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2002 - 03
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF
REPRESENTATIVES
HIH ROYAL COMMISSION (TRANSFER OF RECORDS) BILL 2003
EXPLANATORY MEMORANDUM
(Circulated by authority of the Treasurer,
the Hon Peter
Costello, MP)
Table of Contents
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1.1 The HIH Royal Commission (Transfer of Records) Bill 2003 provides for the transfer of custody of certain records of the HIH Royal Commission (the Royal Commission) to the Australian Securities and Investments Commission (ASIC).
1.2 This statutory transfer is deemed necessary to overcome potential procedural impediments to ASIC pursuing efficiently and expeditiously the referrals made to it by the Government following the Royal Commission. In the absence of this legislation, the transfer of documents would result in a lengthy process of giving notice to owners of documents and settling any objections to the transfer. This may frustrate the expeditious investigation and prosecution of potential offences.
1.3 In summary, the measures achieve three main objectives.
1.4 The first is to transfer custody of certain Royal Commission records to ASIC.
1.5 The second is to clarify that the transferred records may be used by ASIC for the purposes of its functions and powers but that they will be afforded appropriate protection while in ASIC’s custody.
1.6 The third is to ensure that the legal protections that would otherwise apply to the records of a Royal Commission continue to attach to the records while in ASIC’s custody. This includes legal professional privilege. Furthermore, the ownership of documents or things produced to the Royal Commission will be unchanged by the transfer to ASIC.
2.1 It is not envisaged that this Bill will have a financial impact on the operations of Government.
Clause 1 — Short Title
3.1 This is a formal provision that specifies that the short title of the Bill is the HIH Royal Commission (Transfer of Records) Bill 2003.
Clause 2 — Commencement
3.2 The Bill will commence on the day that it receives Royal Assent.
Clause 3 — Definitions
3.3 A number of terms used throughout the Bill are defined by this clause.
Clause 4 — ASIC entitled to custody of certain original records of the HIH Royal Commission
3.4 This is a key operational clause of the Bill. It provides that original records of the HIH Royal Commission, held by the Commonwealth, are transferred into the custody of ASIC.
3.5 Prior to the transfer, the records of the HIH Royal Commission were held by the Commonwealth pursuant to subsection 22(2) of the Archives Act 1983 (Archives Act).
3.6 The records to be transferred to ASIC are limited to those that were produced to the Royal Commission and are records of the Commonwealth under subsection 22(2) of the Archives Act. This excludes records that were produced by persons employed or retained by the Royal Commission. This ensures that internal Royal Commission records are not transferred to ASIC.
3.7 The transfer of records under the Bill is designed to provide ASIC with custody of the records as if it received them in accordance with a direction pursuant to subsection 22(3) of the Archives Act. However, the Bill has the effect of facilitating the transfer and overcoming delays that would arise from procedural processes that would normally attach to such a direction.
3.8 The transfer is to take place as soon as practicable following commencement of the Bill.
3.9 Following the completion of the use of the records by ASIC, the disposal of the records will be subject to the normal Archives Act processes.
Clause 5 - ASIC to be provided with electronic copies of certain records of the HIH Royal Commission
3.10 This clause is the other key operational clause of the Bill. It provides for the transfer to ASIC of an electronic copy of the electronic version of records of the Royal Commission, where the Commonwealth has an electronic version. The transfer is not contingent on whether the Commonwealth is able to deliver the original of the record under Clause 4. This deals with the possibility that the original record is no longer held by the Commonwealth.
3.11 The electronic copy of the electronic version provided to ASIC will include any objective coding data attached to that record. Objective coding data is objective information such as the author and addressee of the record, the date of the record, and the nature of the record. This data is being provided to assist with the effective management of the records provided to ASIC. Any subjective information attached to the record, such as commentaries or notes about the content of records made by persons employed or retained by the Royal Commission will not be made available to ASIC.
3.12 Custody of the electronic version of records (including both objective and subjective coding data) remains with the Commonwealth.
Clause 6 — Regulations may provide for ASIC’s access to other records of the HIH Royal Commission
3.13 This clause enables Regulations to be made that would allow the further transfer of records that remain in possession of the Commonwealth. This transfer could involve ASIC being given either custody of the records, or access to the records (or electronic copies of the records).
Clause 7 — Status of the transferred records
3.14 This clause specifies the way in which ASIC is taken to have received the records that are transferred to it. This ensures that the transfer is taken to be for the purpose of ASIC performing its functions and powers. This clarifies the way in which ASIC can use and deal with the transferred records.
3.15 This clause ensures that the transferred records are afforded the same confidentiality as information collected by ASIC in the course of its operations. However, to the extent that the transferred records had already been lawfully made available to the public by other sources, their status would not be affected by this clause, as they would not be considered protected information for the purposes of the ASIC Act.
3.16 The clause also specifies that ASIC is able to retain the transferred records for as long as ASIC considers it desirable for the purpose of exercising its powers and functions. This will allow ASIC to resist requests from the owners of the records for their return, if this is considered necessary for ASIC to exercise its powers and functions. However, the owners will still be able to access the records and to make copies. This clause will not prevent the owners of records or other parties from initiating action through the courts to retrieve the records.
Clause 8 — Section 6DD of the Royal Commissions Act 1902 continues to apply to the records
3.17 This clause ensures that the protection for individuals against self-incrimination that would usually apply to records of a Royal Commission continues to apply to the transferred records. This means that ASIC’s use of the records against the individuals that provided them to the Royal Commission would be subject to section 6DD of the Royal Commissions Act 1902.
3.18 Section 6DD of the Royal Commission Act 1902 makes inadmissible the fact of the production of the document or other thing.
Clause 9 — No loss of legal professional privilege
3.19 This clause ensures that any rights to claim legal professional privilege over the transferred records continue to exist. This will allow owners of those records to claim legal professional privilege if or when ASIC seeks to use the records.
Clause 10 — Regulations
3.20 This is a standard clause that is complementary to clause 6.