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Prime Minister and Cabinet Legislation Amendment (2017 Measures No. 1) Bill 2017

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2016-2017

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

HOUSE OF REPRESENTATIVES

 

 

 

PRIME MINISTER AND CABINET LEGISLATION AMENDMENT (2017 mEASURES NO. 1) BILL 2017

 

 

EXPLANATORY MEMORANDUM

 

 

 

(Circulated by authority of the

Minister for Indigenous Affairs, Senator the Honourable Nigel Scullion)



PRIME MINISTER AND CABINET Legislation Amendment (2017 Measures No. 1) Bill 2017

GENERAL OUTLINE

1.              The purpose of the Prime Minister and Cabinet Legislation Amendment (2017 Measures No. 1) Bill 2017 (the Bill) is to amend, and in some circumstances repeal, legislation in the Prime Minister and Cabinet portfolio.



2.              The Bill is a portfolio bill that would amend the following Acts:

·       Aboriginal and Torres Strait Islander Act 2005

·       Aboriginal and Torres Strait Islander Commission Amendment Act 2005

·       Auditor-General Act 1997

·       Royal Commissions Act 1902.



3.              The Bill would repeal the following redundant Acts:

·       Aboriginal and Torres Strait Islanders (Queensland Reserves and Communities Self-management) Act 1978

·       Council for Aboriginal Reconciliation Act 1991.



4.              The Bill would make amendments consequential to the repeal of the above Acts to the following Acts:

·       Age Discrimination Act 2004

·       Australian Human Rights Commission Act 1986 .



5.              Schedule 1 of the Bill would amend the Aboriginal and Torres Strait Islander Act 2005 repealing requirements for the responsible Minister to table the Indigenous Business Australia’s corporate plan in order to streamline processes.



6.              Schedule 2 of the Bill would amend the Aboriginal and Torres Strait Islander Commission Amendment Act 2005 to enable the appropriate consenting authority to waive the exercise of its statutory consent power by providing written notice to the organisation concerned that consent is no longer required.



7.              Schedule 3 of the Bill would repeal redundant Acts in the portfolio, including the Aboriginal and Torres Strait Islanders (Queensland Reserves and Communities

Self-management) Act 1978
and the Council for Aboriginal Reconciliation Act 1991 and make amendments consequential to the repeal of these Acts to the Age Discrimination Act 2004 and the Australian Human Rights Commission Act 1986 .



8.              Schedule 4 of the Bill would amend the Auditor-General Act 1997 to align the annual reporting requirements of the Auditor-General with his or her responsibility to the Parliament.



9.              Schedule 5 of the Bill would amend the Royal Commissions Act 1902 to give Commissioners the power to compel the provision of a written statement; increase the penalty for failure to comply with a summons or notice to produce; update references so that penalties now expressed in dollar value are instead expressed as penalty units, and allow the Secretary of the Attorney-General’s Department to be given custody of Royal Commission records by regulation.



List of Abbreviations

·          AD Act means Age Discrimination Act 2004

·          AHRC Act means Australian Human Rights Commission Act 1986

·          ANAO means Australian National Audit Office

·          ATSI Qld Act means Aboriginal and Torres Strait Islanders (Queensland Reserves and Communities Self-management) Act 1978

·          ATSIC means Aboriginal and Torres Strait Islander Commission

·          ATSIC Act means Aboriginal and Torres Strait Islander Commission Act 1989

·          ATSIC Amendment Act means Aboriginal and Torres Strait Islander Commission Amendment Act 2005

·          Crimes Act means Crimes Act 1914

·          CAR Act means Council for Aboriginal Reconciliation Act 1991

·          CAR Council means Council for Aboriginal Reconciliation

·          CEO means Chief Executive Officer

·          IBA means Indigenous Business Australia

·          ILC means Indigenous Land Corporation

·          PGPA Act means Public Governance, Performance and Accountability Act 2013

 

FINANCIAL IMPACT STATEMENT

1.       This Bill has no financial impact.

 



STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Prime Minister and Cabinet Legislation Amendment (2017 Measures No. 1) Bill 2017

1.              This Bill is compatible with the human rights recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

Overview of the Bill

2.              The Prime Minister and Cabinet Legislation Amendment (2017 Measures No. 1) Bill 2017 (the Bill) would amend, and in some circumstances repeal, legislation in the Prime Minister and Cabinet portfolio.

 

3.              Schedule 1 of the Bill would amend the Aboriginal and Torres Strait Islander Act 2005 repealing requirements for the responsible Minister to table IBA’s corporate plan in order to streamline processes.



4.              Schedule 2 of the Bill would amend the Aboriginal and Torres Strait Islander Commission Amendment Act 2005 to enable the appropriate consenting authority to waive the exercise of its statutory consent power by providing written notice to the organisation concerned that consent is no longer required.



5.              Schedule 3 of the Bill would repeal redundant Acts in the portfolio, including the Aboriginal and Torres Strait Islanders (Queensland Reserves and Communities

Self-management) Act 1978
and the Council for Aboriginal Reconciliation Act 1991 and make amendments consequential to the repeal of these Acts to the Age Discrimination Act 2004 and the Australian Human Rights Commission Act 1986 .



6.              Schedule 4 of the Bill would amend the Auditor-General Act 1997 to align the annual reporting requirements of the Auditor-General with his or her responsibility to the Parliament.



7.              Schedule 5 of the Bill would amend the Royal Commissions Act 1902 to give Commissioners the power to compel the provision of a written statement; increase the penalty for failure to comply with a summons or notice to produce; update references so that penalties now expressed in dollar value are instead expressed as penalty units, and allow the Secretary of the Attorney-General’s Department to be given custody of Royal Commission records by regulation.

Human rights implications

The right to protection against arbitrary and unlawful interference with privacy and unlawful attacks on reputation - article 17 of the ICCPR

8.              The Bill engages Article 17(1) of the ICCPR that states that no one shall be subject to arbitrary or unlawful interference with their privacy, family or home.

 

9.              The Bill amends the Royal Commissions Act to give a Royal Commission the power to issue a notice requiring a person to give information or a statement in writing.  Article 17 is engaged to the extent a notice of that kind requires a person to give personal information.

 

10.          The collection and use of that personal information is a proportionate limitation of the right to privacy in pursuit of a legitimate objective to ensure a Royal Commission can fully inquire into, and report on, matters of public importance.

 

11.          While a Royal Commission is operating, a Commissioner has an existing power to disclose evidence relating to a contravention of a law to certain persons and bodies including the police and the Director of Public Prosecution (if a Commissioner considers it appropriate). It is a legitimate purpose to pursue proper investigation of contraventions of a law.

The right to a fair trial and fair hearing - article 14 of the ICCPR

12.          Article 14 of the ICCPR specifies, in part, that in the determination of criminal charges everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. Article 14(3)(g) states that in determining a criminal charge, everyone shall be entitled to the minimum guarantee not to be compelled to testify against themselves or to confess guilt.

 

13.          The Bill does not engage Article 14 because a Royal Commission does not exercise judicial power and cannot determine criminal charges (or civil liability). However, the Bill partially abrogates the privilege against self-incrimination in connection with the proposal to give a Royal Commission the power to issue a notice requiring a person to give information or a statement in writing. For that reason, an explanation is given below on a protection that will apply to evidence of an incriminating nature.

 

14.          The partial abrogation is consistent with the approach that applies where a person is required to appear to give oral evidence, or to produce a document - see existing section 6A of the Act. It does not apply where there are offence charges on foot.

 

15.          The partial abrogation of the privilege against self-incrimination supports a Commission’s function to inquire into and report on matters of public importance. Strong powers are given to a Commission for that purpose. Consistent with the current approach in the Act, any incriminating evidence in a written statement could not be used against a natural person in any civil or criminal proceedings in any court (that is, protection is given to the person through the engagement of ‘use’ immunity - see Schedule 5, item 28). However, under existing section 6P of the Act, if a Commission considers it appropriate to do so, it may disclose evidence relating to a contravention of a law to certain persons and bodies including the police and the Director of Public Prosecution. In this way, the evidence cannot be used against the person in any proceeding but may be used to obtain further evidence against the person.

Conclusion

16.          This Bill is compatible with the human rights because to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.



NOTES ON CLAUSES

Clause 1—Short title

1.              Clause 1 provides for the Act to be cited as the Prime Minister and Cabinet Legislation Amendment (2017 Measures No. 1) Act 2017.

Clause 2—Commencement

2.              Clause 2 provides for the whole of the Act to commence the day after the Act receives the Royal Assent.

Clause 3—Schedules

3.              Clause 3 provides that each Act specified in a Schedule to the Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to the Act has effect according to its terms.

 

   

 



Schedule 1—Indigenous Business Australia

Aboriginal and Torres Strait Islander Act 2005

Item 1—Subsection 150(3) 

4.              This item is a consequential amendment required as a result of item 2 of Schedule 1. Subsection 150(3) will become section 150 in its entirety.

Item 2—Subsections 150(4) and (5) 



5.              This item repeals subsections 150(4) and (5), which require the responsible Minister to table IBA’s corporate plan. The repealing of these subsections will reduce red tape and streamline processes. This will remove requirements that are additional to those set out in the Public Governance, Performance and Accountability Act 2013 . Indigenous Business Australia has been consulted on this measure.  



Schedule 2—Consent to dispose of land acquired with ATSIC assistance or from ATSIC

Aboriginal and Torres Strait Islander Commission Amendment Act 2005

6.              Before its abolition in 2005, the ATSIC had powers under the ATSIC Act to:

·       make certain grants (including grants of money and interests in land), or to make a loan of money, to individuals or bodies (section 14 of the ATSIC Act refers); and

·       guarantee due payment of a loan made to individuals or bodies (section 15 of the ATSIC Act refers)

for the purpose of furthering the social, economic or cultural development of Aboriginal persons or Torres Strait Islanders.

7.              ATSIC exercised these powers to assist organisations to acquire an interest in land for a broad range of activities (e.g. pastoral services, health services, housing, and business development). In practice, ATSIC assisted organisations, typically Indigenous community organisations, rather than individuals.

8.              Prior to the abolition of ATSIC in 2005, an organisation that acquired an interest in land with ATSIC assistance could not dispose of the interest without ATSIC’s consent (ATSIC Act, section 21). Following ATSIC’s abolition, the ATSIC Amendment Act vested ATSIC’s statutory consent power in the ‘appropriate consenting authority’. The appropriate consenting authority is the Commonwealth, IBA, or the ILC, depending on the nature of the interest (Schedule 1, subitem 200(2) of the ATSIC Amendment Act refers).

Item 1—After subitem 200(1) of Schedule 1 

9.              This item will insert a new subitem 200(1A) into Schedule 1 of the ATSIC Amendment Act. This will enable the appropriate consenting authority to waive the exercise of its statutory consent power by providing written notice to the organisation concerned that consent is no longer required.

10.          As with a decision under subitem 200(2) of the ATSIC Amendment Act, the appropriate consenting authority will have the flexibility to consider a broad range of factors when deciding whether to remove the consent requirement in a particular case.

Item 2—Subitem 200(2) of Schedule 1 

11.          This item omits “The” in subitem 200(2) of Schedule 1 of the ATSIC Amendment Act omits, and substitutes with “If the interest is not covered by a notice under subitem (1A), the”. This is a consequential amendment required in order for subitem 200(1A) of Schedule 1 of the ATSIC Amendment Act to take effect.

Item 3—Subitem 200(5) of Schedule 1 

12.   This item omits “the consent” in subitem 200(5) of Schedule 1 of the ATSIC Amendment Act and substitutes “a notice under subitem (1A) or a consent under subitem (2)”. This is a consequential amendment required in order for subitem 200(1A) of Schedule 1 of the ATSIC Amendment Act to take effect.

Item 4—Subitem 200(12) of Schedule 1 

13.   This item makes it clear that any notice provided by the appropriate consenting authority under subitem 200(1A) would not be a legislative instrument within the meaning of subsection 8(1) of the Legislation Act 2003 .

Item 5—Subitem 200(12) of Schedule 1 

14.   This item omits “for the purposes of the Legislative Instruments Act 2003 ” in subitem 200(12) of Schedule 1 of the ATSIC Amendment Act. This is a consequential amendment required in order for subitem 200(1A) of Schedule 1 of the ATSIC Amendment Act to take effect.

Item 6—Subitem 200(13) of Schedule 1 (paragraphs (b) and (c) of the definition of appropriate consenting authority )

15.   This item will make consequential amendments to Item 200 of Schedule 1 of the ATSIC Amendment Act, as a result of the new subitem 200(1A).

 

 



Schedule 3—Repeals

Part 1—Repeals

Aboriginal and Torres Strait Islanders (Queensland Reserves and Communities Self-management) Act 1978

Item 1—The whole of the Act

16.          This item will repeal the ATSI Qld Act, which is now redundant. The purpose of the ATSI Qld Act is to empower Aboriginal and Torres Strait Islanders who live on reserves in Queensland to manage and control their own affairs.

17.          Since the Queensland Parliament enacted the Local Government (Aboriginal Lands) Act 1978 (Qld), it has not been possible for the Commonwealth to declare reserves for the purposes of the ATSI Qld Act. Therefore, this redundant Act is repealed as a measure to reduce the size of the statute book.

Council for Aboriginal Reconciliation Act 1991

Item 2—The whole of the Act 

18.          This item will repeal the CAR Act. The CAR Act was introduced as a result of

cross-party support for the establishment of the CAR Council, and included a sunsetting provision so that it ceased from 1 January 2001.

19.          Each of the provisions in the CAR Act are specific to either the establishment, processes or requirements relating to the operation of the CAR Council, whose functions and powers were limited to activities related to reconciliation such as consulting, undertaking certain initiatives, promoting and fostering discussion, providing advice, reports as well as the development of strategic plans to promote the process of reconciliation.

20.          The CAR Council produced its final report in 2000. There are no ongoing arrangements, appointments or other measures under the CAR Act. Again, the repeal of this ceased Act will reduce the size of the statute book.

Part 2 — Consequential amendments

Division 1—Amendments consequential on repeal of the Aboriginal and Torres Strait Islanders (Queensland Reserves and Communities Self-management) Act 1978

Age Discrimination Act 2004

Item 3—Schedule 1 (table item 1)

21.          This item repeals table item 1 of Schedule 1 of the Age Discrimination Act 2004 . The table in Schedule 1 lists “Laws for which an exemption is provided by subsection 39(1)” and includes the ATSI Qld Act. Reference to that Act is made obsolete as a consequence of the proposed repeal of the ATSI Qld Act, as per item 1, Part 1 of Schedule 3 of the Bill

 

Division 2—Amendments consequential on repeal of the Council for Aboriginal Reconciliation Act 1991

Australian Human Rights Commission Act 1986

Item 4—Paragraph 46C(4)(b) 

22.          Item 4 will make a minor grammatical consequential amendment arising as a result of item 5.

Item 5—Paragraph 46C(4)(c)

23.          Currently, paragraph 46C(4)(c) of the AHRC Act requires the Aboriginal and Torres Strait Islander Social Justice Commissioner to have regard to the object of the CAR Act when performing functions under section 46C.

24.          Items 4 and 5 will amend section 46C of the AHRC Act to remove the requirement for the Aboriginal and Torres Strait Islander Social Justice Commission to refer to ceased legislation resulting from the repeal of the CAR Act in item 1 of this Schedule.



Schedule 4—ANAO annual report

Auditor-General Act 1997

25.          Following the implementation of the PGPA Act through the Public Governance, Performance and Accountability (Consequential and Transitional Provisions) Act 2014 , the ANAO was included in the annual reporting requirements for non-corporate Commonwealth entities. The annual report must be presented to the responsible minister for tabling in the Parliament. Before this, the Auditor-General presented his or her annual report directly to the Parliament.

26.          The Auditor-General is an independent officer of the Parliament. The reintroduction of tabling of annual reports directly to the Parliament would demonstrate the independence of the office and its responsibilities to the Parliament. This would be consistent with the handling of all other reports produced by the Auditor-General which are tabled directly in the Parliament.

27.          Accordingly, the Bill makes amendments to the Auditor-General Act 1997 to align the annual reporting requirements of the Auditor-General with his or her responsibility to the Parliament. The amendments will also align with the practice of comparable auditing organisations internationally.

Item 1—Subsection 14(4)

28.          Item 1 would repeal and substitute subsection 14(4). The new subsections would remove references to annual reports being given to the Minister under section 46 of the PGPA Act and insert a reference to the proposed new section 28. This provision retains the need for the Auditor-General to include details of the basis on which the Auditor-General determined the audit fees relevant for the financial period.

Item 2—Subsection 16(4)

29.          Item 2 would repeal and substitute subsection 16(4). The new subsections would remove references to annual reports being given to the Minister under section 46 of the PGPA Act and insert a reference to the proposed new section 28. This provision retains the need for the Auditor-General to include details of the basis on which the Auditor-General determined the audit fees relevant for the financial period.

Item 3—After section 27

30.          Item 3 would insert a new section 28, detailing the annual report requirements for the Auditor-General. Proposed section 28(1) would require the Auditor-General to prepare a report on the activities of the ANAO for the relevant financial year, and table the report in both Houses of Parliament. Proposed section 28(2) provides the required timeframe for tabling the annual report, being by 15 October or by the end of any further period as granted under the Acts Interpretation Act 1901.

31.          Proposed section 28(5) would exclude section 46 of the PGPA from applying to the Auditor-General. However, under proposed section 28(3), the annual report must still comply with any rules made in accordance with section 46(3) of the PGPA Act as they relate to non-corporate Commonwealth entities.

32.          Furthermore, proposed section 28(4) provides that the annual report of the ANAO is to be taken to be a report made under section 46 of the PGPA Act for the purposes of any other Act.

Item 4—Subsection 54(4)

33.          Item 4 would remove references to the annual report being given to the Minister under section 46 of the PGPA Act and would substitute it with a reference to the annual report requirements under proposed section 28 each financial year.

Item 5—Application of amendments

34.          Item 5 provides that the amendments will apply in relation to the 2016-17 financial year and any further financial years.



Schedule 5—Royal Commissions

Royal Commissions Act 1902

Item 1—Subsection 1B(1) (paragraph (c) of definition of reasonable excuse )

35.          This item would amend the definition of reasonable excuse . The amendment is consequential to item 2 which gives a member of a Royal Commission power to compel a person to give a written statement to the Commission. As part of that measure, a person will not be required to give the statement if they have a ‘reasonable excuse’ (see item 11 proposed new subsection 3(6B)).

36.          The effect of this item is that ‘reasonable excuse’ is taken to mean an excuse which would excuse a failure by a person served with a subpoena in connection with a proceeding before a court of law (for example, because the documents are privileged). This adopts the same approach applied now for a person served with a notice to produce documents. However, for a notice of that kind where a person claims legal professional privilege as a ‘reasonable excuse’, that excuse does not apply unless the Commission inspects the document that is subject to the claim for legal professional privilege and makes a determination to accept the claim (see section 6AA of the Royal Commissions Act). It is not intended to extend section 6AA to a notice requiring a written statement on the basis that information given in a written statement is more closely aligned to giving oral testimony, and a person should not be required to disclose in writing information that is subject to legal professional privilege.

Item 2—After subsection 2(3B)                                                   

37.          This item would insert new subsection 2(3C) giving a member of a Royal Commission the power to issue a written notice to require a person to give information or a statement in writing to the Commission.

38.          A Royal Commission currently has power to require a person to appear to give oral evidence or to produce a document at a hearing (subsection 2(1)), or to produce a document without appearing at a hearing (subsection 2(3A)). The new power gives flexibility to a Royal Commission to gather evidence by giving an alternative to summonsing a person to appear to give oral evidence at a hearing.

39.          This item implements a recommendation by Mr Ian Hanger AM QC in the Report of the Royal Commission into the Home Insulation Program to amend the Royal Commissions Act ‘ to empower a Royal Commission to compel the provision of a statement by a potential witness’ . Commissioner Hanger supported the rational for a similar recommendation made by the Australian Law Reform Commission in its 2009 Making Inquires Report . The Australian Law Reform Commission considered that the power to require written statements other than by way of oral evidence ‘ …may reduce the need for hearings and examinations and enable more flexible, less formal and more cost-effective inquiry procedures ’.

Item 3—Section 3 (heading)

40.          This item would insert a new heading for section 3 and is consequential to the measure at item 2.



Item 4—Subsection 3(1) (penalty)

41.          This item would amend subsection 3(1) to increase the penalty for failure to comply with a summons to appear as a witness at a hearing before a Commission. The new penalty would be imprisonment for 2 years (increased from 6 months imprisonment).

42.          The item does not expressly reference an increased pecuniary penalty amount because under section 4B of the Crimes Act, where a person is convicted of a Commonwealth offence that is punishable by imprisonment only, a court has discretion to impose a pecuniary penalty instead of, or in addition to, imprisonment (unless the contrary intention appears). It is intended that that discretion be available for this offence. The same approach is taken for other offences in the Royal Commissions Act, see for example sections 6I, 6J and 6L. For an offence punishable by imprisonment for 2 years, under section 4B of the Crimes Act, the court may impose a pecuniary penalty of up to 120 penalty units (for a natural person) or up to 600 penalty units (for a body corporate) instead of, or in addition to, imprisonment.  

43.          The purpose of the amendment is to implement recommendation 78 of the final report of the Royal Commission into Trade Union Governance and Corruption. The Hon John Dyson Heydon AC QC recommended in the final report that the Royal Commissions Act be amended ‘ to increase the penalties for a failure to comply with a summons to attend, a failure to comply with a notice to produce, a failure to be sworn or answer questions, and a failure or refusal to provide documents to at least a maximum penalty of two years’ imprisonment or a fine of 120 penalty units or both ’.

Item 5—Subsection 3(1A)

44.          This item would repeal subsection 3(1A) which makes an offence against subsection 3(1) a strict liability offence. This repeal is consistent with Commonwealth criminal law policy that an offence punishable by imprisonment should not be an offence of strict liability.

Item 6—Before subsection 3(2)

45.          This item would insert a new subsection heading for clarity.

Item 7—Subsection 3(2) (penalty)

46.          This item would amend subsection 3(2) to increase the penalty for failure to comply with a summons to produce a document or thing at a hearing. The new penalty would be imprisonment for 2 years (increased from 6 months imprisonment).

47.          The item does not expressly reference an increased pecuniary penalty amount because under section 4B of the Crimes Act, where a person is convicted of a Commonwealth offence that is punishable by imprisonment only, a court has discretion to impose a pecuniary penalty instead of, or in addition to, imprisonment (unless the contrary intention appears). It is intended that that discretion be available for this offence. The same approach is taken for other offences in the Royal Commissions Act, see for example sections 6I, 6J and 6L. For an offence punishable by imprisonment for 2 years, under section 4B of the Crimes Act, the court may impose a pecuniary penalty of up to 120 penalty units (for a natural person) or up to 600 penalty units (for a body corporate) instead of, or in addition to, imprisonment.  

48.          The purpose of the amendment is to implement recommendation 78 of the final report of the Royal Commission into Trade Union Governance and Corruption (see item 4 above).

Item 8—Subsection 3(2A)

49.          This item would repeal subsection 3(2A) which makes an offence against subsection 3(2) a strict liability offence. The repeal is consistent with Commonwealth criminal law policy that an offence punishable by imprisonment should not be an offence of strict liability.

Item 9—Before subsection 3(4)

50.          This item would insert a new subsection heading for clarity.

Item 10—Subsection 3(4) (penalty)

51.          This item would amend subsection 3(4) to increase the penalty for failure to comply with a notice under subsection 2(3A) requiring production of a document or other thing. The new penalty would be imprisonment for 2 years (increased from 6 months imprisonment).

52.          The item does not expressly reference an increased pecuniary penalty amount because under section 4B of the Crimes Act, where a person is convicted of a Commonwealth offence that is punishable by imprisonment only, a court has discretion to impose a pecuniary penalty instead of, or in addition to, imprisonment (unless the contrary intention appears). It is intended that that discretion be available for this offence. The same approach is taken for other offences in the Royal Commissions Act, see for example sections 6I, 6J and 6L. For an offence punishable by imprisonment for 2 years, under section 4B of the Crimes Act, the court may impose a pecuniary penalty of up to 120 penalty units (for a natural person) or up to 600 penalty units (for a body corporate) instead of, or in addition to, imprisonment.  

53.          The purpose of the amendment is to implement recommendation 78 of the final report of the Royal Commission into Trade Union Governance and Corruption (see item 4 above).

Item 11—After subsection 3(6)

54.          This item would insert new subsections 3(6A), (6B) and (6C). It is consequential to the measure at item 2 giving a member of a Royal Commission the power to issue a written notice to require a person to give information or a statement in writing to the Commission.

55.          New subsection 3(6A) would make it an offence to refuse or fail to give information or a statement in writing in accordance with the notice issued under new subsection 2(3C). The penalty would be imprisonment for 2 years. This is consistent with the proposed penalty for failure to comply with a summons or notice to produce (see for example the item above).

56.          New subsection 3(6B) would give a person a defence to a prosecution for an offence for failing to give information or a statement in writing in accordance with a notice issued under new subsection 2(3C), where that person has a reasonable excuse. By application of subsection 13.3(3) of the Criminal Code , the burden of proof on a defendant when raising that excuse to any prosecution for the offence is an evidential burden only.

57.          New subsection 3(6C) would give a person a defence for failing to give information or a statement in writing in accordance with a notice issued under new subsection 2(3C), if the information or statement was not relevant to the matters into which the Commission was inquiring. The defence can be raised where a person claims the requested information or statement is outside the terms of reference of the Commission’s inquiry. A defence of this kind can now be raised in response to a notice requiring production of documents (see subsection 3(6)).  By application of subsection 13.3(3) of the Criminal Code ,the burden of proof on a defendant when raising irrelevance as a defence to any prosecution for the offence is an evidential burden only.

Item 12—Subsection 6(1)

58.          This item is consequential to the repeal of subsections 6(2) and (3).

Item 13—At the end of subsection 6(1)

59.          This item would amend subsection 6(1) to increase the penalty for a person appearing as a witness before a Commission that refuses to be sworn or make an affirmation or to give evidence. The new penalty would be imprisonment for 2 years (increased from 6 months imprisonment).

60.          The item does not expressly reference an increased pecuniary penalty amount because under section 4B of the Crimes Act, where a person is convicted of a Commonwealth offence that is punishable by imprisonment only, a court has discretion to impose a pecuniary penalty instead of, or in addition to, imprisonment (unless the contrary intention appears). It is intended that that discretion be available for this offence. The same approach is taken for other offences in the Royal Commissions Act, see for example sections 6I, 6J and 6L. For an offence punishable by imprisonment for 2 years, under section 4B of the Crimes Act, the court may impose a pecuniary penalty of up to 120 penalty units (for a natural person) or up to 600 penalty units (for a body corporate) instead of, or in addition to, imprisonment.  

61.          The purpose of the amendment is to implement recommendation 78 of the final report of the Royal Commission into Trade Union Governance and Corruption (see item 4 above).

Item 14—Subsections 6(2) and (3)

62.          This item would repeal subsections 6(2) and (3). Subsection 6(2) is made redundant because of the above item. Repeal of subsection 6(3) is consistent with Commonwealth criminal law policy that an offence punishable by imprisonment should not be an offence of strict liability.



Item 15—Subsection 6AB(1) (penalty)

63.          This item would amend subsection 6AB(1) to increase the penalty for a failing to produce a document that the Commission has decided is not subject to legal professional privilege. The new penalty would be imprisonment for 2 years (increased from 6 months imprisonment).

64.          The item does not expressly reference an increased pecuniary penalty amount because under section 4B of the Crimes Act, where a person is convicted of a Commonwealth offence that is punishable by imprisonment only, a court has discretion to impose a pecuniary penalty instead of, or in addition to, imprisonment (unless the contrary intention appears). It is intended that that discretion be available for this offence. The same approach is taken for other offences in the Royal Commissions Act, see for example sections 6I, 6J and 6L. For an offence punishable by imprisonment for 2 years, under section 4B of the Crimes Act, the court may impose a pecuniary penalty of up to 120 penalty units (for a natural person) or up to 600 penalty units (for a body corporate) instead of, or in addition to, imprisonment.  

65.          The purpose of the amendment is to implement recommendation 78 of the final report of the Royal Commission into Trade Union Governance and Corruption (see item 4 above).

Item 16—Subsection 6AB(2) (penalty)

66.          This item would amend subsection 6AB(2) to increase the penalty for failing to produce a document for inspection for the purpose of deciding whether to accept or reject a claim that the document is subject to legal professional privilege. The new penalty would be imprisonment for 2 years (increased from 6 months imprisonment).

67.          The item does not expressly reference an increased pecuniary penalty amount because under section 4B of the Crimes Act, where a person is convicted of a Commonwealth offence that is punishable by imprisonment only, a court has discretion to impose a pecuniary penalty instead of, or in addition to, imprisonment (unless the contrary intention appears). It is intended that that discretion be available for this offence. The same approach is taken for other offences in the Royal Commissions Act, see for example sections 6I, 6J and 6L. For an offence punishable by imprisonment for 2 years, under section 4B of the Crimes Act, the court may impose a pecuniary penalty of up to 120 penalty units (for a natural person) or up to 600 penalty units (for a body corporate) instead of, or in addition to, imprisonment.  

68.          The purpose of the amendment is to implement recommendation 78 of the final report of the Royal Commission into Trade Union Governance and Corruption (see item 4 above). 

Item 17—Subsection 6AB(3)

69.          This item would repeal subsection 6AB(3) which makes offences against subsection 6AB(1) and (2) strict liability offences. Repeal is consistent with Commonwealth criminal law policy that an offence punishable by imprisonment should not be an offence of strict liability.

Item 18—Subsection 6A(1)

70.          This item would amend subsection 6A(1) to correct a technical error of the provision. The item gives clearer meaning by inserting the text ‘on the ground’.

 

Item 19—After subsection 6A(1)

71.          The item would insert a new subsection 6A(1A) that would override the privilege against self-incrimination for a person required to give information or a statement in accordance with a notice issued under the new subsection 2(3C) (see item 2 above).

72.          This approach is consistent with the abrogation of the privilege against self-incrimination in existing section 6A of the Act that applies where a person is required to appear to give oral evidence, or to produce a document (unless there are offence charges on foot).

73.          The partial abrogation of the privilege against self-incrimination supports a Commission’s function to inquire into and report on matters of public importance. Strong powers are given to a Commission for that purpose. A Royal Commission does not exercise judicial power and cannot determine criminal charges (or civil liability).

74.          Consistent with the current approach in the Act, any incriminating evidence in a written statement could not be used against a natural person in any civil or criminal proceedings in any court (that is, protection is given to the person through the engagement of ‘use’ immunity - see item 28). However, under existing section 6P of the Act, if a Commission considers it appropriate to do so, it may disclose evidence relating to a contravention of a law to certain persons and bodies including the police and the Director of Public Prosecution. In this way, the evidence cannot be used against the person in any proceeding but may be used to obtain further evidence against the person.

Item 20—Subsection 6A(3)

75.          This item is consequential to the above item, and has the effect that privilege against self-incrimination is not abrogated if an offence charge is on foot.

Item 21—Subsection 6A(3)

76.          This item is consequential to item 19, and has the effect that privilege against self-incrimination is not abrogated if an offence charge is on foot.

Item 22—Paragraph 6A(3)(a)

77.          This item is consequential to item 19, and has the effect that privilege against self-incrimination is not abrogated if an offence charge is on foot.

Item 23—Subsection 6A(4)

78.          This item is consequential to item 19, and has the effect that privilege against self-incrimination is not abrogated if an offence charge is on foot.



Item 24—Subsection 6A(4)

79.          This item is consequential to item 19, and has the effect that privilege against self-incrimination is not abrogated if an offence charge is on foot.

 

Item 25—Paragraph 6A(4)(a)

80.          This item is consequential to item 19, and has the effect that privilege against self-incrimination is not abrogated if an offence charge is on foot.

Item 26—At the end of paragraph 6D(3)(b)

81.          This item would amend subsection 6D(3)(b) so that the Commission may make a non-publication direction in relation to the contents of a written statement given under a notice under new subsection 2(3C) (see item 2). The Commission may direct that the contents of the written statement not be published, except as specified in the direction.

Item 27—Subsection 6D(4)

82.          This item would amend subsection 6D(4) to replace the penalty expressed in a dollar amount with the equivalent penalty expressed in penalty units.

83.          The amendment reflects current Commonwealth drafting practice to express criminal penalties as a number of penalty units. The amendment would remove the need to convert dollar amounts into penalty units and more transparently reflects the penalty.

84.          The current value of value a penalty unit is $180 under section 4AA of the Crimes Act.

85.          Under section 4AB of the Crimes Act, where the penalty for a criminal offence provision in Commonwealth legislation is expressed as a dollar amount, that amount must be converted to an amount of penalty units (by dividing the number of dollars by 100, and rounding up to the nearest whole number if necessary), which leads to a higher penalty than is stated in the provision. As a result, the dollar amount on the face of the legislation is lower than the actual penalty, which can be misleading. The amendment is based on this formula.

Item 28—Paragraph 6DD(1)(a)

86.          This item would amend paragraph 6DD(1)(a) so that information or a statement given by a natural person in accordance with the new subsection 2(3C) is not admissible in evidence in subsequent civil or criminal proceedings against that person.

Item 29—Subparagraphs 6F(1)(a)(ii) and (c)(ii)

87.          This item would amend subparagraphs 6F(1)(a)(ii) and (c)(ii) to allow a Commission to inspect and make copies of information or statement given by a person in accordance with new subsection 2(3C) (see item 2).



Item 30—After subsection 6H(1)

88.          This item would insert a new subsection 6H(1A) to provide that a person must not intentionally give false or misleading information in response to a notice under the new subsection 2(3C) (see item 2).

 

Item 31—Subsection 6H(2)

89.          This item would amend subsection 6H(2) to make it an offence for a person to intentionally give false or misleading information in response to a notice under the new subsection 2(3C) (item 2).

Item 32—Subsection 6H(2)

90.          This item would amend subsection 6H(2) to replace the penalty expressed in a dollar amount with the equivalent penalty expressed in penalty units.

91.          The amendment reflects current Commonwealth drafting practice to express criminal penalties as a number of penalty units. The amendment would remove the need to convert dollar amounts into penalty units and more transparently reflects the penalty.

92.          The current value of value a penalty unit is $180 under section 4AA of the Crimes Act.

93.          Under section 4AB of the Crimes Act, where the penalty for a criminal offence provision in Commonwealth legislation is expressed as a dollar amount, that amount must be converted to an amount of penalty units (by dividing the number of dollars by 100, and rounding up to the nearest whole number if necessary), which leads to a higher penalty than is stated in the provision. As a result, the dollar amount on the face of the legislation is lower than the actual penalty, which can be misleading. The amendment is based on this formula.

Item 33—Subsections 6H(3) and (4)

94.          This item would amend subsections 6H(3) and (4) as a consequence of  item 31, which clarifies that the offence provision is subsection 6H(2) rather than subsection 6H(1) or (1A).

Item 34—Subsection 6H(4)

95.          This item would amend subsection 6H(4) to replace the penalty expressed in a dollar amount with the equivalent penalty expressed in penalty units.

96.          The amendment reflects current Commonwealth drafting practice to express criminal penalties as a number of penalty units. The amendment would remove the need to convert dollar amounts into penalty units and more transparently reflects the penalty.

97.          The current value of value a penalty unit is $180 under section 4AA of the Crimes Act.

98.          Under section 4AB of the Crimes Act, where the penalty for a criminal offence provision in Commonwealth legislation is expressed as a dollar amount, that amount must be converted to an amount of penalty units (by dividing the number of dollars by 100, and rounding up to the nearest whole number if necessary), which leads to a higher penalty than is stated in the provision. As a result, the dollar amount on the face of the legislation is lower than the actual penalty, which can be misleading. The amendment is based on this formula.

Item 35—Paragraphs 6I(2)(a), (b) and (c)

99.          This item would amend paragraphs 6I(2)(a), (b) and (c) to make it an offence to bribe a person not to comply with a notice to give information or a statement to a Commission issued to that person under the new subsection 2(3C) (see item 2). The penalty for these offences is imprisonment for 5 years.

Item 36—Subsection 6J(1)

100.      This item would amend subsection 6J(1) to make it an offence to practice fraud or deceit on a person with the intent to affect the information or statement the person is required to give in accordance with a notice issued under the new subsection 2(3C) (see item 2). The penalty for the offence is imprisonment for 2 years.

Item 37—Subsection 6J(2)

101.      This item would amend subsection 6J(2) to make it an offence to practice fraud or deceit on a person with the intent that the person would not comply with the requirement to give information or a statement to a Commission in accordance with a notice issued under the new subsection 2(3C) (see item 2). The penalty for the offence is imprisonment for 2 years.

Item 38—Subsection 6K(2)

102.      This item would amend subsection 6K(2) to replace the penalty expressed in a dollar amount with the equivalent penalty expressed in penalty units.

103.      The amendment reflects current Commonwealth drafting practice to express criminal penalties as a number of penalty units. The amendment would remove the need to convert dollar amounts into penalty units and more transparently reflects the penalty.

104.      The current value of value a penalty unit is $180 under section 4AA of the Crimes Act.

105.      Under section 4AB of the Crimes Act, where the penalty for a criminal offence provision in Commonwealth legislation is expressed as a dollar amount, that amount must be converted to an amount of penalty units (by dividing the number of dollars by 100, and rounding up to the nearest whole number if necessary), which leads to a higher penalty than is stated in the provision. As a result, the dollar amount on the face of the legislation is lower than the actual penalty, which can be misleading. The amendment is based on this formula.

Item 39—Subsection 6K(4)

106.      This item would amend subsection 6K(4) to replace the penalty expressed in a dollar amount with the equivalent penalty expressed in penalty units.

107.      The amendment reflects current Commonwealth drafting practice to express criminal penalties as a number of penalty units. The amendment would remove the need to convert dollar amounts into penalty units and more transparently reflects the penalty.

108.      The current value of value a penalty unit is $180 under section 4AA of the Crimes Act.

109.      Under section 4AB of the Crimes Act, where the penalty for a criminal offence provision in Commonwealth legislation is expressed as a dollar amount, that amount must be converted to an amount of penalty units (by dividing the number of dollars by 100, and rounding up to the nearest whole number if necessary), which leads to a higher penalty than is stated in the provision. As a result, the dollar amount on the face of the legislation is lower than the actual penalty, which can be misleading. The amendment is based on this formula.

Item 40—Subsection 6L(2)

110.      This item would amend subsection 6L(2) to make it an offence to intentionally prevent a person from giving information or a statement to a Commission in accordance with a notice issued under new subsection 2(3C) (see new item 2). The penalty for the offence is imprisonment for 1 year.

Item 41—Paragraph 6M(c)

111.      This would amend paragraph 6M(c) to make it an offence to use, cause or inflict any violence, punishment, loss or disadvantage for, or on account of, a person having given information or a statement to a Commission in accordance with a notice issued under new subsection 2(3C) (see item 2). The penalty for the offence is imprisonment for 1 year.

Item 42—Section 6M (penalty)

112.      This item would amend section 6M to replace the penalty expressed in a dollar amount with the equivalent penalty expressed in penalty units.

113.      The amendment reflects current Commonwealth drafting practice to express criminal penalties as a number of penalty units. The amendment would remove the need to convert dollar amounts into penalty units and more transparently reflects the penalty.

114.      The current value of value a penalty unit is $180 under section 4AA of the Crimes Act.

115.      Under section 4AB of the Crimes Act, where the penalty for a criminal offence provision in Commonwealth legislation is expressed as a dollar amount, that amount must be converted to an amount of penalty units (by dividing the number of dollars by 100, and rounding up to the nearest whole number if necessary), which leads to a higher penalty than is stated in the provision. As a result, the dollar amount on the face of the legislation is lower than the actual penalty, which can be misleading. The amendment is based on this formula.

 

Item 43—Paragraph 6N(1)(c)

116.      This item would amend paragraph 6N(1)(c) to make it an offence for an employer to dismiss any employee or prejudice any employee for, or on account of, the employee having given information or a statement in accordance with a notice issued under new subsection 2(3C) (see item 2).

Item 44—Subsection 6N(1) (penalty)

117.      This item would amend section 6N(1) to replace the penalty expressed in a dollar amount with the equivalent penalty expressed in penalty units.

118.      The amendment reflects current Commonwealth drafting practice to express criminal penalties as a number of penalty units. The amendment would remove the need to convert dollar amounts into penalty units and more transparently reflects the penalty.

119.      The current value of value a penalty unit is $180 under section 4AA of the Crimes Act.

120.      Under section 4AB of the Crimes Act, where the penalty for a criminal offence provision in Commonwealth legislation is expressed as a dollar amount, that amount must be converted to an amount of penalty units (by dividing the number of dollars by 100, and rounding up to the nearest whole number if necessary), which leads to a higher penalty than is stated in the provision. As a result, the dollar amount on the face of the legislation is lower than the actual penalty, which can be misleading. The amendment is based on this formula.

Item 45—Subsection 6O(1) (penalty)

121.      This item would amend section 6O(1) to replace the penalty expressed in a dollar amount with the equivalent penalty expressed in penalty units.

122.      The amendment reflects current Commonwealth drafting practice to express criminal penalties as a number of penalty units. The amendment would remove the need to convert dollar amounts into penalty units and more transparently reflects the penalty.

123.      The current value of value a penalty unit is $180 under section 4AA of the Crimes Act.

124.      Under section 4AB of the Crimes Act, where the penalty for a criminal offence provision in Commonwealth legislation is expressed as a dollar amount, that amount must be converted to an amount of penalty units (by dividing the number of dollars by 100, and rounding up to the nearest whole number if necessary), which leads to a higher penalty than is stated in the provision. As a result, the dollar amount on the face of the legislation is lower than the actual penalty, which can be misleading. The amendment is based on this formula.

Item 46—At the end of subsection 9(3)

125.      When a Royal Commission ceases operation the Royal Commissions Act provides for regulations to be made to give custody of the records to certain persons or bodies. This item would amend subsection 9(3) to add the Secretary of the Attorney-General’s Department as a person that may be given custody of Royal Commission records by regulations. Under the Administrative Arrangements Order the Attorney-General’s Department is responsible for providing administrative support for Royal Commissions.



Item 47—Application of amendments

126.      This amendment is an application provision that specifies that amendments to the Royal Commissions Act (except for the amendment in item 46) would only apply to Royal Commission established after the commencement of the amendments. It is not intended that these amendments (except for the amendment in item 46) would apply to the Royal Commission into Institutional Responses to Child Sexual Abuse and the Royal Commission into the Protection and Detention of Children in the Northern Territory.