Nicola Roxon (Gellibrand, Australian Labor Party, Shadow Attorney-General) Share this | Link to 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.

Malcolm Turnbull (Wentworth, Liberal Party, Parliamentary Secretary to the Prime Minister) Share this | Link to this | Hansard source

Mr Turnbull interjecting

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

This is the issue in relation to requests from original owners of the documents and whether they are able to make such a request of the custodian. It may be that the departmental officials can advise whether that can be done via the regulations but, to my knowledge, it looks as though we may need to make some sort of technical amendment to do that. Given the rush of getting this matter through both the House and the Senate, I assume it would be desirable for that amendment to be moved in the House rather than having to have it moved in the Senate and returned. So I hope the government will take note of that.

The bill will also allow, but not require, such regulations to impose conditions to be complied with by the custodian of the records, or persons and bodies to whom the records are given or who are allowed access to the records. The bill makes it clear that the protection in section 6DD of the Royal Commissions Act against self-incrimination is maintained, which is contained in the proposed new section 9(12), and that legal professional privilege is not affected by any regulations that might be made under these amendments, which can be found in proposed section 9(13), although legal professional privilege is the subject of a separate recommendation by the commissioner and has in fact been referred by the government to the Australian Law Reform Commission.

The bill also specifies that regulations will apply in respect of records of any royal commission, including royal commissions which have reported before the commencement of the amendments. We are told that this is required as the oil for food commission is now technically also a past commission, having completed its work and reported to the government. As I noted earlier, we have been assured by the government, and I would like this to be on the record—again, perhaps the parliamentary secretary will be able to make some comments in his summing up to confirm what I have been advised—that there is no intention for this regulation making power to be used for any commissions further back in history.

The primary feature of the bill, therefore, is to provide a framework to allow royal commission records to be used, obviously with the addition of the amendments the government has flagged it will move, for law enforcement purposes without needing additional legislation and without any prior need to notify or consult with persons who might be adversely affected by the release and use of the records.

As I stated earlier, the introduction of the Royal Commissions Amendment (Records) Bill 2006 has been triggered by the findings of the Report of the Inquiry into certain Australian companies in relation to the UN Oil-for-food Programmecommonly known as the Cole inquiry. Regulations made under this bill will apparently assist the task force that is being established—as recommended by the Cole commission to be set up—to investigate and consider possible prosecutions against those persons named who may have breached Australian laws. The Labor Party stands ready to assist and support, putting beyond doubt the handling of these documents to ensure that any task force can deal with the AWB matters expeditiously.

Before concluding, having described what the bill and the latest amendments will do, I want to make it absolutely clear to the House what this bill will not do. The bill will not uncover the whole truth about the government’s involvement in the wheat for weapons scandal. The bill will not reveal the extent of the government’s cover-up of this issue, nor will it uncover what Minister Downer or Minister Vaile actually knew about the AWB kickbacks to the Iraqi regime. The bill does not rectify the government’s shameful lack of commitment to a full, open and transparent inquiry into what really happened with this scandal and what knowledge the government had of it.

This bill may assist those now confronting the mammoth task of investigating whether any crimes have been committed or of preparing for prosecution, but it will do nothing to hold the government to account for this whole sorry episode. Despite the bill’s obvious limits and pending the assurances that have been given by the government that it will move the amendments that have been distributed to members this morning and that accept Labor’s request to limit this bill to law enforcement matters, Labor is prepared to offer its support for the urgent passage of this bill. We will confirm that, of course, when the government has moved its amendments formally in this place.

David Hawker (Speaker) Share this | Link to this | Hansard source

Is the amendment seconded?

Kelvin Thomson (Wills, Australian Labor Party, Shadow Minister for Public Accountability and Human Services) Share this | Link to this | Hansard source

I second the amendment. The Royal Commissions Amendment (Records) Bill 2006 amends the Royal Commissions Act to enable regulations to facilitate the provision of custody and use of, and access to, records of royal commissions, including those of the Report of the Inquiry into certain Australian companies in relation to the UN Oil-for-food Programme, which we all know as the Cole inquiry. Commissioner Cole made findings in his report that certain breaches of the law might have occurred and recommended the referral of specified matters to the appropriate authority for consideration of whether proceedings should be commenced for breaches of the laws referred to. He recommended the establishment of a joint task force comprising the Australian Federal Police, Victoria Police and the Australian Securities and Investments Commission to consider possible prosecutions in consultation with Commonwealth and Victorian directors of public prosecution.

To remove any uncertainty about the extent to which the documents obtained by the Cole inquiry can be used for investigative and prosecutorial purposes by law enforcement agencies, the government has said that legislation similar in effect to that enacted in relation to the HIH royal commission is desirable. In the case of the HIH royal commission, legislation was enacted to enable the transfer to ASIC of custody of certain records of the HIH royal commission, particularly documents and other evidence which had been produced to the commission to facilitate ASIC’s investigations.

The main reason for that legislation and, indeed, for the present bill is to remove any arguments surrounding the issue of procedural fairness. The government has said that it is prudent to legislate to allow royal commission records to be used for defined purposes without having to provide procedural fairness, and it is seeking to take the opportunity to provide a framework in relation to that.

The bill makes it clear that the protection against self-incrimination, as outlined in section 6DD of the Royal Commissions Act, is maintained and that legal professional privilege is not affected by any regulations that might be made under these amendments. The amendments are to commence on the day the bill receives royal assent. Finally, the explanatory memorandum says:

It is expected that regulations will be made in relation to the Cole Inquiry records, following passage of the bill, which will assist in expediting investigations of whether proceedings should be commenced in relation to the possible breaches of the law identified by the Cole Inquiry.

I want to place on record my hope and expectation that this will occur in an expeditious way. It is very important that there be no delays.

The Howard government frequently claims that it is the only government around the world taking action in response to the Volcker report. That is not true. There was a report in the Australian from their New York correspondent, David Nason, that people who rorted the oil for food program have been prosecuted or are being prosecuted in a range of countries around the world. In the United States, a New York court has found a South Korean businessman guilty of accepting bribes from Saddam Hussein’s regime. He is awaiting sentence and could reportedly serve five to 12 years. A co-conspirator, an Iraqi-American businessman, has also pleaded guilty to offences. Two Texas oil men have been charged by a federal grand jury in New York with manipulation of the UN program. In Paris, the No. 2 oil company Total was charged last month with paying illegal commissions to obtain favours for the oil group in Iraq, and a former senior Total executive has been charged with similar offences. Both are expected to go on trial next year. In India, the national Enforcement Directorate has asked six people, including India’s former foreign affairs minister, to show cause why they should not be charged over the scandal. Investigations by police and prosecutors are also underway in New Zealand and Switzerland.

But here in Australia things are moving at a snail’s pace. I am worried about this because the Attorney-General, when he released the Cole report, was in the business of softening us up and lowering expectations. He said:

I would like to add a word of caution. Although the government is moving quickly and decisively, it may take time for the independent agencies involved in the task force to thoroughly consider all of the relevant material before commencing any prosecution.

He went on to say:

This is appropriate. Government agencies should only take actions to investigate and prosecute citizens or companies when they have a proper basis for doing so. Thanks to Commissioner Cole’s inquiry, we now have a basis for making proper, informed decisions about whether persons or companies can and should be prosecuted for possible breaches of Australian law.

Since I read this, I have been concerned that it may be the government’s intention and desire to hold back and delay any charges and cases going to court arising from this scandal.

Why might the government want such a delay? What motivation could it have? The answer might be found in a report in the Age by Richard Baker and Dan Silkstone, which reads as follows:

AWB figures implicated in the Iraq wheat scandal have threatened to call Foreign Affairs Minister Alexander Downer as a witness if they face trial, with one vowing “my QC will rip him to shreds”.

With the Cole report yesterday recommending 11 former AWB executives be investigated for possible criminal offences but clearing Howard Government ministers and officials, several wheat board figures embroiled in the scandal hit out at the Coalition.

“The Government knew ... They knew everything,” said one AWB figure. “It’s like Breaker Morant all over again. If I go to trial, then Downer will be the first witness called, that’s a promise. My QC will rip him to shreds.”

The report also says:

The threats from the former AWB executives came as the lawyers representing them at the Cole inquiry criticised the conduct of the inquiry, with many claiming it was set up to protect the Government.

They certainly got that right. It was set up, and it was a set-up to protect the government. If the government wants to emerge from this scandal with any shred of integrity, it will not try to hide these cases until after the election; it will deal with them expeditiously. The AWB executives who say that they will call Minister Downer as a witness may be bluffing, but, for the sake of this country’s reputation, this matter must be dealt with—and dealt with not by an inquiry with limited terms of reference but in a court where everyone has the opportunity to put their case.

The second reading amendment moved by the member for Gellibrand, the shadow Attorney-General, and seconded by me says, ‘This House condemns the government for seeking to avoid responsibility for the AWB scandal,’ and that is indeed the case. From day one, this government provided Commissioner Cole with deliberately narrow terms of reference which only allowed the inquiry to make findings about the Commonwealth’s knowledge to the extent that it sheds light on the criminality or otherwise of AWB. In his report, Commissioner Cole made it clear just how high the bar had been set for an adverse finding against the Commonwealth. He said that it did not matter that the government ought reasonably to have known or that it suspected that AWB was being misleading. He said that it is the actual knowledge that counts. He said:

It is immaterial that the Commonwealth may have had the means or ability to find out that the information was misleading, or that it ought reasonably to have known that the information was misleading. It is also immaterial that the Commonwealth, at the time it conferred the benefit or advantage, suspected but did not know that the information was misleading.

Indeed, Commissioner Cole makes it clear in his report that he stands by the letter which Kevin Rudd, now the Leader of the Opposition, received dated 13 March this year, which makes it clear that the commission did not have the power to determine whether Australia had breached its international obligations or a minister had breached obligations imposed upon him by Australian regulation. The report makes this question of the terms of reference clear. It said:

The law is clear that terms of reference contained in Letters Patent are not to be narrowly construed, but this does not mean that a ‘Commission can go off on a frolic of its own’.

And again, at paragraph 6.32, the report said:

It is not for a commissioner appointed to conduct such an inquiry to presume that he or she is ... authorised to determine the scope of any inquiry ...

So this question of the terms of reference was clearly a matter for the government, not a matter for Commissioner Cole.

But, notwithstanding the constraints placed on his ability to make adverse findings against ministers and their departments, Commissioner Cole found:

The critical fact that emerges is that DFAT—

the Department of Foreign Affairs and Trade—

did very little in relation to the allegations or other information it received that either specifically related to AWB, or related generally to Iraq’s manipulation of the Programme.

Again, the report states that the Department of Foreign Affairs and Trade:

... did not have in place any systems or procedures in relation to how its staff should proceed in response to allegations relating to the breach of sanctions. No specific officer was given responsibility for responding to or investigating such matters. It does not appear that there was in place any protocol, if DFAT was not itself proposing to investigate, for referring matters for investigation to other agencies such as the Australian Federal Police or that staff were given any instructions about how, if at all, they could investigate such allegations or what resources were available to them.

These are very damning findings, but the government’s response has been remarkable. The foreign affairs minister has been revelling in the fact that Commissioner Cole did not find that he was criminally culpable. He plans to do nothing about the incompetence and the negligence which the commission revealed.

This is a dangerous new low for public accountability. Not only has the foreign affairs minister refused to accept any ministerial responsibility for this scandal; he has now taken the extra step of clearing his department of any negligence. Presumably, society is to blame. The former leader of the Liberal Party, John Hewson, hit the nail on the head when he said:

I don’t understand how a government can put its hand over its heart and demand the highest levels of corporate responsibility, accountability and transparency while at the same time setting in place systems which ensure that ministerial responsibility is almost null and void.

What this government permitted through AWB is outrageous, and Minister Downer’s ‘je ne regrette rien’ response shows that he still does not get it.

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

Ms Roxon interjecting

Kelvin Thomson (Wills, Australian Labor Party, Shadow Minister for Public Accountability and Human Services) Share this | Link to this | Hansard source

I will resist that temptation. It is therefore only a matter of time before this happens again. I also wish to comment on some of the commission’s findings in relation to this issue. While 10 AWB senior managers below the chief executive officer, Andrew Lindberg, have been recommended for consideration of criminal charges, as has the chairman above him, somehow the chief executive officer is cocooned in the middle ignorant of all this. It is a remarkable conclusion. People I have spoken to who have followed the proceedings are frankly astonished. Some of the evidence at the commission went along the lines that Mr Lindberg was shown a memo which bore his signature showing that the Iraqis wanted AWB to inflate the prices of one of the UN wheat contracts so that an old debt to a company called Tigris Petroleum could be paid. Mr Lindberg said he could not remember seeing the document, but the senior counsel, John Agius QC, said to him:

... there’s no doubt you’ve read it ... Your initials are on it.

Mr Agius made the point that such a plan, if implemented, would clearly have been a breach of the United Nations sanctions. Mr Agius also asked Mr Lindberg at the inquiry to study an AWB report from February 2001 which openly discussed the transport fees and the fact that the money was going not to Alia but directly to Iraq. It said:

The trucking fee is now $25 ... We believe the increase in trucking fee and addition of the service charge is a mechanism of extracting more dollars from (the UN’s oil-for-food account).

That is clear evidence in relation to kickbacks, and the significance of that report is that it was expressly prepared for Mr Lindberg. Given these matters, and the fact that Mr Lindberg was forced to say to the inquiry, ‘I don’t recall,’ on more than 250 occasions, it is quite remarkable that the Cole inquiry could reach a conclusion that all of those below Mr Lindberg should be recommended for consideration of criminal charges, as has been the chairman above him, but somehow Andrew Lindberg was cocooned in the middle blissfully ignorant of all those things.

I also make the observation that I do not believe that the Cole inquiry got to the bottom of the AWB scandal. I have mentioned in the House previously that two Austrade officials, Ramzi Maaytah and John Finnin, met with the al-Khawam family, who are the 51 per cent owners of Alia, to talk about wheat contracts. Do we know any detail of what they discussed? No. Do we know what they reported back to their minister about these discussions? No. The reason we do not know is that the Cole inquiry never called them as witnesses. They should have been called. And now, mysteriously, both these Austrade officials have resigned from Austrade. It will make it pretty much impossible to call them before a Senate committee. But the Cole inquiry says that there is no evidence that Austrade knew anything about these deals.

This conclusion is plain wrong. To reach it, the Cole inquiry completely overlooked the evidence of the Austrade meeting and it also ignored the evidence of Othman al-Absi, the Alia official, that Austrade knew all about the wheat deals. It discounted Mr al-Absi’s evidence concerning the Austrade official Mr Ayyash, but at other stages in the report it uses Mr al-Absi’s evidence, treating it as accurate. The al-Khawam family were the 51 per cent owners of Alia and it was Saddam Hussein, as we know, who owned the other 49 per cent.

The Cole report also fails to deal with other issues. It did not call the AusAID personnel who took over the AWB contract just before the outbreak of war. So we do not know just how the AusAID personnel were greeted when they contacted Alia to arrange delivery of the wheat, as documents before the Cole inquiry said they did. But we can imagine that not since Pauline Hanson’s ‘Please explain’ would there have been such galloping incomprehension as that which Alia would have shown on receiving such inquiries. Alia, after all, delivered kickbacks; they did not deliver wheat. But did the Cole inquiry investigate these matters? No. AusAID personnel were not summoned as witnesses, so we do not know what AusAID found out about these contracts or what the government’s own aid agency reported back to the minister about them.

I also am surprised at the inquiry’s conclusion that there was no evidence that Norman Davidson-Kelly had any influence over the Howard government. Mr Davidson-Kelly was the mastermind of the Tigris deal, an extraordinary scheme to defraud the UN oil for food program. Yet we know that Mr Davidson-Kelly is a long-term friend of a former Leader of the Government in the Senate, Robert Hill, and dined with him regularly over a 10-year period. There certainly is evidence that he could have influenced the Howard government.

Sadly, the government have sought to avoid responsibility for the AWB scandal. They gave the Cole inquiry restricted terms of reference. They then hid behind that inquiry, refusing to answer questions in the Senate, refusing to answer questions in the House and refusing to respond to freedom of information requests. The Australian people are entitled to get to the bottom of this scandal and are entitled to a government with a greater sense of responsibility and accountability than this one.

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

It is understandable that the government has proposed legislation of this kind following the inquiry into the AWB scandal. Similar legislation, although much more narrowly constructed, occurred in the past when doubts were raised about the way in which documents might be capable of being used by prosecuting authorities following an investigation by a royal commission.

I might say at the start that this is probably belt-and-braces legislation. I am not persuaded, nor have I heard any argument, as to why the ordinary processes of applying for warrants and subpoenas would be unsatisfactory to obtain these documents, and I am not aware of any litigation that has suggested the process of obtaining documents through such means would be unduly prolonged by reasons of arguments relating to the implications of natural justice. In those law enforcement areas, traditionally the courts have respected the administrative necessities of prosecuting authorities and not intervened in that way, but, given the circumstances and the fact that the government would be extremely reluctant to be perceived as botching this matter once again, I do understand why the Royal Commissions Amendment (Records) Bill 2006 has been brought forward. Whilst I suspect it is technically unnecessary, I understand it is politically necessary. If there were any unnecessary and protracted litigation as a result of deficiencies in the legal system—which I have not yet understood, but were they to be advanced—then the government would no doubt receive the blame and is anxious to avoid that circumstance.

I do want to raise one technical point that has not yet been fully explored and that I think needs to be balanced in this equation. When royal commissions obtain documents and hold them, it is rare perhaps that they take the only copy of a document. Many times there will be file copies that are retained by the person who has tendered the original documents or there may be circumstances where the commission does receive the only documents. In any case, instances will arise, if those documents are held for protracted periods of time, where the business efficacy of an organisation that has handed over large numbers of documents will simply be undone. Whilst in the present case of the AWB it is unlikely that any circumstance that I can conceptualise, and I do not understand it to be the immediate circumstance, will arise—for example, litigation is pending where the originals of contracts between Australia and the Iraqi wheat board are likely to be necessary to be produced for evidential reasons in a court where a commercial dispute is involved—it could nonetheless happen.

A conceivable example in the future would be a royal commission into the tax affairs of large corporations which are asserted to be underpaying tax or involved in some kind of criminal conspiracy or fraud and it becomes a matter of scandal. The government appoints a royal commission, that commission examines the matter over a period of time, this act as amended kicks in and the documents are passed over to prosecutorial authorities. There may be a very long period of time when those documents are not available for the ordinary commercial business purposes—the legitimate purposes—of the organisations or persons from whom they have been obtained. This can be a significant legal matter, because in many instances it is the document itself upon which legal action can be taken. For example, a deed between parties is the evidence of the agreement and the production of the deed is the starting point for a legal action which stands or falls on the contents of the document. Similarly, a cheque can be sued on its face. There are many instances where those kinds of documents or records are passed over to a royal commission and the person who has passed them over does not have access to the originals, cannot restore their records and cannot use them for ordinary legitimate commercial purposes, in litigation and in its defence in pending actions—it may well be that prosecutorial actions against it are involved—and the whole fairness of the scheme comes into question.

There is actually an easy solution to this. Although the opposition has condemned as draconian and has objected to the Building and Construction Industry Improvement Act 2005, which was established to set up virtually a standing royal commission into conduct in the building and construction industry, nonetheless there is a very beneficial provision in that legislation. Section 55(2) of the Building and Construction Industry Improvement Act 2005 provides that, where a record is provided to the commission and then retained, the person otherwise entitled to possession of the document is entitled to be supplied, as soon as practicable, with a copy that is certified and that certified copy of the document can be used for all legal purposes as if it were the original of that document. The seal of the commission verifies it as a true copy of the document that has been supplied to the commission and then that document is allowed to be used in all legal proceedings. Courts must respect it, it can be sued upon or it can be used in all circumstances as if it were the original document. Certainly it could be used in proceedings in commercial causes and it could be used for the purpose of assembling a set of records which could then be tendered to show the course of conduct in defence of any proceedings that are brought against that person and the like. So an element of fairness has been built into that particular provision, recognising that when documents are handed over in these circumstances the person who hands them over loses the capacity to have their original records and to use them for proper legal purposes.

Given the amount of time that may be involved—commissions themselves operate over a protracted period and now we are extending the time over which documents may be held and utilised, allowing them to be retained for the whole of that period—I would strongly urge the government to contemplate and to put forward an amendment built on the structure of section 55(2) of the Building and Construction Industry Improvement Act to make certain an unfairness that would otherwise potentially exist is removed. This bill does not just apply to AWB; it applies to all past and future royal commissions. I understand that these gaps may emerge because the action is being taken in some haste. Nonetheless, when we are taking such action which has such sweeping consequences and which may enact considerable unfairness, I think it is very important that we pause and I would hope the government is capable of responding.

I note that the government advisers have suggested that the regulations may provide a solution, and they point to the provision in clause 9 about custody and use of the royal commissions, and regulations under proposed subsection (2)(c) may provide for the circumstance in which the custodian of the royal commission records must or may give some of those records to other persons and bodies. There are difficulties because we have been drafting on the run, and the difficulties arise in two ways. The first is that the government has moved amendments which restrict the purposes for which such documents can be supplied for law enforcement purposes. It is very doubtful that regulations that go beyond those purposes would be valid. I believe that they would likely be held to be invalid and void and therefore the provisions of proposed subsection (2) could not extend to returning those documents in those circumstances. But even if I am incorrect in that view, I would say that there may be a conflict of interest. A person may have a legitimate desire for a document that they can use as an original and yet the prosecutors still want to retain it. It is perfectly proper for the prosecutor to hold a document that they can use as the original of that document. So there are two persons who—

Malcolm Turnbull (Wentworth, Liberal Party, Parliamentary Secretary to the Prime Minister) Share this | Link to this | Hansard source

They have to make it available to the defence.

Duncan Kerr (Denison, Australian Labor Party) Share this | Link to 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.

Malcolm Turnbull (Wentworth, Liberal Party, Parliamentary Secretary to the Prime Minister) Share this | Link to this | Hansard source

in reply—I will sum up very briefly. I will deal with the amendment when I move it. I firstly thank honourable members for their contributions. In response to the member for Denison’s observations about access to records, the circumstances which he canvasses are ones that I struggle to see emerging in a practical context, to be honest. Normally when documents are obtained by royal commission the provider—the owner—of the documents will have kept a copy of them. The circumstances in which an original document would be needed would be ones where either the original was the only copy in existence, which is difficult to imagine in practical circumstances, or ones where the owner of the document had kept a copy of the document—which is the most likely circumstance—but for some reason or another needed an original copy.

Given that the focus of this legislation, particularly in light of the government amendments, is directed at making documentation available to law enforcement agencies, the circumstance in which the original is likely to be needed is in court proceedings—where it can either be subpoenaed in the usual course or, if it is a prosecution, be made available in the manner that the member and I are very familiar with.

I speak with some experience in royal commissions over the years, and it seems to me that it would be an unlikely set of circumstances where this would become an issue. Nonetheless, the government would expect a custodian to act reasonably in relation to any request from an owner of a record, and while there is a right for the custodian to retain possession under proposed section 9(10) in the amending bill, it is not mandatory and it is only for so long as the custodian considers it desirable for the purposes for which the custodian requires the record. Regulations are able to be made under proposed section 9(2)(c) and (d) under the amending bill, which states that the regulations:

(c)      may provide for the circumstances in which the custodian of Royal Commission records must, or may, give some or all of those records to other persons or bodies; and

(d)      may provide for the circumstances in which the custodian … must, or may, allow access to some or all of those records to other persons or bodies.

The government have carefully noted the concerns raised by the member for Denison. They do not strike me as being likely to arise in many cases, if any, and I believe they can be dealt with if circumstances arise where they would be material in the regulations created in respect of a particular royal commission.

Ian Causley (Page, Deputy-Speaker) Share this | Link to this | Hansard source

The original question was that this bill be now read a second time. To this the honourable member for Gellibrand has moved as an amendment that all words after ‘That’ be omitted with a view to substituting other words. The immediate question is that the words proposed to be omitted stand part of the question.

Question agreed to.

Original question agreed to.

Bill read a second time.