Duncan Kerr (Denison, Australian Labor Party) Share 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—

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