Michael Forshaw (NSW, Australian Labor Party) Share this | Link to this | Hansard source

Order! Senators, there is too much conversation across the chamber. Senator Ludwig is on his feet and seeking to speak.

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

Thank you, Mr Acting Deputy President—that is very observant of you!

The Acting Deputy President:

You are very hard to miss, Senator Ludwig!

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

I rise to speak on the Royal Commissions Amendment (Records) Bill 2006. The bill deals with amendments to the Royal Commissions Act 1902 concerning access to and custody of royal commission records. Whilst the genesis of this bill was the tabling last week of the report of the Cole Inquiry into Certain Australian Companies in Relation to the UN Oil-for-Food Program, the bill itself is not in any way limited to this single commission. It will, in fact, have a lasting impact on all royal commissions for the future and it applies in its terms to all past royal commissions.

Among the inquiry’s extensive recommendations, Commissioner Cole proposed the establishment of a joint task force to consider possible prosecutions arising from the inquiry. The government argued 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. As far as Labor is concerned, however, this bill simply represents a hasty attempt by the government to address one of the recommendations of the Cole inquiry into the oil for food scandal.

Evidently stung by criticisms of its neglect and inaction on AWB in the past, it is clear that the government is now—finally—eager to at least look like it is doing something. Unfortunately, it is far too little, too late, from this government in this regard. Having turned a blind eye to 35 separate warnings over a number of years to 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 poorly drafted and ill-considered law on the pretence that it is needed in order to do something urgent to handle AWB matters.

Labor, of course, stands by 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 in particular, 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, apathy and perhaps more. But, whilst we stand ready to assist on the AWB specific matters, we are not going to be railroaded into making an ill-considered law of lasting consequence under the cover of that supposed pressing need.

In this respect, I note my appreciation that my colleagues were able to make constructive suggestions as to the coverage of the original bill when briefed on it late last week. The shadow Attorney-General had the benefit of being able to get information and assistance from her colleagues to ensure that they could put them to government so that government would at least have those matters before them. Labor, through the shadow Attorney-General, urged the government to adopt a different approach: to focus the bill just on this particular inquiry, as was done in the HIH matter.

The second option we urged for consideration was to give a limit to ‘custodian’ in the bill and the purposes for which records could be handed to a custodian. I am pleased to say that the government was prepared to take up the latter suggestion from Labor. As a result, the bill that is now before us is in truth a much more sensible and targeted bill than the original one that was envisaged. Despite this progress, Labor opposes in principle the government’s tendency to engage in rushed law-making. The government’s concessions to Labor’s prudent suggestions on amendments simply demonstrate the traps and risks of hastily making laws that will have a broad and lasting impact.

In the remaining time that I have available I will turn to the detail of the bill. The bill will introduce a regulation-making power to 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 be used for other purposes. The bill was originally extraordinarily open-ended; through regulation, it would allow all records held by any royal commission, past or future, to be passed on to any custodian for any purpose.

Fortunately, I can say that, after Labor raised its objections to the breadth of the bill, the government at least came to its senses—perhaps not completely, though—and introduced some rational amendments which specifically identified law enforcement agencies and limited the purposes to law enforcement as well. This is a far more sensible approach and protects against what you might call any silly or extreme outcome that could have been contemplated under the bill.

The bill amends the Royal Commissions Act 1902 to enable regulations to be made which deal with the handling of records and documents of a royal commission. What the bill will allow is that the regulations must identify which person or organisation is to be the custodian of the records and also the use of, and access to, those records. They are valuable records and do require protection.

The bill introduced last week allowed for regulations to be made in relation to specific royal commission records. Those regulations may provide for the custody in which some or all of a 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; 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 records must or may allow access to some or all of those records to others; and specify the purposes for which persons or bodies to whom a custodian of royal commission records gives access to those records may use, or must not use, some or all of those records.

The government’s amendments make it clear, in some detail, that regulations made under these provisions are limited to law enforcement agencies for the purposes of administering and enforcing the law. The bill will also allow but in fact 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 against self-incrimination under section 6DD of the Royal Commission Act is maintained and that legal professional privilege is not affected by any regulations that might be made under these amendments—although this is the subject of a separate recommendation by Commissioner Cole in his commission of inquiry report.

The bill also specifies that regulations will apply in respect of the records of any royal commission, including royal commissions which have reported before the commencement of the amendments. We have been advised that this provision is required as the oil for food commission is now technically also a past commission, having completed its work and reported to government. We have been assured by the government, and I would like this to be at least clear on the record, that there is no intention for this regulation-making power to be used for any commission further back in history. It would be helpful if, during the committee stage—if time permits a committee stage—or in the summing-up of this bill, the government made that plain.

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

Regulations made under this bill will apparently assist the task force recommended by the Cole commission to investigate and consider possible prosecutions against the persons named who may have breached Australian laws. Labor supports this bill because it puts the handling of these documents beyond doubt and ensures that any task force can deal with these AWB matters expeditiously.

Having described what the bill and the latest amendments do, I also want to make it abundantly clear to the Senate what this bill does not do. This bill will not uncover the whole truth about the government’s involvement in the wheat for weapons scandal. It will not reveal the extent of the government’s cover-up. Nor will the bill uncover what Minister Downer or Minister Vaile really knew about AWB’s kickbacks to the Iraqi regime. And the bill does not rectify the government’s shameful lack of commitment to a full, open and transparent inquiry into what really happened in the Iraq kickbacks scandal.

This bill may assist those now confronting the mammoth task of investigating whether any crimes have been committed or in preparing for prosecution, but it will do nothing to hold the government to account for this whole sorry episode of scandal upon scandal. Despite the bill’s obvious limits, and following the government’s acceptance of Labor’s request to limit this bill to law enforcement matters, as I have said, Labor are prepared to offer our support for the urgent passage of this bill.

Andrew Murray (WA, Australian Democrats) Share this | Link to this | Hansard source

Before I begin my own remarks on the bill, I seek leave to incorporate Senator Stott Despoja’s speech.

Leave granted.

Natasha Stott Despoja (SA, Australian Democrats) Share this | Link to this | Hansard source

The incorporated speech read as follows—

The Royal Commissions Amendment (Records) Bill 2006 amends the Royal Commissions Amendment Act 1902, to enable regulations to facilitate provision of custody and use of, and access to, records of royal commissions (including and beyond those involved in the Cole inquiry.)

The regulations are also designed to specify the purposes for which the records are not to be used and any conditions placed on the use of the records by any persons or bodies to whom the records are given or allowed access. This bill also aims to insert a regulation—giving power to enable regulations to be made to give custody or access to records to persons or bodies for investigative and prosecutorial purposes.

Upon introducing the bill, The Hon Malcolm Turnbull, Parliamentary Secretary to the Prime Minister argued that:

The bill is urgent because it will provide the capacity to make regulations concerning the provision of relevant records of the Cole inquiry to appropriate authorities ... The regulations that will be able to be made when the bill has been passed will assist in expediting consideration of whether proceedings should be commenced in relation to the possible breaches of the law identified by the Cole inquiry.

Concerns over the bill’s content were raised immediately by a number of parties and groups as well as the Australian Democrats. Shadow Attorney-General, Nicola Roxon, rightly questioned the Coalition over the broadness of the bill, arguing that this bill, if passed would allow:

The government to order that documents from Royal Commissions 20 years ago should all be given to Fox FM or the Chaser for the purposes of entertainment!

The Australian Democrats were deeply concerned over the potential implications that this bill, in its original form, would have on future Royal Commissions.

We were concerned over the broad discretionary powers that were outlined in the bill, in particular, in relation to the purposes of the proposed regulations.

Had the Government failed to introduce the appropriate amendments, to ensure the regulations were specific, the Democrats, like the Opposition, would have introduced the appropriate measures to prevent any potential misinterpretation or misuse of the legislation.

However, while we support the intention of these amendments, we maintain that this bill should be restricted to deal solely with the recent Cole inquiry.

The Democrats are concerned over the broad nature of Schedule 1, item 2 paragraph 9(11)(a) in the original bill whereby it stated:

If regulations made for the purposes of paragraph 2(a) provide that a person or body is to have custody of Royal Commission records:

(a)

the custodian:

(i)

May use the records under subsection 6; and

(ii)

May give the records to another person or body under regulations made for the purposes of paragraph 2(c); and

(iii)

May allow another person or body access to the records under regulations made for the purposes of paragraph 2(d)

Considering this section could theoretically allow for the custodian to obtain custody of Royal Commission Records for any purpose, the Australian Democrats welcome the Governments amendment to this section, to include a clause outlining the purposes for which the custodian can access records. The amended section now reads:

If regulations made for the purposes of paragraph 2(a) provide that a person or body is to have custody of Royal Commission records:

(a)

the custodian may, for law enforcement purposes:

(i)

use the records under subsection 6; and

(ii)

give the records to another person or body under regulations made for the purposes of paragraph 2(c); and

(iii)

allow another person or body access to the records under regulations made for the purposes of paragraph 2(d)

The inclusion of ‘law enforcement purposes’ in this section, along with a definition of what constitutes law enforcement ensures that documents obtained through a Royal Commission are only used for the prescribed purposes specified in subsection 9(1)

The Government’s Supplementary Explanatory Memorandum outlines the rationale for the introduction of further amendments to the proposed legislation stating:

These amendments amend the bill to restrict the operative provisions of regulations which might be made as a result of the bill.

The principle change effected by the amendments relates to the provisions which allows removal of any requirement to provide procedural fairness to persons who could be adversely affected if documents obtained by a royal commission, for its purposes, were made available to other persons or agencies and used for other purposes.

As a secondary change, the amendments will restrict the persons or bodies to whom custody of the records may be given, addressing concerns that the potential range of custodians might be too broad.

The Democrats also welcome the amendment to subsection 9(3), to limit the range of potential custodians of Royal Commission records. This section, as introduced, originally provided an open ended category of any other person or body that may be prescribed.

The amendments are also aimed at limiting the circumstances in which procedural fairness is removed for law enforcement purposes. The supplementary Explanatory Memorandum highlights the law enforcement purposes as:

• the custodian uses the records for the purposes of the purposes of the performance of the custodian’s functions and the exercise of the custodian’s powers;
• the custodian gives, or gives access to, the records to another person or body under regulations providing the circumstances in which that may occur; or
• a public office holder or public authority to whom the custodian gives, or gives access to, the records for the purposes of the performance of their functions and the exercise of their powers.

In conclusion, the Democrats originally held concerns over the broad nature of the potential range of purposes to which the records may be put.

However, while we welcome the amendments, we believe that they could go further to ensure the bill deals specifically with the Cole inquiry.

As with the HIH Royal Commission in 2003, which facilitated the transfer of information to the Australia Securities and Investments Commission (ASIC), we believe that a similar provision in this bill would be far more effective than the current model.

Considering most criminal prosecutions that arise from a Royal Commission generally occur immediately following an inquiry, the need for a general purpose piece of legislation to deal with the recent Cole inquiry seems unnecessary.

As mentioned, the Democrats support the introduction of amendments to narrow the scope of the bill, we believe that the content of the bill should specifically deal with the recent Cole Inquiry.

I stress that while we support the intent of this bill, the Democrats are moving amendments to ensure that this bill only relates to the recent Cole inquiry.

The amendments the Democrats propose, will amend The Royal Commissions Amendment (Records) Bill 2006 to provide a clause that specifically states that this bill is only to be used in relation to the criminal prosecution of factors arising from the Cole inquiry. While the bill in its current form ha been tightened, the Democrats believe it should simply deal specifically with the issue at hand - the inquiry into Certain Australian Companies in relation to the UN-Oil-for-food Programme (The Cole Inquiry.)

Andrew Murray (WA, Australian Democrats) Share this | Link to this | Hansard source

The Royal Commissions Amendment (Records) Bill 2006 amends the Royal Commissions Act 1902 to enable regulations to facilitate the provision of custody and the use of, and access to, records of royal commissions, including those of the inquiry into certain Australian companies in relation to the United Nations oil for food program.

The main reason for this bill is to remove any argument that there might be a requirement to provide procedural fairness to persons who could be adversely affected if documents obtained by the Cole inquiry or a full royal commission were to be made available to law enforcement agencies and used for other purposes. The government asserts that providing procedural fairness in respect of the use of such documents could be very time consuming and says it is unnecessary and unmeritorious in a law enforcement context. The government therefore wants to legislate, through this bill, to clarify that royal commission records can be used for defined purposes without having to provide procedural fairness. Note the word ‘clarify’, which is meant to convey that this is already the case but needs clearer expression.

The bill allows for regulations to be made in relation to specific royal commission records in certain circumstances. This will do away with the necessity for new bills to be introduced relating to specific royal commissions.

The bill makes it clear that the protection against self-incrimination 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.

I am speaking to the bill for two reasons. Firstly, I sit on the Senate Scrutiny of Bills Committee, which always expresses concern about any bill that attempts to make law that negatively applies retrospectivity. Secondly, I want to take the opportunity to discuss the failure of some of the accountability mechanisms as uncovered by the Cole inquiry.

First to retrospectivity: although the government have now limited to law enforcement agencies the agencies to which the documents collected by a royal commission can be provided, they have not addressed the Scrutiny of Bills Committee’s concern regarding the retrospective application of the law. It has been made retrospective so that it can apply to the recently completed Cole commission of inquiry, but that commission can be considered to be live and still afoot because of the legal consequences flowing from it. However, because of the broad way item 3 in schedule 1 has been drafted, it actually ensures that all the amendments proposed in this bill will have retrospective effect, with no limit on the matters that may be affected by it. So the amendments open up the opportunity for it to be applied to completed royal commissions.

I say for the record that the remarks from the shadow minister, Senator Ludwig, were unusual in that he is normally very particular about these matters. No assurance from the government—no assurance—can overturn this law, and any legal authority that wishes to enforce this law can access records from completed royal commissions. No assurance from the government can stop that happening, and the shadow minister, on behalf of Labor, is very unwise to think that an assurance from the government can overturn the fact of the legislation before us.

For example, there is the chance that documents that were collected as part of the Royal Commission into Aboriginal Deaths in Custody in 1991 or as part of the Royal Commission into the Loss of the HMAS Voyager in 1964 could be resurrected by a law enforcement agency and used against someone to bring about a prosecution. Those matters are deemed to be closed, and rightly so. The people or the agencies that supplied certain documents collected for those enquiries did not envisage those documents being subsequently available to law enforcement agencies—especially not without the right of appeal or even the right to know that they might be used by law enforcement for prosecution purposes later, under retrospective laws. The law applicable at the time of those royal commissions did not enable that to happen, and this amendment should not be able to be used to apply to them retrospectively.

The Australian Democrats are opposed to laws with negative retrospective application that infringe on rights and procedural fairness. Sometimes bills are proposed which beneficially or positively provide for retrospectivity, and we usually support those. This bill offends a long tradition of principle established by all parties in this parliament that we should not support laws which adversely affect individuals and organisations by making unlawful what was previously lawful—and by saying that, by the way, I will draw the attention of the Senate to the fact that the Royal Commissions Act has been amended since a number of royal commissions were held, and which are now affected by this law. Retrospective legislation offends against principles of natural justice, as does the fact that this legislation grants the custodian of the records an unfettered discretion with respect to the use of the records regarding the persons or bodies to whom they might be given. They can do this without obtaining the consent of, giving notice to, giving an opportunity to make submissions to, or taking into account submissions made by the owner of the records or any other person.

Item 2 of schedule 1 ensures that a person cannot appeal against a decision ‘of the custodian’ if in fact they find out that their documents are being provided to a law enforcement agency. Retrospectivity can and does trespass upon the basic tenet of our legal system that those subject to the law are entitled to be treated according to what the law says and means at the relevant time, subject to the interpretation of the courts. Retrospective legislation that brings uncertainty is to be avoided. As a general principle, the Democrats do not support the use of retrospective legislation that makes previously lawful activity unlawful or that acts to the detriment of individuals or organisations. I regard this not as a Democrats principle but as a cross-party principle and one of the most important principles in our 100-year-old parliament.

I understand why this bill has come about and the difficulties which Mr Cole experienced in obtaining documents from AWB during his inquiry—and I thought that some of the tactics adopted by their legal advisers, whilst legitimate, were most unsatisfactory. However, it is not appropriate that the frustration caused by an organisation that was being obstructive should manifest itself in a bill with open-ended retrospective application and the elimination of procedural fairness for a section of the community. In my view, this bill should have been quarantined to the Cole commission of inquiry and future royal commissions and, if it had been quarantined in that way, we would of course support it without amendment.

The second point I wish to discuss is accountability. There was no evidence given to the Cole inquiry that any of the relevant ministers were aware of, or had been informed about, the actions of the AWB. There was no written evidence that ministers knew what was occurring in the AWB. Rather than that being something the government should be commended on, it is something which uncovers systemic problems at all levels of government. There was obviously knowledge but it was not being passed on and was not being acted on. Thirty-five times the whistle was blown and 35 times no-one heard it. That is a failure, a great failure, by any measure.

There is no escaping the reality that an unhealthy trend has emerged in our federal government. This is best described as an ‘acute accountability vacuum’ at the ministerial level whereby executive government is shielded by the human armoury of partisan ministerial minders or advisers, or bureaucrats who just do not or will not do their job. Ministerial staffers are an important cog in the demanding work of the executive. Some carry out this vital task with skill, honesty and commitment. Of concern though is their capacity to intervene in departmental processes, to mediate between the political and administrative levels, to drive and skew advice, and to insist upon what the minister wants to know rather than the integrity of the policy process. While all this might serve executive government well, it does so at the expense of the public interest.

The Howard government is not unique in this regard; it has merely built upon trends already evident from its predecessors and already apparent in state government machinery. However, it is the case that this government has carried the trend to a new level. The barriers put up to avoid parliamentary scrutiny include refusing to allow ministerial advisers to be questioned by parliamentary committees. Then it went even further and refused to let bureaucrats be questioned by parliamentary committees. The minister in the estimates committees refused to allow public servants to answer questions which could be construed, on an extremely broad reading, as being within the purview of the Cole commission of inquiry.

It is only through transparent frameworks of accountability that the public can have confidence in their elected representatives and their staffers and advisers. Together with the need for an enforceable ministerial code of conduct, the Democrats have also called for measures to clearly define the role of ministerial staff and, to the great credit of the Labor opposition, they have, too.

It is clear that the Members of Parliament (Staff) Act is no longer adequate as a guideline for good governance. The 2003 Senate Finance and Public Administration References Committee report, Staff employed under the Members of Parliament (Staff) Act 1984 revealed significant flaws in the management framework for ministerial staff. The report recommended that the government needed to act swiftly to develop and implement a new management framework. Three years down the track and still there has been no substantive response to the recommendations.

I have also long campaigned against ‘jobs for the boys and girls’. The AWB scandal showed that the government has been too close and too trusting of a commercial, self-interested body. The ministers and their advisers did not ask the difficult questions, because their mates—and often they were their mates—were on the AWB, and when their mates told them something they believed them. Maybe that is natural, but it is not good government. Not that there is evidence that anyone in government from the political or the bureaucratic side asked any difficult questions. But that was their duty. It was their duty to do so under our commitments to the United Nations and under international law, and we should have been asking the obvious questions. As Professor Stephen Bartos, the Director of the National Institute for Governance at the University of Canberra, has said:

The key players were all part of the one small agri-political club—they all know each other and are very much inter-related (sometimes literally). Grains Council people go on AWB board, Grains Council people go on WEA, the gun-totin’ Trevor Flugge steps down from AWB but is hired by government to undertake a mission to Iraq ...

So you have an old boys network where, as Professor Bartos pointed out, the hard questions were not asked because that ‘would have been improper, altogether ungentlemanly in this very gentlemanly club’.

The Cole inquiry exposes an atmosphere where accountability and transparency have been diluted. There were no proper systems and procedures to ensure that, whoever was in the job, proper regulation of their actions and reporting systems would occur, and that they would ensure accountability. Unfortunately, because of the limited terms of reference, Commissioner Cole could not make the obvious recommendations that flow from that with respect to how government processes should have been and how they should be in the future.

This government minimises ministerial responsibility. A matter of concern raised by the Cole inquiry was the role of the Department of Foreign Affairs and Trade. At estimates hearings and during my other committee work, I have dealt with spokespeople from DFAT and, in all of my dealings with them and in the dealings I have observed with them, they have not presented themselves as being stupid, inexperienced, incompetent or corrupt—far from it—which means instead that the processes are poor, the reporting mechanisms are weak and, most of all, bureaucrats have become obeisant to a political culture that deliberately wants to not know.

Questions have to be asked: are the proper accountability and reporting mechanisms in place; are there systems to ensure that the relevant and appropriate information is getting to the people who need to make decisions about it? This is not a political matter; solely, it is about Australia’s interest and Australia’s reputation, which have been harmed because both the political and the bureaucratic side did not do their job.

If we have a culture where bureaucrats no longer provide full and frank advice and are fearful for their jobs, similar to that which we have recently seen exposed in DIMA, then we have a problem. The systems and procedures in place at DFAT need to be thoroughly investigated. I am not looking to blame particular public servants. As was pointed out in the Senate Finance and Public Administration References Committee report: accountability is about ‘being required to give account’ whereas responsibility is about ‘attracting credit or blame’. Public servants are required to give an account of their action or their inactions and, if the Westminster system is working properly in Australia, the relevant ministers are required to attract credit or blame.

The lack of written evidence on some of the matters which were personally known to some members of Austrade or DFAT, but were not officially passed on, points to a serious systems breakdown. It is also obvious that the sheer volume of information being provided to ministers, some of it very mundane, is difficult for them to manage because it often does not distinguish effectively between the routine and the imperative. These circumstances can be addressed by departments and ministers. They do not require a separate task force; they simply require a willingness to embrace the concept of good reporting, proper accountability and transparency, and of course enforcing the law.

This government has not shown itself under the Cole commission circumstances as having been willing to do this. This government, rather than addressing problems which can be fixed relatively quickly without great expenditure of taxpayers’ money, is setting up a task force which will take a great deal of time to establish and even longer to bring about prosecutions. But that is a matter of the legal consequences that flow from the commission. I am talking about the government getting on with the business of improving its ability to govern through the way in which its agencies report and keep account to the Australian people and the parliament.

The report of the Senate Finance and Public Administration References Committee recommended that all departments provide written guidance to staff regarding relations with ministers’ offices and that all senior staff receive adequate training in this area. It further recommended that the level and intensity of training for ministerial staff be increased and given a higher priority by ministers. It also highlighted the need for ministers’ staff to receive training with emphasis on political ethics, the relationship with the Public Service and record-keeping responsibilities.

If all of these recommendations had been implemented by the relevant ministers’ offices, it would have provided a much clearer picture to the Cole inquiry of exactly who knew what and when. Why do I emphasise ministerial staff? Because ministers themselves do not have the time, capacity or opportunity to filter and examine everything that comes through to them. They have to use their staff and advisers to do the relationship job and, in this relationship job under the Cole circumstances, they did not do what they should have been doing. It is a question of having appropriate systems in place so that corrupt, unethical or improper behaviour can be identified and stopped before impacting on the nation in the way that this scandal has.

The recommendations of the Finance and Public Administration References Committee were what I called at the time ‘a work in progress’. The Australian Democrats also proposed the establishment of an office of ethics commissioner, and that suggestion has not been taken up—nor has my Charter of Political Honesty Bill. In the light of the Cole inquiry, the Australian government should lead from the front with meaningful legislative and administrative change, the adoption of the recommendations of the finance and public administration report from 2003, the introduction of an office of ethics commissioner and should shift from a culture of finger pointing, blame shifting and avoiding responsibility to one where we, as parliamentarians, can be certain that departments like Trade or Foreign Affairs are on the job.

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

I thank senators for their contributions. This bill will enable regulations to facilitate provision of custody, use of and access to records of royal commissions, including but not only those of the inquiry into certain Australian companies in relation to the UN oil for food program, which is known as the Cole inquiry. Commissioner Cole made findings that certain breaches of the law might have occurred and recommended referral of specified matters to the appropriate authority for consideration as to whether procedures should be commenced for breaches of the laws. He also 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 the Commonwealth and Victorian directors of public prosecutions.

The regulations to be made under the amendments introduced by this bill will remove any uncertainty about the extent to which documents obtained by the Cole inquiry can be used for investigation and prosecutorial purposes. In particular, the bill removes any argument that there might be a requirement to provide procedural fairness to persons who could be adversely affected if documents obtained by the Cole inquiry or any other royal commission for its purpose were made available to other persons or agencies and used for law enforcement purposes. Providing procedural fairness in respect of the use of documents could be very time consuming and would be an impediment to early investigation by law enforcement agencies. It is sensible to legislate to allow royal commission records to be used for law enforcement purposes without having to provide procedural fairness and without any doubt as to the rightness of this approach.

The government is now taking the opportunity to provide a framework which can be used for future royal commissions without needing additional legislation. The bill makes it clear that the protection in section 6DD of the RCA against self-incrimination is maintained. Legal professional privilege is not affected, notwithstanding any regulations that might be made under these amendments.

During the debate I think Senator Ludwig sought an assurance that the government has no intention of using the bill in respect of records of completed royal commissions—other than the Cole inquiry, that is. It is correct that there is no specific present intention to regulate in respect of other past inquiries. However, if in the future there was a case for transferring records for law enforcement purposes, the government would consider that if and when it arose. The bill is not strictly retrospective, as it is not drafted so that regulations could change the legal status of a transfer of records which had already been transferred. It is only to facilitate future transfers of records. This follows the precedent of the HIH Royal Commission (Transfer of Records) Act 2003.

Senator Ludwig said that the amendments in the House limit regulations to law enforcement agencies and law enforcement purposes. I point out to the Senate, as indicated by the Parliamentary Secretary to the Prime Minister during the debate on the amendments, that the regulations will still be able to prescribe purpose and circumstances for access to records which are not limited to law enforcement purposes and circumstances. However, provision of records for purposes other than law enforcement will continue to be subject to any procedural fairness obligations that presently exist. Those two issues were raised by Senator Ludwig. There is limited time before question time, so I will not take it any further, other than to commend the bill to the Senate.

Question put:

That this bill be now read a second time.

Question agreed to.

Bill read a second time.