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2004-2005-2006
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
ROYAL COMMISSIONS AMENDMENT (RECORDS) BILL 2006
REVISED EXPLANATORY MEMORANDUM
(Circulated by authority of the Prime Minister,
the Hon John Howard MP)
THIS MEMORANDUM TAKES ACCOUNT OF AMENDMENTS MADE BY
THE HOUSE OF REPRESENTATIVES
TO THE BILL AS INTRODUCED
ROYAL COMMISSIONS AMENDMENT (RECORDS) BILL 2006
OUTLINE
This bill amends the Royal Commissions Act 1902 (the RCA) to enable regulations to
facilitate provision of custody and use of, and access to, records of royal
commissions, including those of the Inquiry into Certain Australian Companies in
relation to the UN Oil-for-Food Programme (the Cole Inquiry).
The Hon TRH Cole AO RFD QC, Commissioner of the Cole Inquiry, made findings in
his report that certain breaches of the law might have occurred, and recommended
referral of specified matters to the appropriate authority for consideration whether
proceedings should be commenced for breaches of the laws referred to. He also
recommended the establishment of a joint Task Force comprising the Australian Federal
Police, Victoria Police and the Australian Securities and Investments Commission to
consider possible prosecutions in consultation with Commonwealth and Victorian
Directors of Public Prosecutions.
To remove any uncertainty about the extent to which documents obtained by the Cole
Inquiry can be used for investigative and prosecutorial purposes by law enforcement
agencies, legislation similar in effect to the HIH Royal Commission (Transfer of Records)
Act 2003 is considered desirable. That Act enabled the transfer to ASIC of custody of
certain records of the HIH Royal Commission, particularly documents and things which
had been produced to the Commission, to facilitate ASIC's investigations.
The main reason for that Act, and the present bill, is to remove any argument that there
might be a requirement to provide procedural fairness to persons who could be adversely
affected if documents obtained by the Cole Inquiry, or any other royal commission, for
its purposes, were to be made available to other persons or agencies and used for law
enforcement purposes. Providing procedural fairness in respect of use of documents
could be very time-consuming and is arguably unnecessary and unmeritorious in a law
enforcement context. The government therefore considers it prudent to legislate to allow
royal commission records to be used for law enforcement purposes without having to
provide procedural fairness, and is taking the opportunity to provide a framework which
can be used for future royal commissions, without needing additional legislation.
The bill will insert a regulation-making power to enable regulations to be made to give
custody or access to records to persons and bodies, which could then use and deal with
those records for law enforcement purposes, without any prior need to notify and consult
those who might be adversely affected by the release and use of the records. The
amendments broadly follow and generalise the model in the HIH Transfer of Records
Act.
The bill will allow for regulations to be made in relation to specific royal commission
records which may:
· provide for the custody in which some or all of a royal commission's records
(including copies of those records) are to be kept;
· specify purposes for which a custodian of royal commission records may use, or
must not use, some or all of those records;
· provide for the circumstances in which the custodian of royal commission records
must, or may, give some or all of those records to another person or body;
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· provide for the circumstances in which the custodian of royal commission records
must, or may, allow access to some or all of those records to other persons or
bodies; and
· specify purposes for which persons or bodies to whom a custodian of royal
commission records gives, or gives access to, those records may use, or must not
use, some or all of those records.
The bill will also allow for such regulations to impose conditions to be complied with
by the custodian of the records or persons and bodies to whom the records are given
or who are allowed access to the records.
The bill makes clear that, subject to any regulations that specify purposes for which
the records must not be used or conditions imposed, a custodian of royal commission
records may use the records for:
· the purposes of the performance of the custodian's functions and the exercise of
the custodian's powers; and
· any other purpose for which the custodian could use the records if the custodian
had acquired the records in the performance of the custodian's functions or the
exercise of the custodian's powers.
The bill also specifies that a custodian of a royal commission record may retain
possession of the record despite any request from the record's owner for the return of
the record.
The bill puts beyond doubt that, if regulations are made providing that a person or
body is to have custody of a royal commission's records, the custodian may deal with
the records, for law enforcement purposes only, without obtaining the consent of,
giving notice to, giving an opportunity to make submissions to or taking into account
submissions made by the owner of the records or any other person. The same applies
to use of records by a public office holder or public authority to whom the custodian
has given the records, or access to the records, for use in the performance of their
functions and exercise of their powers. Any requirement to provide procedural
fairness is not removed in relation to use for purposes other than law enforcement.
Finally, the bill makes it clear that the protection in section 6DD of the RCA against
self-incrimination is maintained and that legal professional privilege is not affected by
any regulations that might be made under these amendments.
The amendments proposed by the bill are to commence on the day it receives Royal
Assent.
It is expected that regulations will be made in relation to the Cole Inquiry records,
following passage of the bill, which will assist in expediting investigations of whether
proceedings should be commenced in relation to the possible breaches of the law
identified by the Cole Inquiry.
FINANCIAL IMPACT STATEMENT
The bill will have no financial impact.
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NOTES ON CLAUSES
Clause 1: Short Title
1. Clause 1 provides that the bill, once enacted, may be cited as the Royal
Commissions Amendment (Records) Act 2006.
Clause 2: Commencement
2. Clause 2 provides that the bill is to commence on the day the bill receives the
Royal Assent.
Clause 3: Schedule(s)
3. Clause 3 provides that each Act that is specified in a Schedule to the bill is to
be amended or repealed as set out in the applicable items in the Schedule concerned,
and any other item in a Schedule to the bill is to have effect according to its terms.
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SCHEDULE 1 AMENDMENTS
Royal Commissions Act 1902
Item 1 After subsection 6F(2)
1. Item 1 inserts a new subsection 6F(2A) which makes subsection 6F(2) subject to
new subsection 9(10). Subsection 6F(2) requires a Royal Commission to return a
document or thing on request, where its retention is no longer reasonably necessary
for the purposes of the inquiry to which it was relevant. Under new subsection 9(10),
explained below, where regulations have been made under new section 9, a custodian
will be entitled to possession of a record notwithstanding a request from its owner for
its return, and subsection 6F(2) should not apply in this circumstance.
Item 2 After section 8
2. Item 2 inserts a new section 9 into the RCA concerning the custody and use of
royal commission records.
New section 9 - Custody and use of records of Royal Commission
3. New subsection 9(1) defines a number of terms used throughout section 9.
4. New subsection 9(2) provides that regulations may provide for the custody, use or
transfer of, or access to, royal commission records.
5. Paragraph 9(2)(a) allows for regulations to provide for the custody in which some
or all of the Royal Commission records of a Royal Commission are to be kept, subject
to subsection 9(3) explained below.
6. Paragraph 9(2)(b) allows for regulations to specify purposes for which a custodian
of Royal Commission records may use, or must not use, some or all of those records.
7. Paragraph 9(2)(c) allows for regulations to provide for the circumstances in which
the custodian of Royal Commission records must, or may, give some or all of those
records to another person or body.
8. Paragraph 9(2)(d) allows for regulations to provide for the circumstances in which
the custodian of Royal Commission records must, or may, allow access to some or all
of those records to other persons or bodies.
9. Paragraph 9(2)(e) allows for regulations to specify purposes for which persons or
bodies to whom a custodian of Royal Commission records gives, or gives access to,
those records may use, or must not use, some or all of those records.
10. New subsection 9(2) also provides that regulations made for the purposes of
paragraph 9(2)(a) may provide for a person or body to have custody of Royal
Commission records even if the person or body already has custody of those records
under a direction under subsection 22(3) of the Archives Act 1983.
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11. New subsection 9(3) sets out the range of persons and bodies who may be given
custody of Royal Commission records by regulations made for the purposes of
paragraph 9(2)(a). The subsection includes the class of persons or bodies responsible
for administration or enforcement of a law. It also specifies a number of bodies, for
the avoidance of doubt, though this is not intended to limit the generality of the
reference to bodies responsible for administration or enforcement of a law. It also
specifically refers to the Secretary of the Department of the Prime Minister and
Cabinet and the National Archives of Australia, as potential default custodians.
12. New subsection 9(4) provides that regulations made for the purposes of
subsection 9(2) may impose conditions on the custodian of the records as well as
persons and bodies either given the records or given access to the records.
13. New subsection 9(5) provides that if regulations are made for the purposes of
paragraph 9(2)(a) and for so long as those regulations are in force, the Archives Act
has effect as if a direction under subsection 22(3) of the Archives Act, to the same
effect as those regulations, were in force in relation to the records to which those
regulations relate.
14. This means that the custodian of records pursuant to a regulation made under
paragraph 9(2)(a) will have custody of those records as if they had been received in
accordance with a direction made under subsection 22(3) of the Archives Act. This
will facilitate a transfer of custody without the need for procedural processes that
would normally be required in relation to such a direction.
15. New subsections 9(6) to 9(9) establish that a custodian of a Royal Commission
record, or a person given a record or access to a record by a custodian, may use the
record for the purposes of their functions and powers, or any other purpose they could
have used the record for if they had acquired it in the course of their ordinary
functions and powers, whether or not they are purposes for which the Royal
Commission obtained the records subject to any regulations that specify purposes
which are not permitted, or impose conditions on the custodian or recipient.
16. New subsection 9(7) makes specific provision for uses by recipients which are
public office holders or public authorities. No specific provision is considered
necessary for other recipients. (It is considered that a recipient who is a natural
person would be able to use records for any lawful purpose, subject to any conditions
imposed by the custodian.)
17. New subsection 9(10) provides that a custodian of a Royal Commission record
may retain possession of the record for the purposes of the custodian's functions or
powers, despite any request from the record's owner for its return. (When the
custodian no longer considers it desirable for the record to be retained, it would be
required to be returned to its owner in the event of any demand for it.)
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18. New paragraph 9(11)(a) establishes, for the removal of any doubt, that where
regulations provide for custody, the custodian may, for law enforcement purposes
only, use and give or give access to the records, without any requirement, such as
might otherwise have been argued to exist, for the according of procedural fairness to
the owner of the records or any other person. Any requirement to provide procedural
fairness is not removed in relation to purposes other than law enforcement.
19. Similarly paragraph 9(11)(b) provides that a public office holder or public
authority to whom the custodian gives, or gives access to, the records may use, for
law enforcement purposes only, those records for the performance of their functions
or the exercise of their powers or for any other purpose for which they could use the
records if they had acquired them in the performance of their functions or the exercise
of the their powers, without providing procedural fairness to any person, including the
owner of the records. The paragraph limits the extent to which the public office
holder or public authority may use the records without providing procedural fairness
to circumstances where the use is for law enforcement purposes.
20. New subsection 9(12) preserves, for the avoidance of doubt, the operation of
section 6DD of the Act, which provides that certain statements by a witness before a
Royal Commission are not admissible in evidence against the witness.
21. New subsection 9(13) preserves, for the avoidance of doubt, any rights to legal
professional privilege which may exist in respect of a Royal Commission record, or
material referred to in a record, notwithstanding custody or access to the record under
regulations made under new section 9 or under a direction under the Archives Act.
Item 3 Application of amendments
22. This item makes plain that regulations will be able to be made in respect of Royal
Commission records of any Royal Commission, including Royal Commissions which
have reported before the commencement of the amendments.
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