7.1 From the time of the release of the Independent Inquiry Committee's final report on 27 October 2005, the involvement of AWB in the Oil-for-Food Programme, the relationship between AWB and the Commonwealth, the role of the Commonwealth in relation to obtaining UN approval of AWB contracts, and the granting of permission to export became matters of political controversy and debate. On several occasions I made it clear that this Inquiry was entirely divorced from the political debate and political considerations. I stressed the importance of my remaining independent of the Commonwealth, its ministers and senior officers, as well as of senior representatives of the Opposition. This Inquiry remained, at all times, independent. Political considerations played no part whatsoever in the conduct of the Inquiry or in the preparation of this report. My function was to perform the task given me by the Letters Patent. That is what I did.
7.2 It was reported in the media that US senators had raised questions about the 'independence' of this Inquiry. For that reason, on 3 February 2006 I clarified my position:
I am independent of the Commonwealth Government. Whilst the Commonwealth Government funds this Inquiry, just as it does the Federal Courts and their judges, Commissioners of Inquiry take no instruction from Government. I was for 10 years a judge of the New South Wales Court of Appeal and the Supreme Court of New South Wales. The New South Wales Court of Appeal is second in stature only to the High Court of Australia. Judges in Australia are not elected but are appointed for their skill, integrity and independence. Because of the principle of independence from Government, once appointed I resolved that I would not speak with Ministers of the Government or any senior officials of the Government. As a judge I swore an oath to decide matters 'without fear or favour, affection or ill will'. As a Commissioner I will adhere to that oath.[327]
7.3 It was necessary for me to return to the topic of the independence of this Inquiry towards the end of the public hearings, when counsel for a witness said he wished to make 'remarks' concerning statements made by the Prime Minister in a press conference after the Prime Minister had concluded his oral evidence before the Inquiry. It was contended that the Prime Minister's remarks could be categorised as 'pre-judging' matters I would have to determine. This was said to destroy the 'perception of independence' that should accompany the Inquiry. Counsel alluded to the fact that the Commonwealth Government established the Inquiry and appointed me. Thus my independence was, indirectly, called into question by the suggestion that I might be influenced by the Prime Minister's statements. I rejected that suggestion. I said:
I have made clear from the outset that this Inquiry is, and will remain, divorced from politics. I have publicly stated that I would not speak with senior members of the Government during the course of the Inquiry, and for similar reasons declined to correspond with Mr Rudd, the Shadow Minister for Foreign Affairs.
There is a bright line to be drawn and maintained between what I shall call the legal aspects of this Inquiry, and the politics and media commentary which accompanies the holding of this Inquiry.
Whilst I am conducting an Inquiry in exercise of the Executive power of the Commonwealth, I operate within legal constraints. The Inquiry and its report are evidence based, although I am not bound by the rules of evidence. Evidence has been sought by those assisting me in many areas. Arising from my construction of the Terms of Reference it has been necessary for persons holding high political office to be called before the Inquiry. The issue which arises is whether there can be the concurrent conduct of political debate, along with the assembling of evidence material to the Terms of Reference and the conduct of an independent inquiry.
Since the release of the final Volcker Report in October 2005 there has been an intense political debate. It has been conducted, on the one hand, by Mr Beazley, the Leader of the Opposition, and Mr Rudd. In correspondence with this Inquiry Mr Rudd has made clear that he has no material, other than that which is in the public domain, which would assist the inquiry I am required to conduct. That has not deterred his side of politics from engaging in political debate. Nor should it.
On the other side of politics, the debate has been conducted principally by the Prime Minister and the Minister for Foreign Affairs. The fact that each was called to give evidence before this Inquiry equally should not exclude them from engaging in the political debate.
There is no reason why a political debate should not be conducted separate and distinct from the conduct by me of an independent inquiry. There is also no reason why there should not be, as there has been, an expansive debate and commentary in the media regarding the conduct of, and evidence given to, this Inquiry.
The result of this intense political debate, and widespread media coverage, has been that I have been offered advice from many fronts. There has been a daily commentary on the Inquiry. I understand the topic has occupied question time for the majority of sittings this year. Politicians have indicated how I should construe my Terms of Reference, whether I should seek expanded terms, and whom I should call as witnesses. In the media, I have received advice from editorial writers, journalists, commentators and from the public as well as from a large number of academics. I have been advised of where the public interest lies, what the outcome and conclusions of this Inquiry will be, how I should interpret the Terms of Reference, where my duty lies, and how I can fulfil or fail in that duty. There have been statements and articles which might be seen as endeavours to draw this Inquiry into the political debate.
I have observed that Counsel Assisting have been astute in their examination of witnesses to ensure that questioning did not extend to matters beyond the Terms of Reference and into political matters. Similarly, I have been careful to exclude questions which I regarded as encroaching into the political arena.
In the conduct of this Inquiry, and in the writing of my report, I have and will disregard the statements and advice given to me both by politicians and the media. I will conduct this Inquiry, and report, in accordance with the law and the evidence placed before me. [328]
7.4 The Inquiry informed itself by marshalling relevant documents and calling witnesses.
7.5 Most documents were obtained by the issue of notices under the Royal Commissions Act 1902. Section 2 of that Act permits an inquiry having powers under the Act to issue a notice requiring compulsory production of documents referred to in the notice. At an early time, notices drafted in broad terms were served on AWB, Alkaloids of Australia Pty Ltd and Rhine Ruhr Pty Ltd. It was intended that the broad scope of the notices would recover all material documents. It was contemplated that sensible discussion between the solicitors for the respective parties would clarify particular areas where documents were sought, with a view to those documents being produced promptly. To some extent, discussion and cooperation had this effect. Nonetheless, it was necessary for the Inquiry to issue subsequent notices, particularly to AWB, for the production of documents and records relating to particular topics. In all, 22 notices were issued to AWB for production of documents.
7.6 AWB was slow to produce documents. On many occasions when a witness was called, the Inquiry received documents material to his or her examination the night before the witness was to appear; on several occasions documents were received on the morning on which the witness was to appear. This inevitably resulted in delay while counsel considered the documents prior to commencing or concluding examination of the witness.
7.7 I do not underestimate the difficulty of the task that confronted AWB and its legal advisers in responding to the notices issued by the Inquiry. The processes involved from AWB's viewpoint are explained in an affidavit of Ms Gillingham.[329]
7.8 AWB initially produced to the Inquiry 79 volumes of documents, being those documents it had produced to the IIC Inquiry. The 79 volumes contained few of the critical documents. Subsequently, many additional volumes of documents were produced. It was necessary for the Inquiry to examine all these volumes for relevance and materiality and slowly to piece together a chronological history of AWB's dealings with Iraq during the Oil-for-Food Programme, with particular reference to the payment of inland transportation fees. This was a slow, tedious and expensive exercise and, as much later became apparent, an exercise that AWB had, in major part, already performed.
7.9 The Inquiry served a substantial number of notices on various departments of the Commonwealth with a view to obtaining documents material to any knowledge of the Commonwealth concerning payments made by AWB directly or indirectly to Iraq-in particular, in relation to trucking fees. The notices were couched in wide terms in order to capture all material that might relate to any matters concerning knowledge of the Commonwealth that might constitute a defence to any knowledge-based offence that might be established by the evidence. Notices were served on the following:
7.10 Cooperative arrangements were made with the solicitors for the Commonwealth and its departments and instrumentalities for production of documents pursuant to the summons.
7.11 A third source of documents was the United Nations. The United Nations has established procedures for 'law enforcements bodies' seeking access to information and documents from the IIC. Those procedures are set out in Appendix 4. In a letter dated 23 November 2005, I wrote to Counsel for the IIC requesting certain documents (Figure 5.1 in Appendix 5). On 19 December 2005, following discussion between Counsel for this Inquiry and Counsel for the IIC, I received notification from the Under-Secretary General for Legal Affairs for the United Nations, granting access to certain documents held by the United Nations (Figure 5.2 in Appendix 5). However, documents were only made available in New York. Accordingly, Senior Counsel and a solicitor went to New York in the week preceding Christmas 2005 to inspect and obtain copies of documents they regarded as material to the Inquiry. Further, the documents were made available 'for official use only, and are not to be made public in any form, either in whole or in part, without further express and written authorisation'. On 4 and 10 January 2006 I wrote to the IIC requesting permission to use the material provided by the IIC in public hearings. Confirmation of that authorisation was received by letter dated 13 January 2006 from the Under-Secretary General for Legal Affairs. My request for statements taken from witnesses to be made available and to be used by the Inquiry was declined on 13 January 2006 (Figure 5.3 in Appendix 5). A further letter dated 17 January 2006 was received from the Under-Secretary General for Legal Affairs, advising that, if a formal statement was required from any IIC staff, it would be necessary to obtain 'a limited waiver by the Secretary-General of the immunity afforded to such individuals' (Figure 5.4 in Appendix 5). In order to obtain a statement from Ms Johnston, such a limited waiver was necessary. This was duly obtained from the Secretary-General and communicated to the Inquiry by letter dated 6 April 2006 from Ms Ringler, Counsel to the IIC (Figure 5.5 in Appendix 5).
7.12 The process of obtaining information from permanent government agencies or bodies was facilitated by memoranda of understanding entered into between the Inquiry and those agencies or bodies. Appendix 6 is an example of such a memorandum.
7.13 The Inquiry entered into memoranda of understanding with AUSTRAC (the Australian Transaction Reports and Analysis Centre) and the Department of Foreign Affairs and Trade. These memoranda facilitated the receipt of confidential information and documents, although in the event the amount of information and documents so received was limited.
7.14 The Inquiry heard oral evidence from 75 witnesses. In addition, statements from a further 130 witnesses were tendered.
7.15 Prior to the commencement of public hearings on 16 January 2006, confidential hearings were held on 19, 22 and 23 December 2005 and 5 and 6 January 2006. Each of these hearings involved witnesses who were no longer employees of AWB and were not represented by the solicitors for AWB. Confidential hearings were also held involving two employees of Rhine Ruhr.
7.16 Public hearings commenced on 16 January 2006. They occupied 70 sitting days. Appendix 7 is a schedule of the sitting days and the witnesses called on those days. The hearings took place in a purpose-built hearing room within the structures of the Administrative Appeals Tribunal at 55 Market Street, Sydney. The hearing room was established with full electronic facilities, enabling private and public display of documents retrieved from a database. Instantaneous transcript was available. Witnesses were examined by telephone link to Beijing, China, and by video link to Washington DC.
7.17 The hearings in respect of Alkaloids of Australia and Rhine Ruhr each occupied one day. The balance of the hearings related to AWB, BHP and Tigris.
7.18 The solicitors for AWB were Arnold Bloch Leibler. On 9 December 2005 solicitors for the Inquiry wrote to ABL setting out topics in respect of which information was sought from AWB witnesses. On 12 December 2005 Mr Judd QC made application on behalf of AWB for authorisation to appear 'in relation to so much of the Inquiry as touches upon the AWB, its past and present employees'. In December 2005, prior to the Christmas break, ABL provided to the Inquiry statements from 15 witnesses. The statements were of a general nature and, in the main, did not address the matters referred to in the letter of 9 December 2005. They were of little assistance to the Inquiry.
7.19 On the first public hearing day, 16 January 2006, Mr Rogers, a former Chief Executive Officer of AWB, gave evidence. He was separately represented by Mr Green SC. On 17 January 2006 Mr Lindberg, the then Chief Executive Officer, was called. No application was made by Mr Judd QC or any other counsel to appear on his behalf, notwithstanding that ABL had prepared his statement and a supplementary statement that was then tendered. His evidence continued through 17, 18 and 19 January. On 19 January the following exchange occurred:
The Commissioner: Mr Judd, that raises another matter which has been concerning me: have you considered the question of whether or not the interests of AWB and the interests of the considerable number of witnesses who will be called who are employees of AWB are a common interest?
Mr Judd: That is a matter which is presently under consideration.
The Commissioner: Thank you.
Mr Judd: I might reconfirm the position that we have that we are briefed on behalf of AWB.
The Commissioner: Yes, you didn't seek leave to appear for any witness and I haven't granted it.
Mr Judd: Correct.
The Commissioner: That leaves those people unrepresented, as I understand it.
Mr Judd: That is being addressed. [330]
7.20 Following this exchange, Mr Agius SC, Senior Counsel Assisting the Inquiry, indicated that the Inquiry had given notice of possible adverse evidence to ABL regarding persons who were employees of AWB and from whom statements had been received from ABL on the basis that no indication had been given by ABL it was not acting for them.[331]
7.21 Subsequently, the employees of AWB were represented by firms of solicitors and counsel different from those representing AWB. In most instances this resulted in new statements being prepared by the new counsel and solicitors for the individual witnesses. The new statements were of much greater assistance to the Inquiry than those previously provided. In every instance where counsel and solicitors sought authorisation to appear for witnesses, it was granted on 'the usual terms'.[332]
7.22 A commission of inquiry exercising the powers under the Royal Commissions Act 1902 has discretion whether to conduct hearings in public or in private. Except for a few instances when the process of investigation required confidential hearings, all this Inquiry's hearings were in public. The evidence taken in confidential sessions was subsequently made public.
7.23 In exercising the discretion to conduct public hearings, I was conscious that conducting hearings in public had the potential to injure the reputation both of people about whom evidence was given and of people who gave evidence. Often any damage to such a person's reputation resulted from a public disclosure of that person's conduct or a view taken by the media of the quality of the witness's evidence. Counsel for witnesses complained early in the hearings that media commentary about witnesses and their evidence was inaccurate, unfair and damaging to the witnesses' reputation. It was suggested that I should correct inaccuracies in the media reports and make statements designed to correct or remedy any perceived unfairness. I declined to take that course.
7.24 There were several reasons for my decision not to intervene in relation to media coverage. First, the media coverage was very extensive, on television and radio and in print. To have assumed the burden of examining all that coverage, determine if it was accurate, slightly inaccurate or greatly inaccurate, and then prepare responses in order to correct any perceived inaccuracy or unfairness would have imposed upon me an impossible task. Second, editorial writers, commentators and politicians delivered daily commentaries not only on the substance of the evidence but also on what they perceived that evidence to mean and consequences that were said to flow from their various interpretations of the evidence. Frequently I disagreed with the analysis by such persons of the substance of the evidence and any consequences to be drawn from the evidence. To have engaged in a process of analysis and correction or the expression of a different view would inevitably have led the Inquiry into debate regarding political aspects associated with the Inquiry. Being determined, to the extent to which I was able, to keep the conduct of the Inquiry removed from any political aspects associated with it, that was a course I was not prepared to undertake. Third, the matters with which the Inquiry was concerned were matters of significant public interest. It is the function and obligation of the media to report such matters in such manner as they regard appropriate. It was not my function to censor the media in the performance of their task. Fourth, it would have been undesirable for me to have commented on evidence when the evidence of a witness may have been incomplete or the evidence in relation to a topic may have been incomplete. Remarks by me could have been misinterpreted as prejudgment. It was important that my views about the accuracy, weight and consequences of the evidence be conveyed in this report after I had the opportunity to consider the evidence in its totality, to receive submissions from Counsel Assisting, and to receive submissions from companies or persons who might be adversely affected by any findings made.
7.25 The only manner by which, in practical terms, any reputational damage could have been eliminated or minimised would have been to hold the hearings in private. Excluding all the media from an inquiry into a matter of public interest is not a step to be lightly taken. Public hearings are important in enhancing public confidence in commissions of inquiry or royal commissions as they allow the public to see the inquiry at work. As Mason J emphasised in State of Victoria v Australian Building Construction Employees and Builders Labourers Federation, conducting a royal commission or commission of inquiry in private 'seriously undermines the value of the Inquiry. It shrouds the proceedings with a cloak of secrecy, denying to them the public character which to my mind is an essential element in public acceptance of an Inquiry of this kind and of its Report'.[333]
7.26 For these reasons the hearings were held in public and, where held in private, the transcript of private hearings was subsequently made public.
7.27 The hearings were conducted in accordance with Practice Note 1 (Appendix 8). Paragraph 1 of that Practice Note made clear the intention to sit Monday to Friday each week from 10.00 am to 1.00 pm and from 2.00 pm to 4.00 pm in Sydney. That had been known since the Practice Note was published on 8 December 2005. Nonetheless, at least in the early stages, all the counsel and solicitors engaged on behalf of AWB and its witnesses were from Melbourne or, in one instance, Adelaide. On 6 February 2006 Mr Judd QC, supported by Mr Forrest SC (Counsel for Messrs Long and Geary and Ms S Scales) and Mr Allen SC (Counsel for Mr Lindberg), made application that the Inquiry sit four days a week, the non-sitting day being Friday. By that time Messrs Lindberg, Long and Geary had all given their evidence, and Ms Scales was the next witness. No other counsel appearing for the individual witnesses put submissions in support of the application. The application was grounded upon the basis that travelling to and from Sydney took considerable time, leaving insufficient time to attend to document management and other matters associated with their clients.
7.28 On 8 February 2006 I rejected the application for reasons then given (Figure 9.1 in Appendix 9). The Inquiry continued to sit five days a week, except on two occasions, when special circumstances made it appropriate not to sit on a Friday. The Inquiry frequently sat well beyond 4.00 pm, usually until about 5.30 pm each day. This was done in order to reasonably accelerate the hearings, having regard to the constraints of time imposed by the Letters Patent. Had I granted the application, and had normal court sitting hours been adhered to, it is likely that hearings would have taken an additional three to four weeks, with attendant cost.
7.29 All witnesses were called by Counsel Assisting, as contemplated by the Practice Note. After being examined by Counsel Assisting, the witness's own counsel was invited to further examine the witness. Counsel for AWB and other witnesses were then invited to cross-examine the witness, provided application had been made to do so in accordance with directions previously given by me. After any such cross-examination, the witness's own counsel and, finally, Counsel Assisting were invited to further examine the witness.
7.30 Throughout the hearings there were applications to cross-examine witnesses. There were few applications on behalf of AWB. Most applications were on behalf of Messrs Long and Geary, although counsel for other witnesses made some brief applications.
7.31 I did not always grant the applications. I considered the applications in accordance with paragraph 12 of the Practice Note, which provided:
Any witness who is legally represented who has been examined (including cross-examined) by Counsel Assisting may next be examined by his or her own legal representative and then cross-examined by or on behalf of any person considered by the Inquiry to have sufficient interest in so doing. The witness's own legal representative and finally Counsel Assisting may re-examine. At all times duplication and repetition is to be avoided.[334]
7.32 Witness statements were usually made available to counsel in advance of the witness being called. I required application to cross-examine to be made in writing in advance, with the application specifying the interest of the party seeking to cross-examine, any area of conflict between the witness's evidence and that of the witness sought to be cross-examined, and the topics in respect of which leave to cross-examine was sought. In essence, I followed the procedures approved by the Federal Court in Kingham v Cole.[335] I granted leave to cross-examine only if I was of the view that the cross-examination might assist the Inquiry and that the topic on which cross-examination was sought had not been the subject of examination by Counsel Assisting. It was usually the case that Counsel Assisting examined witnesses on matters of interest to the Inquiry. Time and monetary constraints dictated that any further cross-examination be limited to matters not so addressed.
7.33 Application on behalf of Messrs Geary and Long to cross-examine Minister Downer brought into focus the respective roles of Counsel Assisting the Inquiry and counsel for a witness. On 10 April 2006 I gave reasons which addressed that application:
7. A Commission of Inquiry exercising the powers under the Royal Commissions Act 1902 ('the Act'), may inform itself in such manner as it regards as appropriate. It has compulsive powers which enable it to obtain documents and evidence from witnesses. It need not hold hearings at all, and any hearings it does hold need not be held in public. Speaking generally, the restriction on the powers of a Royal Commission is that any person or body who might be adversely affected by its findings must be afforded procedural fairness or natural justice. That usually exhibits itself in such a person being advised of any likely adverse finding and being given an opportunity to respond.
8. The scope and role of a person appearing before an Inquiry or Royal Commission regarding the examination of a witness is addressed by s 6FA of the Act. It provides:
Any legal practitioner appointed by the Attorney-General to assist a Commission, any person authorized by a Commission to appear before it, or any legal practitioner authorized by a Commission to appear before it for the purpose of representing any person, may, so far as the Commission thinks proper, examine or cross-examine any witness on any matter which the Commission deems relevant to the inquiry, and any witness so examined or cross-examined shall have the same protection and be subject to the same liabilities as if examined by any of the Commissioners, or by the sole Commissioner, as the case may be.
9. Pursuant to s 6FA of the Act, authorisation to appear before a Commission of Inquiry must be sought. It was in all instances by Counsel and solicitors appearing for each witness. The authorisation was granted on the 'usual terms'. Those terms were:
(a) this authorisation to appear may be withdrawn, or made subject to altered or additional limitations or conditions at any time; and
(b) this authorisation to appear entitles the person to whom it is granted to participate in the proceedings of the Inquiry, subject to the Inquiry's control and to such extent as the Inquiry considers appropriate. In particular, the Inquiry may:
(i) limit the particular topics or issues upon which the person may examine and cross-examine;
(ii) impose time limits upon examination and cross-examination; and
(iii) require that submissions be presented in writing only.
10. Section 6FA distinguishes between three categories of persons appearing before such a body.
11. First, there are legal practitioners appointed by the Attorney General to assist a Commission. Such Counsel Assisting do not need the authorisation of the Commission to appear. Counsel Assisting have no 'interest' as that term is generally understood. It is the role and function of such persons to investigate and place before a Commissioner all material which they consider relevant to the subject matter of the inquiry. That places a broad and heavy burden on Counsel and solicitors assisting. It is because of that burden that Commissioners traditionally require all material to be tendered by, and all witnesses to be called and examined by, Counsel Assisting. That is why the Practice Note provides:
4. Subject to the control of the Commissioner, Counsel Assisting will determine what witnesses are called, what documents are tendered to the Inquiry, and in what order they will call and examine witnesses.
…
9. All witnesses will be called by Counsel Assisting. Any person wishing to have evidence of a witness or witnesses placed before the Inquiry is to notify Senior Counsel Assisting of the names of all such witnesses and provide a signed statement of their expected evidence, if possible in the form of a statutory declaration. Counsel Assisting or Inquiry staff may interview such witnesses and take further statements from such witnesses if considered necessary. It is not necessary that any such interviews or the obtaining of such additional statements occur in the presence of the person, or legal representatives thereof, who sought to have the evidence of such witnesses placed before the Inquiry. The orderly conduct of the Inquiry will be greatly facilitated if this evidence is made available without delay.
10. Application may be made directly to the Commissioner to call witnesses or place documentary material before the Inquiry only in the following circumstances:
(a) application has been made to Senior Counsel Assisting to call such witness or tender such documents which application has been refused;
(b) thereafter, the applicant has given to Senior Counsel Assisting written notice of the reasons why such witnesses' evidence or documentary material should be placed before the Inquiry;
(c) either:
(i) Senior Counsel Assisting has reaffirmed his decision not to place the evidence before the Inquiry; or
(ii) two working days have passed since the notice referred to in (b) has been received by the Inquiry without response from Senior Counsel Assisting.
…
13. A copy of any document proposed to be put to a witness in any examination or cross-examination must be provided to Counsel Assisting the Inquiry as soon as possible after a decision is made to use the document for this purpose, and in all cases prior to its intended use.
12. The examination of witnesses by Counsel Assisting is thus to be broad ranging, covering all aspects of material which, in their view, is material to the Terms of Reference. It involves the testing of witnesses where that is appropriate, and where there is a sensible basis for there being doubt regarding evidence given. If there be conflict between the evidence of witnesses, it is the responsibility of Counsel Assisting to explore that conflict, if resolution of the conflict is material to the Inquiry's consideration of the matters in the Terms of Reference. That is why Counsel Assisting are given the first and last opportunity to examine witnesses.
13. The second category addressed by s 6FA is 'any person authorised by the Commission to appear before it'. Such persons are usually those who may be adversely affected by the Inquiry, or who otherwise may have a material interest in the Inquiry. A wide discretion is conferred upon the Commission to grant such authorisation. Here, AWB Ltd is such a person, as are its officers.
14. The third category addressed by s 6FA is 'any legal practitioner authorised by a Commission to appear before it for the purpose of representing any person'. The role of this category of legal practitioner is different to that of Counsel Assisting. They have a particular 'interest'. Their interest is the narrow one of representing a person or witness.
15. By s 6FA, the Commission retains control over the process of examination or cross-examination. No category of person has an unbounded right of examination or cross-examination. The use of the word 'may' confers a permission to examine or cross-examine 'so far as the Commission thinks proper', and only in relation to 'any matter which the Commission deems relevant to the Inquiry'.
16. Consistent with that provision is cl 12 of the Practice Note:
12. Any witness who is legally represented who has been examined (including cross-examined) by Counsel Assisting may next be examined by his or her own legal representative and then cross-examined by or on behalf of any person considered by the Inquiry to have sufficient interest in so doing. The witness's own legal representative and finally Counsel Assisting may re-examine. At all times, duplication and repetition is to be avoided.
17. Thus, cross-examination 'may' be permitted where the person on whose behalf it is sought has a 'sufficient interest', in relation to any matter which the Commission 'deems relevant to the inquiry', and 'so far as the Commission thinks proper'. Duplication of examination would normally not be proper as it would be of no assistance to the Inquiry. If a witness, who seeks to cross-examine another witness, has information or documents relevant to the inquiry, upon which to base a cross-examination, such information or documents ought to have been provided to Counsel Assisting, who could weigh its utility, and if thought appropriate, examine a witness upon it. The area for useful further cross-examination is thus diminished.
18. It is for these reasons that the narrow interest of a witness in challenging or testing the evidence of another witness is usually subsumed in the broader examination of Counsel Assisting.[336] [references omitted]
7.34 A great many emails were tendered in evidence. A problem that arises is what is to be drawn from those emails regarding questions of fact and, in particular, questions of knowledge.
7.35 One can assume all emails sent were received by the intended recipient's computer. Sometimes the recipient's staff may have culled emails, in which case it cannot be assumed the intended recipient read the email.
7.36 Where a person wrote an email, it can confidently be found that the person had the information and knowledge written. Similarly, where a recipient responded to the email, it can be confidently found that the person replying read and absorbed the content of the received email and had knowledge of that which they wrote in the response. That is so whether or not the writer of an email can now remember writing or receiving the email or its contents.
7.37 Where there is no response to an email the position is less clear. Circumstances may make it clear that the recipient is likely to have read and absorbed the contents. The likelihood of that being the case must be assessed by reference to other material or evidence. Circumstances to be considered include:
However, if an email is addressed to a named individual or individuals, unless circumstances justify a contrary view, one starts with a supposition that the recipient read it.
7.38 Where the recipient is a person to whom an email is copied by the sender, rather than addressed to the recipient, the position is less clear still. The sender obviously placed less importance on the copied recipient receiving the information or responding to the material in the email. It may be for the information of the copied recipient, but its interest to the copied recipient may be great or small.
7.39 Where the recipient of an email forwards it to another person, one presumes that the sender thought it of interest or important to the secondary recipient. However, the secondary recipient might take a different view.
7.40 I mention these circumstances because many emails were widely circulated within AWB. Caution is required in attributing to persons knowledge derived from emails unless the person was the author of the email, responded to the email, forwarded it to others (which assumes it was read and recognised as appropriate to be addressed by others) or circumstances otherwise render it likely that a person derived the information in an email.
7.41 I tried to apply these considerations in my assessment of the proper use to be made of the emails before me and their relationship to the frailty of human memory. I also had regard to the likely bulk of emails now received by business people, difficulties associated with the greater flow of information between people than was previously the case, and the likelihood of people remembering receipt of emails.
7.42 On 12 January 2006, prior to the commencement of public hearings, AWB provided to the Inquiry a memorandum of its submissions concerning legal professional privilege. It did so on the basis that the Inquiry had summoned Mr Cooper, General Counsel for AWB, to give oral evidence and had served several notices pursuant to s. 2(3A) of the Royal Commissions Act 1902, seeking to compel AWB or its employees to produce various categories of documents, including documents over which AWB claimed legal professional privilege. From the commencement of the public hearings AWB claimed, on many occasions, legal professional privilege in respect of documents or portions of documents summoned by the Inquiry. Procedures evolved between the solicitors whereby documents containing materials claimed to be privileged were blanked out, with the balance being produced or, where privilege was claimed for whole documents, it was noted that the document was not produced because of the claim for legal professional privilege. Where legal professional privilege was claimed it was maintained until a list of all documents not produced in full or in part to the Inquiry could be provided to the Inquiry. Upon production of such a list by AWB, it was intended to develop a process for determining the validity of all the claims for legal professional privilege. The Inquiry sought a complete list from AWB repeatedly from 10 January 2006, but the list was never provided. Ultimately, a document entitled 'Draft statement of contrition-Andrew Lindberg', being Exhibit 665, was tendered on 24 March 2006.[337] After it had been tendered and questions had been asked about it without objection from AWB, Senior Counsel for AWB claimed it had been provided to the Inquiry by mistake, and a claim for privilege was belatedly made in respect of it. Subsequently I received evidence and submissions regarding the claim. On 5 April 2006 I gave reasons for rejecting the claim for legal professional privilege for Exhibit 665.[338] Figure 9.2 in Appendix 9 shows my reasons. AWB commenced proceedings in the Federal Court of Australia, seeking orders, in effect, to maintain its claim for legal professional privilege in respect of that document. On 17 May 2006 the Federal Court dismissed AWB's application, holding, on evidence different from that presented to me, that the document was not privileged.
7.43 Before me, and before the Federal Court in proceedings seeking to quash my ruling in respect of Exhibit 665, AWB contended that, under the Royal Commissions Act 1902, a royal commissioner did not have power to determine claims for legal professional privilege. I rejected that submission. However, it was upheld by the Federal Court in AWB Limited v Cole (No. 1) [2006] FCA 571. An appeal from that decision was not possible as the Commonwealth, acting as the contradictor in the Federal Court proceedings-I having filed a submitting appearance in accordance with the decision of the High Court of Australia in R v Australian Broadcasting Tribunal ex parte Hardiman (1980) 144 CLR 13 and convention-had been successful.
7.44 The decision of the Federal Court upholding the submission regarding the power of a royal commissioner to determine claims for privilege overruled 104 years of practice. In my view, it rendered the efficient conduct of a royal commission impossible. That is because on each occasion a claim for privilege is raised, it would be necessary for the party raising that claim to commence proceedings in the Federal Court seeking a declaration that the claim should be upheld. In each such case the Commonwealth would need to be joined as a contradictor. The delay and expense following from such a process is obvious. It is illustrated by the fact that prior to the Federal Court ruling, AWB had raised perhaps 30 or 40 claims for legal professional privilege before me concerning more than 1,400 documents.
7.45 The decision in AWB Limited v Cole (No. 1) was delivered on 17 May 2006. On 19 May 2006 I wrote to the Attorney-General, addressing the difficulties consequent upon the decision and requesting that consideration be given to amending the Royal Commissions Act 1902 to confer on royal commissioners a power to decide questions of legal professional privilege, with a review of any such decision being available in the Federal Court on application by a dissatisfied party.
7.46 On 25 May 2006 there was introduced into the House of Representatives a Bill to amend the Royal Commissions Act 1902, to specifically confer such powers. The Bill made plain that the powers so conferred applied to this Inquiry. It did not, however, exclude a person making a claim of privilege from approaching the Federal Court seeking a declaration of privilege, thus leaving it to the discretion of the Federal Court to decide whether it would decide the claim of privilege or whether the claim should be decided by the royal commissioner subject to a review in the Federal Court. The failure to exclude an initial approach to the Federal Court resulted in a delay in the Inquiry's hearings of many months, with attendant cost.
7.47 With support from all parties in the Parliament, the Bill was passed by the House of Representatives on 31 May 2006 as a matter of urgency. It was passed by the Senate on 13 June 2006, also as urgent legislation. It was expected to receive Royal Assent on 14 June 2006, and Regulations to prescribe necessary notices were expected to be, and were, promulgated on 22 June 2006.
7.48 In order to minimise delay following from the need to amend the law to reverse the effect of AWB Limited v Cole (No. 1), I held a directions hearing on 30 May 2006 with the aim of resolving all outstanding claims for privilege and ensuring that the Inquiry had all the documents to which it was legally entitled. At that hearing AWB announced that it intended to commence proceedings in the Federal Court to have 'any issue that requires a determination dealt with'.[339] It pretended to do so on the basis that AWB saw the delay in awaiting promulgation as 'unacceptable from our point of view in having this matter resolved-even a number of weeks'.[340]
7.49 AWB commenced proceedings in the Federal Court on 30 May 2006. On 9 June 2006 a directions hearing of the Federal Court proceedings fixed 17 July 2006 to commence hearing the claims of AWB.
7.50 On 15 June 2006 the Inquiry's solicitor wrote to AWB advising that, following Royal Assent to the Bill on 14 June 2006, the Inquiry proposed to exercise the powers conferred by the Parliament on the Commissioner and would commence hearings of the privilege claims on 26 June 2006. The Inquiry could thus have addressed AWB's claims three weeks before the Federal Court could begin to do so. In my view, it was incumbent on me to seek to exercise the powers the Federal Parliament had, as a matter of urgency, conferred on the Inquiry.
7.51 AWB immediately sought to restrain me from exercising the powers the Australian Parliament had, as a matter of urgency, conferred on me. Its pretence that it was taking the Federal Court proceedings to avoid delay was exposed as a charade.
7.52 In seeking an injunction to restrain me from exercising the powers conferred by the amending Act, AWB advanced three arguments. First, it contended the amending Act was unconstitutional in that, by conferring on a body exercising the executive power of the Commonwealth the power to decide questions of legal professional privilege, it was conferring a judicial power in breach of Chapter III of the Constitution. Second, as AWB had commenced proceedings in the Federal Court, for me to seek to exercise powers conferred on me by the amended Act concurrently with the Federal Court's exercise of its powers might constitute a contempt of the Federal Court. Third, it contended that the Federal Court could, for various reasons, deal with the issues more rapidly, fairly and efficiently than the Inquiry. It was said this was particularly so because AWB would be unlikely to accept any decision I might make adverse to it and would wish then to appeal to the Federal Court.
7.53 On 19 June 2006 AWB sought an interlocutory injunction. Surprisingly, on 20 June 2006 the Commonwealth did not oppose grant of that relief. Instead, on 26 June 2006 it sought to have the first two issues raised dealt with separately and in advance of the third issue and, if the answer was unfavourable to AWB, to have the third issue of privilege referred back to the Inquiry for determination. The injunction having been granted on 20 June 2006, the Commonwealth's motion for a separate and prior hearing of the first two issues was adjourned until 17 July 2006, the day fixed for the hearing of the privilege claims.
7.54 On 17 July 2006 the Federal Court heard the argument on the Commonwealth's motion. On 18 July 2006 the Court dismissed the motion, holding that it 'was not satisfied that the separate trial of the questions proposed by the Commonwealth would be just and convenient'. The injunction against my exercising the powers conferred by the amending Act was continued.[341]
7.55 The hearing of the proceedings was subsequently refixed for 7 August 2006. The third issue-namely, had AWB established that the documents were privileged and if so, had the privilege been waived-was the subject of hearings between 7 and 11 August 2006. Prior to this, on 25 July 2006, AWB had provided to the Inquiry seven folders containing 558 documents not previously produced for which privilege was then said no longer to be claimed or pressed. On 7 August 2006 AWB finally produced a list of all documents it claimed were privileged. It then conceded that many documents for which privilege had been claimed were no longer claimed to be privileged. On the first day of the trial (7 August) AWB conceded that claims of privilege for a further eight volumes could no longer be maintained. In consequence, on 14 August 2006 yet another 541 documents were produced to the Inquiry. Ultimately some 900 documents were in contest in the Federal Court.
7.56 On 18 September 2006 the Federal Court gave judgment in AWB's privilege proceedings. It rejected the claims for privilege in relation to Project Rose and the Tigris matter, holding any such claims established had been waived. The claim for privilege in relation to the 'Iron Filings Claim' documents was rejected on the basis that 'the evidence establishes that the transaction was deliberately and dishonestly structured by AWB so as to misrepresent the true nature and purpose of the trucking fees and to work a trickery on the United Nations'.[342]
7.57 The documents for which the claims of privilege were rejected were received by the Inquiry on 20 September 2006. AWB's claims for privilege thus delayed completion of hearings for many months.
7.58 The principal areas in respect of which legal professional privilege was claimed related to:
7.59 Frequently, legal professional privilege was claimed in respect of a portion of a document but, after discussion in the hearing room or between counsel, review of the claim resulted in the claim not being maintained.
7.60 Legal advice was obtained by AWB from Sir Anthony Mason, Mr Tracey QC, Mr Richter QC, Dr Donaghue, Blake Dawson Waldron and an American, Professor Wippmann. Legal professional privilege was claimed in respect of each of those advices and of the briefs upon which the advices were sought. However, on 7 March 2006 (day 41) and 7 April 2006 (day 62) AWB accepted that, as it had disclosed the substance of the advices of Sir Anthony Mason and Mr Tracey, legal professional privilege in respect of each of those advices was waived. The documents were then produced and tendered at the hearing.
7.61 The brief to Mr Tracey was prepared by Mr Quennell, then of Blake Dawson Waldron. Mr Quennell had been engaged to conduct the factual and legal inquiry that became known as Project Rose. The brief was dated 12 May 2000, although this was a mistyping of 12 May 2004.[343] Instructions to counsel stated:
Between March 1997 and February 2003 AWB exported wheat to the Iraqi Grain Board ('IGB') under the 'Oil for Food' programme administered by the United Nations. From July 1999, AWB's contracts with IGB included a provision whereby a 'trucking fee' (usually expressed in US$ per metric ton of wheat) was added to the CIF price paid by IGB. AWB then paid the trucking fee to a Jordanian trucking company nominated by IGB.
The Oil for Food programme is currently the subject of four investigations of which instructing solicitors are aware, including an independent inquiry instigated by the UN. It is likely that AWB's trade with IGB will be scrutinised as part of those investigations. In particular, recent media reports suggest that AWB is likely to be subjected to examination of the legitimacy of its payment of the trucking fee.
Counsel is requested to advise, as to whether AWB may have:
(i) contributed to a contravention by Australia of its obligations under UN Resolution 661 (as to which see below) and
(ii) contravened any Commonwealth and/or State legislation (including, in particular, the Criminal Code Act 1995).[344]
It is to be observed that question (ii) addresses precisely the subject matter of this Inquiry, as set out in the original Letters Patent.
7.62 The import of the brief and the documents contained in it is discussed elsewhere.[345] Suffice it to say that the brief contains a summary statement of:
7.63 The brief also contains what is described as 'selected AWB correspondence and materials' for the years 1999, 2000, 2001 and following. In major part, it contains much of the documentary evidence relevant to the subject matter of this Inquiry, assembled in one folder.
7.64 The claim for legal professional privilege in respect of the Project Rose brief to Mr Tracey QC, abandoned on day 62 of the hearings, resulted in great delay and expense to the Inquiry. Had AWB produced the brief earlier, with most of the relevant documents contained in it, the course of this Inquiry would have been different, and its duration and expense much less. Whatever may be said about legal professional privilege flowing from the skill of compiling a brief, it is plain that the original documents copied in the brief were all material to this Inquiry, would have had to be produced in response to notices, and would, after the expenditure of significant time and money, be compiled by the Inquiry to give a chronological picture of the involvement of AWB and its officers in the payment of monies by way of trucking fees. Had there been frankness or real cooperation on the part of AWB, most material documents could have been produced in November 2005.
7.65 Royal Commissions or Commissions of Inquiry exercising powers under the Royal Commissions Act 1902 are normally established only where a matter of public interest so requires. The purpose is normally to determine factual circumstances and make recommendations. Frequently issues relating to possible breaches of the law arise. Not infrequently, persons or companies involved in matters with which the Royal Commission is concerned have obtained legal advice in relation to relevant matters. Confidentiality may attach to communications between persons and their lawyers.
7.66 A conflict thus arises between the public interest in discovery of the truth which is a prime function of a Royal Commission, and the fundamental right of persons to obtain legal advice under conditions of confidentiality. The issue for consideration is whether the public interest in discovering the truth should prevail over the private interest of companies or individuals in maintaining claims for legal professional privilege.
7.67 It is not possible to predict generally the circumstances in which it can be said that the public interest in discovering the truth should prevail over the private interest in maintaining legal professional privilege. That decision must depend upon the issues the subject of the Royal Commission.
7.68 Consideration should be given to conferring upon the Governor General in Council the power to direct in the Letters Patent that in relation to the whole or certain matters within the Letters Patent legal professional privilege should not apply. That would enable a decision to be made either initially or during the course of the conduct of a Royal Commission whether the circumstances are such that the public interest should prevail over the private interest.
Issue
Circumstances may arise where it is appropriate for the public interest in discovering the truth should prevail over the private interest in the maintenance of legal professional privilege.
Recommendation 4
That consideration be given to amending the Royal Commissions Act 1902 to permit the Governor General in Council by Letters Patent to determine that in relation to the whole or a particular aspect of matters the subject of inquiry, legal professional privilege should not apply.
7.69 The Commonwealth, through the Australian intelligence community, produced to the Inquiry in response to a notice, certain classified documents. It sought orders that there not be published some of the documents so produced or the statutory declarations in support of the application for non-publication. Three statutory declarations, marked Secret 1, 2 and 3, were produced to me. The documents in respect of which the orders for non-publication were sought were in a folder marked Secret 4.
7.70 The grounds of the application were that the public interest required that the documents and the statutory declarations remain secret because the documents were highly classified for national security reasons and the statutory declarations, if disclosed, might reveal information that might defeat the protection of the documents, as sought by the Commonwealth.
7.71 I was satisfied on the basis of the material before me that the claims should be upheld. I was also satisfied that it was appropriate not to make either the affidavits or the documents available to counsel appearing for AWB or witnesses and to make them available only to some counsel assisting the Inquiry. On 14 March 2006 I made orders in the following terms:
(1) the secret statutory declarations, and secret documents, marked Secret 1, 2, 3 and 4 respectively, not be published save that:
a. they may be viewed by the Commissioner and nominated counsel and solicitors assisting the Inquiry being Messrs Agius SC, Wigney, Owbridge and Kamencak;
b. witnesses who might be expected to have seen the secret documents at the time they were officers of the Department of Foreign Affairs and Trade may be shown a copy of the secret documents and asked questions about them in a manner that does not disclose, in any way:
i. the contents of the documents;
ii. the sources of the contents of the documents; or
iii the originating agency of the contents of the documents unless any particular disclosure is specifically authorised by me.[346]
7.72 My reasons, dated 14 March 2006, are Figure 9.3 in Appendix 9. The orders were made pursuant to s. 6D of the Royal Commissions Act 1902.
7.73 Subsequently, it was submitted by Mr Judd QC that questions of public interest immunity should have been addressed in the Federal Court and that a person exercising powers under the Royal Commissions Act 1902 did not have power to hear or decide such a matter. I received written submissions regarding the orders I had made from Mr Barker QC, on behalf of Mr Flugge; Mr Judd QC, on behalf of AWB; Mr Lacava SC, on behalf of Mr Stott; Mr Forrest SC, on behalf of Messrs Long and Geary and Ms Scales; and Mr Winneke, on behalf of Rhine Ruhr. They asked that I review and reverse my decision of 14 March 2006. Mr Orr QC, for the Commonwealth, provided written submissions in response.
7.74 On 30 March 2006 I gave reasons addressing each of the submissions put to me. I rejected those submissions and remade orders on that date, identical to the orders made on 14 March 2006. My reasons are Figure 9.4 in Appendix 9.
7.75 The Inquiry maintained a website-www.oilforfoodinquiry.gov.au.
7.76 Published on the website were notices of hearing dates, the full transcript of public hearings, all public exhibits, all statements and reasons for decisions given by me, details of the manner in which financial assistance might be sought in relation to persons involved in the Inquiry, and links to decisions of the Federal Court related to this Inquiry. Thus all members of the public, nationally and internationally, have available to them the public proceedings of the Inquiry.
7.77 In Annetts v McCann (1990) 170 CLR 596 Mason CJ, Deane and McHugh JJ said:
… when a statute confers power upon a public official to destroy, defeat or prejudice a person's rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment …[347]
7.78 This Inquiry had the power to prejudice rights, interests or legitimate expectations. It is clear that the reputation of a person or organisation is an 'interest' for these purposes.[348] There are no provisions in the Royal Commissions Act 1902 that exclude the application of the principles of procedural fairness. Accordingly, the Inquiry was required to comply with the principles of procedural fairness, and its procedures were established with that in mind.
7.79 In Annetts v McCann, Mason CJ, Deane and McHugh JJ said:
[The main requirement of procedural fairness in relation to an Inquiry is that it] cannot lawfully make any finding adverse to the interests of [a person] without first giving [that person] the opportunity to make submissions against the making of such a finding. [349]
7.80 Persons who may be affected by an adverse finding have no right to make submissions on the general subject of an Inquiry. Mason CJ and Deane and McHugh JJ held, when speaking of persons who may be affected by an adverse finding, that:
Their legal entitlement is confined to making submissions in respect of matters which may be the subject matter of adverse findings against them personally or against the deceased. This does not mean that their submissions must be perfunctory or limited to assertions or denials. In opposing the making of any adverse finding, the appellants are entitled to put every rational argument open on the evidence and, where necessary, to refer to and analyse the evidence to support that argument. [350]
Brennan J observed:
The classes of persons with 'sufficient interest' to attend and to be allowed to examine and cross-examine witnesses are, or may well be, larger than the class of persons against whom [an Inquiry] may contemplate making an unfavourable finding. The duty to accord natural justice applies only with respect to the latter class, who alone are entitled to insist on being heard by addressing a submission that an unfavourable finding should not be made.[351]
And later:
The [Inquiry's] duty to allow a person to make such a submission arises only when the [Inquiry] has reached the stage of contemplating the making of an unfavourable finding against that person. It is only at that stage that the [Inquiry] is bound to give that person notice of the possible finding and to allow that person an opportunity to submit why the findings should not be made.[352]
7.81 To assist in the exercise of the right to make submissions, an Inquiry must:
Define the issues in respect of which there exists a possibility that he may make findings adverse to the appellants. By defining those issues he can effectively assist the identification of the topics on which Counsel can relevantly and usefully address and limit the scope of that address.[353]
7.82 In all of the these passages the High Court focused on the right to make submissions, implying that this was the only right conferred by the rules of procedural fairness in circumstances where there was a risk that adverse findings might be made. The procedure this Inquiry adopted in relation to the possible making of adverse findings, and in relation to submissions, was designed not only to assist me in my fact-finding task but also to comply with the requirements referred to by the High Court in Annetts v McCann.
7.83 As noted, the Inquiry conducted most of its hearings in public and posted the transcripts and exhibits on its website. Thus any person, whether they had received authorisation to appear or not, could attend public hearings and monitor the evidence given if they were disposed to do so. All persons or organisations who might be adversely affected by evidence given were granted authorisation to appear if such authorisation was sought.
7.84 The submissions of Counsel Assisting were provided to any person against whom an adverse finding was sought. These submissions contained comprehensive reference to the evidence and documentary material said to support the findings sought. The basis for any findings was thus made apparent, well before the finding was made, to any person who stood to be affected by a finding. All persons against whom Counsel Assisting invited me to make an adverse finding were invited to respond by way of written submissions. Such persons and their counsel had access to all material tendered in the Inquiry in preparing their response.
7.85 The rules of procedural fairness do not, in my view, impose on the Inquiry an obligation to notify any person that evidence may be given adverse to their interests before that evidence is called. In National Companies and Securities Commission v News Corporation Limited (1984) 156 CLR 296 the High Court upheld the NCSC's decision to refuse to specify the substance of the case News Corporation might be required to face at the hearing, to refuse to direct that legal representatives were entitled to be present throughout the whole of the hearing, or to direct that legal representatives of News Corporation be permitted to cross-examine witnesses called at the hearing. The NCSC was obliged by statute to comply with the rules of natural justice. Regarding whether News Corporation was entitled to be made aware of the evidence against it, Mason, Wilson and Dawson JJ observed:
There comes a time in the usual run of cases when the investigator will seek explanations from the suspect himself and for that purpose will disclose the information that appears to require some comment … It would clearly be a denial of natural justice if the Commission in the present hearing received evidence adverse to News Corporation without providing an opportunity to News Corporation to be heard. An effective examination of such persons would require the substance of adverse information received during the investigation to be disclosed to them. Legal representation would be permitted to such witnesses with the opportunity for their further examination by counsel and for submissions to be made touching matters covered by the examination. There is no reason why the Commission should not welcome, time permitting, any request by News Corporation that further persons be called to give evidence. A hearing conducted along these lines … would in our opinion be fair in all the circumstances.[354]
7.86 Practice Note 1, by paragraphs 2 and 3, provided:
2. The Inquiry's proceedings will be as orderly and expeditious as possible. The Inquiry will endeavour to ensure that those who may be adversely affected by the evidence are treated fairly, while protecting confidentially where that is appropriate.
3. The Inquiry accepts no obligation to notify persons with authorisation to appear or other interested parties of the times and places of its hearings. Details of the public hearings arranged from time to time may be obtained from the Inquiry's Executive Officer or its Media Liaison Officer, or from the Inquiry's website www.oilforfoodinquiry.gov.au.
However, a person who, in the opinion of Counsel Assisting, may be substantially and directly interested in evidence to be produced to the Inquiry at a hearing will, if practicable, be notified prior to that hearing of the fact that it is proposed to produce the evidence to the Inquiry. [355]
7.87 Absent satisfactory statements from witnesses, it was not possible to give persons who might be adversely affected notice of a proposed witness's evidence. Where statements were obtained from witnesses, they were made available to all persons granted authorisation in advance of witnesses being called. In fact, all persons likely to be adversely affected-except one, who declined to participate-were represented by counsel and solicitors throughout the public hearings and were present during those hearings. They were given the opportunity, where application to do so was made, to cross-examine where it was thought such cross-examination would assist the Inquiry or where otherwise they showed a special interest they wished to protect. All persons against whom Counsel Assisting sought adverse findings were given notice of the intention to seek such findings, accompanied by a detailed statement of the evidence said to support the finding sought. In this manner natural justice and procedural fairness were accorded to any person or organisation likely to be adversely affected.
7.88 In the report of the Royal Commission into the Productivity of the Building Industry in NSW, Commissioner Gyles QC, as he then was, wrote:
I do not accept that in this type of Inquiry an adverse finding is the equivalent of a finding of disputed fact, of any criticism of a party, or of the exposure of evidence or material which might reflect badly on a person. Nor do I accept that a warning must be given of all possible ramifications of each piece of evidence before it can be referred to in the Report. I do agree that a party should not be confronted for the first time in the Report with a true adverse finding upon a totally new point or issue which it could not reasonably have anticipated. I do not accept that this anticipation can only come from an express statement or warning by the Commissioner or Counsel Assisting.[356]
7.89 In the HIH Royal Commission's report, Justice Owen approved of that passage, as did I in the final report of the Royal Commission into the Building and Construction Industry.[357]
7.90 At the conclusion of pubic hearings I made an order directing that by a given date Counsel Assisting provide to any person against whom an adverse finding was sought submissions specifying the findings of fact that were available and ought to be found and the conclusions it was contended should be drawn from such facts if so found. I also directed that by a specified date persons wishing to dispute the findings of fact sought, or to have made any additional findings of fact, provide submissions in reply to those of Counsel Assisting concerning conclusions to be drawn from findings of fact and provide such submissions to the solicitor assisting the Commission.
7.91 After all submissions were received, I considered the material placed before me by way of submission and counter-submission. Only after all the submissions were considered did I make any findings of fact or draw any conclusions.
7.92 Certain branches of the media published what purported to be recommendations of Counsel Assisting that certain persons might have committed offences against various statutes. Prior to distribution of the submission of Counsel Assisting, I made a non publication order in respect of those submissions. I had publicly stated I would do so and the non publication order was published on the Inquiry's website. The media were thus aware of the non publication order.
7.93 I have referred that publication to the Australian Federal Police to investigate whether there has been a breach of s. 6D Royal Commissions Act 1902.
7.94 The reason I made the non publication order was to prevent unfairness to persons referred to in Counsel Assisting's submissions as being possibly the subject of adverse findings. Inevitably some damage to reputation will be occasioned by my findings that offences might have been committed, but that in unavoidable. Were I not to publish the names of those persons referred to in recommendations for referral for consideration by prosecuting authorities, but publish the names of those persons whom I have exonerated from any possible criminal conduct, deduction would readily supply the names of those referred. However those people who have been named in the media as being possibly the subject of adverse submission of Counsel Assisting but whom I have exonerated can justifiably feel aggrieved by the prior publication. That publication should not have occurred. Those persons were entitled to have, as the first publication, my findings of exoneration. I appreciate that would not have been the situation had there been oral submissions; endeavouring to give fairness to those who might be exonerated by me was one of the factors I took into consideration when deciding upon written submissions which I ordered remain confidential.
7.95 Legal advisors for many persons have submitted that the submissions of Counsel Assisting should remain confidential as their publication can only cause harm to persons named in them. I have decided to accede to those submissions. I have made an order, pursuant to s. 6D(3) of the Royal Commissions Act 1902, that the submission of Counsel Assisting remain confidential except for such publication to law enforcement authorities as may be necessary for the purposes of any prosecutions.
7.96 The cost of the Inquiry was approximately $10 million.
7.97 The cost was greatly increased by two factors. The first was the non-cooperation of AWB. Since June 2003 it had been assembling relevant documents and statements within Project Rose and Project Water. It had those documents assembled by its lawyers in the usual fashion. It had legal advices on the subject matter of the Inquiry. Had it produced the documents as it had them assembled, together with the statements taken and advices received, the hearings would have been much shorter and thus less costly. Had AWB cooperated I believe the Inquiry could have been completed by the original reporting date of 31 March 2006. Instead, documents were produced only in response to notices and in an indiscriminate order, requiring sorting and analysis.
7.98 The second factor was the late production of documents. On day 75-28 September 2006, being the second-last day of hearings-AWB produced Exhibit 1347, an email dated 7 March 2000.[358] It explained why and how AWB sought to hide the trucking payments it knew were going to Iraq. As Mr Judd QC, Senior Counsel for AWB, said:
There is no doubt that this document falls into a category which, plainly, ought to have been provided to the Commission months ago ... it does seem to us that had the email in particular been before this Commission at a very early stage, it may well have shortened some of the Inquiry."[359]
7.99 Had AWB cooperated with this Inquiry, produced documents it had already assembled, and produced them promptly, there would have been a considerable saving to the Australian taxpayer, the Australian wheat grower and AWB.
7.100 Matters related to the administration of this Inquiry are addressed in Appendix 10.
7.101 I wish to record my appreciation to all those who have assisted me in this Inquiry.
Notes
[327] TRH Cole AO RFD QC, Statement by Commissioner, <http://www.oilforfoodinquiry.gov.au/agd/www/UNoilforfoodinquiry.nsf/Page/Statements>, 3 February 2005, para. 23.
[328] TRH Cole AO RFD QC, Statement by Commissioner, <http://www.oilforfoodinquiry.gov.au/agd/www/UNoilforfoodinquiry.nsf/Page/Statements>, 27 April 2005, paras 7-15.
[329] Ex 806, WST.0030.0020_R-0013_R.
[330] T 900.17-39.
[331] T 900.43 - T 901.23.
[332] See T 4 for a definition of the 'usual terms'. Also see below.
[333] State of Victoria and Commonwealth of Australia v Australian Building and Construction Employees and Labourers Federation (1982) 152 CLR 25, 97. See also Independent Commission Against Corruption v Chaffey (1993) 30 NSW LR 21, 30, 53-54.
[334] Practice Note No. 1, <http://www.oilforfoodinquiry.gov.au/agd/www/UNoilforfoodinquiry.nsf/Page/Practice_notes>, 8 December 2005, para. 12.
[335] Kingham v Cole [2002] FCA 45.
[336] Reasons, Inquiry into Certain Australian Companies in Relation to the UN Oil-for-Food Programme, <http://www.oilforfoodinquiry.gov.au/agd/www/UNoilforfoodinquiry.nsf/Page/Statements>, 10 April 2006, paras 7-18.
[337] AWB.0332.0344.
[338] TRH Cole AO RFD QC, Reasons <http://www.oilforfoodinquiry.gov.au/agd/www/UNoilforfoodinquiry.nsf/Page/Statements>, 5 April 2006.
[339] T 6796.33.
[340] T 6794.44.
[341] AWB Limited v Cole [2006] FCA 913.
[342] AWB Ltd v Honourable TRH Cole (No. 5) [2006] FCA 1234, [229] (Young J).
[343] T 6319.7.
[344] Ex 748, AWB.0416.0001_R.
[345] See Chapter 8.
[346] Reasons, Inquiry into Certain Australian Companies in Relation to the Un Oil-for-Food Programme, <http://www.oilforfoodinquiry.gov.au/agd/www/UNoilforfoodinquiry.nsf/Page/Statements>, 14 March 2006, [13].
[347] Annetts v McCann (1990) 170 CLR 596, 598.
[348] Annetts v McCann (1990) 170 CLR 596, 608, approved in Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, 578, 592. See also NSW v Canellis (1994) 181 CLR 309, 330.
[349] Annetts v McCann (1990) 170 CLR 596, 600-1, 609-10, 619. See also Ainsworth v Criminal Justice Commissions (1992) 175 CLR 564, 581. See generally discussion in final report of the Royal Commission into the Building and Construction Industry: Royal Commission into the Building and Construction Industry, Final Report, vol. 2, Commonwealth of Australia, Canberra, 2003, pp. 53ff.
[350] Annetts v McCann (1990) 170 CLR 596, 601.
[351] Annetts v McCann (1990) 170 CLR 596, 609-10.
[352] Annetts v McCann (1990) 170 CLR, 596, 610.
[353] Annetts v McCann (1990) 170 CLR 596, 601.
[354] National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296, 324.
[355] Practice Note no. 1, <http://www.oilforfoodinquiry.gov.au/agd/www/UNoilforfoodinquiry.nsf/Page/Practice_notes>, 8 February 2005.
[356] Royal Commission into the Productivity of the Building Industry, Final Report, vol. 7, Government of New South Wales, Sydney, 1992, p. 129.
[357] Commonwealth, The HIH Royal Commission, Final Report, vol. 1, Commonwealth of Australia, Canberra, 2003, p. 19; Commonwealth, Royal Commission into the Building and Construction Industry, Final Report, vol. 2, Commonwealth of Australia, Canberra, 2003, p. 56.
[358] Ex 1347, AWB.0469.0108.
[359] T 7446.
