Lyn Allison (Victoria, Australian Democrats) Share this | Link to this | Hansard source

I move:

(1)    Schedule 1, item 5, page 5 (after line 2), after subsection 6AA(3), insert:

     (3A)    In deciding whether a document required to be inspected in accordance with subsection (3) should be inspected by a member of the Commission or a person authorised by the member of the Commission, the member of the Commission may consider not inspecting the document if:

             (a)    there is a likelihood of criminal proceedings arising where the document may be used; or

             (b)    there is a likelihood that inspection may cause a member of the Commission to be biased.

This amendment was foreshadowed in my speech in the second reading debate. It does not require any further discussion, but I think it is important to respond to the earlier comments of the Minister for Justice and Customs.

As I understand it, there were not a lot of questions asked of the Prime Minister but, nonetheless, the big issue was that he came out of that hearing and pre-empted the Cole royal commission’s findings by declaring that the government had nothing to hide and that somehow his appearance demonstrated that. Some of us do not go along with that. We also do not think that the Prime Minister fronting up to a hearing means that no-one else need be asked to speak and answer questions. That is the point that was made by both Senator Evans and me: it was not appropriate for the government to gag public servants in the way that they did and it was quite proper for us to ask questions. The government is making it up as it goes along by saying that when you have a royal commission on you cannot ask questions about it—that you cannot have parallel inquiries. There have been examples of many cases where it suits the government to have parallel inquiries take place.

The amendment I have moved allows some flexibility to avoid the possibility that legal professional privilege might in some way bias the findings of the commission as a result of the commissioner sighting a document and subsequently discovering that it is covered by legal professional privilege. It is a straightforward amendment and one that I ask the Senate to support.

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

Not to make this matter more trouble than it is—and I know that you have said it is a straightforward amendment, Senator Allison—but I want to ask a question. I follow (3A)(b) and it might quite easily be that I have missed the point of (3A)(a), which says ‘there is a likelihood of criminal proceedings arising where the document may be used’. I will put that aside, although I do want a better explanation of what that actually means and how it would operate. I do not have any trouble with (3A)(b) in the sense that it makes plain that where ‘there is a likelihood that inspection may cause a member of the commission to be biased’ it is a straightforward issue that is easily ascertainable and quite clear. So I think you are right about that.

My understanding is that the problem with the ‘criminal proceedings’ reference is that—and I have had to do this a bit on the run—commissions always tend to run the risk of running into difficulties by publishing documents, proceedings and evidence that they gain. Royal commissions usually wend their way through as best they can because they are after the truth of the matter. It sometimes happens that they run over some of those issues; they deal with them as they arise. But it certainly does not deter or stop them—they park it, in that sense.

There is also the other matter, in which I was trying to work out whether you meant this: if it were a criminal proceeding, would they admit it? Of course, it would then be part of the record. That would be royal commission work anyway; they would make that decision whether or not it was, which goes back to my earlier comments. But if it were not admitted then there is really no problem, in the sense that if it might lead to a criminal matter they might choose not to do that anyway. Therefore it does not become admitted, it is not part of the matter that is before the commission and for that reason it would not necessarily taint any future criminal matters. I am sorry to put you on the spot like this, Senator Allison, but I do want a further explanation of (3A)(a). I can agree to (3A)(b), so your choice in that sense—depending on whether or not you want our support—is to try to convince me on (3A)(a) or to delete (a) of (3A) and renumber (b) as (a). We would then support it.

Lyn Allison (Victoria, Australian Democrats) Share this | Link to this | Hansard source

I will, to the best of my ability, try to convince you. This was the legal advice we were provided. It is to do with indicating the case that may be more severe than the commission might be inquiring into. Not all commissions are investigating criminal proceedings, and this is just to indicate that there is an added encouragement, if you like, for this to occur where there is a high degree of severity in the case being considered. So it is about incrimination and criminal proceedings. I would be agreeable to removing that if there is some doubt about it, but I gather it is a relatively straightforward proposal that simply adds a bit of weight to the encouragement in such cases.

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

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

Senator Allison, for the sake of brevity it would be easier, if you want our agreement, to remove (3A)(a). I am not convinced it adds anything to what the commissioner would already do in similar circumstances anyway. It is the issue of bias which is central to this matter and which has concerned us and is before us now, with (b) being the germane issue. I think (a) complicates the matter more than it needs to. I suspect it is a matter that would be taken into consideration by a commissioner anyway. They meet these all the time in royal commissions. I am sure they met it at the bottom of the harbour at that famous commission but dealt with it accordingly, and also at many others since then. So it probably does not serve any purpose, although I can see it may add a belt and braces approach. In that sense I think it is adequately dealt with, but if you want our support we are happy to have (3A)(a) deleted and (b) renumbered as (a). If not, you can proceed.

Lyn Allison (Victoria, Australian Democrats) Share this | Link to this | Hansard source

I am persuaded by the arguments, so I seek leave to delete paragraph (a)—I believe there is now no need for paragraph (a)—and run the wording on to read:

... the Commission may consider not inspecting the document if there is a likelihood that inspection may cause a member of the Commission to be biased.

Leave granted.

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

Just for the record, even with that change, the government opposes the amendment for the reasons I outlined previously. I will make a quick reference to the comment that Senator Allison made in relation to the Prime Minister’s evidence. The Senate should recall that Commissioner Cole made a statement on 27 April this year in relation to allegations that the Prime Minister was pre-empting the commission’s determination and, indeed, was in contempt. The commissioner made it very clear that that was not the case, and I just place that on the record. The government opposes this amendment.

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

Given that there is to be no division, I indicate that Labor support the amendment.

Question negatived.

Bill agreed to.

Bill reported without amendment; report adopted.