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Thursday, 28 May 1998
Page: 3378


Senator ALSTON (Communications, the Information Economy and the Arts) (3:08 PM) —I seek leave to make a statement in respect of the order for the production of documents on waterfront reform moved by Senator Murray.

Leave granted.


Senator ALSTON —The Senate's order of 13 May seeks a wide range of documentation, all of which may be relevant to current proceedings in the Federal Court of Australia brought by the Maritime Union of Australia and others against Patrick Stevedores No. 1 Pty Ltd and others. There are 29 respondents to those proceedings including the Commonwealth and the Minister for Workplace Relations and Small Business.


Senator Mackay —Don't try this in Estimates.


Senator ALSTON —You will be lucky to get anymore than this in Estimates, I can assure you. There are also other related proceedings instituted by the MUA currently before the Federal Court. In addition there are proceedings currently before the Federal Court instituted by the ACCC against the MUA. The matters at issue in the above proceedings, including matters raised by the defences filed by the Commonwealth and the minister are very broad, including the government's waterfront reform policies, actions taken by the government to promote those policies and the conduct of the MUA and other parties in relation to waterfront matters. Moreover, according to the MUA, an alleged conspiracy between the respondents has not yet been concluded, thus the matters at issue may still expand.

The process of discovering documents relevant to the MUA's conspiracy claim is still under way and is being conducted under the auspices of the Federal Court. Having regard to the breadth of the issues before the court, that process necessitates exhaustive examination of tens of thousands of pages of documents both for relevance and for possible claims of legal professional privilege and public interest immunity.

The Federal Court is today considering an application by the Commonwealth to extend the time for the Commonwealth to complete its discovery. Production of any documents to senators in respect of the order of 13 May is likely to contaminate the discovery process and prejudice all parties' legal rights. Further, documents disclosed in the discovery process are subject to confidentiality in that they can only be used for the purpose of the court proceedings. If the same documents were to be produced to the Senate, there would be no similar restriction on the use to which they could be put.

The government is not prepared to prejudice the rights of parties in the proper conduct of the Federal Court proceedings, in particular its discovery process, by producing to the Senate documents which may be relevant to the proceedings.


Senator Cook —It's a cover up—and you know it!


The PRESIDENT —Order! Senator Cook!


Senator ALSTON —It is not only the Commonwealth rights which are involved here but also the rights of other parties to the court proceedings. It is fundamental to the proper administration of justice that court proceedings be conducted in the courts, not in the parliament.

The sub judice convention recognises this fundamental principle. The practice in this parliament has been that matters that are before a court in civil proceedings are not referred to from the time they are set down for trial or otherwise brought before the court. The government's legal advice is that the proceedings instituted by the MUA have been brought before the court, so that the sub judice convention applies. In the circumstances it is not proper or appropriate for the government to produce any further documentation at this time. When litigation is complete, the government will reconsider the Senate's order in accordance with the usual criteria which apply.