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Royal Commissions and Other Legislation Amendment Bill 2001

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1998 - 1999 - 2000 - 2001

 

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

 

SENATE

 

 

 

 

 

 

 

 

ROYAL COMMISSIONS AND OTHER LEGISLATION AMENDMENT

BILL 2001

 

 

 

 

 

 

 

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

 

 

 

 

 

 

Amendments and new clauses to be moved on behalf of the Government

 

 

 

 

 

 

(Circulated by authority of the Prime Minister,

the Honourable John Howard, MP)



ROYAL COMMISSIONS AND OTHER LEGISLATION AMENDMENT

BILL 2001

 

 

OUTLINE OF AMENDMENTS

 

The Royal Commissions and Other Legislation Amendment Bill ensures that Royal Commissions can provide information regarding possible contraventions of a law to the persons and agencies responsible for the administration or enforcement of that law.  It also ensures that Royal Commissions can obtain information from the Australian Securities and Investments Commission (ASIC) and the Australian Transaction Reports and Analysis Centre (AUSTRAC).

 

The Government proposes to amend the Bill to increase the effectiveness of some of these measures, and to add new measures to the Bill which will also promote the smooth and efficient operation of Royal Commissions.

 

The amendments to the existing provisions in the Bill will:

 

·         allow the Chairperson of ASIC to delegate his or her power to impose conditions in relation to information provided to Royal Commissions; and



·         clarify which Royal Commissions, and which Royal Commission officials, can access financial transaction reports information under the Financial Transaction Reports Act 1988 .

 

The new measures will amend the Royal Commissions Act 1902 and the Telecommunications (Interception) Act 1979 .  These measures will remove certain practical and legal obstacles which impede the operation of Royal Commissions and their ability to obtain the information necessary to fulfil their terms of reference.  They will:

 

·          make it clear that a Royal Commissioner can summon a person to produce documents or things, without also giving oral evidence;

 

·          allow a Royal Commissioner to require a person, by notice, to produce documents or things to a specified person and at a specified time and place;



·          allow an authorised police officer to apply to a judge for a search warrant in certain circumstances, in addition to a Royal Commissioner;

 

·          put it beyond any doubt that the provision which abrogates the privilege against self-incrimination also prevents persons refusing to provide information on the basis that it might tend to make the person liable to a civil penalty; and

 

·         enable a Commonwealth Royal Commission, that has been declared by the relevant Minister, to access intercepted material where the Minister is satisfied that the Commission is likely to inquire into matters that may involve the commission of a prescribed offence (as defined in the Telecommunications (Interception) Act).

 

The new measures will also make a number of consequential amendments and other technical amendments.

 

FINANCIAL IMPACT STATEMENT

 

The proposed amendments are not expected to have any financial impact.



NOTES ON AMENDMENTS

 

 

Amendment 1 - Australian Securities and Investments Commission Act 2001

 

This amendment will allow the Chairperson of ASIC to delegate his power to impose conditions in relation to information disclosed to Royal Commissions.

 

Item 1 of the Bill adds new subsections 127(2B) and (2C) to the Act.  Those new subsections allow ASIC to provide confidential and protected information to Royal Commissions voluntarily, and allow the Chairperson of ASIC to impose conditions to be complied with in relation to that information.

 

However, as the Chairperson may not always be in a position to exercise this power personally, he or she should be able to delegate the power.  This is consistent with the Chairperson’s current ability to delegate similar powers to impose conditions in relation to information disclosed to other agencies under subsection 127(5) of the Act.  An additional reason for making the power capable of delegation is the fact that the current Chairperson has decided not to involve himself in matters relating to the HIH Royal Commission0, in order to avoid perceptions of a conflict of interest stemming from his previous involvement in matters which are the subject of the Commission’s inquiry.

 

Accordingly, this amendment adds a new item 1A to the Bill, which amends subsection 127(5) to allow the Chairperson to delegate his powers under new subsection 127(2C) of the Act as well.

 

Amendments 2, 3, 4 and 5 - Financial Transaction Reports Act 1988

 

These amendments are intended to clarify which Royal Commissions, and which persons working with Royal Commissions, can access financial transaction reports information (FTR information) reported to AUSTRAC.

 

Amendments 2 (Item 2B), 3 and 4

 

Item 3 of the Bill adds a new paragraph 27(16)(ea) to the Financial Transaction Reports Act.  This paragraph gives Royal Commissions which are inquiring into whether unlawful conduct has occurred access to FTR information.  Amendment 4 will make it clear that the paragraph also extends to Royal Commissions, such as the HIH Royal Commission, which are inquiring into whether unlawful conduct might have occurred.  New item 2B and amendment 3 make minor drafting changes.

 

Amendments 2 (Item 2A) and 5

 

Item 4 of the Bill adds new paragraphs 27(17)(u) and (v) to the Act.  These paragraphs are intended to allow certain persons working with Royal Commissions to deal with FTR information.  Amendment 5 replaces these paragraphs with a new paragraph 27(17)(u) that allows ‘an official’ of a Royal Commission to access FTR information.  New item 2A defines an official of a Royal Commission as a legal practitioner appointed to assist a Commission, or a person otherwise assisting a Commission who is authorised in writing by a Royal Commissioner.  This will make it clearer that the range of persons who work with Royal Commissions, such as persons seconded from other agencies or solicitors appointed to assist a Commission, are able to deal with FTR information.

 

Amendment 6 - Royal Commissions Act 1902

 

This amendment adds new items 4A to 4Y to the Bill.

 

Item 4A

 

This item makes it clear that a Royal Commissioner can summon a person to produce documents or things, without also giving oral evidence.  At present, subsection 2(1) of the Act allows a Royal Commissioner to summon a person to give evidence and to produce documents or things.  A Royal Commission may only need to summon a person to produce documents or things.  The item repeals and replaces subsection 2(1) to make it clear that a Royal Commissioner can summon a person to either give evidence, or produce documents or things or both.

 

Item 4B

 

This item gives a Royal Commissioner the power to require a person to produce documents or things by notice.  Under the current Act, a Royal Commissioner can only require a person to produce documents to a Commissioner at a formal hearing.  This is likely to prove cumbersome where Royal Commissions need to collect large numbers of documents in the course of their inquiries.  The item adds a new subsection 2(3A) to the Act which gives a Royal Commissioner the power to require a person, by written notice, to produce documents or things to a person, and at a time and place, specified in the notice. 

 

Item 4C

 

This item makes an amendment consequential to the amendment made by item 4B by making it an offence to refuse or fail to comply with a notice issued under new subsection 2(3A).  Section 3 of the Act already makes it an offence to fail to comply with a summons.  The item adds new subsection 3(4) to the Act, which makes it an offence to refuse or fail to comply with a notice as well.  The offence will be punishable by same penalty as the existing offence of failing to comply with a summons.  The item also adds new subsections 3(5) and (6) to the Act.  These subsections provide a person charged with an offence under subsection 3(4) with a defence if he or she has a reasonable excuse, or if the documents or things specified in the notice were not relevant to the Commission’s inquiry. 

 

Items 4D, 4E, 4F, 4G, 4H, 4I, 4J, 4K, 4L and 4M

 

These items allow an authorised police officer assisting a Royal Commission to apply to a judge for a search warrant.  Sections 4 and 5 of the Act allow a Royal Commissioner to apply to a judge for a search warrant in certain circumstances and where the Commissioner is satisfied of certain matters.  These items are intended to assist the operation of Royal Commissions by amending sections 4 and 5 to allow a Royal Commission to authorise police officers who are assisting the Commission to apply for search warrants as well.

 

Item 4N

 

This item makes an amendment consequential to the amendment made by item 4B, and also puts beyond any doubt that persons cannot refuse to provide information to Royal Commissions on the ground that it might tend to make them liable to a civil penalty.

 

Section 6A of the Act currently provides that a person may not refuse or fail to answer a question or produce a document or thing pursuant to a summons on the ground that it might tend to incriminate him or her.  This provision recognises that Royal Commissions are established to inquire into matters of significant public interest and require broad access to information to ascertain the truth about those matters.  The item repeals and replaces section 6A to ensure that it also applies to the production of documents or things pursuant to a notice under new subsection 2(3A) as well.  The ‘use immunity’ provision in the Act will also be extended to provide some protection to persons who may incriminate themselves by producing such documents or things (see Item 4Q).

 

The new section 6A will also put beyond any doubt that a person cannot refuse or fail to provide information to a Royal Commission on the basis that it might tend to make him or her liable to a civil penalty.  As noted, section 6A already prevents a person refusing or failing to provide information on the basis that it might tend to incriminate him or her.  While the courts have found that similar provisions in other legislation also prevent a person refusing or failing to provide information on the basis that it might tend to make him or her liable to a civil penalty, new section 6A is intended to forestall any such legal arguments about the ambit of section 6A by expressly providing that a person cannot refuse or fail to provide information on this ground. 

 

The new section does not compel persons to provide such information where proceedings in respect of the penalty in question are on foot.  This offers some protection against the potentially adverse consequences of providing such information.  The ‘use immunity’ provision in section 6DD offers further protection by preventing the admission of certain information in criminal or civil proceedings, which would include civil penalty proceedings.

 

Item 4O

 

This item makes a minor technical amendment to section 6C of the Act.  Section 6C provides that, where a person commits an offence against sections 5 and 6 of the Act on different days, the person is taken to have committed separate offences.  Section 5 no longer contains an offence provision.  The offence provision previously contained in that section, which dealt with failure to comply with a summons, is now contained in section 3.  The item amends section 6C to replace the reference to section 5 with a reference to section 3.

 

Item 4P

 

This item makes an amendment consequential to the amendment made by item 4B.  It repeals and replaces paragraph 6D(3)(b) of the Act to make it clear that a Royal Commission has the power to issue a non-publication order in relation to documents or things produced to a person pursuant to a notice under new subsection 2(3A), as well as documents produced pursuant to a summons or during the course of a hearing.

 

Item 4Q

 

This item makes an amendment consequential to the amendment made by item 4B by extending the immunity contained in section 6DD of the Act. 

 

At present, section 6DD provides that a statement or disclosure made by a witness in the course of giving evidence is not admissible against that witness in any civil or criminal proceedings (except proceedings for an offence against the Act).  This provision offers some protection to witnesses who are compelled to provide information which might tend to incriminate them in the course of giving evidence before a Commission.  The item repeals and replaces section 6DD to provide that evidence of the fact that a person has produced a document or thing to a Royal Commission, whether pursuant to a summons, notice or a requirement imposed during the course of a hearing, is also inadmissible against that person in any civil or criminal proceedings. 

 

The new subsection 6DD(2) preserves the operation of the existing provision in relation to proceedings for an offence against the Act.

 

Item 4R

 

This item makes an amendment consequential to the amendment made by item 4B.  It repeals and replaces paragraph 6F(1)(a) to make it clear that a Royal Commissioner or authorised person can inspect documents or things produced to a person pursuant to a notice under new subsection 2(3A), as well as documents produced pursuant to a summons or during the course of a hearing.

 

Item 4S

 

This item makes an amendment consequential to the amendment made by item 4B.  It repeals and replaces paragraph 6F(1)(c) to make it clear that a Royal Commissioner or authorised person can copy documents produced to a person pursuant to a notice under new subsection 2(3A), as well as documents produced pursuant to a summons or during the course of a hearing.

 

The item also allows a Royal Commissioner or authorised person to copy the whole of a document, as long as it contains some information relevant to a Commission’s inquiry.  The current paragraph only allows the copying of parts of documents which are relevant to a Commission’s inquiry.  This may create administrative difficulties for Royal Commissions by requiring them to excise irrelevant parts of documents before copying them.  The new paragraph 6F(1)(c) will allow a Royal Commissioner or authorised person to copy the whole of a document, where it contains some information that is relevant to the Commission’s inquiry.

 

Item 4T

 

This item adds a new subsection 6I(2) to section 6I so that it is also an offence to bribe any person upon any agreement or understanding that the person, or any other person, will not comply with a requirement to produce documents to a Royal Commission.  The offence will be punishable by the same penalty as the existing offence in section 6I of bribing a witness.

 

Item 4U

 

This item adds a new subsection 6J(2) to section 6J so that is also an offence to defraud a person with the intention that the person, or any other person, will not comply with a requirement to produce documents or things.  The offence will be punishable by the same penalty as the existing offence in section 6J of defrauding a witness.

 

Item 4V

 

This item makes an amendment consequential to the amendment made by item 4B.  It repeals and replaces paragraph 6K(1)(c) so that it is an offence to destroy documents and things that are or may be required to be produced pursuant to a notice issued under new subsection 2(3A), as well as documents that may be required in evidence.

 

The item also replaces an inappropriate fault element in paragraph 6K(1)(c).  The words ‘or has reasonable grounds to believe’ import an objective fault element.  The new paragraph 6K(1)(c) will use the subjective fault element of recklessness instead.  The fault element of recklessness is explained in Chapter 2 of the Criminal Code.

 

Item 4W

 

This item makes an amendment consequential to the amendment made by item 4B.  It adds a new subsection 6L(2) to section 6L so that it is also an offence to prevent a person from producing documents or things pursuant to a notice under new subsection 2(3A).  The offence will be punishable by the same penalty as the existing offence in section 6L of preventing a witness attending before a Royal Commission.

 

Item 4X

 

This item makes an amendment consequential to the amendment made by item 4B.  It repeals and replaces 6M so that it is an offence to injure a person on account of that person producing documents or things pursuant to a notice under new subsection 2(3A), as well as on account of that person having appeared as a witness or on account of any evidence given by that person.  The penalty in section 6M will remain the same.

 

Item 4Y

 

This item makes an amendment consequential to the amendment made by item 4B.  It repeals and replaces 6N of the Act so that it is also an offence for an employer to dismiss or prejudice an employee on account of the employee having producing documents or things pursuant to a notice under new subsection 2(3A), as well as on account of the employee having appeared as a witness or having given evidence.  The penalty in section 6N will remain the same.



Amendment 7 - Telecommunications (Interception) Act 1979

 

This amendment adds new items 10 to 31 to the Bill. 

 

Items 10-31

 

These items amend the Telecommunications (Interception) Act 1979 (the Interception Act) to enable a declared Commonwealth Royal Commission to receive information which has been lawfully intercepted by other agencies, and to use that information in the performance of its functions.  A number of Commonwealth and State law enforcement and investigative agencies, such as the Queensland Criminal Justice Commission, are permitted to receive and use such information.  The Royal Commission into the New South Wales Police Service was likewise permitted to receive and use such information during its operation.

 

Subject to limited exceptions, section 63 of the Interception Act prohibits the communication, use or recording of intercepted information and designated warrant information (as defined in section 6EA of the Interception Act).

 

Communication of intercepted information to Commonwealth Royal Commissions

 

Section 68 allows the chief officer of an agency to communicate lawfully intercepted information that was obtained by that agency  to specified persons in specified agencies.  Item 26 will amend section 68 to allow the chief officer to communicate such information to the ‘chief officer’ of an ‘eligible Commonwealth authority’, if the information relates or appears to relate to the commission of a ‘relevant offence’ in relation to the eligible Commonwealth authority.

 

Item 23 provides a mechanism for the declaration of a specified Commonwealth Royal Commission as an ‘eligible Commonwealth authority’ for the purposes of the Interception Act.  Item 13 defines an ‘eligible Commonwealth Authority’ as a Royal Commission established under the Royal Commissions Act 1902 which has been declared by the relevant Minister under new section 5AA of the Interception Act (see Items 12, 13 and 23).  The relevant Minister will have the power to declare a Royal Commission to be an ‘eligible Commonwealth authority’ by a notice published in the Gazette, if he or she is satisfied that the Royal Commission is likely to inquire into matters that may involve the commission of a ‘prescribed offence’.  A prescribed offence is defined in subsection 5(1) of the Interception Act and includes an offence punishable by a maximum penalty of a least three years imprisonment.

 

As noted, the information can only be communicated to the ‘chief officer’ of a declared Royal Commission.  The chief officer will be defined as the member constituting the Royal Commission in the case of a sole Royal Commissioner, or the presiding member in the case of a multi-member Royal Commission (see items 10 and 11).  The identity of presiding member will be a question of fact.

 

As also noted above, information can only be communicated if it relates, or appears to relate, to the commission of a ‘relevant offence’.  A relevant offence for the purposes of a declared Royal Commission is a ‘prescribed offence’ (as defined above) to which a ‘prescribed investigation’ relates (see Items 21 and 22).  A ‘prescribed investigation’ is an investigation conducted by a declared Commonwealth Royal Commission in the course of its inquiry (see items 19 and 20).

 

Dealing with intercepted information by Commonwealth Royal Commissions

 

Section 67 of the Interception Act allows an officer or staff member of an ‘agency’ to communicate, use and record lawfully obtained interception information and designated warrant information for permitted purposes.

 

Item 25 will amend section 67 to allow an ‘officer’ of a declared Commonwealth Royal Commission to communicate, use and record such information for permitted purposes.  An ‘officer’ will be defined in subsection 5(1) as a member of the Commonwealth Royal Commission, a legal practitioner appointed to assist such a Commission and a person otherwise assisting such a Commissioner who is authorised in writing (see items 14, 15 and 16).  A ‘permitted purpose’ in relation to a declared Commonwealth Royal Commission will be defined in subsection 5(1) as an investigation that the Commission is conducting in the course of its inquiries, and a report on such an investigation (see items 17 and 18).

 

Giving evidence in Commonwealth Royal Commission proceedings

 

Section 74 of the Interception Act allows lawfully obtained interception information to be given in evidence in an ‘exempt proceeding’.

 

Item 24 will amend the definition of ‘exempt proceeding’ in section 5B of the Interception Act to include a proceeding of a declared Commonwealth Royal Commission.

 

Reporting

 

Part IX of the Interception Act requires certain reports regarding interceptions to be provided to the relevant Minister.

 

Section 95 of the Interception Act allows the Minister to obtain certain information from the ‘chief officer’ of a Commonwealth agency for the purposes of these reporting requirements.  Items 27 and 28 will allow a Minister to obtain information from the ‘chief officer’ of a declared Commonwealth Royal Commission.

 

Section 99 of the Interception Act requires that the Minister prepare an annual report in relation to the use of telecommunications interception and intercepted information. Section 102 of the Interception Act requires that the Minister’s report to the Parliament contain certain information in relation to each Commonwealth agency and each eligible authority of a State.  Items 29, 30 and 31 amend this section to require that the report also contain this information in relation to declared Commonwealth Royal Commissions.