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Wednesday, 8 December 1976


Mr Antony Whitlam (GRAYNDLER, NEW SOUTH WALES) - I second the amendment. I hope that some honourable members on the Government side will support the Opposition on this question. Nineteen days after the Act was first passed through both Houses of this Parliament, a much improved piece of legislation has been introduced. I think that by mid-year next year we could have an even better piece of legislation.

The Attorney-General (Mr Ellicott) ought to be able to acknowledge that fact. There is certainly nothing unusual about giving legislation a limited life and there will be plenty of time next year in this Parliament and in this House to look at ways of improving this legislation. I think we should discipline ourselves to doing that. This legislation was initially a most unsatisfactory piece of legislation and was introduced in far too rushed a fashion, as the Attorney acknowledges. It has been improved very greatly a mere 1 9 days after it was first introduced and we ought to be able to improve it very much in the months that lie ahead. It can hardly be said that advisers in the Attorney-General's Department, have, for many years, been vexed about this question of foreign proceedings and the prohibition of certain evidence. It is clear that they have not. This measure has been introduced in relation to one specific proceeding begun in a United States district court. This is a matter which the honourable member for Hawker (Mr Jacobi) has been interested in and agitated about for a very long time. I think that we can look to perhaps improving this whole question of the taking of evidence for foreign tribunals in Australia. I think that we ought to look at it in a big way, in the large picture.

The concern of the honourable member for Hawker has been very properly about orderly marketing of raw materials. Clearly that is a matter on which Government members take a very different view from members on this side of the House. This is not the first instance in which the United States district courts have directed their processes towards the domestic courts in this country under the United States anti-trust laws and under their reach in relation to the foreign commerce of the United States corporations. It has been in relation to questions such as the manufacturing of television sets, such as in the Zenith and Admiral litigation. I think that a great many members on this side of the House would regard that litigation and the extent to which evidence was able to be produced as a result of letters of request issued to Australian domestic courts as very beneficial to world commerce and in breaking up of cartels of an objectionable nature. This will be an increasing problem. The Attorney-General may well recall that when this matter first came very hurriedly before the House, one of the other aspects that perturbed me was the question of reciprocity and the extent to which other countries would now seek to limit the access of Australian courts to their own courts for the purpose of taking evidence relating to proceedings begun in Australia under Australian laws.

The Attorney-General scored a couple of cheap political points when he spoke about the attitudes of Labor State Attorneys-General to the Privy Council. He will not find any narrow States lighters' on this side of the House. I suggest that with regard to this question, which involves very difficult questions of international law, the Parliament should look at the rights of States in international law. I refer not to colonies, provinces or sub-units of a national government but to how we are to deal with questions of foreign commerce and trade between all countries of the world, between what we called States' in international law. It would be a wonderful thing if Australia were seen to take some kind of leading role in this process because, increasingly, it will become a problem. Increasingly, not only the laws of the United States but also the laws of other countries, will try to affect the foreign commerce of corporations incorporated in those countries, which in turn will affect operations in Australia in which evidence will need to be taken in Australia. Increasingly, too, we will see the operation of Australian laws affecting Australian corporations outside Australia. It is not an easy question. It is one about which we should discipline ourselves. It is one to which we could very well give time for discussion during the next session. If it involves nothing more than we have seen in this session, as in the stevedoring industry legislation or simply extending the operation of a current piece of legislation that may be satisfactory. But if this question does not deserve at least as much as the few minutes, hardly hours, that the Parliament has devoted to it this year, I would be very surprised. I commend the amendment to all members and think it deserving of the Committee's support.







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