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1998 - 1999 - 2000 - 2001
THE
PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
SENATE
BILL
2001
SUPPLEMENTARY EXPLANATORY
MEMORANDUM
Amendments and new clauses to be moved on behalf of
the Government
(Circulated by authority of the Prime
Minister,
the Honourable John Howard, MP)
ROYAL COMMISSIONS AND OTHER
LEGISLATION AMENDMENT
BILL 2001
The Royal Commissions and Other Legislation Amendment Bill ensures that
Royal Commissions can provide information regarding possible contraventions of a
law to the persons and agencies responsible for the administration or
enforcement of that law. It also ensures that Royal Commissions can obtain
information from the Australian Securities and Investments Commission (ASIC) and
the Australian Transaction Reports and Analysis Centre (AUSTRAC).
The
Government proposes to amend the Bill to increase the effectiveness of some of
these measures, and to add new measures to the Bill which will also promote the
smooth and efficient operation of Royal Commissions.
The amendments to
the existing provisions in the Bill will:
• allow the Chairperson
of ASIC to delegate his or her power to impose conditions in relation to
information provided to Royal Commissions; and
• clarify which
Royal Commissions, and which Royal Commission officials, can access financial
transaction reports information under the Financial Transaction Reports Act
1988.
The new measures will amend the Royal Commissions Act
1902 and the Telecommunications (Interception) Act 1979. These
measures will remove certain practical and legal obstacles which impede the
operation of Royal Commissions and their ability to obtain the information
necessary to fulfil their terms of reference. They will:
• make it
clear that a Royal Commissioner can summon a person to produce documents or
things, without also giving oral evidence;
• allow a Royal
Commissioner to require a person, by notice, to produce documents or things to a
specified person and at a specified time and place;
• allow an
authorised police officer to apply to a judge for a search warrant in certain
circumstances, in addition to a Royal Commissioner;
• put it beyond
any doubt that the provision which abrogates the privilege against
self-incrimination also prevents persons refusing to provide information on the
basis that it might tend to make the person liable to a civil penalty;
and
• enable a Commonwealth Royal Commission, that has been
declared by the relevant Minister, to access intercepted material where the
Minister is satisfied that the Commission is likely to inquire into matters that
may involve the commission of a prescribed offence (as defined in the
Telecommunications (Interception) Act).
The new measures will also make a
number of consequential amendments and other technical amendments.
The proposed amendments are not expected to have any financial
impact.
NOTES ON AMENDMENTS
This amendment will allow the Chairperson of ASIC to delegate his power
to impose conditions in relation to information disclosed to Royal
Commissions.
Item 1 of the Bill adds new subsections 127(2B) and (2C) to
the Act. Those new subsections allow ASIC to provide confidential and protected
information to Royal Commissions voluntarily, and allow the Chairperson of ASIC
to impose conditions to be complied with in relation to that
information.
However, as the Chairperson may not always be in a position
to exercise this power personally, he or she should be able to delegate the
power. This is consistent with the Chairperson’s current ability to
delegate similar powers to impose conditions in relation to information
disclosed to other agencies under subsection 127(5) of the Act. An additional
reason for making the power capable of delegation is the fact that the current
Chairperson has decided not to involve himself in matters relating to the HIH
Royal Commission0, in order to avoid perceptions of a conflict of interest
stemming from his previous involvement in matters which are the subject of the
Commission’s inquiry.
Accordingly, this amendment adds a new item
1A to the Bill, which amends subsection 127(5) to allow the Chairperson to
delegate his powers under new subsection 127(2C) of the Act as well.
These amendments are intended to clarify which Royal Commissions, and
which persons working with Royal Commissions, can access financial transaction
reports information (FTR information) reported to AUSTRAC.
Item 3 of the Bill adds a new paragraph 27(16)(ea) to the Financial
Transaction Reports Act. This paragraph gives Royal Commissions which are
inquiring into whether unlawful conduct has occurred access to FTR information.
Amendment 4 will make it clear that the paragraph also extends to Royal
Commissions, such as the HIH Royal Commission, which are inquiring into whether
unlawful conduct might have occurred. New item 2B and amendment 3 make minor
drafting changes.
Item 4 of the Bill adds new paragraphs 27(17)(u) and (v) to the Act.
These paragraphs are intended to allow certain persons working with Royal
Commissions to deal with FTR information. Amendment 5 replaces these paragraphs
with a new paragraph 27(17)(u) that allows ‘an official’ of a Royal
Commission to access FTR information. New item 2A defines an official of a
Royal Commission as a legal practitioner appointed to assist a Commission, or a
person otherwise assisting a Commission who is authorised in writing by a Royal
Commissioner. This will make it clearer that the range of persons who work with
Royal Commissions, such as persons seconded from other agencies or solicitors
appointed to assist a Commission, are able to deal with FTR
information.
Amendment 6 – Royal Commissions Act
1902
This amendment adds new items 4A to 4Y to the
Bill.
Item 4A
This item makes it clear that a Royal
Commissioner can summon a person to produce documents or things, without also
giving oral evidence. At present, subsection 2(1) of the Act allows a Royal
Commissioner to summon a person to give evidence and to produce documents
or things. A Royal Commission may only need to summon a person to produce
documents or things. The item repeals and replaces subsection 2(1) to make it
clear that a Royal Commissioner can summon a person to either give evidence, or
produce documents or things or both.
This item gives a Royal Commissioner the power to require a person to
produce documents or things by notice. Under the current Act, a Royal
Commissioner can only require a person to produce documents to a Commissioner at
a formal hearing. This is likely to prove cumbersome where Royal Commissions
need to collect large numbers of documents in the course of their inquiries.
The item adds a new subsection 2(3A) to the Act which gives a Royal Commissioner
the power to require a person, by written notice, to produce documents or things
to a person, and at a time and place, specified in the notice.
This item makes an amendment consequential to the amendment made by item
4B by making it an offence to refuse or fail to comply with a notice issued
under new subsection 2(3A). Section 3 of the Act already makes it an offence to
fail to comply with a summons. The item adds new subsection 3(4) to the Act,
which makes it an offence to refuse or fail to comply with a notice as well.
The offence will be punishable by same penalty as the existing offence of
failing to comply with a summons. The item also adds new subsections 3(5) and
(6) to the Act. These subsections provide a person charged with an offence
under subsection 3(4) with a defence if he or she has a reasonable excuse, or if
the documents or things specified in the notice were not relevant to the
Commission’s inquiry.
These items allow an authorised police officer assisting a Royal
Commission to apply to a judge for a search warrant. Sections 4 and 5 of the
Act allow a Royal Commissioner to apply to a judge for a search warrant in
certain circumstances and where the Commissioner is satisfied of certain
matters. These items are intended to assist the operation of Royal Commissions
by amending sections 4 and 5 to allow a Royal Commission to authorise police
officers who are assisting the Commission to apply for search warrants as
well.
This item makes an amendment consequential to the amendment made by item
4B, and also puts beyond any doubt that persons cannot refuse to provide
information to Royal Commissions on the ground that it might tend to make them
liable to a civil penalty.
Section 6A of the Act currently provides that
a person may not refuse or fail to answer a question or produce a document or
thing pursuant to a summons on the ground that it might tend to incriminate him
or her. This provision recognises that Royal Commissions are established to
inquire into matters of significant public interest and require broad access to
information to ascertain the truth about those matters. The item repeals and
replaces section 6A to ensure that it also applies to the production of
documents or things pursuant to a notice under new subsection 2(3A) as well.
The ‘use immunity’ provision in the Act will also be extended to
provide some protection to persons who may incriminate themselves by producing
such documents or things (see Item 4Q).
The new section 6A will also put
beyond any doubt that a person cannot refuse or fail to provide information to a
Royal Commission on the basis that it might tend to make him or her liable to a
civil penalty. As noted, section 6A already prevents a person refusing or
failing to provide information on the basis that it might tend to incriminate
him or her. While the courts have found that similar provisions in other
legislation also prevent a person refusing or failing to provide information on
the basis that it might tend to make him or her liable to a civil penalty, new
section 6A is intended to forestall any such legal arguments about the ambit of
section 6A by expressly providing that a person cannot refuse or fail to provide
information on this ground.
The new section does not compel persons to
provide such information where proceedings in respect of the penalty in question
are on foot. This offers some protection against the potentially adverse
consequences of providing such information. The ‘use immunity’
provision in section 6DD offers further protection by preventing the admission
of certain information in criminal or civil proceedings, which would include
civil penalty proceedings.
This item makes a minor technical amendment to section 6C of the Act.
Section 6C provides that, where a person commits an offence against sections 5
and 6 of the Act on different days, the person is taken to have committed
separate offences. Section 5 no longer contains an offence provision. The
offence provision previously contained in that section, which dealt with failure
to comply with a summons, is now contained in section 3. The item amends
section 6C to replace the reference to section 5 with a reference to section
3.
This item makes an amendment consequential to the amendment made by item
4B. It repeals and replaces paragraph 6D(3)(b) of the Act to make it clear that
a Royal Commission has the power to issue a non-publication order in relation to
documents or things produced to a person pursuant to a notice under new
subsection 2(3A), as well as documents produced pursuant to a summons or during
the course of a hearing.
This item makes an amendment consequential to the amendment made by item
4B by extending the immunity contained in section 6DD of the Act.
At
present, section 6DD provides that a statement or disclosure made by a witness
in the course of giving evidence is not admissible against that witness in any
civil or criminal proceedings (except proceedings for an offence against the
Act). This provision offers some protection to witnesses who are compelled to
provide information which might tend to incriminate them in the course of giving
evidence before a Commission. The item repeals and replaces section 6DD to
provide that evidence of the fact that a person has produced a document or thing
to a Royal Commission, whether pursuant to a summons, notice or a requirement
imposed during the course of a hearing, is also inadmissible against that person
in any civil or criminal proceedings.
The new subsection 6DD(2)
preserves the operation of the existing provision in relation to proceedings for
an offence against the Act.
This item makes an amendment consequential to the amendment made by item
4B. It repeals and replaces paragraph 6F(1)(a) to make it clear that a Royal
Commissioner or authorised person can inspect documents or things produced to a
person pursuant to a notice under new subsection 2(3A), as well as documents
produced pursuant to a summons or during the course of a hearing.
This item makes an amendment consequential to the amendment made by item
4B. It repeals and replaces paragraph 6F(1)(c) to make it clear that a Royal
Commissioner or authorised person can copy documents produced to a person
pursuant to a notice under new subsection 2(3A), as well as documents produced
pursuant to a summons or during the course of a hearing.
The item also
allows a Royal Commissioner or authorised person to copy the whole of a
document, as long as it contains some information relevant to a
Commission’s inquiry. The current paragraph only allows the copying of
parts of documents which are relevant to a Commission’s inquiry. This may
create administrative difficulties for Royal Commissions by requiring them to
excise irrelevant parts of documents before copying them. The new paragraph
6F(1)(c) will allow a Royal Commissioner or authorised person to copy the whole
of a document, where it contains some information that is relevant to the
Commission’s inquiry.
This item adds a new subsection 6I(2) to section 6I so that it is also an
offence to bribe any person upon any agreement or understanding that the person,
or any other person, will not comply with a requirement to produce documents to
a Royal Commission. The offence will be punishable by the same penalty as the
existing offence in section 6I of bribing a witness.
This item adds a new subsection 6J(2) to section 6J so that is also an
offence to defraud a person with the intention that the person, or any other
person, will not comply with a requirement to produce documents or things. The
offence will be punishable by the same penalty as the existing offence in
section 6J of defrauding a witness.
This item makes an amendment consequential to the amendment made by item
4B. It repeals and replaces paragraph 6K(1)(c) so that it is an offence to
destroy documents and things that are or may be required to be produced pursuant
to a notice issued under new subsection 2(3A), as well as documents that may be
required in evidence.
The item also replaces an inappropriate fault
element in paragraph 6K(1)(c). The words ‘or has reasonable grounds to
believe’ import an objective fault element. The new paragraph 6K(1)(c)
will use the subjective fault element of recklessness instead. The fault
element of recklessness is explained in Chapter 2 of the Criminal Code.
This item makes an amendment consequential to the amendment made by item
4B. It adds a new subsection 6L(2) to section 6L so that it is also an offence
to prevent a person from producing documents or things pursuant to a notice
under new subsection 2(3A). The offence will be punishable by the same penalty
as the existing offence in section 6L of preventing a witness attending before a
Royal Commission.
This item makes an amendment consequential to the amendment made by item
4B. It repeals and replaces 6M so that it is an offence to injure a person on
account of that person producing documents or things pursuant to a notice under
new subsection 2(3A), as well as on account of that person having appeared as a
witness or on account of any evidence given by that person. The penalty in
section 6M will remain the same.
This item makes an amendment consequential to the amendment made by item
4B. It repeals and replaces 6N of the Act so that it is also an offence for an
employer to dismiss or prejudice an employee on account of the employee having
producing documents or things pursuant to a notice under new subsection 2(3A),
as well as on account of the employee having appeared as a witness or having
given evidence. The penalty in section 6N will remain the same.
This amendment adds new items 10 to 31 to the Bill.
These items amend the Telecommunications (Interception) Act 1979
(the Interception Act) to enable a declared Commonwealth Royal
Commission to receive information which has been lawfully intercepted by other
agencies, and to use that information in the performance of its functions. A
number of Commonwealth and State law enforcement and investigative agencies,
such as the Queensland Criminal Justice Commission, are permitted to receive and
use such information. The Royal Commission into the New South Wales Police
Service was likewise permitted to receive and use such information during its
operation.
Subject to limited exceptions, section 63 of the Interception
Act prohibits the communication, use or recording of intercepted information and
designated warrant information (as defined in section 6EA of the Interception
Act).
Section 68 allows the chief officer of an agency to communicate lawfully
intercepted information that was obtained by that agency to specified persons
in specified agencies. Item 26 will amend section 68 to allow the chief officer
to communicate such information to the ‘chief officer’ of an
‘eligible Commonwealth authority’, if the information relates or
appears to relate to the commission of a ‘relevant offence’ in
relation to the eligible Commonwealth authority.
Item 23 provides a
mechanism for the declaration of a specified Commonwealth Royal Commission as an
‘eligible Commonwealth authority’ for the purposes of the
Interception Act. Item 13 defines an ‘eligible Commonwealth
Authority’ as a Royal Commission established under the Royal
Commissions Act 1902 which has been declared by the relevant Minister under
new section 5AA of the Interception Act (see Items 12, 13 and 23). The relevant
Minister will have the power to declare a Royal Commission to be an
‘eligible Commonwealth authority’ by a notice published in the
Gazette, if he or she is satisfied that the Royal Commission is likely to
inquire into matters that may involve the commission of a ‘prescribed
offence’. A prescribed offence is defined in subsection 5(1) of the
Interception Act and includes an offence punishable by a maximum penalty of a
least three years imprisonment.
As noted, the information can only be
communicated to the ‘chief officer’ of a declared Royal Commission.
The chief officer will be defined as the member constituting the Royal
Commission in the case of a sole Royal Commissioner, or the presiding member in
the case of a multi-member Royal Commission (see items 10 and 11). The identity
of presiding member will be a question of fact.
As also noted above,
information can only be communicated if it relates, or appears to relate, to the
commission of a ‘relevant offence’. A relevant offence for the
purposes of a declared Royal Commission is a ‘prescribed offence’
(as defined above) to which a ‘prescribed investigation’ relates
(see Items 21 and 22). A ‘prescribed investigation’ is an
investigation conducted by a declared Commonwealth Royal Commission in the
course of its inquiry (see items 19 and 20).
Section 67 of the Interception Act allows an officer or staff member of
an ‘agency’ to communicate, use and record lawfully obtained
interception information and designated warrant information for permitted
purposes.
Item 25 will amend section 67 to allow an ‘officer’ of a declared
Commonwealth Royal Commission to communicate, use and record such information
for permitted purposes. An ‘officer’ will be defined in subsection
5(1) as a member of the Commonwealth Royal Commission, a legal practitioner
appointed to assist such a Commission and a person otherwise assisting such a
Commissioner who is authorised in writing (see items 14, 15 and 16). A
‘permitted purpose’ in relation to a declared Commonwealth Royal
Commission will be defined in subsection 5(1) as an investigation that the
Commission is conducting in the course of its inquiries, and a report on such an
investigation (see items 17 and 18).
Giving evidence in Commonwealth
Royal Commission proceedings
Section 74 of the Interception Act
allows lawfully obtained interception information to be given in evidence in an
‘exempt proceeding’.
Item 24 will amend the definition of
‘exempt proceeding’ in section 5B of the Interception Act to include
a proceeding of a declared Commonwealth Royal Commission.
Reporting
Part IX of the Interception Act requires certain reports regarding
interceptions to be provided to the relevant Minister.
Section 95 of the
Interception Act allows the Minister to obtain certain information from the
‘chief officer’ of a Commonwealth agency for the purposes of these
reporting requirements. Items 27 and 28 will allow a Minister to obtain
information from the ‘chief officer’ of a declared Commonwealth
Royal Commission.
Section 99 of the Interception Act requires that the
Minister prepare an annual report in relation to the use of telecommunications
interception and intercepted information. Section 102 of the Interception Act
requires that the Minister’s report to the Parliament contain certain
information in relation to each Commonwealth agency and each eligible authority
of a State. Items 29, 30 and 31 amend this section to require that the report
also contain this information in relation to declared Commonwealth Royal
Commissions.