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Tuesday, 13 June 2006
Page: 16

Senator ELLISON (Minister for Justice and Customs) (1:31 PM) —in reply—I think a number of points need to be made in relation to today’s debate on the Royal Commissions Amendment Bill 2006. It may assist us if we look at this in a historical context—that is, that the United Nations tasked the Volcker committee to inquire into corruption of the UN oil for food program in relation to Iraq. The Volcker committee handed down its report last year and an inquiry with the full powers of a royal commission was established by this government on 16 November 2005. Of course, terms of reference were provided.

Senator Allison mentioned in passing that we have to look to our international obligations as a country. The Cole inquiry fulfils that obligation in relation to the report handed down by Volcker and his committee. In fact, it is interesting to note that it is the most comprehensive and transparent investigation initiated by any of the 66 UN member states with entities named in the Volcker report. That is indeed a telling statistic. It clearly demonstrates that Australia lives up to its responsibilities and has responded in an appropriate fashion.

The government has provided Commissioner Cole with terms of reference that will allow him to investigate and make findings in relation to Commonwealth knowledge of alleged misconduct by Australian companies participating in the UN oil for food program. That is indeed a wide reference. Commissioner Cole stated on 3 February this year that, if there were any suggestion that there had been a breach of Australian law by the Commonwealth or its officers in relation to the terms of reference, he would seek a widening of these terms of reference to permit him to make a finding to that effect. He also noted that this point had not been reached.

The government—and particularly the Prime Minister—has made it very clear that it would take seriously any request by Commissioner Cole for an extension of the inquiry’s terms of reference. The government’s commitment to enabling the inquiry to do its job is reflected in the fact that it has implemented all extensions and variations to the letters patent that the commissioner has requested. This bill demonstrates a further commitment to the government’s cooperation with the Cole inquiry.

We have heard debate of how this came about. The Federal Court’s decision in AWB v Cole cast significant doubt on whether a commissioner has the power to require the production of a document for inspection where a claim to legal professional privilege has been made. Indeed, when the commission was set up, it was thought that the position on that was rather straightforward. Of course the Federal Court decision now throws that into doubt, and a legislative response is required. I might add that Commissioner Cole endeavoured to resolve this with the parties when this surfaced in March this year. For Senator Ludwig to say that we have done too little too late really is disingenuous because Commissioner Cole requested an amendment on 19 May and we introduced these amendments on 25 May—only a few days after that request was received. Such has been the response of this government to requests made by Commissioner Cole.

Let us return to the decision in the Federal Court. That decision would have forced a commissioner to apply to the Federal Court to determine legal professional privilege claims when the commissioner would know no more about the document than that a privilege claim had been made. These amendments are doing nothing more than clarifying the law as it was understood when this commission was set up. These amendments put beyond doubt that where a person makes a claim of legal professional privilege in respect of a document a commissioner has the power to test that claim. If the commissioner accepts that the privilege claim is properly made, then the document will be returned to that person and disregarded for the purposes of the inquiry. If that claim is rejected, the commissioner’s decision may be reviewed by the court. 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. I think that we should look at this in a wider context at this point. This will assist royal commissions set up in the future. While being of immediate benefit to the Cole inquiry, it will have a wider benefit and is therefore a desirable amendment. I note that the opposition is supporting the bill.

There were a number of points made in the debate. Senator Allison said, ‘The Prime Minister has something to hide,’ and senators Ludwig and Evans implied that as well, stating that the government was ‘hiding evidence and information by stopping the Senate from questioning officials’. I think it is quite evident that the government has been totally forthcoming in its cooperation with the commission, and not only in the cooperation of government agencies. I think there are about 14 government agencies that have been cooperating with the commission. No fewer than two senior ministers of this government and the Prime Minister himself have appeared before the commission to give evidence and subject themselves to cross-examination. That is a much greater step in exposing a government to scrutiny than any Senate estimates committee process.

What we have seen is something that we have not seen in this country for 20-odd years: that is, a Prime Minister fronting a royal commission to be questioned and cross-examined. That is hardly the action of a Prime Minister who has something to hide. Indeed, not only did the Prime Minister appear but also two senior ministers—the Minister for Trade and the Minister for Foreign Affairs—appeared. So it is a total furphy and, in fact, a total misrepresentation of the situation by the opposition and the Democrats to say that the government has something to hide by not allowing officials to be questioned at Senate estimates committees. What would be inappropriate is if we ran a parallel inquiry—that is, if we allowed officials to be questioned in a royal commission and had a parallel inquiry at an estimates committee which could well thwart the process of the royal commission. That would be inappropriate. We have gone down the path of saying that a royal commission has been set up and we should abide by that; and, indeed, that is exactly what we have done.

There is an amendment proposed by the Democrats. We can deal with it in the committee stage, but I can foreshadow that the government, for a number of reasons, will not be supporting that amendment. However, this bill is essential for the good working of royal commissions in general and it will benefit greatly the Cole royal commission in particular. I might just add—and I will finish on this note—that there has been extensive debate and inquiry in the Senate and in the House of Representatives in relation to this. This subject has received a great deal of scrutiny not only in the parliament but also in the press and the public at large. Added to that, there has been a royal commission where no less than the Prime Minister and two senior ministers of the government have fronted to be questioned and cross-examined. That is hardly a situation where things are being swept under the carpet. Indeed, internationally, Australia leads the way in what it has done to date in response to the Volcker inquiry and report.

Question agreed to.

Bill read a second time.