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Tuesday, 7 December 1976
Page: 3384


Mr ELLICOTT (Wentworth) (AttorneyGeneral) -I move:

That the Bill be now read a second time.

The purpose of this Bill is to make certain amendments to the Foreign Proceedings (Prohibition of Certain Evidence) Act 1976. The House will recall that this Act was passed as a matter of urgency on 18 November 1976 because proceedings were then pending in the Supreme Court of New South Wales to take evidence for the purpose of proceedings in a court of the United States of America. In the course of the debate in this chamber and in another place, attention was directed to some aspects of the Bill which appeared to deserve further consideration. At the time there was a need for the Bill to be passed into law without delay, but in the other place my colleague, Senator Durack, indicated with my approval that the Government would give close consideration as soon as possible to the matters that had been raised and introduce an amending Bill to correct any deficiencies.

The Government has now been able to give the matter further consideration and has concluded that the amendments provided for in the present Bill are desirable. The principal change provided for in the Bill is the abolition of sub-section (2) of section 4 of the Act. This subsection provides that the validity of an order of the Attorney-General is not to be subject to challenge in any court. The argument has been advanced that provisions of this kind are not generally desirable and should be confined to those situations where they are really necessary. In the context of the present Bill the Government has concluded that this provision is not strictly necessary and its repeal is accordingly provided for by the present Bill. The Government has concluded moreover that the Parliament should be able to disallow an order made by the

Attorney-General in the same way as it would be able to act if the orders were made by regulation. The Bill accordingly provides for an order to be tabled and to be subject to disallowance by either House in accordance with the procedure under the Acts Interpretation Act which applies to regulations.

There are 2 grounds provided in section 4 upon which the Attorney-General may act in making an order under section 5. One is that a foreign tribunal is exercising jurisdiction in a manner that is contrary to international law or comity; the other is that an order is desirable to protect the national interest. Logically, an order made on the first of these grounds should be confined in its operation to the particular foreign tribunal that is breaching international law or comity. As this is not the position under the existing Act the Bill provides for it to be so. Different considerations apply, of course, where an order is made on the ground of national interest. In such a case it is appropriate that the order should apply to all foreign tribunals and not be confined to any particular tribunal. That is now the position under the Act.

Another matter that was the subject of comment when the legislation was being debated by the Senate related to the definition of a foreign tribunal. Doubts were raised as to whether this definition might cover the Privy Council. In view of those doubts the Bill provides for an express provision to make the position clear. Under this provision 'foreign tribunal' is not to include the Judicial Committee of the Privy Council in the exercise of jurisdiction in respect of appeals from any court in Australia. Two other amendments to ensure the legal effectiveness of the legislation are proposed. One avoids a distinction under the existing Act between an order that has been served and one that has been deemed to be served. The other provides that where a person is prohibited from making evidence available to a tribunal in Australia, the tribunal is not to be able to require a person to act in contravention of the order. I commend the Bill to the House.

Debate (on motion by Mr Lionel Bowen) adjourned.







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