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

A copy of the document would have to be made available, certainly. But I make the point to the Parliamentary Secretary to the Prime Minister—and I thank him for his observation that in the prosecution a file must be made available, or a copy where all documents are to be relied upon—that that does not mean that it is available for all other purposes which the person from whom the document has been obtained may wish to use it. That obligation does not arise until such time as charges are laid, so there are potentially significant periods of time before even copies are made available—and then a copy will be made available which cannot be used as an original. There may be a very long and protracted period of time in which the legitimate interests that the prosecutorial authorities—the police investigators, the DPPs and the like—have in retaining the originals of the document conflict with the proper and legitimate interests of businesses and individuals who have passed those documents for evidential purposes to the royal commission to hold and retain documents that they can use as originals.

There is an easy solution. This problem obviously commended itself to the government as a problem in the Building and Construction Industry Improvement Act in 2005. Its drafters at that time anticipated the need to deal with that problem. It is not a difficult problem to deal with. It is just that in this instance, in the haste—understandable haste; I am not making any criticism of the government in relation to this—to deal with it, a problem that was identified in one context which had a simple and elegant solution has not been solved in this instance. Because it can be so elegantly and simply resolved, I would urge that the government do so.

I do not want to take up the time of the House at much greater length, because I am certain that the shadow minister has put forward this matter. If it can be dealt with today rather than requiring further processing in the Senate and then coming back to the House, it would solve difficulties. But, whatever mechanism is used, this is a serious practical problem. It is not a whimsy. It is something that the government, through its advisers, obviously contemplated as a genuine and real problem in other contexts. It does not go away because of the different context in which it appears now. It is a genuine and real problem and it should be sorted out in a sensible, straightforward way. There is no need to withhold from a person who has provided documents to a royal commission the capacity to pursue their ordinary legitimate business affairs using those documents as originals. Law enforcement does not require it. The purposes of the royal commission do not require it. It can be built into this legislation very simply and straightforwardly. I am hopeful that the government may choose to move in that direction.

I am not raising this out of any pedantic sense of criticism. But at some certain point in the future this will pose a significant practical problem in the implementation of this legislation. It may be that the government says that we can deal with that when we come back next year. But that really is not the way to progress substantial legislation which, if enacted, will remain on the books. The attention of the government may not return to this matter. The parliamentary agenda may not facilitate it. When we are passing legislation that is designed to cover not merely a specific instance but also the generality of all royal commissions which have been held in the past and will be held into the future, it would be troubling if the problem was not dealt with now. I thank the House for that opportunity to raise an issue which I would hope can be dealt with quickly and simply.

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