Joe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | Hansard source

The reason I also put that on the record is so that the Parliamentary Joint Committee on the Australian Crime Commission can take that and also examine that with the ACC at some point so that these issues are at least ventilated more clearly and, if remedial action needs to be taken, it can be taken effectively. I did not want to second-guess what that outcome might be or what the current situation is, so I put that in a frame that asked the question rather than made an allegation about these issues.

Of course, the other matter I think it is important to highlight is that this amendment does not affect Sankey v Whitlam—and I put this as a question for the minister—in the sense that the challenge that could be mounted that goes to whether or not written reasons are made available is still a large issue. In other words, it does not put it beyond the challenge of parties to then seek to argue that the reasons should be made available to the parties and tested in some way against the public interest.

While the minister is taking advice on that, I can go to the particular matter in more detail. In Alister v R, a High Court case, that went to the general principle:

The general rule is that the court will not order the production of a document, although relevant and otherwise admissible, if it would be injurious to the public interest to disclose it. However the public interest has two aspects which may conflict. These were described by Lord Reid in Conway v. Rimmer ... as follows: ‘There is the public interest that harm shall not be done to the nation or the public service by disclosure of certain documents, and there is the public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done.’

In short, this does not put beyond challenge those issues that someone may want to ventilate about the written reasons that are provided. Of course, it is still open for the government to argue public interest immunity and all those other matters, but it is about ensuring that this only deals with the technical matter.