Royal Commissions Amendment Act 2006

Royal Commissions Amendment Act 2006

No. 52, 2006

An Act to amend the Royal Commissions Act 1902, and for related purposes

Contents

1 Short title

2 Commencement

3 Schedule(s)

Schedule 1—Amendments

Royal Commissions Act 1902

Royal Commissions Amendment Act 2006

No. 52, 2006

An Act to amend the Royal Commissions Act 1902, and for related purposes

[Assented to 14 June 2006]

The Parliament of Australia enacts:

1  Short title

  This Act may be cited as the Royal Commissions Amendment Act 2006.

2  Commencement

 (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Note: This table relates only to the provisions of this Act as originally passed by the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.

 (2) Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.

3  Schedule(s)

  Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1—Amendments

Royal Commissions Act 1902

1  Section 1B

Before “In this Act”, insert “(1)”.

2  Section 1B (definition of reasonable excuse)

Repeal the definition, substitute:

reasonable excuse means:

 (a) in relation to any act or omission by a witness before a Commission—an excuse which would excuse an act or omission of a similar nature by a witness before a court of law; or

 (b) in relation to any act or omission by a person summoned as a witness before a Commission—an excuse which would excuse an act or omission of a similar nature by a person summoned as a witness before a court of law; or

 (c) in relation to any act or omission by a person served with a notice under subsection 2(3A) or 6AA(3)—an excuse which would excuse an act or omission of a similar nature by a person served with a subpoena in connection with a proceeding before a court of law.

3  At the end of section 1B

Add:

 (2) In this Act, unless the contrary intention appears:

 (a) a reference to a requirement to produce a document includes a reference to a requirement to produce a part of the document; and

 (b) a reference to refusal or failure to produce a document includes:

 (i) if production of the whole of the document is required—a reference to refusal or failure to produce a part of the document; and

 (ii) if production of a part of the document is required—a reference to refusal or failure to produce a part of that part of the document.

4  At the end of section 2

Add:

 (5) For the purposes of sections 3, 6AA and 6AB, the power of a member of a Commission under this section to require or summon a person to produce a document includes the power to require or summon the person to produce a document that is subject to legal professional privilege.

Note: Under section 6AA, legal professional privilege might still be a reasonable excuse for refusing or failing to produce the document.

5  After section 6

Insert:

6AA  Legal professional privilege

 (1) It is not a reasonable excuse for the purposes of subsection 3(2B) or (5) for a person to refuse or fail to produce a document that the document is subject to legal professional privilege, unless:

 (a) a court has found the document (or the relevant part of the document) to be subject to legal professional privilege; or

 (b) a claim that the document (or the relevant part of the document) is subject to legal professional privilege has been made, to the member of the Commission who required production of the document:

 (i) within the time that the member of the Commission, in requiring production of the document, allowed for its production; or

 (ii) within such further time as the member of the Commission allows for production of the document.

 (2) If such a claim is made, the member of the Commission who required production of the document may decide whether to accept or reject the claim.

 (3) The member of the Commission may, by written notice served (as prescribed) on a person, require the person to produce the document for inspection (by the member of the Commission or a person authorised by the member of the Commission) for the purpose of deciding whether to accept or reject the claim.

 (4) If the document has been produced for inspection and the member of the Commission decides to accept the claim, the Commission must:

 (a) return the document to the person; and

 (b) disregard, for the purposes of any report or decision that the Commission makes:

 (i) if the claim is accepted in relation to the whole document—the whole document; or

 (ii) if the claim is accepted in relation to a part of the document—that part of the document.

 (5) If the document has been produced for inspection and the member of the Commission decides to reject the claim, the Commission may use the document for the purposes of the inquiry.

 (6) Without limiting subsections (3) and (5), the powers of a member of a Commission, or a Commission, under section 2 apply, by force of this subsection, in relation to deciding whether to accept or reject the claim.

6AB  Offences relating to claims for legal professional privilege

 (1) A person commits an offence if:

 (a) the person had refused or failed to produce a document as required by a member of a Commission under section 2; and

 (b) the member of the Commission has decided under subsection 6AA(2) to reject a claim that the document (or the relevant part of the document) is subject to legal professional privilege; and

 (c) the person refuses or fails to produce the document as the member of the Commission requires, after that decision, under section 2.

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

 (2) A person commits an offence if the person refuses or fails to produce a document that the person was required under subsection 6AA(3) to produce for inspection.

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

 (3) Subsections (1) and (2) are offences of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

 (4) Subsections (1) and (2) do not apply if the person has a reasonable excuse.

 (5) It is not a reasonable excuse for the purposes of subsection (4) for a person to refuse or fail to produce a document that the document is subject to legal professional privilege, unless a court has found the document to be subject to legal professional privilege.

 (6) It is a defence to a prosecution for an offence against this section constituted by a refusal or failure to produce a document if the document 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 (4) and (6) (see subsection 13.3(3) of the Criminal Code).

6  Subsection 6A(1)

After “subsection 3(2B) or (5)”, insert “, or section 6AB,”.

7  At the end of paragraph 6DD(1)(b)

Add “or subsection 6AA(3)”.

8  Subparagraphs 6F(1)(a)(ii) and (c)(ii)

After “subsection 2(3A)”, insert “or 6AA(3)”.

9  Application of amendments

The amendments made by this Schedule apply, after the commencement of this Schedule, in relation to the proceedings of any Commission after that commencement, whether the Commission was established before or after that commencement.

 [Minister’s second reading speech made in—

House of Representatives on 25 May 2006

Senate on 13 June 2006]