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Royal Commissions and Other Legislation Amendment Bill 2001
Schedule  1 Amendment of Acts

   

Australian Securities and Investments Commission Act 2001

1  After subsection 127(2A)

Insert:

          (2B)  Disclosing information to a Royal Commission (within the meaning of the Royal Commissions Act 1902 ) is authorised use and disclosure of the information.

          (2C)  The Chairperson may impose conditions to be complied with in relation to information disclosed under subsection (2B).

1A  Subsection 127(5)

After “subsection”, insert “(2C),”.

2  Subsection 127(6)

After “(2A),”, insert “(2B), (2C),”.

Financial Transaction Reports Act 1988

2A  Section 3

Insert:

official , in relation to a Royal Commission, means:

                     (a)  a legal practitioner appointed to assist the Commission; or

                     (b)  a person otherwise assisting the Commission and authorised in writing by the sole Commissioner or a member of the Commission.

2B  Section 3

Insert:

Royal Commission has the same meaning as in the Royal Commissions Act 1902 .

3  After paragraph 27(16)(e)

Insert:

                    (ea)  a Royal Commission whose terms of reference include inquiry into whether unlawful conduct (however described) has, or might have, occurred; and

4  At the end of subsection 27(17)

Add:

              ; and (t)  the sole Commissioner, or a member, of a Royal Commission of a kind mentioned in paragraph (16)(ea); and

                     (u)  an official of such a Commission.

Royal Commissions Act 1902

4A  Subsection 2(1)

Repeal the subsection, substitute:

             (1)  A member of a Commission may summon a person to appear before the Commission at a hearing to do either or both of the following:

                     (a)  to give evidence;

                     (b)  to produce the documents, or other things, specified in the summons.

4B  After subsection 2(3)

Insert:

          (3A)  A member of a Commission may, by written notice served (as prescribed) on a person, require the person to produce a document or thing specified in the notice to a person, and at the time and place, specified in the notice.

4C  At the end of section 3

Add:

             (4)  A person served with a notice under subsection 2(3A) must not refuse or fail to produce a document or other thing that the person was required to produce in accordance with the notice.

Penalty:  $1,000 or imprisonment for 6 months.

             (5)  Subsection (4) does not apply if the person has a reasonable excuse.

             (6)  It is a defence to a prosecution for an offence against subsection (4) constituted by a refusal or failure to produce a document or other thing if the document or other thing was not relevant to the matters into which the Commission was inquiring.

Note:          A defendant bears an evidential burden in relation to the matters in subsections (5) and (6) (see subsection 13.3(3) of the Criminal Code ).

4D  Before subsection 4(1)

Insert:

          (1A)  A relevant Commission may authorise:

                     (a)  a member of the relevant Commission; or

                     (b)  a member of the Australian Federal Police, or of the Police Force of a State or Territory, who is assisting the relevant Commission;

to apply for search warrants under subsection (3) in relation to matters into which the relevant Commission is inquiring. The authorisation must be in writing.

4E  Paragraph 4(1)(a)

After “a relevant Commission”, insert “, or a person authorised by a relevant Commission under subsection (1A),”.

4F  Paragraph 4(1)(b)

After “the relevant Commission”, insert “, or the person,”.

4G  Subsection 4(1)

Omit “the relevant Commission may”, substitute “the relevant Commission, or the person, may”.

4H  Subsection 4(2)

Repeal the subsection.

4I  Subsection 4(3)

Omit “by a relevant Commission”.

4J  Subsection 4(4)

Omit “on the application of a relevant Commission”.

4K  Subsection 5(1)

Repeal the subsection, substitute:

             (1)  An application for a search warrant under subsection 4(1) may be made by telephone if the applicant for the warrant considers it necessary to do so because of circumstances of urgency.

4L  Paragraph 5(2)(b)

Omit “the relevant Commission”, substitute “the applicant”.

4M  Paragraph 5(2)(c)

Omit “the relevant Commission”, substitute “the applicant”.

4N  Section 6A

Repeal the section, substitute:

6A   Self incrimination

             (1)  It is not a reasonable excuse for the purposes of subsection 3(2B) or (5) for a natural person to refuse or fail to produce a document or other thing that the production of the document or other thing might tend to:

                     (a)  incriminate the person; or

                     (b)  make the person liable to a penalty.

             (2)  A natural person is not excused from answering a question that the person is required to answer by a member of a Commission on the ground that answering the question might tend to:

                     (a)  incriminate the person; or

                     (b)  make the person liable to a penalty.

             (3)  Subsections (1) and (2) do not apply to the production of a document or other thing, or the answer to a question, if:

                     (a)  the production or answer might tend to incriminate the person in relation to an offence; and

                     (b)  the person has been charged with that offence; and

                     (c)  the charge has not been finally dealt with by a court or otherwise disposed of.

             (4)  Subsections (1) and (2) do not apply to the production of a document or other thing, or the answer to a question, if:

                     (a)  the production or answer might tend to make the person liable to a penalty; and

                     (b)  proceedings in respect of the penalty have commenced; and

                     (c)  those proceedings have not been finally dealt with by a court or otherwise disposed of.

4O  Section 6C

Omit “five or section six of this Act”, substitute “3 or 6”.

4P  Paragraph 6D(3)(b)

Repeal the paragraph, substitute:

                     (b)  the contents of any document, or a description of any thing:

                              (i)  produced before, or delivered to, the Commission; or

                             (ii)  produced under a notice under subsection 2(3A); or

4Q  Section 6DD

Repeal the section, substitute:

6DD   Statements made by witness not admissible in evidence against the witness

             (1)  The following are not admissible in evidence against a natural person in any civil or criminal proceedings in any court of the Commonwealth, of a State or of a Territory:

                     (a)  a statement or disclosure made by the person in the course of giving evidence before a Commission;

                     (b)  the production of a document or other thing by the person pursuant to a summons, requirement or notice under section 2.

             (2)  Subsection (1) does not apply to the admissibility of evidence in proceedings for an offence against this Act.

4R  Paragraph 6F(1)(a)

Repeal the paragraph, substitute:

                     (a)  inspect any documents or other things:

                              (i)  produced before, or delivered to, the Commission; or

                             (ii)  produced under a notice under subsection 2(3A); and

4S  Paragraph 6F(1)(c)

Repeal the paragraph, substitute:

                     (c)  in the case of documents:

                              (i)  produced before, or delivered to, the Commission; or

                             (ii)  produced under a notice under subsection 2(3A);

                            make copies of any documents that contain matter that is relevant to a matter into which the Commission is inquiring.

4T  At the end of section 6I

Add:

             (2)  Any person who:

                     (a)  gives, confers, or procures, or promises or offers to give or confer, or to procure or attempt to procure, any property or benefit of any kind to, upon, or for, any person, upon any agreement or understanding that any person who is required to produce a document or other thing pursuant to a summons, requirement or notice under section 2 will not comply with the requirement; or

                     (b)  attempts by any means to induce any person who is required to produce a document or other thing pursuant to a summons, requirement or notice under section 2 not to comply with the requirement; or

                     (c)  asks, receives or obtains, or agrees to receive or obtain any property or benefit of any kind for himself, or any other person, upon any agreement or understanding that any person who is required to produce a document or other thing pursuant to a summons, requirement or notice under section 2 will not comply with the requirement;

is guilty of an indictable offence.

Penalty:  Imprisonment for 5 years.

4U  At the end of section 6J

Add:

             (2)  Any person who practises any fraud or deceit, or intentionally makes or exhibits any statement, representation, token, or writing, knowing it to be false, to any person with intent that any person who is required to produce a document or other thing pursuant to a summons, requirement or notice under section 2 will not comply with the requirement, is guilty of an indictable offence.

Penalty:  Imprisonment for 2 years.

4V  Paragraph 6K(1)(c)

Repeal the paragraph, substitute:

                     (c)  the person knows, or is reckless as to whether, the document or thing is one that:

                              (i)  is or may be required in evidence before a Commission; or

                             (ii)  a person has been, or is likely to be, required to produce pursuant to a summons, requirement or notice under section 2.

4W  At the end of section 6L

Add:

             (2)  Any person who intentionally prevents any person who is required to produce a document or other thing pursuant to a notice under subsection 2(3A) from producing that document or thing in accordance with the notice is guilty of an indictable offence.

Penalty:  Imprisonment for 1 year.

4X  Section 6M

Repeal the section, substitute:

6M   Injury to witness

                   Any person who uses, causes or inflicts, any violence, punishment, damage, loss, or disadvantage to any person for or on account of:

                     (a)  the person having appeared as a witness before any Royal Commission; or

                     (b)  any evidence given by him or her before any Royal Commission; or

                     (c)  the person having produced a document or thing pursuant to a summons, requirement or notice under section 2;

is guilty of an indictable offence.

Penalty:  $1,000, or imprisonment for 1 year.

4Y  Subsection 6N(1)

Repeal the subsection, substitute:

             (1)  Any employer who dismisses any employee from his or her employment, or prejudices any employee in his or her employment, for or on account of the employee having:

                     (a)  appeared as a witness before a Royal Commission; or

                     (b)  given evidence before a Royal Commission; or

                     (c)  produced a document or thing pursuant to a summons, requirement or notice under section 2;

is guilty of an indictable offence.

Penalty:  $1,000, or imprisonment for 1 year.

5  Subsection 6P(1)

Omit “the commission of an offence, or evidence of the commission of an offence, against a law”, substitute “a contravention of a law, or evidence of a contravention of a law,”.

6  Paragraph 6P(1)(a)

After “of a State”, insert “, of the Australian Capital Territory”.

7  After subsection 6P(1)

Insert:

          (1A)  A reference in subsection (1) to a contravention of a law is a reference to a contravention for which a person may be liable to:

                     (a)  a criminal penalty; or

                     (b)  a civil or administrative penalty.

Telecommunications (Interception) Act 1979

8  Subsection 5(1) (definition of chief officer )

After “an agency,”, insert “an eligible Commonwealth authority”.

9  Subsection 5(1) (after paragraph (b) of the definition of chief officer )

Insert:

                    (ba)  in the case of an eligible Commonwealth authority—the member constituting, or the member who generally presides at hearings and other meetings of, the Commonwealth Royal Commission concerned; or

10  Subsection 5(1)

Insert:

Commonwealth Royal Commission means a Royal Commission within the meaning of the Royal Commissions Act 1902 .

11  Subsection 5(1)

Insert:

eligible Commonwealth authority means a Commonwealth Royal Commission in relation to which a declaration under section 5AA is in force.

12  Subsection 5(1)

Insert:

member of the staff of a Commonwealth Royal Commission means:

                     (a)  a legal practitioner appointed to assist the Commission; or

                     (b)  a person otherwise assisting the Commission and authorised in writing by the sole Commissioner or a member of the Commission.

13  Subsection 5(1) (definition of officer )

After “an agency,”, insert “an eligible Commonwealth authority”.

14  Subsection 5(1) (after paragraph (b) of the definition of officer )

Insert:

                    (ba)  in the case of an eligible Commonwealth authority—a member of the Commonwealth Royal Commission concerned or a member of the staff of the Royal Commission; or

15  Subsection 5(1) (definition of permitted purpose )

After “an agency,”, insert “an eligible Commonwealth authority”.

16  Subsection 5(1) (after paragraph (b) of the definition of permitted purpose )

Insert:

                    (ba)  in the case of an eligible Commonwealth authority:

                              (i)  an investigation that the Commonwealth Royal Commission concerned is conducting in the course of the inquiry it is commissioned to undertake; or

                             (ii)  a report on such an investigation; or

17  Subsection 5(1) (definition of prescribed investigation )

After “a Commonwealth agency”, insert “, an eligible Commonwealth authority”.

18  Subsection 5(1) (after paragraph (b) of the definition of prescribed investigation )

Insert:

                    (ba)  in the case of an eligible Commonwealth authority—an investigation that the Commonwealth Royal Commission concerned is conducting in the course of the inquiry it is commissioned to undertake; or

19  Subsection 5(1) (definition of relevant offence )

After “a Commonwealth agency”, insert “, an eligible Commonwealth authority”.

20  Subsection 5(1) (after paragraph (b) of the definition of relevant offence )

Insert:

                    (ba)  in the case of an eligible Commonwealth authority—a prescribed offence to which a prescribed investigation relates; or

21  After section 5

Insert:

5AA   Eligible Commonwealth authority declarations

                   The Minister may, by notice published in the Gazette , declare a Commonwealth Royal Commission to be an eligible Commonwealth authority for the purposes of this Act if the Minister is satisfied that the Royal Commission is likely to inquire into matters that may involve the commission of a prescribed offence.

22  After paragraph 5B(h)

Insert:

                    (ha)  a proceeding of an eligible Commonwealth authority; or

23  At the end of section 67

Add:

             (2)  An officer of an eligible Commonwealth authority may, for a permitted purpose, or permitted purposes, in relation to the authority, and for no other purpose, communicate to another person, make use of, or make a record of the following:

                     (a)  lawfully obtained information other than foreign intelligence information;

                     (b)  designated warrant information.

24  After paragraph 68(d)

Insert:

                    (da)  if the information relates, or appears to relate, to the commission of a relevant offence in relation to an eligible Commonwealth authority—to the chief officer of the eligible Commonwealth authority; and

25  Subsection 95(1)

After “Commonwealth agency”, insert “, or eligible Commonwealth authority,”.

26  Subsection 95(2)

After “Commonwealth agency”, insert “, or eligible Commonwealth authority,”.

27  Subsection 102(1)

After “each Commonwealth agency”, insert “, for each eligible Commonwealth authority”.

28  Subparagraph 102(2)(a)(i)

After “Commonwealth agencies”, insert “, by eligible Commonwealth authorities”.

29  Paragraph 102(2)(b)

After “Commonwealth agencies”, insert “, of eligible Commonwealth authorities”.

 

 

 

[ Minister’s second reading speech made in—

House of Representatives on 23 August 2001

Senate on 30 August 2001 ]

 

 

 

(159/01)