EXPLANATORY STATEMENT
Select Legislative Instrument 2005 No. 11
Subject - HIH Royal Commission (Transfer of Records) Act 2003
HIH Royal Commission (Transfer of Records) Regulations 2005
The HIH Royal Commission (Transfer of Records) Act 2003 (the Act) provides for the transfer of custody of certain records of the HIH Royal Commission to the Australian Securities and Investments Commission (ASIC).
Section 10 of the Act provides that the Governor‑General may make regulations prescribing matters: (a) required or permitted by the Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to the Act.
The purpose of the Regulations is to provide ASIC with access to records of, or relating to, the HIH Royal Commission, (including electronic copies or versions of such records and associated data) in addition to those records or electronic versions to which ASIC has an entitlement under sections 4 and 5 of the Act. Access is determined by the Secretary to the Department of the Prime Minister and Cabinet (the Secretary), being the agency with administrative responsibility for the records of royal commissions generally.
Section 4 of the Act entitles ASIC to the custody of records which are Commonwealth records and which are documents or things that were produced to the HIH Royal Commission. The effect of the section is that ASIC is entitled to the custody of documents or things produced to the HIH Royal Commission which were still in its possession when it ceased to exist.
Section 5 of the Act entitles ASIC to be provided with electronic copies of any electronic versions of documents or things that were produced to the HIH Royal Commission in the Commonwealth’s possession. The effect of the section is that ASIC is entitled to copies of electronic versions of documents or things produced to the HIH Royal Commission including such documents or things which were returned to their owners before the HIH Royal Commission ceased to exist.
Section 6 provides that the regulations may provide for ASIC to have access to other records of, or relating to, the HIH Royal Commission.
ASIC intends to use the records and copies of electronic versions to which it is entitled under sections 4 and 5 of the Act in its investigation and prosecution of possible offences. Both the Commonwealth and ASIC need to be sure that all material to which ASIC is entitled under the Act has in fact been provided to ASIC.
The Regulations allow the Secretary to grant ASIC officers access to records of the HIH Royal Commission to which ASIC does not already have an entitlement under the Act. Such access would facilitate a thorough assessment of the records to ensure that the Commonwealth meets its obligations to provide records and electronic copies under the Act in full. The Regulations also allow the Secretary to delegate any or all of his powers under the Regulations to an SES employee in the Department of the Prime Minister and Cabinet.
The Regulations facilitate ASIC being provided with all material to which it is entitled under the Act in a timely manner for use in related prosecutions.
The Act specifies no conditions that need to be met before the power to make the Regulations may be exercised.
The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Apart from consultations involving officers in the Department of the Prime Minister and Cabinet, the Treasury and ASIC, no broader consultation was undertaken because the Regulations merely facilitate giving effect to the Act and they do not broaden the categories of material to which ASIC has an entitlement under the Act.
The Regulations commence on 11 February 2005.
Overview
The HIH Royal Commission (Transfer of Records) Act 2003 was enacted to address the need for a formal mechanism to transfer custody of records from the HIH Royal Commission to the Australian Securities and Investments Commission (ASIC). This legislation was introduced to ensure that ASIC could access necessary records and electronic versions for their investigations and prosecutions related to possible offences. The Act provides for the transfer of custody of specific records, with sections 4 and 5 entitling ASIC to the custody of Commonwealth records and electronic versions of documents produced to the HIH Royal Commission. The HIH Royal Commission (Transfer of Records) Regulations 2005 were made under the authority of the Act and were designed to facilitate ASIC’s access to additional records and electronic versions of documents to ensure that all relevant material is provided in a timely manner. The Regulations, which were made without broader consultation beyond relevant departments and agencies, allow the Secretary to the Department of the Prime Minister and Cabinet to grant ASIC officers access to additional records and delegate powers to designated employees.
Scope and Application
The HIH Royal Commission (Transfer of Records) Act 2003 and its accompanying HIH Royal Commission (Transfer of Records) Regulations 2005 govern the transfer of custody and access to specific records from the HIH Royal Commission to the Australian Securities and Investments Commission (ASIC). The Act applies to records of the HIH Royal Commission, including both physical and electronic documents or things that were produced to the commission, and the Regulations extend the access to additional records that facilitate ASIC's investigation and prosecution of potential offences. The Secretary to the Department of the Prime Minister and Cabinet, responsible for the administration of the records of royal commissions, is empowered to grant ASIC access to these records. The Regulations, which came into effect on 11 February 2005, allow for the delegation of these powers to an SES employee within the Department, ensuring that all relevant material is provided to ASIC in a timely and efficient manner. The Act and its Regulations do not specify any conditions for the exercise of the power to make these regulations, and the Regulations themselves are legislative instruments under the Legislative Instruments Act 2003.
Key Provisions
The key provisions of the HIH Royal Commission (Transfer of Records) Regulations 2005 (the Regulations) are aimed at facilitating the transfer of records from the HIH Royal Commission to the Australian Securities and Investments Commission (ASIC). Section 4 of the HIH Royal Commission (Transfer of Records) Act 2003 (the Act) entitles ASIC to the custody of records which are Commonwealth records and which were produced to the HIH Royal Commission, provided they were still in the possession of the Royal Commission when it ceased to exist. Section 5 of the Act entitles ASIC to electronic copies of any electronic versions of documents or things produced to the HIH Royal Commission that are in the Commonwealth's possession, including those that were returned to their owners before the Royal Commission ceased to exist. Section 6 of the Act allows the Governor-General to make regulations that enable ASIC to have access to other records of, or relating to, the HIH Royal Commission.
The Regulations impose obligations on the Secretary to the Department of the Prime Minister and Cabinet, who is responsible for the administrative management of the records of royal commissions. The Secretary must ensure that ASIC is provided with all the material to which it is entitled under the Act. The Regulations also allow the Secretary to grant ASIC officers access to records to which ASIC does not already have an entitlement under the Act. This facilitates a thorough assessment of the records to ensure that the Commonwealth meets its obligations under the Act. Furthermore, the Secretary can delegate any or all of his powers under the Regulations to an SES employee in the Department of the Prime Minister and Cabinet.
The Act does not specify any conditions that need to be met before the power to make the Regulations can be exercised. Therefore, there are no specific obligations imposed on parties or entities other than those outlined in the Regulations themselves. The primary obligation lies with the Secretary to facilitate the transfer of records to ASIC in a timely manner. The Regulations are designed to ensure that ASIC has access to all the records it is entitled to for its investigations and prosecutions. The Regulations do not introduce any new offences or penalties; rather, they are intended to provide a framework for the efficient transfer of records.
In summary, the Regulations aim to ensure that ASIC has full access to the records of the HIH Royal Commission, both physical and electronic, that it is entitled to under the Act. They provide a mechanism for the Secretary to grant additional access to records and delegate powers as necessary. There are no new offences or penalties introduced by the Regulations, as their purpose is to facilitate compliance with the Act by ensuring timely and complete transfer of records.