ROYAL COMMISSIONS AMENDMENT BILL 2006

This is a bill to amend the Royal Commissions Act 1902 for the purpose of clarifying the operation of the Act in respect of claims of legal professional privilege. This is a technical matter but also one of some importance. The amendments have been requested by the Honourable Terence Cole AO RFD QC, the Commissioner of the current Inquiry into Certain Australian Companies in relation to the UN Oil-for-Food Programme, in light of the recent Federal Court decision in AWB Limited v Cole.

Before dealing with the impact of that decision on the Cole Inquiry and the amendments to be made by the bill to overcome that impact, I would like to first highlight the Australian Government’s commitment to properly investigate the findings of the Final Report of the Independent Inquiry Committee into the United Nations Oil-for-Food Programme, more commonly known as the Volcker Inquiry final report.

The Australian Government established the Cole Inquiry to investigate whether companies named in the Volcker Inquiry final report into the Oil-For-Food Programme may have breached Australian law and, if so, whether the question of criminal or other proceedings should be referred to the relevant agencies. The government moved quickly to establish a publicly transparent and extensive inquiry in response to the findings of the Volcker Inquiry final report, and has provided the Inquiry with the full powers of a Royal Commission, including the authority to compel witnesses and the production of documents.

As the Prime Minister has noted, the Cole Inquiry is arguably the most thorough and comprehensive investigation initiated in any of the 66 countries named in the Volcker Inquiry final report into the UN Oil-For-Food Programme. The Australian Government is committed to providing full cooperation with the Inquiry, including providing access to all relevant documents and officers. This policy extends to all levels of government, and I note that the Prime Minister, the Deputy Prime Minister and Minister for Trade, and the Minister for Foreign Affairs as well as current and former ministerial staff and public servants have appeared before the Inquiry. To date, at least fourteen Commonwealth departments and agencies have provided documents and more than 70 current and former Commonwealth officials have submitted statutory declarations to the inquiry.

Senior Counsel Assisting the Inquiry, Mr John Agius SC, noted on 14 March 2006 that the Inquiry had the power to investigate and make findings in relation to the knowledge of the Commonwealth of alleged misconduct by Australian companies participating in the Oil-For-Food Programme. The Commissioner has himself issued a statement about the scope of his Inquiry, making clear that if during the course of his Inquiry it appears to him that there might have been a breach of any Commonwealth, State or Territory law by the Commonwealth or any officer of the Commonwealth related to the terms of reference, he would approach the Attorney-General to seek a widening of the terms of reference to enable him to make such a finding. The Commissioner also said that this point had not been reached.

Since the Inquiry commenced its public hearings, the Australian Government has acted on a number of occasions to expand and clarify the Inquiry’s terms of reference, and to give the Inquiry an extra three months to deliver its report. In each case the Australian Government has acted quickly to respond to requests made by Mr Cole. The government’s actions have at all times been consistent with its ongoing commitment to ensure Mr Cole has all the powers, resources and time he needs to conduct a thorough inquiry.

During the course of the Inquiry’s hearings, the question of the treatment of claims for legal professional privilege under the Royal Commissions Act has arisen. Public attention has focused to an extent on a draft statement of contrition by Andrew Lindberg, former CEO of AWB, which was inadvertently produced to the Inquiry. As a result of Mr Cole’s decision to reject AWB’s claim for legal professional privilege over the draft statement of contrition, AWB applied to the Federal Court for review of Mr Cole’s decision, challenging not just Mr Cole’s decision on the document, but also his capacity to determine claims of legal professional privilege.

While the Federal Court decision in AWB Limited v Cole dismissed the application by AWB on the facts of the case, it also cast significant doubt on whether Mr Cole (or any other person appointed under the Royal Commissions Act) has the power to require the production of a document for inspection where a claim to legal professional privilege has been made.

Mr Cole has expressed his concerns with the decision to the Australian Government and has sought urgent amendments to the Royal Commissions Act, noting that legal professional privilege claims have been made in respect of many documents that have not been produced to his Inquiry.

The Australian Government has accepted that it is desirable to amend the Royal Commissions Act to enable Mr Cole to complete his Inquiry expeditiously, and that this should be done as soon as possible. We are therefore seeking passage of this bill in the current Winter sittings. Once passed, the amendments will have immediate effect in assisting Mr Cole with his Inquiry.

The amendments to be made by the bill will put beyond doubt that a Commissioner may require the production of a document in respect of which legal professional privilege is claimed, for the limited purpose of forming an opinion about that claim. The amendments will not preclude privilege claims or prevent an application for review by the Federal Court of a Commissioner’s decision on a privilege claim.

Essentially, the bill is intended to reflect the position that the Australian Government understood was the case prior to the decision in AWB Limited v Cole. While passage of the bill will, of course, be of immediate benefit to the Cole Inquiry, it will also clarify the law with respect to legal professional privilege under the Royal Commissions Act more generally.

The Australian Government has repeatedly shown its willingness to address any concern raised by Mr Cole and it will continue to do so. The amendments to be made by this bill provide another example of this willingness.