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2016-2017
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
PRIME MINISTER AND CABINET LEGISLATION AMENDMENT
(2017 MEASURES NO. 1) BILL 2017
EXPLANATORY MEMORANDUM
(Circulated by authority of the
Minister for Indigenous Affairs, Senator the Honourable Nigel Scullion)
PRIME MINISTER AND CABINET LEGISLATION AMENDMENT (2017
MEASURES NO. 1) BILL 2017
GENERAL OUTLINE
1. The purpose of the Prime Minister and Cabinet Legislation Amendment (2017
Measures No. 1) Bill 2017 (the Bill) is to amend, and in some circumstances repeal,
legislation in the Prime Minister and Cabinet portfolio.
2. The Bill is a portfolio bill that would amend the following Acts:
Aboriginal and Torres Strait Islander Act 2005
Aboriginal and Torres Strait Islander Commission Amendment Act 2005
Auditor-General Act 1997
Royal Commissions Act 1902.
3. The Bill would repeal the following redundant Acts:
Aboriginal and Torres Strait Islanders (Queensland Reserves and Communities
Self-management) Act 1978
Council for Aboriginal Reconciliation Act 1991.
4. The Bill would make amendments consequential to the repeal of the above Acts to the
following Acts:
Age Discrimination Act 2004
Australian Human Rights Commission Act 1986.
5. Schedule 1 of the Bill would amend the Aboriginal and Torres Strait Islander Act 2005
repealing requirements for the responsible Minister to table the Indigenous Business
Australia's corporate plan in order to streamline processes.
6. Schedule 2 of the Bill would amend the Aboriginal and Torres Strait Islander
Commission Amendment Act 2005 to enable the appropriate consenting authority to
waive the exercise of its statutory consent power by providing written notice to the
organisation concerned that consent is no longer required.
7. Schedule 3 of the Bill would repeal redundant Acts in the portfolio, including the
Aboriginal and Torres Strait Islanders (Queensland Reserves and Communities
Self-management) Act 1978 and the Council for Aboriginal Reconciliation Act 1991
and make amendments consequential to the repeal of these Acts to the Age
Discrimination Act 2004 and the Australian Human Rights Commission Act 1986.
8. Schedule 4 of the Bill would amend the Auditor-General Act 1997 to align the annual
reporting requirements of the Auditor-General with his or her responsibility to the
Parliament.
9. Schedule 5 of the Bill would amend the Royal Commissions Act 1902 to give
Commissioners the power to compel the provision of a written statement; increase the
penalty for failure to comply with a summons or notice to produce; update references
so that penalties now expressed in dollar value are instead expressed as penalty units,
and allow the Secretary of the Attorney-General's Department to be given custody of
Royal Commission records by regulation.
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List of Abbreviations
AD Act means Age Discrimination Act 2004
AHRC Act means Australian Human Rights Commission Act 1986
ANAO means Australian National Audit Office
ATSI Qld Act means Aboriginal and Torres Strait Islanders (Queensland Reserves
and Communities Self-management) Act 1978
ATSIC means Aboriginal and Torres Strait Islander Commission
ATSIC Act means Aboriginal and Torres Strait Islander Commission Act 1989
ATSIC Amendment Act means Aboriginal and Torres Strait Islander Commission
Amendment Act 2005
Crimes Act means Crimes Act 1914
CAR Act means Council for Aboriginal Reconciliation Act 1991
CAR Council means Council for Aboriginal Reconciliation
CEO means Chief Executive Officer
IBA means Indigenous Business Australia
ILC means Indigenous Land Corporation
PGPA Act means Public Governance, Performance and Accountability Act 2013
FINANCIAL IMPACT STATEMENT
1. This Bill has no financial impact.
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STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Prime Minister and Cabinet Legislation Amendment (2017 Measures No. 1) Bill 2017
1. This Bill is compatible with the human rights recognised or declared in the international
instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Bill
2. The Prime Minister and Cabinet Legislation Amendment (2017 Measures No. 1) Bill
2017 (the Bill) would amend, and in some circumstances repeal, legislation in the
Prime Minister and Cabinet portfolio.
3. Schedule 1 of the Bill would amend the Aboriginal and Torres Strait Islander Act 2005
repealing requirements for the responsible Minister to table IBA's corporate plan in
order to streamline processes.
4. Schedule 2 of the Bill would amend the Aboriginal and Torres Strait Islander
Commission Amendment Act 2005 to enable the appropriate consenting authority to
waive the exercise of its statutory consent power by providing written notice to the
organisation concerned that consent is no longer required.
5. Schedule 3 of the Bill would repeal redundant Acts in the portfolio, including the
Aboriginal and Torres Strait Islanders (Queensland Reserves and Communities
Self-management) Act 1978 and the Council for Aboriginal Reconciliation Act 1991
and make amendments consequential to the repeal of these Acts to the Age
Discrimination Act 2004 and the Australian Human Rights Commission Act 1986.
6. Schedule 4 of the Bill would amend the Auditor-General Act 1997 to align the annual
reporting requirements of the Auditor-General with his or her responsibility to the
Parliament.
7. Schedule 5 of the Bill would amend the Royal Commissions Act 1902 to give
Commissioners the power to compel the provision of a written statement; increase the
penalty for failure to comply with a summons or notice to produce; update references
so that penalties now expressed in dollar value are instead expressed as penalty units,
and allow the Secretary of the Attorney-General's Department to be given custody of
Royal Commission records by regulation.
Human rights implications
The right to protection against arbitrary and unlawful interference with privacy and unlawful
attacks on reputation - article 17 of the ICCPR
8. The Bill engages Article 17(1) of the ICCPR that states that no one shall be subject to
arbitrary or unlawful interference with their privacy, family or home.
9. The Bill amends the Royal Commissions Act to give a Royal Commission the power to
issue a notice requiring a person to give information or a statement in writing.
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Article 17 is engaged to the extent a notice of that kind requires a person to give
personal information.
10. The collection and use of that personal information is a proportionate limitation of the
right to privacy in pursuit of a legitimate objective to ensure a Royal Commission can
fully inquire into, and report on, matters of public importance.
11. While a Royal Commission is operating, a Commissioner has an existing power to
disclose evidence relating to a contravention of a law to certain persons and bodies
including the police and the Director of Public Prosecution (if a Commissioner
considers it appropriate). It is a legitimate purpose to pursue proper investigation of
contraventions of a law.
The right to a fair trial and fair hearing - article 14 of the ICCPR
12. Article 14 of the ICCPR specifies, in part, that in the determination of criminal charges
everyone shall be entitled to a fair and public hearing by a competent, independent and
impartial tribunal established by law. Article 14(3)(g) states that in determining a
criminal charge, everyone shall be entitled to the minimum guarantee not to be
compelled to testify against themselves or to confess guilt.
13. The Bill does not engage Article 14 because a Royal Commission does not exercise
judicial power and cannot determine criminal charges (or civil liability). However, the
Bill partially abrogates the privilege against self-incrimination in connection with the
proposal to give a Royal Commission the power to issue a notice requiring a person to
give information or a statement in writing. For that reason, an explanation is given
below on a protection that will apply to evidence of an incriminating nature.
14. The partial abrogation is consistent with the approach that applies where a person is
required to appear to give oral evidence, or to produce a document - see existing
section 6A of the Act. It does not apply where there are offence charges on foot.
15. The partial abrogation of the privilege against self-incrimination supports a
Commission's function to inquire into and report on matters of public importance.
Strong powers are given to a Commission for that purpose. Consistent with the current
approach in the Act, any incriminating evidence in a written statement could not be
used against a natural person in any civil or criminal proceedings in any court (that is,
protection is given to the person through the engagement of 'use' immunity - see
Schedule 5, item 28). However, under existing section 6P of the Act, if a Commission
considers it appropriate to do so, it may disclose evidence relating to a contravention of
a law to certain persons and bodies including the police and the Director of Public
Prosecution. In this way, the evidence cannot be used against the person in any
proceeding but may be used to obtain further evidence against the person.
Conclusion
16. This Bill is compatible with the human rights because to the extent that it may limit
human rights, those limitations are reasonable, necessary and proportionate.
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NOTES ON CLAUSES
Clause 1--Short title
1. Clause 1 provides for the Act to be cited as the Prime Minister and Cabinet Legislation
Amendment (2017 Measures No. 1) Act 2017.
Clause 2--Commencement
2. Clause 2 provides for the whole of the Act to commence the day after the Act receives
the Royal Assent.
Clause 3--Schedules
3. Clause 3 provides that each Act specified in a Schedule to the Act is amended or
repealed as set out in the applicable items in the Schedule concerned, and any other
item in a Schedule to the Act has effect according to its terms.
6
Schedule 1--Indigenous Business Australia
Aboriginal and Torres Strait Islander Act 2005
Item 1--Subsection 150(3)
4. This item is a consequential amendment required as a result of item 2 of Schedule 1.
Subsection 150(3) will become section 150 in its entirety.
Item 2--Subsections 150(4) and (5)
5. This item repeals subsections 150(4) and (5), which require the responsible Minister to
table IBA's corporate plan. The repealing of these subsections will reduce red tape and
streamline processes. This will remove requirements that are additional to those set out
in the Public Governance, Performance and Accountability Act 2013. Indigenous
Business Australia has been consulted on this measure.
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Schedule 2--Consent to dispose of land acquired with ATSIC assistance or from ATSIC
Aboriginal and Torres Strait Islander Commission Amendment Act 2005
6. Before its abolition in 2005, the ATSIC had powers under the ATSIC Act to:
make certain grants (including grants of money and interests in land), or to make a
loan of money, to individuals or bodies (section 14 of the ATSIC Act refers); and
guarantee due payment of a loan made to individuals or bodies (section 15 of the
ATSIC Act refers)
for the purpose of furthering the social, economic or cultural development of
Aboriginal persons or Torres Strait Islanders.
7. ATSIC exercised these powers to assist organisations to acquire an interest in land for a
broad range of activities (e.g. pastoral services, health services, housing, and business
development). In practice, ATSIC assisted organisations, typically Indigenous
community organisations, rather than individuals.
8. Prior to the abolition of ATSIC in 2005, an organisation that acquired an interest in
land with ATSIC assistance could not dispose of the interest without ATSIC's consent
(ATSIC Act, section 21). Following ATSIC's abolition, the ATSIC Amendment Act
vested ATSIC's statutory consent power in the 'appropriate consenting authority'. The
appropriate consenting authority is the Commonwealth, IBA, or the ILC, depending on
the nature of the interest (Schedule 1, subitem 200(2) of the ATSIC Amendment Act
refers).
Item 1--After subitem 200(1) of Schedule 1
9. This item will insert a new subitem 200(1A) into Schedule 1 of the ATSIC Amendment
Act. This will enable the appropriate consenting authority to waive the exercise of its
statutory consent power by providing written notice to the organisation concerned that
consent is no longer required.
10. As with a decision under subitem 200(2) of the ATSIC Amendment Act, the
appropriate consenting authority will have the flexibility to consider a broad range of
factors when deciding whether to remove the consent requirement in a particular case.
Item 2--Subitem 200(2) of Schedule 1
11. This item omits "The" in subitem 200(2) of Schedule 1 of the ATSIC Amendment Act
omits, and substitutes with "If the interest is not covered by a notice under subitem
(1A), the". This is a consequential amendment required in order for subitem 200(1A) of
Schedule 1 of the ATSIC Amendment Act to take effect.
8
Item 3--Subitem 200(5) of Schedule 1
12. This item omits "the consent" in subitem 200(5) of Schedule 1 of the ATSIC Amendment
Act and substitutes "a notice under subitem (1A) or a consent under subitem (2)". This is
a consequential amendment required in order for subitem 200(1A) of Schedule 1 of the
ATSIC Amendment Act to take effect.
Item 4--Subitem 200(12) of Schedule 1
13. This item makes it clear that any notice provided by the appropriate consenting authority
under subitem 200(1A) would not be a legislative instrument within the meaning of
subsection 8(1) of the Legislation Act 2003.
Item 5--Subitem 200(12) of Schedule 1
14. This item omits "for the purposes of the Legislative Instruments Act 2003" in
subitem 200(12) of Schedule 1 of the ATSIC Amendment Act. This is a consequential
amendment required in order for subitem 200(1A) of Schedule 1 of the ATSIC
Amendment Act to take effect.
Item 6--Subitem 200(13) of Schedule 1 (paragraphs (b) and (c) of the definition of
appropriate consenting authority)
15. This item will make consequential amendments to Item 200 of Schedule 1 of the ATSIC
Amendment Act, as a result of the new subitem 200(1A).
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Schedule 3--Repeals
Part 1--Repeals
Aboriginal and Torres Strait Islanders (Queensland Reserves and Communities
Self-management) Act 1978
Item 1--The whole of the Act
16. This item will repeal the ATSI Qld Act, which is now redundant. The purpose of the
ATSI Qld Act is to empower Aboriginal and Torres Strait Islanders who live on
reserves in Queensland to manage and control their own affairs.
17. Since the Queensland Parliament enacted the Local Government (Aboriginal Lands)
Act 1978 (Qld), it has not been possible for the Commonwealth to declare reserves for
the purposes of the ATSI Qld Act. Therefore, this redundant Act is repealed as a
measure to reduce the size of the statute book.
Council for Aboriginal Reconciliation Act 1991
Item 2--The whole of the Act
18. This item will repeal the CAR Act. The CAR Act was introduced as a result of
cross-party support for the establishment of the CAR Council, and included a sunsetting
provision so that it ceased from 1 January 2001.
19. Each of the provisions in the CAR Act are specific to either the establishment,
processes or requirements relating to the operation of the CAR Council, whose
functions and powers were limited to activities related to reconciliation such as
consulting, undertaking certain initiatives, promoting and fostering discussion,
providing advice, reports as well as the development of strategic plans to promote the
process of reconciliation.
20. The CAR Council produced its final report in 2000. There are no ongoing
arrangements, appointments or other measures under the CAR Act. Again, the repeal of
this ceased Act will reduce the size of the statute book.
Part 2 -- Consequential amendments
Division 1--Amendments consequential on repeal of the Aboriginal and Torres Strait
Islanders (Queensland Reserves and Communities Self-management) Act 1978
Age Discrimination Act 2004
Item 3--Schedule 1 (table item 1)
21. This item repeals table item 1 of Schedule 1 of the Age Discrimination Act 2004. The
table in Schedule 1 lists "Laws for which an exemption is provided by
subsection 39(1)" and includes the ATSI Qld Act. Reference to that Act is made
obsolete as a consequence of the proposed repeal of the ATSI Qld Act, as per item 1,
Part 1 of Schedule 3 of the Bill
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Division 2--Amendments consequential on repeal of the Council for Aboriginal
Reconciliation Act 1991
Australian Human Rights Commission Act 1986
Item 4--Paragraph 46C(4)(b)
22. Item 4 will make a minor grammatical consequential amendment arising as a result of
item 5.
Item 5--Paragraph 46C(4)(c)
23. Currently, paragraph 46C(4)(c) of the AHRC Act requires the Aboriginal and Torres
Strait Islander Social Justice Commissioner to have regard to the object of the CAR Act
when performing functions under section 46C.
24. Items 4 and 5 will amend section 46C of the AHRC Act to remove the requirement for
the Aboriginal and Torres Strait Islander Social Justice Commission to refer to ceased
legislation resulting from the repeal of the CAR Act in item 1 of this Schedule.
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Schedule 4--ANAO annual report
Auditor-General Act 1997
25. Following the implementation of the PGPA Act through the Public Governance,
Performance and Accountability (Consequential and Transitional Provisions) Act
2014, the ANAO was included in the annual reporting requirements for non-corporate
Commonwealth entities. The annual report must be presented to the responsible
minister for tabling in the Parliament. Before this, the Auditor-General presented his or
her annual report directly to the Parliament.
26. The Auditor-General is an independent officer of the Parliament. The reintroduction of
tabling of annual reports directly to the Parliament would demonstrate the
independence of the office and its responsibilities to the Parliament. This would be
consistent with the handling of all other reports produced by the Auditor-General which
are tabled directly in the Parliament.
27. Accordingly, the Bill makes amendments to the Auditor-General Act 1997 to align the
annual reporting requirements of the Auditor-General with his or her responsibility to
the Parliament. The amendments will also align with the practice of comparable
auditing organisations internationally.
Item 1--Subsection 14(4)
28. Item 1 would repeal and substitute subsection 14(4). The new subsections would
remove references to annual reports being given to the Minister under section 46 of the
PGPA Act and insert a reference to the proposed new section 28. This provision retains
the need for the Auditor-General to include details of the basis on which the Auditor-
General determined the audit fees relevant for the financial period.
Item 2--Subsection 16(4)
29. Item 2 would repeal and substitute subsection 16(4). The new subsections would
remove references to annual reports being given to the Minister under section 46 of the
PGPA Act and insert a reference to the proposed new section 28. This provision retains
the need for the Auditor-General to include details of the basis on which the Auditor-
General determined the audit fees relevant for the financial period.
Item 3--After section 27
30. Item 3 would insert a new section 28, detailing the annual report requirements for the
Auditor-General. Proposed section 28(1) would require the Auditor-General to prepare
a report on the activities of the ANAO for the relevant financial year, and table the
report in both Houses of Parliament. Proposed section 28(2) provides the required
timeframe for tabling the annual report, being by 15 October or by the end of any
further period as granted under the Acts Interpretation Act 1901.
31. Proposed section 28(5) would exclude section 46 of the PGPA from applying to the
Auditor-General. However, under proposed section 28(3), the annual report must still
comply with any rules made in accordance with section 46(3) of the PGPA Act as they
relate to non-corporate Commonwealth entities.
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32. Furthermore, proposed section 28(4) provides that the annual report of the ANAO is to
be taken to be a report made under section 46 of the PGPA Act for the purposes of any
other Act.
Item 4--Subsection 54(4)
33. Item 4 would remove references to the annual report being given to the Minister under
section 46 of the PGPA Act and would substitute it with a reference to the annual report
requirements under proposed section 28 each financial year.
Item 5--Application of amendments
34. Item 5 provides that the amendments will apply in relation to the 2016-17 financial year
and any further financial years.
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Schedule 5--Royal Commissions
Royal Commissions Act 1902
Item 1--Subsection 1B(1) (paragraph (c) of definition of reasonable excuse)
35. This item would amend the definition of reasonable excuse. The amendment is
consequential to item 2 which gives a member of a Royal Commission power to
compel a person to give a written statement to the Commission. As part of that
measure, a person will not be required to give the statement if they have a 'reasonable
excuse' (see item 11 proposed new subsection 3(6B)).
36. The effect of this item is that 'reasonable excuse' is taken to mean an excuse which
would excuse a failure by a person served with a subpoena in connection with a
proceeding before a court of law (for example, because the documents are privileged).
This adopts the same approach applied now for a person served with a notice to
produce documents. However, for a notice of that kind where a person claims legal
professional privilege as a 'reasonable excuse', that excuse does not apply unless the
Commission inspects the document that is subject to the claim for legal professional
privilege and makes a determination to accept the claim (see section 6AA of the Royal
Commissions Act). It is not intended to extend section 6AA to a notice requiring a
written statement on the basis that information given in a written statement is more
closely aligned to giving oral testimony, and a person should not be required to disclose
in writing information that is subject to legal professional privilege.
Item 2--After subsection 2(3B)
37. This item would insert new subsection 2(3C) giving a member of a Royal Commission
the power to issue a written notice to require a person to give information or a
statement in writing to the Commission.
38. A Royal Commission currently has power to require a person to appear to give oral
evidence or to produce a document at a hearing (subsection 2(1)), or to produce a
document without appearing at a hearing (subsection 2(3A)). The new power gives
flexibility to a Royal Commission to gather evidence by giving an alternative to
summonsing a person to appear to give oral evidence at a hearing.
39. This item implements a recommendation by Mr Ian Hanger AM QC in the Report of
the Royal Commission into the Home Insulation Program to amend the Royal
Commissions Act 'to empower a Royal Commission to compel the provision of a
statement by a potential witness'. Commissioner Hanger supported the rational for a
similar recommendation made by the Australian Law Reform Commission in its 2009
Making Inquires Report. The Australian Law Reform Commission considered that the
power to require written statements other than by way of oral evidence ' ... may reduce
the need for hearings and examinations and enable more flexible, less formal and more
cost-effective inquiry procedures'.
Item 3--Section 3 (heading)
40. This item would insert a new heading for section 3 and is consequential to the measure
at item 2.
14
Item 4--Subsection 3(1) (penalty)
41. This item would amend subsection 3(1) to increase the penalty for failure to comply
with a summons to appear as a witness at a hearing before a Commission. The new
penalty would be imprisonment for 2 years (increased from 6 months imprisonment).
42. The item does not expressly reference an increased pecuniary penalty amount because
under section 4B of the Crimes Act, where a person is convicted of a Commonwealth
offence that is punishable by imprisonment only, a court has discretion to impose a
pecuniary penalty instead of, or in addition to, imprisonment (unless the contrary
intention appears). It is intended that that discretion be available for this offence. The
same approach is taken for other offences in the Royal Commissions Act, see for
example sections 6I, 6J and 6L. For an offence punishable by imprisonment for 2 years,
under section 4B of the Crimes Act, the court may impose a pecuniary penalty of up to
120 penalty units (for a natural person) or up to 600 penalty units (for a body corporate)
instead of, or in addition to, imprisonment.
43. The purpose of the amendment is to implement recommendation 78 of the final report
of the Royal Commission into Trade Union Governance and Corruption. The Hon John
Dyson Heydon AC QC recommended in the final report that the Royal Commissions
Act be amended 'to increase the penalties for a failure to comply with a summons to
attend, a failure to comply with a notice to produce, a failure to be sworn or answer
questions, and a failure or refusal to provide documents to at least a maximum penalty
of two years' imprisonment or a fine of 120 penalty units or both'.
Item 5--Subsection 3(1A)
44. This item would repeal subsection 3(1A) which makes an offence against subsection
3(1) a strict liability offence. This repeal is consistent with Commonwealth criminal
law policy that an offence punishable by imprisonment should not be an offence of
strict liability.
Item 6--Before subsection 3(2)
45. This item would insert a new subsection heading for clarity.
Item 7--Subsection 3(2) (penalty)
46. This item would amend subsection 3(2) to increase the penalty for failure to comply
with a summons to produce a document or thing at a hearing. The new penalty would
be imprisonment for 2 years (increased from 6 months imprisonment).
47. The item does not expressly reference an increased pecuniary penalty amount because
under section 4B of the Crimes Act, where a person is convicted of a Commonwealth
offence that is punishable by imprisonment only, a court has discretion to impose a
pecuniary penalty instead of, or in addition to, imprisonment (unless the contrary
intention appears). It is intended that that discretion be available for this offence. The
same approach is taken for other offences in the Royal Commissions Act, see for
example sections 6I, 6J and 6L. For an offence punishable by imprisonment for 2 years,
under section 4B of the Crimes Act, the court may impose a pecuniary penalty of up to
15
120 penalty units (for a natural person) or up to 600 penalty units (for a body corporate)
instead of, or in addition to, imprisonment.
48. The purpose of the amendment is to implement recommendation 78 of the final report
of the Royal Commission into Trade Union Governance and Corruption (see item 4
above).
Item 8--Subsection 3(2A)
49. This item would repeal subsection 3(2A) which makes an offence against subsection
3(2) a strict liability offence. The repeal is consistent with Commonwealth criminal law
policy that an offence punishable by imprisonment should not be an offence of strict
liability.
Item 9--Before subsection 3(4)
50. This item would insert a new subsection heading for clarity.
Item 10--Subsection 3(4) (penalty)
51. This item would amend subsection 3(4) to increase the penalty for failure to comply
with a notice under subsection 2(3A) requiring production of a document or other thing.
The new penalty would be imprisonment for 2 years (increased from 6 months
imprisonment).
52. The item does not expressly reference an increased pecuniary penalty amount because
under section 4B of the Crimes Act, where a person is convicted of a Commonwealth
offence that is punishable by imprisonment only, a court has discretion to impose a
pecuniary penalty instead of, or in addition to, imprisonment (unless the contrary
intention appears). It is intended that that discretion be available for this offence. The
same approach is taken for other offences in the Royal Commissions Act, see for
example sections 6I, 6J and 6L. For an offence punishable by imprisonment for 2 years,
under section 4B of the Crimes Act, the court may impose a pecuniary penalty of up to
120 penalty units (for a natural person) or up to 600 penalty units (for a body corporate)
instead of, or in addition to, imprisonment.
53. The purpose of the amendment is to implement recommendation 78 of the final report
of the Royal Commission into Trade Union Governance and Corruption (see item 4
above).
Item 11--After subsection 3(6)
54. This item would insert new subsections 3(6A), (6B) and (6C). It is consequential to the
measure at item 2 giving a member of a Royal Commission the power to issue a written
notice to require a person to give information or a statement in writing to the
Commission.
55. New subsection 3(6A) would make it an offence to refuse or fail to give information or
a statement in writing in accordance with the notice issued under new subsection 2(3C).
The penalty would be imprisonment for 2 years. This is consistent with the proposed
penalty for failure to comply with a summons or notice to produce (see for example the
item above).
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56. New subsection 3(6B) would give a person a defence to a prosecution for an offence for
failing to give information or a statement in writing in accordance with a notice issued
under new subsection 2(3C), where that person has a reasonable excuse. By application
of subsection 13.3(3) of the Criminal Code, the burden of proof on a defendant when
raising that excuse to any prosecution for the offence is an evidential burden only.
57. New subsection 3(6C) would give a person a defence for failing to give information or
a statement in writing in accordance with a notice issued under new subsection 2(3C), if
the information or statement was not relevant to the matters into which the Commission
was inquiring. The defence can be raised where a person claims the requested
information or statement is outside the terms of reference of the Commission's inquiry.
A defence of this kind can now be raised in response to a notice requiring production of
documents (see subsection 3(6)). By application of subsection 13.3(3) of the Criminal
Code, the burden of proof on a defendant when raising irrelevance as a defence to any
prosecution for the offence is an evidential burden only.
Item 12--Subsection 6(1)
58. This item is consequential to the repeal of subsections 6(2) and (3).
Item 13--At the end of subsection 6(1)
59. This item would amend subsection 6(1) to increase the penalty for a person appearing
as a witness before a Commission that refuses to be sworn or make an affirmation or to
give evidence. The new penalty would be imprisonment for 2 years (increased from 6
months imprisonment).
60. The item does not expressly reference an increased pecuniary penalty amount because
under section 4B of the Crimes Act, where a person is convicted of a Commonwealth
offence that is punishable by imprisonment only, a court has discretion to impose a
pecuniary penalty instead of, or in addition to, imprisonment (unless the contrary
intention appears). It is intended that that discretion be available for this offence. The
same approach is taken for other offences in the Royal Commissions Act, see for
example sections 6I, 6J and 6L. For an offence punishable by imprisonment for 2 years,
under section 4B of the Crimes Act, the court may impose a pecuniary penalty of up to
120 penalty units (for a natural person) or up to 600 penalty units (for a body corporate)
instead of, or in addition to, imprisonment.
61. The purpose of the amendment is to implement recommendation 78 of the final report
of the Royal Commission into Trade Union Governance and Corruption (see item 4
above).
Item 14--Subsections 6(2) and (3)
62. This item would repeal subsections 6(2) and (3). Subsection 6(2) is made redundant
because of the above item. Repeal of subsection 6(3) is consistent with Commonwealth
criminal law policy that an offence punishable by imprisonment should not be an
offence of strict liability.
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Item 15--Subsection 6AB(1) (penalty)
63. This item would amend subsection 6AB(1) to increase the penalty for a failing to
produce a document that the Commission has decided is not subject to legal
professional privilege. The new penalty would be imprisonment for 2 years (increased
from 6 months imprisonment).
64. The item does not expressly reference an increased pecuniary penalty amount because
under section 4B of the Crimes Act, where a person is convicted of a Commonwealth
offence that is punishable by imprisonment only, a court has discretion to impose a
pecuniary penalty instead of, or in addition to, imprisonment (unless the contrary
intention appears). It is intended that that discretion be available for this offence. The
same approach is taken for other offences in the Royal Commissions Act, see for
example sections 6I, 6J and 6L. For an offence punishable by imprisonment for 2 years,
under section 4B of the Crimes Act, the court may impose a pecuniary penalty of up to
120 penalty units (for a natural person) or up to 600 penalty units (for a body corporate)
instead of, or in addition to, imprisonment.
65. The purpose of the amendment is to implement recommendation 78 of the final report
of the Royal Commission into Trade Union Governance and Corruption (see item 4
above).
Item 16--Subsection 6AB(2) (penalty)
66. This item would amend subsection 6AB(2) to increase the penalty for failing to produce
a document for inspection for the purpose of deciding whether to accept or reject a
claim that the document is subject to legal professional privilege. The new penalty
would be imprisonment for 2 years (increased from 6 months imprisonment).
67. The item does not expressly reference an increased pecuniary penalty amount because
under section 4B of the Crimes Act, where a person is convicted of a Commonwealth
offence that is punishable by imprisonment only, a court has discretion to impose a
pecuniary penalty instead of, or in addition to, imprisonment (unless the contrary
intention appears). It is intended that that discretion be available for this offence. The
same approach is taken for other offences in the Royal Commissions Act, see for
example sections 6I, 6J and 6L. For an offence punishable by imprisonment for 2 years,
under section 4B of the Crimes Act, the court may impose a pecuniary penalty of up to
120 penalty units (for a natural person) or up to 600 penalty units (for a body corporate)
instead of, or in addition to, imprisonment.
68. The purpose of the amendment is to implement recommendation 78 of the final report
of the Royal Commission into Trade Union Governance and Corruption (see item 4
above).
Item 17--Subsection 6AB(3)
69. This item would repeal subsection 6AB(3) which makes offences against subsection
6AB(1) and (2) strict liability offences. Repeal is consistent with Commonwealth
criminal law policy that an offence punishable by imprisonment should not be an
offence of strict liability.
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Item 18--Subsection 6A(1)
70. This item would amend subsection 6A(1) to correct a technical error of the provision.
The item gives clearer meaning by inserting the text 'on the ground'.
Item 19--After subsection 6A(1)
71. The item would insert a new subsection 6A(1A) that would override the privilege
against self-incrimination for a person required to give information or a statement in
accordance with a notice issued under the new subsection 2(3C) (see item 2 above).
72. This approach is consistent with the abrogation of the privilege against self-
incrimination in existing section 6A of the Act that applies where a person is required
to appear to give oral evidence, or to produce a document (unless there are offence
charges on foot).
73. The partial abrogation of the privilege against self-incrimination supports a
Commission's function to inquire into and report on matters of public importance.
Strong powers are given to a Commission for that purpose. A Royal Commission does
not exercise judicial power and cannot determine criminal charges (or civil liability).
74. Consistent with the current approach in the Act, any incriminating evidence in a written
statement could not be used against a natural person in any civil or criminal
proceedings in any court (that is, protection is given to the person through the
engagement of 'use' immunity - see item 28). However, under existing section 6P of
the Act, if a Commission considers it appropriate to do so, it may disclose evidence
relating to a contravention of a law to certain persons and bodies including the police
and the Director of Public Prosecution. In this way, the evidence cannot be used against
the person in any proceeding but may be used to obtain further evidence against the
person.
Item 20--Subsection 6A(3)
75. This item is consequential to the above item, and has the effect that privilege against
self-incrimination is not abrogated if an offence charge is on foot.
Item 21--Subsection 6A(3)
76. This item is consequential to item 19, and has the effect that privilege against self-
incrimination is not abrogated if an offence charge is on foot.
Item 22--Paragraph 6A(3)(a)
77. This item is consequential to item 19, and has the effect that privilege against self-
incrimination is not abrogated if an offence charge is on foot.
Item 23--Subsection 6A(4)
78. This item is consequential to item 19, and has the effect that privilege against self-
incrimination is not abrogated if an offence charge is on foot.
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Item 24--Subsection 6A(4)
79. This item is consequential to item 19, and has the effect that privilege against self-
incrimination is not abrogated if an offence charge is on foot.
Item 25--Paragraph 6A(4)(a)
80. This item is consequential to item 19, and has the effect that privilege against self-
incrimination is not abrogated if an offence charge is on foot.
Item 26--At the end of paragraph 6D(3)(b)
81. This item would amend subsection 6D(3)(b) so that the Commission may make a non-
publication direction in relation to the contents of a written statement given under a
notice under new subsection 2(3C) (see item 2). The Commission may direct that the
contents of the written statement not be published, except as specified in the direction.
Item 27--Subsection 6D(4)
82. This item would amend subsection 6D(4) to replace the penalty expressed in a dollar
amount with the equivalent penalty expressed in penalty units.
83. The amendment reflects current Commonwealth drafting practice to express criminal
penalties as a number of penalty units. The amendment would remove the need to
convert dollar amounts into penalty units and more transparently reflects the penalty.
84. The current value of value a penalty unit is $180 under section 4AA of the Crimes Act.
85. Under section 4AB of the Crimes Act, where the penalty for a criminal offence
provision in Commonwealth legislation is expressed as a dollar amount, that amount
must be converted to an amount of penalty units (by dividing the number of dollars by
100, and rounding up to the nearest whole number if necessary), which leads to a higher
penalty than is stated in the provision. As a result, the dollar amount on the face of the
legislation is lower than the actual penalty, which can be misleading. The amendment is
based on this formula.
Item 28--Paragraph 6DD(1)(a)
86. This item would amend paragraph 6DD(1)(a) so that information or a statement given
by a natural person in accordance with the new subsection 2(3C) is not admissible in
evidence in subsequent civil or criminal proceedings against that person.
Item 29--Subparagraphs 6F(1)(a)(ii) and (c)(ii)
87. This item would amend subparagraphs 6F(1)(a)(ii) and (c)(ii) to allow a Commission to
inspect and make copies of information or statement given by a person in accordance
with new subsection 2(3C) (see item 2).
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Item 30--After subsection 6H(1)
88. This item would insert a new subsection 6H(1A) to provide that a person must not
intentionally give false or misleading information in response to a notice under the new
subsection 2(3C) (see item 2).
Item 31--Subsection 6H(2)
89. This item would amend subsection 6H(2) to make it an offence for a person to
intentionally give false or misleading information in response to a notice under the new
subsection 2(3C) (item 2).
Item 32--Subsection 6H(2)
90. This item would amend subsection 6H(2) to replace the penalty expressed in a dollar
amount with the equivalent penalty expressed in penalty units.
91. The amendment reflects current Commonwealth drafting practice to express criminal
penalties as a number of penalty units. The amendment would remove the need to
convert dollar amounts into penalty units and more transparently reflects the penalty.
92. The current value of value a penalty unit is $180 under section 4AA of the Crimes Act.
93. Under section 4AB of the Crimes Act, where the penalty for a criminal offence
provision in Commonwealth legislation is expressed as a dollar amount, that amount
must be converted to an amount of penalty units (by dividing the number of dollars by
100, and rounding up to the nearest whole number if necessary), which leads to a higher
penalty than is stated in the provision. As a result, the dollar amount on the face of the
legislation is lower than the actual penalty, which can be misleading. The amendment is
based on this formula.
Item 33--Subsections 6H(3) and (4)
94. This item would amend subsections 6H(3) and (4) as a consequence of item 31, which
clarifies that the offence provision is subsection 6H(2) rather than subsection 6H(1) or
(1A).
Item 34--Subsection 6H(4)
95. This item would amend subsection 6H(4) to replace the penalty expressed in a dollar
amount with the equivalent penalty expressed in penalty units.
96. The amendment reflects current Commonwealth drafting practice to express criminal
penalties as a number of penalty units. The amendment would remove the need to
convert dollar amounts into penalty units and more transparently reflects the penalty.
97. The current value of value a penalty unit is $180 under section 4AA of the Crimes Act.
98. Under section 4AB of the Crimes Act, where the penalty for a criminal offence
provision in Commonwealth legislation is expressed as a dollar amount, that amount
must be converted to an amount of penalty units (by dividing the number of dollars by
21
100, and rounding up to the nearest whole number if necessary), which leads to a higher
penalty than is stated in the provision. As a result, the dollar amount on the face of the
legislation is lower than the actual penalty, which can be misleading. The amendment is
based on this formula.
Item 35--Paragraphs 6I(2)(a), (b) and (c)
99. This item would amend paragraphs 6I(2)(a), (b) and (c) to make it an offence to bribe a
person not to comply with a notice to give information or a statement to a Commission
issued to that person under the new subsection 2(3C) (see item 2). The penalty for these
offences is imprisonment for 5 years.
Item 36--Subsection 6J(1)
100. This item would amend subsection 6J(1) to make it an offence to practice fraud or
deceit on a person with the intent to affect the information or statement the person is
required to give in accordance with a notice issued under the new subsection 2(3C) (see
item 2). The penalty for the offence is imprisonment for 2 years.
Item 37--Subsection 6J(2)
101. This item would amend subsection 6J(2) to make it an offence to practice fraud or
deceit on a person with the intent that the person would not comply with the
requirement to give information or a statement to a Commission in accordance with a
notice issued under the new subsection 2(3C) (see item 2). The penalty for the offence
is imprisonment for 2 years.
Item 38--Subsection 6K(2)
102. This item would amend subsection 6K(2) to replace the penalty expressed in a dollar
amount with the equivalent penalty expressed in penalty units.
103. The amendment reflects current Commonwealth drafting practice to express criminal
penalties as a number of penalty units. The amendment would remove the need to
convert dollar amounts into penalty units and more transparently reflects the penalty.
104. The current value of value a penalty unit is $180 under section 4AA of the Crimes Act.
105. Under section 4AB of the Crimes Act, where the penalty for a criminal offence
provision in Commonwealth legislation is expressed as a dollar amount, that amount
must be converted to an amount of penalty units (by dividing the number of dollars by
100, and rounding up to the nearest whole number if necessary), which leads to a higher
penalty than is stated in the provision. As a result, the dollar amount on the face of the
legislation is lower than the actual penalty, which can be misleading. The amendment is
based on this formula.
Item 39--Subsection 6K(4)
106. This item would amend subsection 6K(4) to replace the penalty expressed in a dollar
amount with the equivalent penalty expressed in penalty units.
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107. The amendment reflects current Commonwealth drafting practice to express criminal
penalties as a number of penalty units. The amendment would remove the need to
convert dollar amounts into penalty units and more transparently reflects the penalty.
108. The current value of value a penalty unit is $180 under section 4AA of the Crimes Act.
109. Under section 4AB of the Crimes Act, where the penalty for a criminal offence
provision in Commonwealth legislation is expressed as a dollar amount, that amount
must be converted to an amount of penalty units (by dividing the number of dollars by
100, and rounding up to the nearest whole number if necessary), which leads to a higher
penalty than is stated in the provision. As a result, the dollar amount on the face of the
legislation is lower than the actual penalty, which can be misleading. The amendment is
based on this formula.
Item 40--Subsection 6L(2)
110. This item would amend subsection 6L(2) to make it an offence to intentionally prevent
a person from giving information or a statement to a Commission in accordance with a
notice issued under new subsection 2(3C) (see new item 2). The penalty for the offence
is imprisonment for 1 year.
Item 41--Paragraph 6M(c)
111. This would amend paragraph 6M(c) to make it an offence to use, cause or inflict any
violence, punishment, loss or disadvantage for, or on account of, a person having given
information or a statement to a Commission in accordance with a notice issued under
new subsection 2(3C) (see item 2). The penalty for the offence is imprisonment for
1 year.
Item 42--Section 6M (penalty)
112. This item would amend section 6M to replace the penalty expressed in a dollar amount
with the equivalent penalty expressed in penalty units.
113. The amendment reflects current Commonwealth drafting practice to express criminal
penalties as a number of penalty units. The amendment would remove the need to
convert dollar amounts into penalty units and more transparently reflects the penalty.
114. The current value of value a penalty unit is $180 under section 4AA of the Crimes Act.
115. Under section 4AB of the Crimes Act, where the penalty for a criminal offence
provision in Commonwealth legislation is expressed as a dollar amount, that amount
must be converted to an amount of penalty units (by dividing the number of dollars by
100, and rounding up to the nearest whole number if necessary), which leads to a higher
penalty than is stated in the provision. As a result, the dollar amount on the face of the
legislation is lower than the actual penalty, which can be misleading. The amendment is
based on this formula.
Item 43--Paragraph 6N(1)(c)
116. This item would amend paragraph 6N(1)(c) to make it an offence for an employer to
dismiss any employee or prejudice any employee for, or on account of, the employee
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having given information or a statement in accordance with a notice issued under new
subsection 2(3C) (see item 2).
Item 44--Subsection 6N(1) (penalty)
117. This item would amend section 6N(1) to replace the penalty expressed in a dollar
amount with the equivalent penalty expressed in penalty units.
118. The amendment reflects current Commonwealth drafting practice to express criminal
penalties as a number of penalty units. The amendment would remove the need to
convert dollar amounts into penalty units and more transparently reflects the penalty.
119. The current value of value a penalty unit is $180 under section 4AA of the Crimes Act.
120. Under section 4AB of the Crimes Act, where the penalty for a criminal offence
provision in Commonwealth legislation is expressed as a dollar amount, that amount
must be converted to an amount of penalty units (by dividing the number of dollars by
100, and rounding up to the nearest whole number if necessary), which leads to a higher
penalty than is stated in the provision. As a result, the dollar amount on the face of the
legislation is lower than the actual penalty, which can be misleading. The amendment is
based on this formula.
Item 45--Subsection 6O(1) (penalty)
121. This item would amend section 6O(1) to replace the penalty expressed in a dollar
amount with the equivalent penalty expressed in penalty units.
122. The amendment reflects current Commonwealth drafting practice to express criminal
penalties as a number of penalty units. The amendment would remove the need to
convert dollar amounts into penalty units and more transparently reflects the penalty.
123. The current value of value a penalty unit is $180 under section 4AA of the Crimes Act.
124. Under section 4AB of the Crimes Act, where the penalty for a criminal offence
provision in Commonwealth legislation is expressed as a dollar amount, that amount
must be converted to an amount of penalty units (by dividing the number of dollars by
100, and rounding up to the nearest whole number if necessary), which leads to a higher
penalty than is stated in the provision. As a result, the dollar amount on the face of the
legislation is lower than the actual penalty, which can be misleading. The amendment is
based on this formula.
Item 46--At the end of subsection 9(3)
125. When a Royal Commission ceases operation the Royal Commissions Act provides for
regulations to be made to give custody of the records to certain persons or bodies. This
item would amend subsection 9(3) to add the Secretary of the Attorney-General's
Department as a person that may be given custody of Royal Commission records by
regulations. Under the Administrative Arrangements Order the Attorney-General's
Department is responsible for providing administrative support for Royal Commissions.
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Item 47--Application of amendments
126. This amendment is an application provision that specifies that amendments to the Royal
Commissions Act (except for the amendment in item 46) would only apply to Royal
Commission established after the commencement of the amendments. It is not intended
that these amendments (except for the amendment in item 46) would apply to the Royal
Commission into Institutional Responses to Child Sexual Abuse and the Royal
Commission into the Protection and Detention of Children in the Northern Territory.
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