Mark Dreyfus (Isaacs, Australian Labor Party, Cabinet Secretary) Share this | Hansard source

I thank the member for Warringah for her amendments and for her engagement on this legislation. The government amendments to clause 74 substantially address the member's concerns about legal professional privilege. The government's amendment will ensure that the requirement for evidence to be given in private does not apply to legal advice where privilege has been waived, for example, by the Commonwealth or a witness in the interests of transparency, or if the advice is not privileged, for example, because the advice was provided in furtherance of any legal or improper purpose. Where evidence properly attracts legal professional privilege and the privilege has not been waived, it is appropriate that the privilege be maintained. Any further amendments to this clause are unnecessary.

On the question of a deadline for the completion of investigation reports, the government does expect the commission to conduct investigations and finalise its reports in a timely manner. This is already reflected directly and expressly in the objects of the legislation, which include facilitating timely investigations. It would be inappropriate to require the commissioner to finalise an investigation within arbitrary time limits. It will be a matter for the commissioner to determine when an investigation is completed and when the subsequent report is to be prepared.

On the requirements for tabling of investigation reports, where a public hearing has been held during the course of the investigation, reports will be required to be tabled in each House of parliament within 15 sitting days after it is received. This will allow the government sufficient time to consider the report and any findings and recommendations. The commissioner will also be able to publish reports at any time when satisfied that it is in the public interest to do so.

Finally, in relation to the procedural fairness aspect of the amendments moved by the member for Warringah, the commissioner will be required to provide procedural fairness by ensuring that those who are the subject of a critical finding, opinion or recommendation in a report are offered an opportunity to respond. This will ensure procedural fairness for persons and agencies who are investigated by the commission.

It's appropriate that the commissioner determines what time period constitutes a 'reasonable opportunity' to respond, given that this will vary, depending on the circumstances. For example, a reasonable opportunity to comment on a single adverse opinion in a very short report will be different to what a reasonable opportunity would be in a case that involved a lengthy report and multiple interconnected adverse findings. The government does not support these amendments.

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