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CHAPTER 4 - WHETHER THE GOVERNMENT REFUSED TO MAKE
CERTAIN RELEVANT DOCUMENTS RELATED TO THE INQUIRY AVAILABLE TO RECIPIENTS
4.1 This term of reference primarily refers to the documents generated
by and relating to the Allars Inquiry, which have been at the centre of
contention between the Commonwealth and the recipients' legal advisers.
An additional grouping of documents has been identified generally as other
Departmental and CSL files and records, relevant to matters in issue in
the legal proceedings. Within these two groups of documents are records
and information held by the Department, and as well by doctors, hospitals
and others which may be regarded as relevant to issues concerning individual
recipients and their treatment, to which individual recipients have been
seeking access.
4.2 As a generalisation, the Allars Inquiry documents have not been made
available to the recipients although limited access has been provided
to their legal representatives and in certain circumstances other advisers
to their legal representatives. As one litigant noted `I believe my solicitors
were allowed to view certain documents, under security provisions, but
no information was provided to me'.[1]
In considering this term of reference, reference to the recipients is
taken to include their legal representatives and advisers.
4.3 The issues in this chapter fall into two broad areas, firstly whether
all relevant documents have been provided in full or in an expurgated
form and the use to which those documents that have been provided may
be put, and secondly, allegations that relevant documents have been lost
or destroyed.
4.4 The Allars report notes that no provision was made initially with
regard to the disposal of the documents acquired by and created by the
Inquiry when it ceased to exist. Thus, in order to maintain and enhance
its independence, `the Inquiry proposed to the former Minister [Senator
Richardson] that it was desirable for its records to be transferred to
the custody of Australian Archives rather than the Department. Transfer
of the Inquiry's acquired documents to Australian Archives appeared to
be an available course, since the Inquiry was an independent authority
of the Commonwealth for the purposes of the Archives Act'.[2]
4.5 Professor Allars advised the Committee that:
I was very pleased part-way through the Inquiry to secure from
Senator Richardson permission to have the records of the Inquiry stored
in the Australian Archives. I believed this would encourage some recipients
to participate in an interview knowing that the transcripts would not
be too easily accessed by the Department when the Inquiry was completed.[3]
4.6 In relation to the actual records of the Inquiry, Professor Allars
has indicated that:
I was however conscious that any documents created or received
by the Inquiry might possibly be the subject of future freedom of information
requests, or orders for discovery. I therefore made a particular effort
in the period from the completion of the Report to the closure of the
Inquiry to ensure that final checking of transcripts was done and that
files were left in good order.[4]
4.7 Professor Allars was clearly aware that the Inquiry records could
be accessed for a variety of reasons after they were stored in Archives
following the completion of the Inquiry. Interviewees during the Inquiry
had been pre-warned by Professor Allars that `the records will be subject
to disclosure by way of discovery and subpoena in the event that they
are relevant in any legal action in relation to the hormone treatment'.[5]
4.8 The records consigned to Archives apparently consist of 57 boxes
of items (54 boxes of documents and 3 boxes of audio tapes). Each box
includes a packing (or consignment) list describing its contents and contain
all documents in the files created by the Inquiry. The boxes are grouped
in subjects under `Series Registrations' as follows:
- C4301 files relating to the involvement of organisations and institutions
in the AHPHP;
- C4302 files containing documentation of the Inquiry's administration;
- C4303 files relating to doctors and departmental officers; and
- C4304 files containing interviews from HPH recipients and others,
and related documents.[6]
4.9 Although Professor Allars expressed reservations about the Health
Department being able to `too easily access' the records, the Department
was nominated as the controlling agency in respect of the records. The
records were deposited with Australian Archives in Sydney at the completion
of the Inquiry, and were subsequently transferred to the Melbourne Archives
office for the purpose of the litigation in early 1996.
4.10 The Department advised the Committee that, prior to the commencement
of litigation, no Allars Inquiry files were retrieved from Archives other
than individual files on requests for those files under freedom of information.[7]
4.11 The Parliamentary Secretary (Cabinet) has confirmed that the records
were `subsequently withdrawn [in early 1996 by the Health Department]
from the Australian Archives and from general public scrutiny because
of the secrecy provisions [s.135A] of the National Health Act 1953.
Documents have been made available however, on a limited basis, to
courts and to solicitors who are representing plaintiffs in the context
of this program at least to those you [sic] have supported their request
by a convincing argument of "need to know".'[8]
Senator Newman has advised the Senate that `at the completion of the CJD
litigation, all documents will be returned to Archives'.[9]
4.12 The propriety of the Health Department, a defendant in the litigation,
removing the documents from Archives and then determining which would
be made available to the plaintiffs lawyers has been seriously challenged.
Indeed, the Department's interpretation of s.135A and of `relevance' have
also been challenged in evidence provided to the Committee. These issues
are crucial to this term of reference.
4.13 The Australian Government Solicitor (AGS) indicated that in the
litigation with the Plaintiff APQ in the Supreme Court of Victoria (and
in actions brought by a number of Plaintiffs in the Supreme Court of NSW),
arrangements `have been agreed' between the solicitors acting for the
parties for documents held by the Allars Inquiry to be made available.
Rennick Briggs Lawyers, formerly Rennick Gaynor Kiddle Briggs (Rennicks),
acted for APQ, and the AGS acted for the Defendants - CSL Ltd and the
Commonwealth of Australia.
4.14 Rennicks had requested access to the Allars Inquiry documents (as
listed in an Australian Archives printout) from the Health Department
as early as 10 February 1995. AGS replied on the Health Department's behalf
in July 1995 indicating that all the Allars Inquiry documents are protected
by s.135A of the National Health Act. Rennicks responded on 26 September
advising that if their request for access to the Allars documentation
could not be resolved by agreement, separate application to the Court
would be made. Agreement was not forthcoming, so Rennicks sought application
for further and better discovery of the Allars Inquiry documents on 30
November 1995.[10]
4.15 As noted above, in dealing with requests for access to the Allars
Inquiry documents (and during the discovery process), the AGS relied strongly
on the opinion that the Commonwealth was required by law to take into
account s.135A of the National Health Act. The interpretation and application
of s.135A has become an area of much contention in the process of accessing
Inquiry documents. The application of s.135A to individual recipients
accessing their records and other information, and the response to the
Allars recommendation has been discussed in the previous Chapter.
4.16 Before agreement was reached as to how discovery would proceed,
the AGS submitted that `the Commonwealth [presumably the Health Department
which was the controlling agency contrary to Allars expressed views] considered
that many of the documents were very sensitive as they contained information
about third parties, for example, relating to recipients of hormone treatment
and the medical practitioners and other persons involved in such treatment'.[11]
4.17 A `Discovery Proposal' was negotiated between AGS and Rennicks in
February 1996[12] which would
ensure that issues relating to the confidentiality concerns of third parties
were properly considered and section 135A was complied with, whilst ensuring
that the plaintiff was provided with the documents sought by Rennicks.
Each member of Rennicks' legal team was asked to sign Confidentiality
Undertakings to the Court before any documents were provided to them.
The Discovery Proposal was an attachment to the Undertakings which were
lodged with the Court by AGS.
4.18 AGS stressed that within the Australian Government Solicitor's Office
the discovery of the documents of the Inquiry was handled separately from
the defence of the action. The discovery work was performed under the
supervision of a Senior Government Solicitor, Mr Stephen Lucas, assisted
by two paralegals working for several months (referred to as the AGS discovery
team). AGS emphasised that:
In deciding whether or not to recommend that documents be released,
the AGS discovery team did not consult with AGS staff handling the defence
of the litigation (`the AGS litigation team')The AGS discovery team
have not at any stage worked on the preparation of the defence of the
Defendants' case. Whenever documents were released to Rennicks copies
were provided to the AGS litigation team, but not before.[13]
4.19 However, while the AGS may emphasise the separate nature of their
`discovery team' and `litigation team', the situation remains that the
defendant, the Health Department which has access to all the records,
is advising the discovery team over which documents can be released and
what should be expunged in accordance with their interpretation of s.135A,
and yet is also instructing the litigation team. It is not hard to understand
why this arrangement has been perceived as inappropriate or unethical.
A conflict of interest is also perceived with the Chief Medical Officer
making decisions to release documents to the plaintiffs solicitors on
AGS advice, as well as instructing AGS.[14]
4.20 Documents were to become available to Rennicks in two stages. In
the first stage, documents were expurgated so as to remove all material
which identified or might identify third parties. On 29 February 1996
Rennicks sought from AGS submissions and transcripts of evidence made
to the Allars Inquiry by people other than recipients and their families.[15]
Seven volumes of lever arch folders of expurgated documents, with a schedule
listing the persons who had given the evidence or made submissions, was
forwarded to Rennicks on 18 June 1996.
4.21 In the second stage of the discovery, Rennicks sought particular
documents, primarily copies of complete interview transcripts without
deletions, on 14 August 1996.[16]
The consent of the person to the release of their transcript was sought,
even though, as noted earlier, people interviewed by Professor Allars
had done so in the knowledge that their interview record could be `subject
to disclosure by way of discovery and subpoena'. The AGS indicated that
obtaining consents was an extensive process and advised that:
Where consent was refused, the delegate of the Minister considered
whether the documents should still be released in the `public interest'
under s.135A. In considering the public interest, the delegate balanced
the interests of justice (which was furthered by relevant documents
being before the Court) with the interests of third parties and the
need for confidentiality. In considering the public interest it was
not considered relevant that a document may damage the Defendants' position
in the litigation. Separate recommendations were necessary in respect
of each document. In all cases decisions were made to release documents.
Where the third party objected to release, a small amount of material
was expurgated from some documents on the basis that it was not relevant.
Rennicks made no objection to this.[17]
4.22 These documents were provided to Rennicks in batches, as they became
available, on 29 October, 23 December 1996 and 14 March 1997, albeit following
correspondence from Rennicks questioning the delays and seeking copies
of the remaining transcripts.
4.23 On 25 February 1997 Rennicks sought written submissions, transcripts
of interview or information supplied to the Allars Inquiry by four further
individuals who had been specifically referred to in pages and footnotes
of the Allars Report. On 6 March 1997 AGS responded that in spite of a
search for the written submission and information supplied to Allars by
two neuropathologists, the documents were not found.[18]
Rennicks believed that this information was critical as it was likely
to show that Australian neuropathologists were aware of the connection
between CJD, kuru and scrapie in the late 1950's.[19]
This inability to `find' these documents led to serious concerns that
certain documents may have been lost or destroyed.[20]
The question of allegedly missing, lost or destroyed documents is discussed
later in the chapter.
4.24 Following the 6 March response by AGS, Rennicks sought by way of
affidavit dated 12 March 1997 `discovery of all submissions, transcript
and other documentation made or delivered to the Allars Inquiry'. This
request included 31 groups or individuals specifically referred to in
the Allars Report and a further 13 individuals who `may have been interviewed'
by Professor Allars.[21]
4.25 The lateness of this request created problems for the AGS. The trial
was due to commence on 7 April. According to AGS, Rennicks had widened
their request for documents in terms of both the number and the type of
documents sought they now wished for documents other than transcripts
and submissions. AGS asked if `more definition' could be given to the
request for documents and was told that if particular documents were provided,
Rennicks `may not press for the balance'. Rennicks specifically requested
documentation on CSL and four individuals. On 24 March AGS provided an
affidavit detailing the steps undertaken by their discovery team to locate
any submission or transcript of evidence relating to CSL or these other
people.[22]
4.26 On 1 April 1997 AGS wrote to Rennicks noting that Rennicks were
not pressing for any further documents from the Allars files (the offer
for settlement in APQ had been made on 28 March). AGS believed that the
only issue remaining was whether an application for further and better
discovery made by Rennicks on 19 March 1997 should be adjourned indefinitely
with liberty to apply, or struck out. AGS wrote to Rennicks:
My client does consider the order sought impractical. I am sure
that it would create great difficulties for the discovery exercise to
continue during the hearing, particularly in light of the number of
documents potentially involved and the length and importance of the
trial.[23]
4.27 Clearly, at the time the settlement was accepted by APQ, there remained
a considerable number of Allars documents which had not been made available
to the plaintiffs and which could be the subject of further discovery.
The Committee does note that Rennick Briggs did not refer in their submissions
to a refusal to make certain documents available, although some of their
advisers did make such claims, concentrating instead on the denial of
legal aid and the offer of settlement.
4.28 In relation to the actions brought in the Supreme Court of NSW,
on 2 August 1996 AGS received subpoenas issued by Macedone Christie Willis
(`Macedones'), the solicitors for the plaintiffs, seeking all documents
generated by the Allars Inquiry. According to the AGS a similar Discovery
Proposal was agreed between the parties and seven volumes of expurgated
documents were released to Macedones on 7 February 1997. It is understood
that these were the same as, or very similar to, the expurgated documents
first supplied to Rennicks. The Committee believes that the six month
delay in the provision of these documents could be regarded as deliberately
obstructionist.
4.29 Macedones subsequently indicated that the Discovery Proposal was
not acceptable to them and on 24 April 1997 filed Notices of Motion seeking
an order for discovery of all documents relevant to matters in issue in
the proceedings, including the Allars documents and other documents of
the Commonwealth and the Commonwealth Serum Laboratories Ltd. This move
had the effect of including a second, much broader group of documents
than had previously been sought by Rennicks. Macedones noted that the
AGS discovery team was only concerned with the Allars documents.
4.30 Macedones wrote to the AGS on 9 May 1997 putting a position on discovery.
Macedones indicated they were:
prepared to consent to the non-disclosure of information relating
to a recipient or information which tends to identify a recipient, provided
that the information is not relevant to an issue(s) in the proceeding
or to one of our clients.[24]
4.31 The AGS responded on 21 May indicating that its client maintained
its position that s.135A of the National Health Act was applicable. However,
based on past practice, AGS anticipated that the delegate would rely on
s.135A only to ensure that information relating to a recipient or which
tends to identify a recipient, would not be disclosed. AGS noted that
the `Commonwealth is concerned to resolve this issue expeditiously'. They
offered to release certain Allars documents which would enable Macedones
`to continue preparation of the case and better direct any requests that
you have for further documents'.[25]
4.32 AGS submitted that while Macedones accepted access to these documents
on 8 July 1997, as at 29 July 1997 there:
are still a large number of documents held at the Archives (which
are neither transcripts of evidence nor submissions) and the parties
will work through the Discovery Proposal (or equivalent arrangements)
in respect of these documents.[26]
4.33 Macedones submitted to the Committee a very different perspective
to that of AGS in relation to the provision of documents. A range of documents
were tendered to the Committee which Macedones argued `confirm the extensive
and as yet, largely unsuccessful attempts to obtain proper access to the
Allars documents'.[27]
4.34 Macedones claims that the AGS, on more than one occasion, indicated
that their client would proceed to Court to protect the Allars documents
from disclosure sought via subpoena. Because of the cost implications
in having a Court resolve the matter Macedones was, like Rennicks, prepared
to enter into the Commonwealth's informal discovery proposal in an attempt
to obtain appropriate access to the Allars documents with minimum inconvenience
and expense incurred.
4.35 With the benefit of hindsight, Macedones concedes `it would seem
that this firm should have appreciated at the outset that adequate access
to the documents would not have been facilitated by the Department and
that the resolution of the issue by the Court was the only practical way
to obtain access to the documents which was required by law'.[28]
Further negotiations have taken place with the Department in recent months
as to the precise nature of discovery of the documents they require. A
response from the AGS to the most recent correspondence is still awaited.
4.36 In Macedones' view `the terms of the informal discovery proposal
were not, essentially, negotiable and are based on an unduly narrow interpretation
of the secrecy provision [s.135A] in the National Health Act'.[29]
Macedones indicated that, to date, the only access they have been granted
to the Allars documents by the Commonwealth is the limited access given
to `expurgated Allars documents' permitted by the `informal discovery'
proposal. The `expurgated' information does not seem to be limited to
information which identifies or tends to identify recipients. The `expurgation'
appears to extend to information which identifies or tends to identify
all third persons including Departmental and CSL officers, medical practitioners
and scientists, information which according to Macedones is of extreme
relevance to the legal proceedings. The names of potential witnesses for
the plaintiffs and evidence which can be used to support their claims
is contained in these documents. Macedones also suspect that information
which does not identify or tend to identify a recipient or other third
person has been unnecessarily expurgated, such information clearly not
falling within any reasonable interpretation of s.135A.[30]
4.37 Macedones contends that a far reaching interpretation of s.135A
has been adopted and applied by the Department to prevent the disclosure
of certain relevant information to the legal representatives of recipients.
As noted in Chapter 3 a similarly restrictive interpretation of s.135A
created difficulties for recipients to directly access Departmental records
relating to their own treatment. Macedones argued that the Department's
interpretation of s.135A was inconsistent with the interpretation given
by Courts in Australia, to substantially similar secrecy provisions contained
in other legislation, by reference to decisions of the High Court and
Supreme Court of New South Wales which conflict with the Department's
approach.[31]
4.38 Macedones has submitted that the Commonwealth has further hampered
the preparation of their proceedings for trial by unreasonably restricting
the use of that documentation which has been provided. In addition to
giving restricted access to the `expurgated' Allars documents pursuant
to the `informal discovery proposal', the Commonwealth has placed unreasonable
restrictions on the use to which the documents can be put. Macedones has
been directed not to disclose the `expurgated' Allars documents, or information
contained therein, to anyone apart from Counsel instructed in the proceedings
and any other member of their legal team. They explained that:
Not only are we required not to disclose or discuss the documents
or information with our clients, we are unable to disclose or discuss
the documents or information with our scientific consultants or medical
experts that we engage to give medico-legal or scientific reports and
opinions.[32]
4.39 In addition to the restrictions as to the use of the Allars documents,
undue restrictions have also been placed on how Macedones can use the
discovered documents or the information contained therein. These discovered
documents are those files of the Commonwealth and CSL that are relevant
to the proceedings.
4.40 Macedones indicated that to adequately prepare the proceedings for
hearing this information must be provided to the experts they have engaged
to provide medico-legal or scientific reports. They are unable to brief
experts, with a view to engaging them to give evidence at trial, if they
are not able to provide them with all relevant information. Macedones
has sought clarification of whether they are permitted to provide copies
of some of the documents to experts who they have engaged to provide medico-legal
reports or scientific reports. They have also sought clarification as
to whether or not they could discuss the documents and the information
with their clients.
4.41 However, more recently, on the basis of a claim by the AGS `that
a potential breach of confidentiality and of s.135A had occurred (not
by us) the Commonwealth has sought to further restrict our use of the
discovered documents so that we can not discuss or disclose the documents
to "any person" unless a confidentiality undertaking in relation
to the documents "in terms acceptable" to the Commonwealth and
CSL is obtained'.[33]
4.42 Macedones regards this situation as unreasonable and believes that
`whilst the Commonwealth and CSL have unfettered access and use of the
discovered and Allars documents and can and have obtained scientific and
expert reports and opinions in relation to same, we are not permitted
the same access and rights'.[34]
4.43 Macedones has concluded that:
At the present time the Government has not yet discovered to
this firm relevant Allars documents, above and beyond transcripts of
interview and written submissions, where expurgation of the documents
extends only to information which identifies or tends to identify a
recipient As a result only the Defendants in these proceedings have
had the advantage of the information in these documents in the preparation
of their proceedings. We believe that this is inconsistent with the
principles of civil litigation which ensure that all parties have access
to relevant documents held by the opposing side. The Commonwealth has
had an unfair advantage in this respect. Given what the Commonwealth
have been alleged to have done, we find this abhorrent.[35]
4.44 There was considerable debate during the inquiry that relevant documents
were allegedly missing, lost or had been destroyed. In considering this
matter, the Committee was careful to differentiate which documents were
being referred to the Allars Inquiry documents as deposited with Archives
or the CSL and Departmental files relevant to matters in issue in the
proceedings.
4.45 In relation to the Allars Inquiry documents, the Committee considers
that given the comment of Professor Allars referred to earlier that a
particular effort had been made `to ensure that final checking of transcripts
was done and that files were left in good order', the AGS reply to Rennicks
of 6 March 97 that documents could not be found could understandably lead
to suggestions that documents may have been lost or destroyed. This perception
was reinforced in late March by a Ministerial response in the Senate.
In reply to part of a question relating to the Inquiry documents which
asked `have all the documents now been found or are some still missing
or perhaps destroyed', the Senate was advised `not so far as the Minister
is aware'.[36] The inadequacy
of this answer did nothing to allay the suspicions that the Department
had something to hide or was covering up the real situation.
4.46 One particular document which was sought with some determination
by Rennicks and their advisers was a written submission made by CSL to
the Allars Inquiry. AGS indicated that their searches revealed that Archives
held only CSL working files and interview transcripts.[37]
The Committee was advised by CSL that a written submission had not been
made to the Allars Inquiry because CSL considered that it could best assist
the Inquiry by making people with detailed knowledge available for one-on-one
interviews with Professor Allars.[38]
The Committee suspects that the reference on p.812 of the Allars Report
to `Submissions to the Inquiry' may have been narrowly interpreted by
some as referring specifically to written submissions only, rather than
in the broader sense of the word `submission' which could include the
provision of assistance to the Inquiry in a variety of written and oral
forms.
4.47 The Committee also notes that concerns were expressed by advisers
to Rennicks that Allars documents were to be returned to the AGS for destruction.[39]
The documents being sought by AGS were copies, not originals, and the
request was in accordance with the Discovery Proposal and Undertakings
agreed to in February 1996.[40]
The Committee is aware that the advisers were given a special dispensation
to retain the documents to prepare a written submission to this inquiry.
The documents were then to be returned at the conclusion of the Committee's
public hearings.[41]
4.48 The AGS has confirmed that no Allars documents have been destroyed
and that checks against the packing lists prepared when the Allars Inquiry
documents were originally deposited with Archives, resulted in all listed
items being accounted for.[42]
The Committee considers that the Allars Inquiry documentation specifically
sought by Rennicks albeit in some instances it appears not to have existed
has been satisfactorily accounted for through the affidavits outlining
the searches undertaken by AGS. This is a distinct issue from documents
which have been deliberately withheld as part of the discovery process.
4.49 The Committee also has no reason to believe that any of the Allars
Inquiry records have been destroyed. The Committee does note that the
retention disposal for series C4302 the Inquiry's administration files
states they are to be sentenced `in accordance with the General Disposal
Authorities'. This is in comparison to the remainder of the series which
are to be `retained permanently'. Archives procedures are discussed below.
4.50 However, the Committee understands that a range of Departmental
and CSL files relevant to the AHPHP, but separate from the Allars Inquiry
documents, have been destroyed. Macedones referred to a letter from AGS
in response to a request for additional files which indicates that relevant
documents, namely some files of the Department, have already been destroyed.[43]
4.51 Macedones is suspicious because these files were destroyed in April
1992 or 1993 when the deaths of recipients were first coming to light
and when litigation had commenced or was imminent. Moreover some of the
files that were destroyed appear to be files relevant to the period around
1977 when much was published on the transmission of CJD and when it could
be expected that the authorities should have considered the issue of the
risks.[44]
4.52 In addition to the files listed in the letter to Macedones, the
Committee was provided with copies of affidavits by CSL and the Health
Department which list a number of files relating to the AHPHP which have
been destroyed `pursuant to section 24(2)(b) of the Archives Act 1983
or pursuant to an agreement with the Commonwealth Archives Office
or Australian Archives up to 1984' or `pursuant to CSL's internal policy'.
The files involved ranged between 1961 and 1985, the majority of which
were destroyed between 1991-93, although some had been destroyed years
earlier.[45]
4.53 The Committee notes that Australian Archives operates very strict
procedures in relation to the transfer, custody, storage and disposal
of Commonwealth records, in accordance with the provisions of the Archives
Act 1983. Section 24 of the Act deals with the disposal or destruction
of Commonwealth records. When records are transferred to Archives part
of the procedure involves sentencing. Sentencing is the process of identifying
the disposal class a record belongs to and applying the disposal action
specified in the relevant disposal authority. This is part of the process
of deciding the value of records and how long they should be preserved.
For example, the sentencing decisions relating to the Allars Inquiry documents
are referred to above.
4.54 Disposal authorities describe classes of records, how long they
are to be retained, when they should be destroyed, and where they should
be kept when they are no longer needed for administrative use. The retention
period is based on a careful assessment of the value of the records. It
takes account of such things as the future administrative uses of the
records and their wider use by government and the public.
4.55 In addition to disposal authorities for individual agencies, Archives
has also issued General Disposal Schedules for records common to all agencies
such as those relating to personnel, financial and accounting, accommodation
and property, and general administration matters. Many of these records
are sentenced for destruction between 5 to 10 years after action is completed.
For example, administrative arrangements relating to, and operational
records of, committees and conferences are scheduled for destruction 5
years after action is completed.
4.56 Archives does not destroy records in its custody or control without
the consent of the department controlling the records. It is illegal under
the Act to destroy or otherwise dispose of, damage or alter a record unless
such actions are in accordance with the Act. Archives does not destroy
documents required for legal proceedings.[46]
In relation to the particular files in question, the Committee notes that
the last recorded destruction was in July 1993, which is approximately
the time that legal actions were commenced.
4.57 Based on the evidence that it has received, the Committee also has
no reason to believe that the destruction of files which has occurred,
has been undertaken in any manner other than in accordance with standard
Archives procedures.
4.58 The Committee has received considerable documentation, primarily
correspondence between the AGS and the legal firms involved, relating
to respective discovery processes and access to and availability or even
existence of various records and documents.
4.59 The Committee notes that ultimately discovery processes and their
effectiveness are a matter for agreement between the respective parties
involved in litigation. However, in a case such as this the plaintiffs
often appear to be at a disadvantage in knowing and being able to identify
a vast array of documents which they deem to be relevant. The combined
might of the Commonwealth lined up against them is no doubt an overwhelming
and daunting situation.
4.60 Based on evidence it has received, the Committee considers that
in various actions the Department has relied unduly upon and used an overly
restrictive interpretation of s.135A of the National Health Act to delay
and/or prevent documents being made available. This not only relates to
Allars records being made available to legal firms but also information
and records relating to a particular recipient being made available to
that recipient. According to legal firms the preparation of their cases
has been hindered by this apparent attitude of the Department. The Committee
is of the opinion that Departmental actions in this regard may have been
deliberately obstructionist.
4.61 The Committee was concerned that relevant documents appear to have
been provided with material unnecessarily expunged or withheld totally
from the legal advisers acting for the recipients.
4.62 The Committee was satisfied that none of the Allars Inquiry documents
have been lost, gone missing or destroyed. However, the Committee notes
that a range of possibly relevant Departmental and CSL files have been
destroyed. The destruction of these files was apparently in accordance
with standard Australian Archives procedures.
4.63 The Committee considers that the action of the Department (as the
Defendant) in advising AGS on the release or refusal of documents to the
plaintiff and yet having full access to the same records in instructing
AGS on their defence is at least inappropriate, if not unethical.
Recommendations
Recommendation 3: The Committee recommends that should legal action
proceed, the documentation requested from the Commonwealth through a discovery
or further and better discovery process be complied with in a more expeditious
manner than has been the case to date. In complying with such discovery
processes the Commonwealth should refrain from adopting a restrictive
interpretation of s.135A of the National Health Act.
Recommendation 4: The Committee recommends that the process whereby
a Department, being a defendant in a legal action taken against the Commonwealth,
is placed in the situation of advising on the release (or refusal) of
documents to a plaintiff - yet having full access to all documents themselves
- is reviewed, so that procedures may be implemented to ensure that the
process is transparent and that any conflict of interest, perceived or
otherwise, is avoided.
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Footnotes
[1] Submission No.84, p.1.
[2] Allars Report, p.4.
[3] Submission No.92, p.2.
[4] Submission No.92, p.2.
[5] Submission No.74, ToR 1(b),
Attachment G-Rennicks affidavit, 30.11.95, p.6 (AGS).
[6] Submission No.74, ToR 1(b),
p.2 and Attachment G-Rennicks affidavit, 30.11.95, p.5 (AGS).
[7] Transcript of Evidence,
25.8.97, p.210.
[8] Submission No.1, 8.7.97, Attachment
5-Letter by Parliamentary Secretary (Cabinet), Mr Miles, dated 25.2.97.
[9] Senate Hansard, 26.3.97,
p.2530.
[10] Submission No.74, ToR 1(b),
Attachment G-Rennicks affidavit, 30.11.95, pp.5-6 (AGS).
[11] Submission No.74, ToR 1(b),
p.2 (AGS).
[12] Submission No.74, ToR 1(b),
Attachment B is a copy of the Discovery Proposal (AGS).
[13] Submission No.74, ToR 1(b),
p.3 (AGS).
[14] Senate Hansard 26.3.97,
Senator Newman, p.2530; Submission No.1, 8.7.97, p.4.
[15] Submission No.74, ToR 1(b),
Attachment C-Letter Rennicks to AGS, 29.2.96 (AGS).
[16] Submission No.74, ToR 1(b),
Attachment E-Letter Rennicks to AGS, 14.8.96 (AGS).
[17] Submission No.74, ToR 1(b),
pp.3-4 (AGS).
[18] Submission No.74, ToR 1(b),
Attachment F-Letter AGS to Rennicks, 6.3.97 (AGS).
[19] Submission No.74, ToR 1(b),
p.4 and Attachment G-Rennicks affidavit, 12.3.97, p.3 (AGS).
[20] Submission No.1, 8.7.97,
Appendix 4.
[21] Submission No.74, ToR 1(b),
Attachment G-Rennicks affidavit, 12.3.97, pp.5-9 (AGS).
[22] Submission No.74, ToR 1(b),
Attachment I-AGS affidavit, 24.3.97, pp.3-4 (AGS).
[23] Submission No.74, ToR 1(b),
p.5 and Attachment J-AGS affidavit, 2.4.97 (AGS).
[24] Submission No.74, ToR 1(b),
Attachment K-Letter Macedones to AGS, 9.5.97 (AGS).
[25] Submission No.74, ToR 1(b),
p.6 (AGS).
[26] Submission No.74, ToR 1(b),
p.6 (AGS).
[27] Submission No.93, p.37 (Macedones).
[28] Submission No.93, p.40 (Macedones).
[29] Submission No.93, p.40 (Macedones).
[30] Submission No.93, p.39 (Macedones).
[31] Submission No.93, p.39 and
Attachment B (Macedones).
[32] Submission No.93, p.40 (Macedones).
[33] Submission No.93, p.41 (Macedones).
[34] Submission No.93, p.42 (Macedones).
[35] Submission No.93, p.47 (Macedones).
[36] Senate Hansard, 26.3.97,
Senator Newman, p.2350.
[37] Submission No.74, ToR 1(b),
p.4 (AGS).
[38] Transcript of Evidence,
25.8.97, pp.209, 212.
[39] Dr Peters, supplementary
information, 21.8.97, p.3.
[40] Submission No.74, ToR 1(b),
Attachment B-Discovery Proposal and Attachment D-Undertakings (AGS).
[41] Rennick Briggs, supplementary
information, 13.8.97, Attachment 19-Letter AGS to Rennicks, 7.7.97.
[42] Transcript of Evidence,
25.8.97, pp.210-11; DHFS, supplementary information, 29.8.97, pp.3-4,5
and Attachment 4-Letter AGS to DHFS 27.8.97; Macedones, supplementary
information, 8.9.97, Letter AGS to Macedones, 2.9.97.
[43] Submission No.93, p.45 and
Attachment Q-Letter AGS to Macedones, 23.12.96 (Macedones).
[44] Submission No.93, pp.45-6
(Macedones).
[45] DHFS, supplementary information,
29.8.97, Attachment 5-CSL affidavit, 24.10.96 and DHFS affidavit, 21.3.97.
[46] Information on Archives
procedures taken from Archives Act 1983; Australian Archives Handbook,
June 1996 and General Disposal Schedules for Commonwealth Records.