Kelvin Thomson (Wills, Australian Labor Party, Shadow Minister for Public Accountability and Human Services) Share 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.

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