HIH Royal Commission (Transfer of Records) Regulations 2005

17 March 2005

The Hon Phillip Ruddock MP

Attorney-General

Suite M1.21

Parliament House

CANBERRA ACT 2600

Dear Attorney-General

I refer to the HIH Royal Commission (Transfer of Records) Regulations 2005, Select Legislative Instrument 2005 No. 11.

Regulation 4 gives ASIC access to “any record of, or relating to, the HIH Royal Commission”. The quoted words, found in regulation 4, are copied from section 6 of the HIH Royal Commission (Transfer of Records) Act 2003. Nevertheless the words “or relating to” appear to have wide application. The Committee would therefore appreciate your advice about the intended scope of these words.

The Committee would appreciate your advice on the above matters as soon as possible, but before 29 April 2005, to enable it to finalise its consideration of these Regulations. Correspondence should be directed to the Chairman, Senate Standing Committee on Regulations and Ordinances, Room SG49, Parliament House, Canberra.

Yours sincerely

Tsebin Tchen

Chairman

21 June 2005

Senator Tsebin Tchen

Chairman

Senate Standing Committee on Regulations and Ordinances

Room SG49

Parliament House

CANBERRA ACT 2600

Dear Senator Tchen

I refer to your letter of 17 March 2005 to the Attorney-General seeking advice about the intended scope of Regulation 4 of the HIH Royal Commission (Transfer of Records) Regulations 2005 (the Regulations). I regret that a response to the Committee’s enquiry has been delayed due to a misunderstanding that the substance of the enquiry had been answered by the Attorney-General.

Whilst the Treasurer has responsibility for the enabling Act, the HIH Royal Commission (Transfer of Records) Act 2003 (the Act), I am responding to your enquiry as it was I that recommended that the Regulations be made. In this regard, I note that the Department of the Prime Minister and Cabinet (PM&C) is the controlling agency for records (other than administrative records) of completed Royal Commissions, including the HIH Royal Commission (the Commission).

The Explanatory Statement sets out the reasons for making the Regulations in some detail but the following information may provide a better understanding.

The intent of the Act was to give the Australian Securities and Investments Commission (ASIC) custody of all documents or things produced to the Commission still in its possession when it ceased to exist (section 4) as well as electronic copies of electronic versions of documents or things produced to the Commission (section 5), which would include electronic copies of documents or things produced which had been returned to their owners before the Commission ceased to exist. In essence, ASIC was to have all original material still held plus electronic copies of all material provided, whether still held or not, to the extent such material had been copied and kept by the Commission.

Late last year, it became apparent that there are electronic records, copies of which ASIC has an entitlement to under section 5 of the Act, held in part of the database received by PM&C from the Commission which PM&C understood only to hold documents created by the Commission (i.e. documents to which ASIC was not entitled). There was no way of determining which of these were electronic versions of documents produced to the Commission, and which therefore should be provided to ASIC, without opening and examining each of over 10,000 documents at issue. There was also a possibility that there might be documents produced to the Commission, the custody of which ASIC would be entitled to under section 4 of the Act, in the hard copy records of the Commission still held by PM&C. ASIC needed to be assured that it had received all material to which it was entitled under the Act, in order that potential prosecutions would not be compromised.

The Regulations were made to allow ASIC officers to access such Commission records and related records as would be determined by the Secretary to PM&C and to undertake the examination necessary to determine which further documents should be provided to ASIC, in order that the Commonwealth’s obligations under the Act to transfer documents were met in full.

As you have noted in your letter, Regulation 4 simply copies the wording found in section 6 of the Act.

The database provided to PM&C by the Commission is a version of the Commission’s electronic database in the custody of the National Archives of Australia. As such, the database in PM&C is not “a record of the HIH Royal Commission” but rather a version containing copies of Commission records. As controlling agency for the Commission’s records, PM&C needed to be able to supervise any access to records by ASIC officers. It was determined therefore that access would be provided to the database held by PM&C rather than the Commission’s electronic database held in the National Archives.

The PM&C database is not the official record of the Commission but is a copy of the record for PM&C’s purposes and is therefore only a record relating to the Commission. In order to allow ASIC to have access to the PM&C database, the section 6 wording was adopted in drafting Regulation 4. The intention was that ASIC should have access to (but not custody of) such records either held by PM&C or under PM&C’s control that would enable all concerned to be satisfied that all material to which ASIC is entitled under the Act has been provided, and no more.

To this end, ASIC has been provided with access on PM&C premises to a discrete part of the hard copy Commission records held by PM&C and to two folders in PM&C’s electronic version of the Commission’s database held. It is not anticipated at this stage that any further access will be required.

I trust that this answers the Committee’s enquiry. Please let me know if further information is required.

Yours sincerely

GARY NAIRN

Parliamentary Secretary to the Prime Minister