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Thursday, 18 November 1976
Page: 2915

Mr Antony Whitlam (GRAYNDLER, NEW SOUTH WALES) - I suspect that the only person on the

Government side who understands this provision is the Attorney-General (Mr Ellicott), and I am afraid that I think he has misrepresented the effect of this measure. When he talks about the national interest being served by this kind of legislation he could very well be right, but the fact is that the only way in which evidence for foreign tribunals is ever taken in this country is in our domestic courts. One of the National interests which we would want to have served is the ability for parties in proceedings started in this country to be able to issue commission rogatoire to foreign countries to have evidence taken here. It is quite clear that this kind of legislation will result in reciprocal legislation not being available in other countries.

The Attorney-General may be aware- he ought to be aware- that there is legislation not dissimilar to this in the United Kingdom. My recollection of it is that it has been used several times in order to avoid companies in England having documents subpoenaed in United States anti-trust proceedings. When it happens, the Secretary of State in the United Kingdom does not have the kind of authority which is given here in clause 4 to the Attorney-General but has to make a statutory instrument wherein he prescribes certain documents as being, for the purposes of the legislation, documents which will not be subject to the usual letters of request in an English court. That kind of procedure provides the sanction that we should be looking for here because it could be disallowed by a vote in the Parliament. It would provide a real supervision of the Attorney's very wide powers under clause 4. 1 am surprised that the Attorney-General does not make a much better case than he has. His calling on feelings of nationalism and patriotism he knows is not correct. He knows that this provision will lead to other countries denying our courts the opportunity to issue commission rogatoire in similar proceedings or in dissimilar proceedings, particularly those relating to corporate crime. I think the Attorney-General should address himself to this question in a more serious fashion.

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