Chris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | Hansard source

Just for the record, as I said earlier, the government opposes this amendment and sees no need for a further amendment in relation to any aspect of bias. It believes that there is in this bill an appropriate mechanism for dealing with questions of privilege. The amendments proposed in this bill would explicitly authorise inspection and provide that a commission must disregard information from a document found to be privileged. No serious question of bias arises where a document is privileged; it requires no more, in effect, than that the commissioner exclude irrelevant consideration. You see it in civil jurisdiction, and in criminal jurisdiction to a lesser extent. A judge may rule on the admissibility or otherwise of evidence that is sought to be led. You might say then that the judge has seen other evidence and could well be biased because of having seen that. Our judicial system provides for that. In a criminal situation there is a voir dire; the judge presides over what evidence will go to the jury. Although the jury is the arbiter of fact, the judge still remains the judge of that trial and is running that trial. In the address to the jury and sentencing, the judge subsequently has a profound influence on the future of the accused.

We do not say that any determination of that evidence should be done by someone else in case there is a perception of bias or in case the judge becomes biased. It is in our system as it is, and it has worked well. We see that it should be no different for a royal commission. These amendments essentially reflect the government’s understanding of the intended operation of the act prior to the Federal Court’s decision. I point to the explanatory memorandum:

Item 7 adds “or subsection 6AA(3)” to the end of paragraph 6DD(1)(b)—

and this is the important part—

to ensure that evidence produced by a witness in order for a claim of legal professional privilege to be determined by the member under subsection 6AA(3) cannot be used against that witness in any civil or criminal proceedings.

So it ensures further that that cannot be used against the witness concerned. Therefore I think that already in this bill we have a sufficient process which guards against bias, and one which reflects something that exists in our civil and criminal jurisdictions to date.