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Thursday, 18 November 1976
Page: 2914

Mr ELLICOTT (WentworthAttorneyGeneral) -In reply-The honourable member for Kingsford-Smith (Mr Lionel Bowen) raised a question about clause 4 (2). He was concerned about its effect on the validity of the Act. He put forward the official view of the Opposition. Clause 4(2) will not, in my view, affect the validity of the Bill when it becomes an Act. Clause 5 of the Foreign Proceedings (Prohibition of Certain Evidence) Bill is sustained by the external affairs power. Clause 4 of the Bill is designed to direct the mind of the AttorneyGeneral to the basis upon which he ought to move under clause 5; that is to say, he should not move under clause 5 unless he is satisfied of one of two things. The first matter is that the foreign tribunal is exercising or proposing or likely to exercise powers etc. not consistent with international law or comity in proceedings relevant to matters to which the laws of the executive powers of the Commonwealth relate.

Mr Klugman - But his discretion is absolute.

Mr ELLICOTT -I ask the honourable member to wait just a moment. This particular matter relates to the actions of certain companies in. relation to uranium which may be exported. It also relates to people or companies which have no business or any residence in the United States. The view is that that goes beyond what is proper at international law. That is a principle to which I referred in an answer this morning. The other basis for this matter is that the national interest may, in certain circumstances, require that certain documents or evidence be not made available and may not be made available, not to an Australian tribunal but to a foreign tribunal.

Clause 4(1)(b) so provides. The AttorneyGeneral has to be satisfied of either of those matters. Needless to say, clause 5 could operate and be valid without clause 4 being in the Bill because clause 5 is sustained, as I have already said, by the external affairs power. Clause 4 is designed merely to direct the mind of the Attorney-General in relation to these matters. It is important, where the national interest is involved, that the decision of, one hopes, a responsible Attorney-General in this matter will not be subject to challenge because questions about national interest are matters which are peculiarly for the executive to determine. Therefore, all that is being asked of the Parliament is that it commit to a responsible Attorney-General- one hopesthe discretion in this regard. That is the purpose of clause 4.

Clause 4 (2) is a provision which goes as far as this Parliament could go to render the discretion of the Attorney-General not subject to challenge by a foreign government, a foreign tribunal or a foreign company. It is there to protect the decision. After all, the decision of the AttorneyGeneral of this country is in relation to a particular matter. This clause is not designed m some way to take away from the rights of Australians or Australian companies. It is a clause which is designed to protect Australia. That is what it is about, and I should have thought that it would have appealed to the sense of nationalism of the honourable member for Wills. I was suddenly troubled when I saw him get to his feet and start criticising this provision. I thought that for once he had lost his sense of nationalism.

There is only one other matter with which I have to deal and that is a matter raised by the honourable member for Hawker (Mr Jacobi) relating to whether this Bill, when it becomes law, would have the effect of operating on a person who is taken on a plane at San Francisco, say, under a subpoena from a United States court. It would not, and the simple reason for that is that at international law we could not ourselves interfere with the jurisdiction of a United States court and one would not purport to do it directly within the jurisdiction. But we can affect what happens in Australia and we can affect what happens in the Supreme Court of New South Wales. In conclusion, I simply say that the reason for urgency, and I would not have brought this matter before the Parliament had I not been satisfied of the need for urgency, is that this Bill is needed to become law if it is to operate in Supreme Court proceedings which, as I understand it, could come on before this Parliament resumes on Tuesday week. I apologise to honourable members for the fact that time ordinarily given has not been given, but I ask them to bear with me and with the Government and to accept our assurances in this regard.

Question resolved in the affirmative.

Bill read a second time.

In Committee

The Bill.

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