Malcolm Turnbull (Wentworth, Liberal Party, Parliamentary Secretary to the Prime Minister) Share this | Hansard source

by leave—I present a supplementary explanatory memorandum to the bill and move government amendments (1) to (6), as circulated, together:

(1)    Schedule 1, item 2, page 3 (after line 17), after the definition of body in subsection 9(1), insert:

civil penalty proceeding means a proceeding for a civil penalty in relation to a contravention of a law of the Commonwealth, a State or a Territory.

confiscation proceeding means a proceeding under:

             (a)    the Proceeds of Crime Act 1987 or the Proceeds of Crime Act 2002; or

             (b)    a corresponding law within the meaning of either of those Acts;

civil penalty proceeding means a proceeding for a civil penalty in relation to a contravention of a law of the Commonwealth, a State or a Territory.

confiscation proceeding means a proceeding under:

disciplinary proceeding:

law enforcement purposes means the purposes of taking action to enforce a law of the Commonwealth, a State or a Territory and includes the following purposes:

                   (i)    a prosecution for an offence against a law of the Commonwealth, a State or a Territory; or

                  (ii)    a civil penalty proceeding; or

                 (iii)    a confiscation proceeding; or

                 (iv)    a disciplinary proceeding;

                   (i)    an offence has been committed against a law of the Commonwealth, a State or a Territory; or

                  (ii)    there has been a contravention of a law of the Commonwealth, a State or a Territory in relation to which civil penalty proceedings may be brought;

                   (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); and

The principal change is to limit the circumstances in which any procedural fairness requirements are removed to circumstances where records are provided or used for law enforcement purposes. The definition of ‘law enforcement purposes’ is a broad one. It encompasses criminal prosecutions, civil penalty proceedings, confiscation proceedings and disciplinary proceedings. The amendments address concerns that the range of purposes to which the records might be put without providing procedural fairness may be too broad.

The regulations will still be able to prescribe purposes and circumstances for the use, or giving of, or giving of access to records which are not limited to law enforcement purposes and circumstances. That is consistent with the existing capacity for records to be made available for other purposes. Under the bill as amended, provision of records for other purposes will continue to be subject to any procedural fairness obligations that presently exist.

The other change is that the range of persons or bodies to whom custody of royal commissions may be given under regulations will be more limited. In particular, the provision in the bill as introduced for prescription of any person or body to be a custodian has been removed. Custody will still be able to be given to any person or body responsible for administration or enforcement of a law, but for avoidance of doubt—I am looking now at amendment (4)—a number of specific persons and bodies are named, including law enforcement bodies and office holders.

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