Royal Commissions Amendment (Records) Act 2006

Administered by Attorney-General's Department

Legislation au C2006A00167 In force Act

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Royal Commissions Amendment (Records) Act 2006

 

No. 167, 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 (Records) Act 2006

No. 167, 2006

 

 

 

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

[Assented to 12 December 2006]

The Parliament of Australia enacts:

1  Short title

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

2  Commencement

  This Act commences on the day on which it receives the Royal Assent.

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  Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.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  After subsection 6F(2)

Insert:

 (2A) Subsection (2) has effect subject to subsection 9(10).

2  After section 8

Insert:

9  Custody and use of records of Royal Commission

Definitions

 (1) In this section:

body means a body (whether a body corporate or not) and includes:

 (a) an agency within the meaning of the Public Service Act 1999; and

 (b) a Department of State for, or an agency of, a State or a Territory.

civil penalty proceeding means a proceeding for a civil penalty in relation to a contravention of a law of the Commonwealth, a State or a Territory.

confiscation proceeding means a proceeding under:

 (a) the Proceeds of Crime Act 1987 or the Proceeds of Crime Act 2002; or

 (b) a corresponding law within the meaning of either of those Acts;

but does not include a criminal prosecution for an offence under either of those Acts or a corresponding law.

custodian of a Royal Commission record means a person who, or a body that, has custody of the record under:

 (a) regulations made for the purposes of paragraph (2)(a); or

 (b) a direction under subsection 22(3) of the Archives Act 1983.

disciplinary proceeding:

 (a) means a proceeding of a disciplinary nature under a law of the Commonwealth, a State or a Territory; and

 (b) includes action taken under Subdivision D of Division 5 of Part V of the Australian Federal Police Act 1979.

law enforcement purposes means the purposes of taking action to enforce a law of the Commonwealth, a State or a Territory and includes the following purposes:

 (a) the purpose of bringing:

 (i) a prosecution for an offence against a law of the Commonwealth, a State or a Territory; or

 (ii) a civil penalty proceeding; or

 (iii) a confiscation proceeding; or

 (iv) a disciplinary proceeding;

 (b) the purpose of investigating whether:

 (i) an offence has been committed against a law of the Commonwealth, a State or a Territory; or

 (ii) there has been a contravention of a law of the Commonwealth, a State or a Territory in relation to which civil penalty proceedings may be brought;

 (c) the purpose of preparing the material necessary to prosecute a person for an offence against a law of the Commonwealth, a State or a Territory;

 (d) the purpose of preparing the material necessary to bring civil penalty proceedings against a person for a contravention of a law of the Commonwealth, a State or a Territory;

 (e) the purpose of preparing the material necessary to bring a confiscation proceeding;

 (f) the purpose of preparing the material necessary to bring a disciplinary proceeding.

public authority means:

 (a) an agency within the meaning of the Public Service Act 1999; or

 (b) a Department of State for, or an agency of, a State or a Territory; or

 (c) a body established or incorporated for a public purpose by or under a law of the Commonwealth, a State or a Territory.

public office holder means:

 (a) a Minister of State for the Commonwealth, a State or a Territory; or

 (b) the holder of an office established for a public purpose by or under a law of the Commonwealth, a State or a Territory.

record has the same meaning as in the Archives Act 1983.

Royal Commission record means a record that:

 (a) was produced by, given to or obtained by a Royal Commission; and

 (b) is no longer required for the purposes of the Commission;

and includes a copy of such a record.

use of a Royal Commission record includes use of information contained in the record.

Regulations may provide for the custody, use or transfer of, or access to, Royal Commission records

 (2) The regulations:

 (a) may, subject to subsection (3), provide for the custody in which some or all of the Royal Commission records of a Royal Commission are to be kept; and

 (b) may specify either or both of the following:

 (i) purposes for which a custodian of Royal Commission records may use some or all of those records;

 (ii) purposes for which a custodian of Royal Commission records must not use some or all of those records; and

 (c) may provide for the circumstances in which the custodian of Royal Commission records must, or may, give some or all of those records to other persons or bodies; and

 (d) may provide for the circumstances in which the custodian of Royal Commission records must, or may, allow access to some or all of those records to other persons or bodies; and

 (e) may specify either or both of the following:

 (i) purposes for which persons or bodies to whom a custodian of Royal Commission records gives, or gives access to, those records may use some or all of those records;

 (ii) purposes for which persons or bodies to whom a custodian of Royal Commission records gives, or gives access to, those records must not use some or all of those records.

Regulations made for the purposes of paragraph (a) may provide for a person or body to have custody of Royal Commission records even if the person or body already has custody of those records under a direction under subsection 22(3) of the Archives Act 1983.

 (3) The persons and bodies who may be given custody of Royal Commission records by regulations made for the purposes of paragraph (2)(a) are the following:

 (a) the Attorney‑General of the Commonwealth, of a State, of the Australian Capital Territory or of the Northern Territory;

 (b) the Director of Public Prosecutions;

 (c) a Special Prosecutor appointed under the Special Prosecutors Act 1982;

 (d) the Commissioner of the Australian Federal Police or of the Police Force of a State or of the Northern Territory;

 (e) the Australian Securities and Investments Commission;

 (f) the Australian Competition and Consumer Commission;

 (g) the Australian Crime Commission;

 (h) the Australian Commission for Law Enforcement Integrity;

 (i) the Secretary of the Department of the Prime Minister and Cabinet;

 (j) the National Archives of Australia;

 (k) a body or person responsible for the administration or enforcement of a law of the Commonwealth, a State or a Territory.

Regulations may impose conditions

 (4) Regulations made for the purposes of subsection (2) in relation to Royal Commission records may impose conditions to be complied with by:

 (a) the custodian of the records; or

 (b) persons and bodies to whom the records are given or who are allowed access to the records.

Effect of regulations under paragraph (2)(a)

 (5) If regulations are made for the purposes of paragraph (2)(a) in relation to particular Royal Commission records, the Archives Act 1983 has effect as if a direction to the same effect as the regulations were in force in relation to the records under subsection 22(3) of that Act at all times when the regulations are in force.

Use of Royal Commission records

 (6) A custodian of Royal Commission records may use the records for:

 (a) the purposes of the performance of the custodian’s functions and the exercise of the custodian’s powers; and

 (b) any other purpose for which the custodian could use the records if the custodian had acquired the records in the performance of the custodian’s functions or the exercise of the custodian’s powers.

 (7) If:

 (a) the custodian of a Royal Commission record gives a person or body (the recipient) the record or access to the record; and

 (b) the recipient is a public office holder or a public authority;

the recipient may use the record for:

 (c) the purposes of the performance of the recipient’s functions and the exercise of the recipient’s powers; and

 (d) any other purpose for which the recipient could use the record if the recipient had acquired the record in the performance of the recipient’s functions or the exercise of the recipient’s powers.

 (8) Subsections (6) and (7) have effect subject to any regulations that:

 (a) specify purposes for which the custodian or the recipient must not use some or all of the records; or

 (b) impose conditions to be complied with by the custodian or the recipient.

Note: See paragraphs (2)(b) and (e) and subsection (4).

 (9) The purposes referred to in subparagraphs (2)(b)(i) and (e)(i) and subsections (6) and (7) need not be purposes for which the Royal Commission concerned produced, obtained or was given the Royal Commission records.

Custodian’s right to retain possession of records

 (10) A custodian of a Royal Commission record may retain possession of the record for so long as the custodian considers it desirable to do so for the purposes of the performance of any of the custodian’s functions or the exercise of any of the custodian’s powers, despite any request from the record’s owner for the return of the record.

Records may be dealt with without consent, notice or opportunity to be heard

 (11) If regulations made for the purposes of paragraph (2)(a) provide that a person or body is to have custody of Royal Commission records:

 (a) the custodian may, for law enforcement purposes:

 (i) use the records under subsection (6); and

 (ii) give the records to another person or body under regulations made for the purposes of paragraph (2)(c); and

 (iii) allow another person or body access to the records under regulations made for the purposes of paragraph (2)(d); and

 (b) a public office holder, or public authority, to whom the custodian gives the records, or access to the records, may, for law enforcement purposes, use the records under subsection (7);

without obtaining the consent of, giving notice to, giving an opportunity to make submissions to or taking into account submissions made by the owner of the records or any other person.

Operation of section 6DD not affected

 (12) Nothing in this section affects the operation of section 6DD in relation to Royal Commission records that are dealt with in accordance with:

 (a) regulations made for the purposes of subsection (2); or

 (b) a direction under subsection 22(3) of the Archives Act 1983.

Legal professional privilege not affected

 (13) A Royal Commission record, or material in or referred to in a Royal Commission record, does not cease to be the subject of legal professional privilege merely because a person or body has custody of the record, or is given the record or access to the record, under:

 (a) regulations made for the purposes of subsection (2); or

 (b) a direction under subsection 22(3) of the Archives Act 1983.

3  Application of amendments

The amendments made by this Schedule apply to the Royal Commission records of a Royal Commission even if the Royal Commission was established and reported before the commencement of this Act.

 

 

 

[Minister’s second reading speech made in—

House of Representatives on 30 November 2006

Senate on 6 December 2006]

(181/06)

 

Overview

The Royal Commissions Amendment (Records) Act 2006 was enacted by the Parliament of Australia to amend the Royal Commissions Act 1902. This Act aimed to address the need for more comprehensive regulations regarding the custody, use, and transfer of records produced by Royal Commissions. It provides detailed provisions for the management of Royal Commission records, including the regulation of their custody, use, and disclosure, particularly for law enforcement purposes. The Act's policy objective is to ensure that Royal Commission records are managed in a manner that supports their effective use for public interest purposes while safeguarding the rights of individuals and maintaining the integrity of legal processes. The Royal Commissions Amendment (Records) Act 2006 allows for the creation of regulations that specify the custodianship of Royal Commission records, the purposes for which they can or cannot be used, and the circumstances under which they can be transferred or accessed by other entities. These regulations can be imposed without the consent of the records' owner if they pertain to law enforcement purposes. The Act also ensures that the custodian of these records can retain possession of them as long as it is necessary for their functions, and it protects the confidentiality and legal professional privilege of the records. The amendments introduced by this Act apply to Royal Commission records regardless of when the Royal Commission was established or reported.

Scope and Application

The Royal Commissions Amendment (Records) Act 2006 amends the Royal Commissions Act 1902 to establish provisions for the custody, use, and transfer of records generated by Royal Commissions. This Act applies to records produced by, given to, or obtained by any Royal Commission, regardless of whether the Commission was established before or after the Act's commencement. The Act applies nationally across Australia, with the Commonwealth Parliament having legislative authority over Royal Commissions. The Act specifies various custodians who may be assigned the responsibility of managing these records, including the Attorney-General of the Commonwealth, state Attorneys-General, the Director of Public Prosecutions, and several federal and state law enforcement and regulatory bodies. The Act also allows for the creation of regulations that dictate the specific purposes for which these records may be used, the circumstances under which they may be transferred or accessed, and any conditions to be met by custodians and recipients of these records. The Act provides that such records can be used for law enforcement purposes without the need for consent from the record owner, notice to them, or an opportunity for them to be heard. Additionally, the Act ensures that the legal professional privilege associated with Royal Commission records is not affected by the custody or use provisions outlined in the Act. The Act allows for the extension and specification of its provisions through subordinate legislation, which may further detail the processes and conditions surrounding the custody, use, and transfer of Royal Commission records. The Act does not specify any exclusions or exemptions, meaning that all Royal Commission records fall under its purview, subject to the regulatory framework it establishes.

Key Provisions

The Royal Commissions Amendment (Records) Act 2006 amends the Royal Commissions Act 1902 by introducing new provisions for the custody, use, and transfer of records created by Royal Commissions. Section 9 of the Act defines key terms and specifies the types of records that fall under its purview, namely, records produced by, given to, or obtained by a Royal Commission that are no longer required for the Commission's purposes (subsection 9(2)). The Act provides that regulations may specify the custody, use, transfer, and access conditions for these records (subsection 9(2)). It further details the types of entities that may be designated as custodians of these records, including the Attorney-General, Director of Public Prosecutions, and various law enforcement and administrative bodies (subsection 9(3)). The Act allows regulations to impose conditions on custodians and recipients of these records (subsection 9(4)), and it clarifies that if regulations specify certain records to be held by particular custodians, the Archives Act 1983 will apply as if a corresponding direction were in force (subsection 9(5)). The Act imposes obligations on custodians of Royal Commission records, allowing them to use the records for the performance of their functions and any other permissible purposes (subsection 9(6)). It also permits recipients, if they are public office holders or authorities, to use the records for their functions and permissible purposes (subsection 9(7)). These uses are subject to any regulatory restrictions specifying prohibited purposes or conditions (subsection 9(8)). Additionally, custodians may retain records as long as they deem necessary for their functions, despite requests for return from the record's owner (subsection 9(10)). The Act also allows custodians and recipients to use or transfer records for law enforcement purposes without requiring consent, notice, or opportunity for the record's owner to be heard (subsection 9(11)). The Act ensures that the operation of section 6DD in relation to these records remains unaffected (subsection 9(12)), and it explicitly states that the legal professional privilege of Royal Commission records is not compromised by the custody, use, or transfer provisions (subsection 9(13)). Breaches of the provisions outlined in the Royal Commissions Amendment (Records) Act 2006 could lead to various civil and criminal consequences. While the Act itself does not explicitly state maximum penalties, violations of regulations or unauthorised use of records could potentially lead to civil penalty proceedings under the Proceeds of Crime Act 1987 or 2002, confiscation proceedings, or disciplinary actions under relevant laws. Additionally, misuse of records for non-permitted purposes could result in legal challenges or sanctions under the relevant professional or administrative disciplinary frameworks. The specific penalties would depend on the nature of the breach and the applicable laws under which proceedings are brought.

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