Bills Digest no. 61 2006–07
Royal Commissions Amendment (Records) Bill
2006
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage History
Purpose
Background
Financial Implications
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Passage History
Royal Commissions Amendment
(Records) Bill 2006
Date introduced:
30 November 2006
House: House of Representatives
Portfolio: Prime Minister and
Cabinet
Commencement:
On Royal
Assent.
The Royal
Commissions Amendment (Records) Bill 2006 (the Bill)
inserts provisions for regulations to be made under the Royal
Commissions Act 1902 which will provide for the custody of
Royal Commission records, for their use, transfer of records or
access to those records by other persons and bodies.
This Bill seeks to insert provisions into the
Royal Commissions Act 1902 to make regulations which will
specify how Royal Commission records are to be dealt with, to whom
records will be passed, how the records are to be used and who may
use them. The regulations will also specify the purposes for which
the records are not to be used and any conditions placed on the use
of the records by any persons or bodies to whom the records are
given or allowed access.
All records of a Royal Commission that are no
longer required for the purposes of the Royal Commission are deemed
to be Commonwealth records for the purposes of the Archives Act
1983 (Archives Act) Section 22 of the Archives
Act governs how records of all Royal Commissions are dealt
with under the Archives Act. Section 22(3) gives the
Minister power to make declarations on the custody of the records
and the Australian Archives are not entitled to the records unless
the declaration of the Minister indicates otherwise. Section 22(4)
states that any direction by the Royal Commission that prohibits
publication of a document or matter does not apply once public
access is provided under the Archives Act in the open
access period. Section 22(5) states that the Minister responsible
for administering the Royal Commissions Act 1902 is deemed
to be the responsible Minister in relation to records of Royal
Commissions. The Department of Prime Minister and Cabinet
administers the Royal Commissions Act 1902, therefore the
Prime Minister is the responsible Minister.
In 1993, the High Court of Australia decided
that, based on notions of procedural fairness, the Minister is
required to notify the person who initially provided specific
records to a Royal Commission that the records are about to be
transferred to a different retainer. (1)The decision of
the High Court is summarised in the following quotation:
At first glance Johns v Australian
Securities Commission appears to be the high-water mark of the
extension of procedural fairness to procedural decisions of
investigative tribunals. The managing director of the
Tricontinental group of companies was examined on oath by an
officer of the ASC in a private hearing, where by law, he was
denied the privilege against self-incrimination. The transcript of
the examination was confidential to the ASC, except where the
chairperson was satisfied that use and disclosure of particular
information should be authorised because it would assist the
government or an agency to perform a function or exercise a power.
It was the ASC's practice to release transcripts of interviews to
the royal commission established to enquire into the affairs of the
Tricontinental group, the use of the transcripts being restricted
to internal purposes of the commission.
The royal commission sought the ASC's permission
to lift the confidentiality condition attaching to such transcripts
to enable their public release in the course of the commission's
proceedings. Exercising delegated power, an ASC officer provided
the royal commission with transcripts of the director's
examinations together with written permission for the commission to
use the transcripts in a public hearing. Eight of the transcripts
were tendered at public hearings of the royal commission, and at
the same time copies were made available to media organisations.
The media published a limited amount of material from the
transcripts. In the commission's hearing, the director claimed the
privilege against self-incrimination. His entitlement to claim the
privilege in the commission's proceedings was upheld by the Supreme
Court of Victoria. The royal commission then ruled that it would
make no further use of the transcripts already tendered, that there
should be no further publication of them, and that it would accept
no further transcripts.
The director sought judicial review of the ASC's
decision to release the transcripts to the royal commission and an
injunction to restrain their further publication. In the High Court
Brennan J held that the ASC acted within power in lifting the
condition of confidentiality against use of the transcripts in
public hearings of the royal commission, but that procedural
fairness was implied in relation to that decision and had been
breached. The ASC should have given the director an opportunity for
a hearing before lifting the condition, since this action would
prejudice his interests. In Brennan J's view if that opportunity
had been given, the ASC may have thought better of its proposed
action, recognising, as the royal commission did at too late a
stage, that publication was not consistent with the entitlement of
the director to claim the privilege against self-incrimination in
the royal commission proceedings. Dawson, Gaudron and McHugh JJ
agreed with Brennan J on the issue of procedural fairness and the
lifting of the condition. Toohey J dissented, holding that no
obligation of confidentiality attached to the transcripts and that
giving an opportunity to an examinee to be heard before the ASC
releases transcripts to a royal commission or some law enforcement
agency investigating possible offences might well destroy the
investigation.
Johns v Australian Securities Commission
raises competing arguments about fairness and the procedure of
investigative tribunals. Toohey J's dissent presented a persuasive
argument that the implication of procedural fairness in relation to
some procedural decisions of investigative tribunals may undermine
their investigative processes. On the other hand, common law rights
and human rights were directly affected by the royal commission's
decision-making, and indirectly affected by the ASC's decision to
lift the confidentiality of the transcripts. The tension between
these arguments is evident in the reception of Johns in
the Federal Court, where it has been applied in one case and
distinguished in another. (2)
Due to this decision, any documents obtained
by a Royal Commission may only be transferred to a particular
agency once the Commonwealth has gone through the process of giving
notice to owners of documents and dealt with any lodged objection
to the transfer. (3)
To counter the effects of the High Court s
decision in Johns, legislation was passed in 2003,
specifying what was to happen to the records of the HIH Royal
Commission. The purpose of this legislation was to facilitate the
transfer of records from the HIH Royal Commission to the Australian
Securities and Investments Commission. The Bills
Digest on this particular Bill stated the following:
To overcome this procedural requirement in
relation to the HIH Royal Commission, the Bill contains a series of
provisions, which state that custody in HIH Royal Commission
documents will automatically vest in ASIC. This removes the
discretionary power of the Minister to determine custody and hence
the need to consult with the original owners of the document.
The Bill puts in place arrangements for ASIC to
make use of the records and states that elements of
confidentiality, any associated legal professional privilege and
protection against self incrimination are
maintained(4)
The Explanatory Memorandum to the Bill states
that the HIH Royal Commission (Transfer of Records) Act
2003 was legislation with a similar effect to the
Bill.(5)
The Bill removes the requirement to obtain
consent or contact the owner of records, neither giving an
opportunity to make submissions or take into account submissions by
the owner of the documents. Journalist Mark Metherall commented
that:
The changes mean investigators from agencies such
as the Australian Securities and Investment Commission would not
have to go through consultative processes before gaining commission
records.(6)
The Bill provides that legal professional
privilege is not affected. The Encyclopaedic Australian Legal
Dictionary defines the term legal professional privilege as
follows:
A common law principle protecting the
confidentiality of statements and other materials made between a
legal practitioner and client where those statements and other
materials have been made or brought into existence for the dominant
purpose of the client obtaining, or the legal practitioner giving,
legal advice or for use in existing or contemplated judicial or
quasi-judicial proceedings: Esso Australia Resources v FCT
(1999) 201 CLR 49; 168 ALR 123. This principle is referred to in
uniform evidence legislation as `client legal privilege': (CTH)
Evidence Act 1995 ss 117-119. At common law, the terms `client
legal privilege' and `legal professional privilege' have been used
interchangeably: Esso Australia Resources v
FCT. The privilege extends to legal practitioners employed by
government agencies in respect of confidential communications
between them and their employer: Waterford v
Commonwealth (1987) 163 CLR 54; 12 ALD 741. The privilege will
not apply where the communication was part of a criminal or
unlawful proceeding, or was made in furtherance of an illegal
object: Varawa v Howard Smith & Co Ltd (1910) 10 CLR
382. The privilege will also be denied to a communication that is
made for the purpose of frustrating the processes of the law even
though no crime or fraud is contemplated: Attorney-General (NT)
v Kearney (1985) 158 CLR 500; 61 ALR
55.(7)
However, it should be noted that on 30
November 2006, the Attorney-General announced, an inquiry into
legal professional privilege as it relates to the activities of
Commonwealth investigatory agencies, to be conducted by the
Australian Law Reform Commission (ALRC). Matters relating to legal
professional privilege were raised during the Inquiry into the UN
Oil-for-Food Program.(8) The Attorney-General
stated:
Commissioner Cole has recommended that
consideration be given to providing that legal professional
privilege not apply to royal commission proceedings The ALRC will
look at legal professional privilege and its impact on all
Commonwealth bodies, including royal commissions, that have
coercive information gathering or associated
power.(9)
See also a recent Bills Digest earlier in 2006
in respect of claims of legal professional privilege, Royal
Commissions Amendment Bill 2006.
ALP
position
The Shadow Attorney-General, Ms Nicola Roxon
MP, has raised concerns abut the Bill on 30 November 2006. The
concerns are that the Bill is too broad and that it allows
all records of all Royal Commissions, whether
past or future, to be passed to any custodian for
any purpose.
Labor stands ready to assist with changes that are
needed to allow our law enforcement agencies to investigate
possible crimes committed by AWB and staff. To do so, we don t need
this wide law
Theoretically, this law allows the Government to
order that documents from Royal Commissions 20 years ago should all
be given to Fox FM or the Chaser for the purposes of
entertainment!
This may sound silly, but the law would allow
it.(10)
Instead, she called upon the Government:
to reconsider its approach and limit their law to
the matter at hand: AWB and law enforcement
issues.(11)
The Explanatory Memorandum states that the
Bill has no financial impact.
Item 2 inserts new
section 9 Custody and use of records of Royal
Commission. Item 2 new subsection
9(1) inserts definitions of body, custodian,
public authority, public office holder, record, and
Royal Commission record.
New subsection 9(2) provides
for regulations to be made for the custody, use, transfer of or
access to Royal Commission records:
-
subparagraph (2)(a) provides for who shall have custody of the
records
-
subparagraph (2)(b) provides that the regulations may specify
the purposes for which the records are to be used and the purposes
for they are not to be used
-
subparagraph (2)(c) provides for the circumstances in which the
custodian must or may make records available to other persons or
bodies
-
subparagraph (2)(d) provides for the circumstances in which the
custodian must or may allow access to records by other persons or
bodies, and
-
subparagraph (2)(e) provides that the regulations may specify
the purposes for which other persons or bodies may use the records
or the purposes for which the records are not to be used.
Regulations made under subparagraph (2)(a) may
provide for a person or body to have custody of the records even if
that person or body currently has custody of the records by virtue
of a declaration under section 22(3) of the Archives
Act.
New subsection 9(3) provides
that the regulations may nominate any one of the persons or bodies
listed to have custody to the records or a person or body may be
prescribed by the regulations for the purposes of this
subsection.
New subsection 9(4) provides
that the regulations may impose conditions which are to be complied
with by the custodian or the persons or bodies to whom records are
given or those who are allowed access to the records.
New subsection 9(5) provides
that regulations made under subparagraph 9(2)(a) and while those
regulations are in force will invoke the effect under the
Archives Act as though a direction had been issued under
subsection 22(3) of the Archives Act in relation to the
same records. This, according to the Explanatory Memorandum,
avoids procedural processes that are involved when transferring the
custody of records under a direction of the Archives
Act.(12)
New subsection 9(6) provides
that a custodian may use records for the purposes of the custodian
s functions and exercise of powers, or other purposes they could
have used the record for, had it been acquired in the course of the
exercise of their functions and powers subject to restrictions in
the regulations.
New subsection 9(7) provides
that if a person or body who is a public office holder or a public
authority is given records or access to records, they may use the
records for the purposes of their functions and powers and for any
purpose had they acquired the records in the course of exercising
their functions and powers. New subsection 9(8)
provides that the operation of subsections (6) and (7) are subject
to the regulations which may specify purposes for which the records
are not to be used or conditions imposed to be complied with by the
custodian or the recipient of the records.
New subsection 9(9) provides
that purposes specified in the regulations in relation to
subparagraphs (2)(b)(i), (e)(i) and subsections 9(6) and (7) need
not be the same as the Royal Commission when they produced,
obtained or were given the records.
New subsection 9(10) provides
that a custodian of Royal Commission records may retain the records
for as long as they think fit despite any requests from the owner
of the records that they be returned.
New subsection 9(11) provides
that a person or body to whom custody of Royal Commission records
are given, may use, give or allow access to the records is not
required to obtain the consent, or give notice to, or give an
opportunity for submissions to be made or to take account of any
submissions made by the owner when making decisions related to the
records. See the discussion of Johns case above at pages 3
and 4 of this Digest.
New subsection 9(12) provides
that the operation of section 6DD is not affected. Section 6DD of
the Royal Commissions Act 1902 relates to statements made
by witnesses or the production of documents pursuant to a summons,
requirement or notice under section 2 or subsection 6AA(3) before a
Royal Commission. Such statements or documents are not admissible
in evidence in civil or criminal proceedings in a court of the
Commonwealth, state or territory.
New subsection 9(13) provides
that Royal Commission records will still be the subject of legal
professional privilege.
Concluding comments
The Bill was introduced on 30 November 2006
and set down for debate in the House of Representatives on 5
December 2006. Given the scope of the regulation making power and
the possible procedural fairness implications for those persons who
initially provided specific records to a Royal Commission,
Parliament may want to consider whether to allow more time for
further consideration of the proposed law. According to the
Attorney-General, this will occur with respect to the issue of
legal professional privilege, scheduled to be considered by the
ALRC.
1. S. Dudley,
HIH Royal Commission (Transfer of Records) Bill 2003, Bills Digest,
no. 181, Parliamentary Library, Canberra, 2002-03, p. 2.
2. M. Allars,
Reputation, Power and Fairness: a Review of the Impact of Judicial
Review upon Investigative Tribunals, Federal Law Review, vol.
24, no.2, 1996.
3. Dudley, loc.
cit.
4. ibid.
5. Explanatory
Memorandum, p. 1.
6. Mark
Metherall, Wider inquiry powers criticised , Sydney Morning
Herald, 1 December 2006, p. 5
7. Encyclopaedic
Australian Legal Dictionary, Legal professional privilege
LexisNexis.AU
8. Hon Philip
Ruddock MP (Attorney-General), Australian Law Reform Commission
to Review Legal Professional Privilege, media
release, Parliament House, Canberra, 30 November 2006.
9. ibid
10. N. Roxon MP (Shadow
Attorney-General), Government rush to take some action on
AWB but get it wrong, media release, Parliament
House, Canberra, 30 November 2006..
11. Roxon, op. cit...
12. Explanatory Memorandum, p.5
Moira Coombs
4 December 2006
Bills Digest Service
Parliamentary Library
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