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Monday, 11 November 2002
Page: 5870

Senator CONROY (2:21 PM) —My question is to Senator Alston, the Minister for Communications, Information Technology and the Arts. Is the minister aware of the claims on the Sunday program that Telstra and lawyers Freehill Hollingdale and Page concocted a strategy to remove documents from the ambit of the freedom of information process by artificially dealing with them in a way which enabled Telstra to claim that they were protected from disclosure by legal professional privilege? Has he questioned Telstra about these claims? Are they true? Does the minister condone such behaviour?

Senator ALSTON (Minister for Communications, Information Technology and the Arts) —My recollection of the reference to Freehills was in the context of bugging allegations. Of course, that matter was comprehensively responded to last week, when I made it plain that the matters had been investigated by the Director of Public Prosecutions and that there had been a subsequent request to reopen that inquiry made last year by Mrs Garms. I think that the Attorney-General made it clear at the time that that was not appropriate. As far as the other suggestion that Senator Conroy makes is concerned, I draw your attention to a document called the COT strategy. The COT strategy was a document drawn up by Freehills as to how Telstra should go about creating legal professional privilege on documentation. I have not looked into that, but I have looked at some of the other material, including that of a professor who was mentioned in passing on the program and who gave some very long and complicated advice about legal professional privilege. What seemed to me to come through in that was that Telstra had sought high-level advice from Freehills about how they could protect their own position under FOI and, particularly—

Senator ALSTON —You can laugh, but you would be negligent if you did not.

Senator Conroy —Only a lawyer could say that.

Senator ALSTON —Again, I can understand why it might suit your purposes to suggest it, but the fact of the matter is that, if you are subject to an FOI application, or you apprehend that there will be documents sought, you are entitled to seek legal advice as to how you can best not only respond to it, but protect your position.

Senator Conroy —Does that include concocting a scheme?

Senator ALSTON —I do not know that concocting a scheme is correct. I think that you are entitled to point out what the consequences might be if a document comes from a certain source rather than another. In other words, as I recall it, the suggestion was that all matters should go through legal counsel. Therefore, the matter would attract legal professional privilege in a way that it might not otherwise do. If that is the case, and as long as that is a genuine exercise in looking at whether or not documents are properly privileged, then on the face of it one can understand why Telstra would take that sort of action.

Senator Conroy —Have you asked Telstra yet?

Senator ALSTON —No, I have not asked Telstra about it. There were plenty of other matters—

The PRESIDENT —Order! Senator Conroy and Senator Alston, conversations across the chamber when answering questions are not appropriate. Would you please refer your remarks to the chair and avoid responding to allegations.

Senator ALSTON —Thank you, Mr President. He was trying to get a free question. He can wait for his supplementary question. The fact is that there have been a number of matters that have arisen from that particular exercise. I have looked into most of them as best I can and, certainly, in relation to that matter it seemed to me to be ultimately a very technical question. There is at least one High Court decision which takes you in a certain direction. In other words, it is a fairly complicated area of law—one on which you would expect Telstra, with its resources, to be able to get the best quality legal advice. No-one for a moment condones an artificial construct that has them pretending that a document is entitled to privilege when it clearly is not. But if there are some ways in which a document might be protected when acting prudently, when it will not be if you act carelessly, you can hardly blame them for taking the former course of action.

Senator CONROY —Mr President, I ask a supplementary question. Has the minister taken any steps to ensure that Telstra complies with both the letter and the spirit of the Freedom of Information Act?

Senator ALSTON (Minister for Communications, Information Technology and the Arts) —The trouble with the spirit of the act is that it is in the eye of the beholder.

Senator ALSTON —I think there was a time when you were a fan of Brad Cooper, if I may say so, through you, Mr President. I am sorry that you have jumped off the cart, but hopefully not completely. The fact is that it is not productive to ask any major corporation, or even any individual, whether they have responded to the spirit, because your interpretation of that might be quite different from theirs. What you can expect is for them to act in accordance with the law and not do anything that would be aimed at getting around the law in such a way as to make a mockery of the provisions. I know, from my involvement with freedom of information over probably 15 or 20 years, that it can become a very complicated area of law. That is why I imagine that Telstra got good legal advice. (Time expired)