Natasha Stott Despoja (SA, Australian Democrats) Share this | Hansard source

The incorporated speech read as follows—

The Royal Commissions Amendment (Records) Bill 2006 amends the Royal Commissions Amendment Act 1902, to enable regulations to facilitate provision of custody and use of, and access to, records of royal commissions (including and beyond those involved in the Cole inquiry.)

The regulations are also designed to 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. This bill also aims to insert a regulation—giving power to enable regulations to be made to give custody or access to records to persons or bodies for investigative and prosecutorial purposes.

Upon introducing the bill, The Hon Malcolm Turnbull, Parliamentary Secretary to the Prime Minister argued that:

The bill is urgent because it will provide the capacity to make regulations concerning the provision of relevant records of the Cole inquiry to appropriate authorities ... The regulations that will be able to be made when the bill has been passed will assist in expediting consideration of whether proceedings should be commenced in relation to the possible breaches of the law identified by the Cole inquiry.

Concerns over the bill’s content were raised immediately by a number of parties and groups as well as the Australian Democrats. Shadow Attorney-General, Nicola Roxon, rightly questioned the Coalition over the broadness of the bill, arguing that this bill, if passed would allow:

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!

The Australian Democrats were deeply concerned over the potential implications that this bill, in its original form, would have on future Royal Commissions.

We were concerned over the broad discretionary powers that were outlined in the bill, in particular, in relation to the purposes of the proposed regulations.

Had the Government failed to introduce the appropriate amendments, to ensure the regulations were specific, the Democrats, like the Opposition, would have introduced the appropriate measures to prevent any potential misinterpretation or misuse of the legislation.

However, while we support the intention of these amendments, we maintain that this bill should be restricted to deal solely with the recent Cole inquiry.

The Democrats are concerned over the broad nature of Schedule 1, item 2 paragraph 9(11)(a) in the original bill whereby it stated:

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:

(i)

May use the records under subsection 6; and

(ii)

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

(iii)

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

Considering this section could theoretically allow for the custodian to obtain custody of Royal Commission Records for any purpose, the Australian Democrats welcome the Governments amendment to this section, to include a clause outlining the purposes for which the custodian can access records. The amended section now reads:

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)

The inclusion of ‘law enforcement purposes’ in this section, along with a definition of what constitutes law enforcement ensures that documents obtained through a Royal Commission are only used for the prescribed purposes specified in subsection 9(1)

The Government’s Supplementary Explanatory Memorandum outlines the rationale for the introduction of further amendments to the proposed legislation stating:

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

The principle change effected by the amendments relates to the provisions 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.

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.

The Democrats also welcome the amendment to subsection 9(3), to limit the range of potential custodians of Royal Commission records. This section, as introduced, originally provided an open ended category of any other person or body that may be prescribed.

The amendments are also aimed at limiting the circumstances in which procedural fairness is removed for law enforcement purposes. The supplementary Explanatory Memorandum highlights the law enforcement purposes as:

• the custodian uses the records for the purposes of the purposes of the performance of the custodian’s functions and the exercise of the custodian’s powers;
• 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 for the purposes of the performance of their functions and the exercise of their powers.

In conclusion, the Democrats originally held concerns over the broad nature of the potential range of purposes to which the records may be put.

However, while we welcome the amendments, we believe that they could go further to ensure the bill deals specifically with the Cole inquiry.

As with the HIH Royal Commission in 2003, which facilitated the transfer of information to the Australia Securities and Investments Commission (ASIC), we believe that a similar provision in this bill would be far more effective than the current model.

Considering most criminal prosecutions that arise from a Royal Commission generally occur immediately following an inquiry, the need for a general purpose piece of legislation to deal with the recent Cole inquiry seems unnecessary.

As mentioned, the Democrats support the introduction of amendments to narrow the scope of the bill, we believe that the content of the bill should specifically deal with the recent Cole Inquiry.

I stress that while we support the intent of this bill, the Democrats are moving amendments to ensure that this bill only relates to the recent Cole inquiry.

The amendments the Democrats propose, will amend The Royal Commissions Amendment (Records) Bill 2006 to provide a clause that specifically states that this bill is only to be used in relation to the criminal prosecution of factors arising from the Cole inquiry. While the bill in its current form ha been tightened, the Democrats believe it should simply deal specifically with the issue at hand - the inquiry into Certain Australian Companies in relation to the UN-Oil-for-food Programme (The Cole Inquiry.)