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Thursday, 18 November 1976


Mr ELLICOTT (Wentworth) (AttorneyGeneral) - I move:

That the Bill be now read a second time.

This Bill is a relatively short one. Its purpose is to enable the Government to make orders in situations in which they appear to be needed to ensure that documents in this country are not able to be produced to courts or tribunals in other countries. There are provisions to directly prevent this from being done and there are other provisions to prohibit persons in this country from taking any action which might lead indirectly to that result.

The immediate need for this Bill has arisen out of certain legal proceedings that are being taken in the United States of America under the antitrust legislation of that country. The operation of the Bill, however, is not confined to matters arising out of those proceedings. The United States proceedings relate to arrangements alleged to have been made for the marketing of uranium in 1972. There are, in fact, several proceedings pending in relation to those arrangements. Claims are being made that the United States anti-trust laws have an operation outside the United States to an extent which is beyond what is generally conceded in international law and beyond what other countries are presently prepared to concede in relation to the pending proceedings.

I shall indicate briefly the nature of the proceedings that have been instituted in the United States. First, there is a grand jury inquiry to establish a case for criminal prosecution of the parties alleged to have been involved in the marketing arrangements. Secondly, civil proceedings claiming treble damages- which could be of the order of some $7 billion- have been instituted by Westinghouse Electric Corporation against 29 United States and foreign uranium producers including 4 Australian companies. Thirdly, proceedings have been instituted against the Westinghouse Corporation by 16 United States utilities in respect of the non-supply of uranium under contracts entered into with Westinghouse, and Westinghouse is resisting those claims on grounds that involve allegations of contraventions of the anti-trust laws by the uranium producers. Finally, and perhaps for present purposes most urgently, letters of request have been issued to the Supreme Court of New South Wales in connection with the last mentioned proceedings. These letters of request seek the taking of evidence from persons in this country and relating to documents located here.

In all of these proceedings, claims are being made that the anti-trust and related laws of the United States have an extremely wide operation outside the United States. Our own Trade Practices Act does, of course, apply extra-territorially where relevant conduct is engaged in by bodies corporate incorporated or carrying on business within Australia or by Australian citizens or persons ordinarily resident within Australia. But the claims that are being made for extra-territorial operation of the United States laws go further than this. They go so far as to assert that persons who are not United States nationals or residents or persons carrying on business in the United States are subject to those laws by reason only of some economic effect of their conduct.

Claims of this kind have been made on previous occasions and have been resisted by other countries. In particular, such claims were resisted by the United Kingdom in 1964 in connection with an attempt by the United States authorities to regulate shipping between the 2 countries. Legislation was enacted to ensure that the United States claims would not be effective. I refer honourable members in this connection to the Shipping Contracts and Commercial Documents Act 1964. In connection with the present dispute concerning uranium, Canada has recently made a regulation indicating that it rejects the jurisdiction being asserted by the United States authorities as an unjustified invasion of its sovereignty. This is substantially the purpose of the Bill that I am now presenting.

The provisions of the Bill are directed at the protection of documents that are located in this country and with the conduct, in certain circumstances, of persons who are Australian citizens or residents. The legislation will not operate in all circumstances but will depend upon orders being given by the Attorney-General. Clause 4 of the ill sets out the circumstances in which the

Attorney-General may act. In short, the AttorneyGeneral will need to be satisfied that documents are being required by a foreign court or tribunal in breach of the principle of international law or comity or that the making of an order is necessary for the purpose of protecting the national interest. The Bill is not confined to documents or evidence relating to uranium, but the legislation will be available to be used whenever the need for it may arise in other contexts. It will be available also in relation to countries other than the United States. Orders may be made in respect of classes of persons and classes of documents.

Insofar as the current United States proceedings relating to uranium are concerned, I can inform the House that I am satisfied there is a need to make orders under the proposed legislation and I will be taking actionin this regard as soon as the legislation has been passed. Any contravention of these orders would, of course, be viewed very seriously by the Government.

As I have already indicated, this legislation has particular relevance to certain letters of request which may already have been made to the Supreme Court of New South Wales and there is, accordingly, a need for this legislation to be passed as a matter of urgency so that the necessary orders prohibiting the production of evidence to that court can be made and applied in those proceedings. I commend the Bill to the House.

Leave granted for debate to continue forthwith.







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