Nicola Roxon (Gellibrand, Australian Labor Party, Shadow Attorney-General) Share this | Hansard source

The Royal Commissions Amendment (Records) Bill 2006 deals with amendments to the Royal Commissions Act. It will have a lasting impact on all royal commissions for the future and its terms apply also to all past commissions, although I note that we have assurances that the government does not intend to use these changes in any way other than for dealing with the oil-for-food commission matters.

The genesis of this bill was the tabling of the report of the Cole Inquiry into Certain Australian Companies in relation to the UN Oil-for-food Programme last Monday, but the bill is not in any way limited to this matter. I fear that the Royal Commissions Amendment (Records) Bill 2006 simply represents a hasty attempt by the government to address one of the recommendations of the Cole inquiry into the oil-for-food scandal. Having been stung by criticisms of its neglect and inaction in respect of the Australian Wheat Board in the past, it is clear that the government is now, finally, eager to at least look like it is doing something.

The government’s intention is that this bill will be pushed through both the House and the Senate before week’s end. In principle, Labor opposes this rushed law making. The bill is general and far-reaching in its terms and results in law by regulation: the initial bill tabled on Thursday allows for the regulations to specify whom documents can go to and for what purpose without any limitation. Whilst there may be an argument for speed in relation to AWB matters, the same cannot be said for the bill’s ongoing application and its much more significant breadth.

Unfortunately, it is far too little too late from this government. Having turned a blind eye to 35 separate warnings, over a number of years, of AWB’s $290 million in kickbacks to Saddam Hussein’s regime, this small step cannot redeem the government. After so much neglect, the government cannot push through a bad law on the pretence that it needs to do something urgent to handle AWB matters. At this point let me move Labor’s second reading amendment. I move:

That all words after “That” be omitted with a view to substituting the following words: “whilst not declining to give the bill a second reading, the House notes:

(1)

that the Opposition demanded action to prevent the abuse of legal professional privilege in the Inquiry into certain Australian companies in relation to the UN Oil-For-Food Program (the Cole Commission) in March;

(2)

that the Attorney-General arrogantly rejected that demand at the time and incompetently waited almost three months, after a Federal Court case, before taking action with this Bill;

(3)

that, while this Bill proposes a sensible, albeit late, change to the law, it will not solve the broader problem that the Cole Commission’s Terms of Reference are limited;

(4)

that the current Terms of Reference do not allow the Cole Commission to make findings on whether or not Ministers, their offices and departments have discharged their duties under Australian administrative law and under international law (in particular UN Security Council Resolution 661);

(5)

that the Cole Commission has provided written advice that a change to the current Terms of Reference which would allow the Cole Commission to make such determinations is a matter that would be ‘significantly different to the existing Terms of Reference’ and is therefore a matter for the executive; and

(6)

that if the Howard Government had nothing to hide in the $300 million wheat-for-weapons scandal, it would expand the Cole Commission’s Terms of Reference to allow Commissioner Cole to make such determinations”.

This bill will not get them around that problem. I am sure that other speakers—particularly my colleague the honourable member for Wills, Mr Kelvin Thomson, who is at the table—will wish to focus in detail on those issues today. Of course, Labor stands ready to assist with any changes that are needed to allow our law enforcement agencies to investigate possible crimes committed by AWB and staff. Labor—and our new leader—have, after all, been at the forefront of pursuing the oil-for-food scandal. If it had not been for Labor’s dogged persistence I very much doubt that the community would have understood the extent of AWB’s deceit, or the government’s neglect and apathy.

But, whilst we stand ready to assist in any way required on the AWB specific matters, we were not going to be railroaded into making an ill-considered law of lasting consequence under cover of that pressing need. Accordingly, when Labor was briefed late last week on this matter we urged the government to adopt a different approach—to focus the bill just on this particular inquiry and the way that records would be handled that came from this inquiry, as was done in the HIH matter. The second option we urged for consideration was limiting the ‘custodians’ in the bill and the purposes for which records could be handed to a custodian. I am pleased to say that the government has today agreed to that latter suggestion from Labor. We see this in amendments that have been provided to us—we thank the government for this—but that have not yet been moved by the government. That is a triumph of common sense, and we welcome that the government was prepared to take this advice and suggestion from us.

Let me turn in more detail to the bill before us and the flagged amendments to it, which vastly narrow, and thus improve, the bill to the extent that Labor will be able to support the amended bill. Among his extensive recommendations, Commissioner Cole proposed the establishment of a joint task force to consider possible prosecutions arising from the inquiry. The government argues that the Royal Commissions Amendment (Records) Bill 2006 will provide a framework for the orderly and speedy referral of records from the Cole inquiry to relevant law enforcement bodies. Unfortunately, as I have noted above, in its haste to look like it was finally dealing with the AWB scandal, the government botched the initial drafting of this bill.

The bill as introduced on Thursday would have inserted a regulation-making power into the Royal Commissions Act 1902 to enable regulations to be made to give custody or access to records of royal commissions to other persons and agencies and to allow them to be used for other purposes. The bill was extraordinarily open-ended; it would allow through regulations all records, held by any royal commission, past or future, to be passed on to any custodian for any purpose. I have noted elsewhere that, silly as it may seem, this would mean that records from a royal commission, no matter how sensitive or confidential, relating to security issues or whatever, could be passed on, for example, to FOX FM for the purposes of entertainment or to the Australian for the purposes of embarrassing someone, or to a range of inappropriate persons, with inappropriate consequences.

The government hastened to assure us that this was not its intention in introducing the bill on Thursday yet, as it stands, the bill allows this to be the case. Fortunately, as I have noted, after Labor raised objections to the breadth of the bill, the government has come to its senses and intends to introduce some rational amendments that specifically identify law enforcement agencies and limit the purposes to law enforcement as well. This is far more sensible and protects against any silly or extreme outcome that could have been contemplated by the bill. I would like to emphasise that this does rather make Labor’s point about the traps and risks of hastily making laws with broad and lasting impact. Given the lack of any thorough examination of the proposed changes, which I note have not even been moved in this House yet, we can only hope and trust that the government has now got it right.

We do seem to be in this place rather often for matters in my portfolio—and this is a matter that is obviously in the portfolio of the Prime Minister—and are constantly being asked to make laws that have been prepared in a rushed way. I indicate that some of the silly or extreme outcomes that we might use as examples actually do highlight how important it is for us to try to get the drafting right and to make sure that any changes to our laws, especially laws such as the Royal Commissions Act, which do have broad and lasting consequences, are appropriate for the future.

The bill amends the Royal Commissions Act to enable regulations to be made which deal with the handling of the records and documents of a royal commission. The regulation must identify which person or organisation is to be the custodian of the records and also the access and use to which those records can be put. The bill introduced on Thursday allowed for regulations to be made for specific royal commission records which may: provide for the custody in which some or all of the royal commission’s records, including copies of those records, are to be kept; specify purposes for which a custodian of royal commission records may use or must not use some or all of those documents; provide for the circumstances in which the custodian of royal commission records must or may give some or all of those records to another; provide for the circumstances in which the custodian of royal commission’s records must or may allow access to some or all of those records to others; and specify purposes for which persons or bodies to whom the custodian of royal commission records gives or gives access to those records may use or must not use some or all of those records.

It is these provisions, which are to be varied by the government’s amendments to be moved later today, that make perfectly clear in some detail that we are limiting this to law enforcement agencies for the purposes of administering and enforcing the law. In the amendments that we were provided this morning the government has sought, firstly, to address the breadth of purposes to which royal commission records may be provided to another and, secondly, to restrict and specify those persons or bodies which can be custodians of those records. I will reserve any other comment on those issues for when we are in the consideration in detail stage, if required, when the government has actually moved those amendments. We are particularly pleased that, in a number of ways, and with some quite detailed new definitions being added, law enforcement bodies in their broader sense will be included in this and that the documents will be handed over for those purposes only.

It is probably a bit of a ‘belt-and-braces approach’, as I think has been described by others, but I do not think there is any harm if we are making a law that makes sure all law enforcement agencies, whatever their names may be in the future, will be covered by this regulation. Given that the purpose is also now clear, we do not foresee any problems. I do note that it is unlikely that those in the community who are interested, including the law enforcement agencies and others, would have been consulted in any way on this bill. I do hope that, if unforseen problems are flagged with the government, amendments will be made at a future time.

My colleague the member for Denison, who I think will be speaking on this bill, has raised an issue in relation to the rights that the original owner of the documents might have if they required the documents for their business purposes—for example, perhaps for filing their tax returns or other things. There do not appear to be any provisions that ensure that a person can make a request of the custodian for an original to be returned, or perhaps for a copy to be made if they need an original, for their business purposes. I understand that the member for Denison may speak on that in a little more detail and I have had some informal discussions with the government about that. It may be that that sort of amendment could be picked up either in the House while the debate is on or potentially in the Senate, or perhaps even in the regulation making powers as we go further down the track. If the parliamentary secretary is able to take account of that one outstanding issue it would be helpful.

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