished to use the original document for other legal proceedings could subpoena it in the face of this legislation. The parliamentary secretary said it would be available through subpoena. In the face of a Commonwealth statute that gives the power to hold those documents to third parties for certain purposes, would a subpoena override that? I must say that I do not think that is so and I doubt it. If it did, it would probably undermine the purposes of the legislation. So I am not persuaded by the arguments and, given that it is so simple to fix, I am puzzled at the reluctance.

Question agreed to.

Bill, as amended, agreed to.

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