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Wednesday, 6 December 2006
Page: 124

Senator IAN CAMPBELL (Minister for the Environment and Heritage) (6:13 PM) —I table a revised explanatory memorandum relating to the bill and move:

That this bill be now read a second time.

I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

The speech read as follows—


This bill amends the Royal Commissions Act 1902 to enable the making of regulations which will facilitate the use of records of royal commissions for law enforcement purposes. It is a technical bill, which is relevant to the just-completed Inquiry into Certain Australian Companies in relation to the UN Oil-for-Food Programme, also known as the Cole Inquiry, but will also be relevant to other inquiries under the Royal Commissions Act.

The HIH Royal Commission (Transfer of Records) Act 2003 was enacted in 2003 to give the Australian Securities and Investments Commission custody of documents which had been obtained by the HIH Royal Commission. This bill provides a framework for the making of regulations to similar effect, which will be able to be used for any royal commission, past or future, to provide for custody of documents, access to documents, and use of documents, by appropriate persons or bodies, as may be prescribed by the regulations.

The regulations to be enabled by the bill would remove any doubt that records of a relevant inquiry can be passed to other bodies and used for investigative and prosecutorial purposes, notwithstanding that they were initially obtained for the purposes of an inquiry under the Royal Commissions Act, and without having to go through consultative processes before records are passed on. The regulations would also ensure that original records do not have to be returned to the parties which originally provided them to the inquiry, for so long as they are needed for investigative and other purposes.

The bill is urgent because it will provide the capacity to make regulations concerning the provision of relevant records of the Cole Inquiry to appropriate authorities. Commissioner Cole recommended that a Task Force be established, comprising the Australian Federal Police, Victoria Police and ASIC, to consider possible prosecutions in consultation with the Commonwealth and Victorian Directors of Public Prosecutions. The regulations that will be able to be made when the bill has been passed will assist in expediting consideration of whether proceedings should be commenced, in relation to the possible breaches of the law identified by the Cole Inquiry. Urgent passage of this bill is necessary, to ensure that this work can commence as soon as possible.

The operative item in the bill introduces a new section 9 into the Act, which will allow for regulations to be made in relation to specific royal commission records. Such regulations would be able to:

  • provide for the custody of some or all of a royal commission’s records;
  • specify purposes for which a custodian may use, or must not use, records;
  • provide for circumstances in which a custodian must, or may, give records to another person;
  • provide for circumstances in which a custodian must, or may, allow access to records to other persons; and
  • specify purposes for which persons given access by a custodian may use, or must not use, those records.

The bill makes clear that, subject to the regulations, a custodian or a public office holder or public authority given access to records by a custodian, pursuant to regulations, would be able to use the records for the purposes of the performance of their functions and the exercise of their powers, or for any other purpose for which they could use the records if they had acquired the records in the performance of their functions or the exercise of their powers.

As mentioned previously, 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, or a public office holder or authority given access to the records by the custodian, may deal with the records, for law enforcement purposes, without needing to obtain the consent of, give notice to, give an opportunity to make submissions to, or take into account submissions made by the owner of the records or any other person. Any requirement to provide procedural fairness would not be removed where the use of the records is for purposes other than law enforcement.

The bill provides a limited range of persons and bodies to whom custody of Royal Commission records may be given by regulations. This 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.

It should be noted that the bill preserves, for the avoidance of doubt, the operation of section 6DD of the Royal Commissions Act, which provides that certain statements by a witness before a Royal Commission are not admissible in evidence against the witness. The bill similarly preserves any rights to legal professional privilege which may exist in respect of a Royal Commission record, or material referred to in a record, notwithstanding any custody of or access to the record that may be effected under regulations or as a result of a direction under the Archives Act.

The amendments will have no financial impact.

Ordered that the resumption of the debate be made an order of the day for a later hour.