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Thursday, 12 May 1921

Senator KEATING (Tasmania) . - I do not see the need for. the provision contained in sub-clause 1 of proposed .new sub-section 123f. The position is as stated by Senator Elliott. The Court does not insist upon the production of documents if the Minister certifies that their production would be against the public interest. .

Senator Pearce - The Minister,, under the common law, has power to refuse the production of documents. This clause is to protect the officer.

Senator KEATING - Some time ago an action was instituted in the Supreme Court of Victoria by an ex-member of the Australian Imperial Force against a newspaper for libel. He claimed that in his. capacity as a soldier he had been libelled, and that for the proper conduct of his case it was necessary that certain documents relating to his conduct in the Australian Imperial Force should be produced. If I remember aright, it was stated to the Court that the documents could not be produced, because their production would be against the public interests. I do not know whether they would have helped his case or not, although he and his counsel claimed that their production would have materially assisted. I believe that the papers were not produced because an officer from the Defence Department declared that the Minister had certified that to produce them would not be for the public good. I' can very well understand that a Minister, especially the Minister for Defence, with- a large number of important matters to deal with, involving questions of policy and administration, would have very little opportunity to give personal attention to this question of producing documents. It is quite conceivable that some senior officer would "advise that the papers be not produced, in the public' interests, and the Minister, relying upon the- loyalty of his officer, would act accordingly, and say - " No: I decline to produce the documents, on the ground that to do so would he adverse to the public interest." Although the Minister would not be to blame personally, he would be responsible officially for any such refusal, and I oan well understand that the interests of justice might not be served by the nonproduction of documents asked for. If this clause is agreed to it will be necessary to get the consent of the Minister before any document is produced in the Court, and as the Minister in the multitudinous details of general administration and policy would not have time, personally, to attend to an application, he would accept the advice of his officers and refuse, or consent, as the case may be. The public interest is very 'well served by the present: methods of administration of justice in regard to. the production . of public documents. . Anybody connected with the legal profession will agree that the Departments are amply protected at present. Under this clause no public documents relating to a Department will in any circumstances be produced unless the prior consent of the Minister has been obtained. That, I think, would be putting too much upon the Minister. Senator Duncan. - "What would be the position, if the Minister was personally affected.

Senator Benny - The Minister has to exercise, his consent judicially.

Senator KEATING - I should say that if a Minister were a party to the litigation he might, under this clause, be induced to block the production of certain documents which might tell against him. But this, of course, is an extreme supposition. In the case to which I have already 'referred, the newspaper- which was alleged to have libelled an ex-member of the Australian Imperial Force relied ' upon justification., and endeavoured to prove that their comment had been fair and justified by the circumstances. It was stated that if certain documents were produced by the Defence Department itwould be shown that the alleged facts were not' facts at all. But the documents were not produced. That is the present position, of the law. I do not know whether we need strengthen or buttress it. I think it would be putting upon the Minister an unnecessary obligation to ask him, in every instance' where documents are called for either to consent to or refuse their production.' At present the Minister has to state if, in his opinion, it would be adverse tol the public interests to produce them. If such a statement is made to the Court, I do not know that it is necessary for the Minister even to appear; the Court does not enforce their production.

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