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Thursday, 12 May 1921


Senator PEARCE ("Western Australia) (Minister for Defence) .- The amendment does not alter the existing law which has been stated by Senator Benny, but it is intended to save the Department from formally resisting every application for the production of papers, and from briefing counsel. I appreciate Senator Keating's solicitude for the Minister, but his point of view does not relieve the Minister in any way, because the Minister has to decide- if counsel shall appearin Court to object to -the production of any documents asked for.


Senator Keating -That is not necessary.


Senator PEARCE - Yes, it is. An application is made, and a subpoena is issued to some officer calling for the production of certain documents. The Minister then has to decide whether he shall, or "shall not, object to their production. If he objects he has to brief counsel to appear in the Court and say that the Minister objects, on the ground of public policy, to the production of the' papers asked for. Under this clause that course would not. be necessary, because the Court would have to get the consent of the Minister for the production of the documents asked for. It would not be necessary to brief counsel to appear to object to the production 'of papers in connexion with all these divorce cases which really do not concern the Department at all. *I can assure honorable senators that the great majority of the applications for the production of papers' have been for the medical history of soldiers in connexion with divorce cases. The trouble. is that one refusal is not sufficient, and every time an application is made the Department has to brief a solicitor to appear in court.


Senator Keating - An officer of the Department might be sent to the court. .


Senator PEARCE - I do not know whether the court would " see " him. I am informed that- the Department must be represented. The amendment proposed will not" alter the procedure, because the Minister will still have to decide whether he will, or will not give his consent. I do not agree with Senator Keating, that any Minister would regard this as a matter of no consequence. I consider that it is one of the most responsible things which the Minister has to decide. If in connexion with a law case a document is asked for, I think that the Minister has to take a great responsibility in saying that he will not permit that document to be produced. I approach the consideration of such applications with very great care. I inform myself fully as to the circumstances before I refuse to produce documents that are asked for by a .court. I consider that such refusal must he justified by very strong reasons. As to the class, of case affecting medical histories, I have no doubt as to how they should be dealt with, and there is a Ministerial minute in the' Department, which is regarded as a rule, and is acted upon accordingly, refusing applications for medical histories.. One part of the clause is intended to prevent officers acting is this connexion without the Minister's consent, and that certainly should be provided for.







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