Commonwealth of Australia Explanatory Memoranda

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ROYAL COMMISSIONS AMENDMENT (RECORDS) BILL 2006

                       2004-2005-2006




THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA




             HOUSE OF REPRESENTATIVES




ROYAL COMMISSIONS AMENDMENT (RECORDS) BILL 2006




   SUPPLEMENTARY EXPLANATORY MEMORANDUM




        (Circulated by authority of the Prime Minister,
                  the Hon John Howard MP)
       ROYAL COMMISSIONS AMENDMENT (RECORDS) BILL 2006

OUTLINE

The Royal Commissions Amendment (Records) Bill 2006 (the Bill) amends the Royal
Commissions Act 1902 (the RCA) to enable regulations to facilitate provision of
custody and use of, and access to, records of royal commissions, including those of
the Inquiry into Certain Australian Companies in relation to the UN Oil-for-Food
Programme (the Cole Inquiry).

These amendments amend the Bill to restrict the operative provisions of regulations
which might be made as a result of the Bill.

The principal change effected by the amendments relates to the provision which allows
removal of any requirement to provide procedural fairness to persons who could be
adversely affected if documents obtained by a royal commission, for its purposes, were
made available to other persons or agencies and used for other purposes.

These amendments limit the circumstances in which procedural fairness is removed to
circumstances where, for law enforcement purposes:
     � the custodian uses the records for the purposes of the performance of the
       custodian's functions and the exercise of the custodian's powers; or
     � the custodian gives, or gives access to, the records to another person or body
       under regulations providing the circumstances in which that may occur; or
     � a public office holder or public authority to whom the custodian gives, or gives
       access to, the records or uses the records for the purposes of the performance of
       their functions and the exercise of their powers.

This addresses concerns that the potential range of purposes to which the records might
be put without providing procedural fairness might be too broad.

As a secondary change, the amendments will restrict the persons or bodies to whom
custody of the records may be given, addressing concerns that the potential range of
custodians might be too broad.

FINANCIAL IMPACT STATEMENT

The amendments will have no financial impact.




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NOTES ON AMENDMENTS

Royal Commissions Amendment (Records) Bill 2006

Item 1 - Schedule 1, item 2, page 3 (after line 17)

1.    This amendment inserts definitions of two terms which are used in the
definition of "law enforcement purposes" which is inserted by item 2.

Item 2 - Schedule 1, item 2, page 3 (after line 21)

2.    This amendment inserts two more definitions. The definition of "law
enforcement purposes" is used by new subsection 9(11), to be inserted by item 6. The
definition of "disciplinary proceeding" is used in the definition of "law enforcement
purposes".

Item 3 - Schedule 1, item 2, page 4 (line 14)

3.    This amendment makes paragraph 9(2)(a) subject to subsection 9(3). This has
the effect of limiting the persons or bodies to whom custody may be given under
paragraph 9(2)(a) to those persons or bodies set out in subsection 9(3).

Item 4 - Schedule 1, item 2, page 5 (lines 5 to 20)

4.    Subsection 9(3) in the Bill as introduced provided for prescription of persons or
bodies which could be custodians of royal commission records, including an open-
ended category of any other person or body that might be prescribed. This item
replaces proposed subsection 9(3) to limit the range of potential custodians. The
replacement subsection still includes the class of persons or bodies responsible for
administration or enforcement of a law. It also adds a number of specific bodies, for
the avoidance of doubt, though this is not intended to limit the generality of the
reference to bodies responsible for administration or enforcement of a law. It also
specifically refers to the Secretary of the Department of the Prime Minister and
Cabinet and the National Archives of Australia, as potential default custodians.

Item 5 - Schedule 1, item 2, page 7 (lines 6 to 13)
Item 6 - Schedule 1, item 2, page 7 (lines 15)

5.    These items both amend proposed subsection 9(11). In the Bill as introduced,
paragraph 9(11)(a) enabled a custodian to use the records for the performance of the
custodian's functions and the exercise of the custodian's powers and to give, or give
access to, the records for purposes prescribed under paragraphs 9(2)(c) or (d), without
providing procedural fairness to any person, including the owner of the records.

6.    Similarly, paragraph 9(11)(b) as introduced provided that a public office holder
or public authority to whom the custodian gives, or gives access to, the records could
use those records for the performance of their functions or the exercise of their powers
or for any other purpose for which they could use the records if they had acquired
them in the performance of their functions or the exercise of the their powers, without
providing procedural fairness to any person, including the owner of the records.


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7.    The amendment effected by item 5 to paragraph 9(11)(a) will limit the extent to
which the custodian may use, give, or give access to the records, without providing
procedural fairness, to circumstances where the use, giving or access is for law
enforcement purposes.

8.    Similarly, the amendment effected by item 6 to paragraph 9(11)(b) will limit the
extent to which the public office holder or public authority may use the records
without providing procedural fairness to circumstances where the use is for law
enforcement purposes.




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