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

Nicola Roxon (Gellibrand, Australian Labor Party, Shadow Attorney-General) Share this | Link to this | Hansard source

I would like to speak briefly to indicate Labor’s support for these amendments and to thank the Parliamentary Secretary to the Prime Minister and the departmental staff for their assistance, given the quick turnaround from the time that the bill was introduced to our debating it today. Labor is pleased that the government has been prepared to take up a suggestion of ours. Obviously the wording has been worked on by the departmental staff and the drafters, and we think this makes the bill a much more sensible one. It is much more targeted, it deals with the purposes for the law—which we all understand—and it does not leave it open-ended in some way so that we, sitting at the table today, may not be able to understand how it might be used in the future. Labor is much more confident that this is an appropriate measure to be taken, and we thank the government for making these amendments. We support them.

Duncan Kerr (Denison, Australian Labor Party) Share this | Link to this | Hansard source

I thank the Parliamentary Secretary to the Prime Minister for his response to my earlier remarks. I acknowledge his experience in royal commissions; I come to this place with experience in litigation also. It is difficult to properly pursue a number of legal proceedings without access to original documents. I gave two instances in my earlier comments: a deed—which, on its face, is the document upon which legal proceedings will be commenced or proceeded with—and a cheque. If those are the documents which are held in the custody of a commission and later in the custody of a custodian, the business efficacy of the organisation or persons that are provided with that document are much reduced. That has been recognised in the past by this government and dealt with in a very straightforward and fair way. I am merely asking that the same provision apply in this instance. It seems to be one of those extraordinary ironies of political life that the government has given greater protection to the business efficacy of trade unions under the Building and Construction Industry Improvement Act—legislation which we described as draconian—than it will to others who may be the subject of other proceedings.

Given the lengthy periods of time in which these documents may be held and the fact that organisations would be placed in difficulty in their litigation, it does seem quite an unnecessary burden. Indeed, there may be instances in which it is not merely litigation which is made more difficult when you cannot produce the original of a document. People may produce documents which they do not recognise the significance of, not retain originals and later have the significance of the documents become more apparent. It is not sufficient, with great respect to the parliamentary secretary, to say that, if a prosecution is actually brought, copies of documents are provided with the prosecution brief. It is potentially at an earlier point that those documents need to be reassembled as the business records or the historic records of a person or organisation so that they can defend themselves in public against, for example, allegations made in the media and the like.

So I do think there is a problem. I understand the government dealing with this in some haste, but I do not believe that the parliamentary secretary’s response really addressed the issue that may emerge and the reality that it is likely to emerge. Royal commissions are frequently held into circumstances which involve business dealings of persons. They are frequently held into circumstances in which a large amount of records are held for significant periods of time, and it is not always the case in law that the possession of a copy can be utilised with the same efficacy and ease as the original. I am not even certain how a worthy person who wished to use the original document for other legal proceedings could subpoena it in the face of this legislation. The parliamentary secretary said it would be available through subpoena. In the face of a Commonwealth statute that gives the power to hold those documents to third parties for certain purposes, would a subpoena override that? I must say that I do not think that is so and I doubt it. If it did, it would probably undermine the purposes of the legislation. So I am not persuaded by the arguments and, given that it is so simple to fix, I am puzzled at the reluctance.

Question agreed to.

Bill, as amended, agreed to.