Custody and use of records of Royal Commission
9 Custody and use of records of Royal Commission
Definitions
In this section:
body means a body (whether a body corporate or not) and includes:
an agency within the meaning of the Public Service Act 1999; and
a Department of State for, or an agency of, a State or a Territory.
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:
the Proceeds of Crime Act 1987 or the Proceeds of Crime Act 2002; or
a corresponding law within the meaning of either of those Acts;
but does not include a criminal prosecution for an offence under either of those Acts or a corresponding law.
custodian of a Royal Commission record means a person who, or a body that, has custody of the record under:
regulations made for the purposes of paragraph (2)(a); or
a direction under subsection 22(3) of the Archives Act 1983.
disciplinary proceeding:
means a proceeding of a disciplinary nature under a law of the Commonwealth, a State or a Territory; and
includes action taken under Subdivision D of Division 5 of Part V of the Australian Federal Police Act 1979.
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:
the purpose of bringing:
a prosecution for an offence against a law of the Commonwealth, a State or a Territory; or
a civil penalty proceeding; or
a confiscation proceeding; or
a disciplinary proceeding;
the purpose of investigating whether:
an offence has been committed against a law of the Commonwealth, a State or a Territory; or
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;
the purpose of preparing the material necessary to prosecute a person for an offence against a law of the Commonwealth, a State or a Territory;
the purpose of preparing the material necessary to bring civil penalty proceedings against a person for a contravention of a law of the Commonwealth, a State or a Territory;
the purpose of preparing the material necessary to bring a confiscation proceeding;
the purpose of preparing the material necessary to bring a disciplinary proceeding.
public authority means:
an agency within the meaning of the Public Service Act 1999; or
a Department of State for, or an agency of, a State or a Territory; or
a body established or incorporated for a public purpose by or under a law of the Commonwealth, a State or a Territory.
public office holder means:
a Minister of State for the Commonwealth, a State or a Territory; or
the holder of an office established for a public purpose by or under a law of the Commonwealth, a State or a Territory.
record has the same meaning as in the Archives Act 1983.
Royal Commission record means a record that:
was produced by, given to or obtained by a Royal Commission; and
is no longer required for the purposes of the Commission;
and includes a copy of such a record.
use of a Royal Commission record includes use of information contained in the record.
Regulations may provide for the custody, use or transfer of, or access to, Royal Commission records
The regulations:
may, subject to subsection (3), provide for the custody in which some or all of the Royal Commission records of a Royal Commission are to be kept; and
may specify either or both of the following:
purposes for which a custodian of Royal Commission records may use some or all of those records;
purposes for which a custodian of Royal Commission records must not use some or all of those records; and
may provide for the circumstances in which the custodian of Royal Commission records must, or may, give some or all of those records to other persons or bodies; and
may provide for the circumstances in which the custodian of Royal Commission records must, or may, allow access to some or all of those records to other persons or bodies; and
may specify either or both of the following:
purposes for which persons or bodies to whom a custodian of Royal Commission records gives, or gives access to, those records may use some or all of those records;
purposes for which persons or bodies to whom a custodian of Royal Commission records gives, or gives access to, those records must not use some or all of those records.
Regulations made for the purposes of paragraph (a) may provide for a person or body to have custody of Royal Commission records even if the person or body already has custody of those records under a direction under subsection 22(3) of the Archives Act 1983.
The persons and bodies who may be given custody of Royal Commission records by regulations made for the purposes of paragraph (2)(a) are the following:
the Attorney‑General of the Commonwealth, of a State, of the Australian Capital Territory or of the Northern Territory;
the Director of Public Prosecutions;
a Special Prosecutor appointed under the Special Prosecutors Act 1982;
the Commissioner of the Australian Federal Police or of the Police Force of a State or of the Northern Territory;
the Australian Securities and Investments Commission;
the Australian Competition and Consumer Commission;
the Australian Crime Commission;
the National Anti‑Corruption Commission;
the Inspector of the National Anti‑Corruption Commission;
the Secretary of the Department of the Prime Minister and Cabinet;
the National Archives of Australia;
a body or person responsible for the administration or enforcement of a law of the Commonwealth, a State or a Territory;
the Secretary of the Attorney‑General’s Department.
Regulations may impose conditions
Regulations made for the purposes of subsection (2) in relation to Royal Commission records may impose conditions to be complied with by:
the custodian of the records; or
persons and bodies to whom the records are given or who are allowed access to the records.
Effect of regulations under paragraph (2)(a)
If regulations are made for the purposes of paragraph (2)(a) in relation to particular Royal Commission records, the Archives Act 1983 has effect as if a direction to the same effect as the regulations were in force in relation to the records under subsection 22(3) of that Act at all times when the regulations are in force.
Use of Royal Commission records
A custodian of Royal Commission records may use the records for:
the purposes of the performance of the custodian’s functions and the exercise of the custodian’s powers; and
any other purpose for which the custodian could use the records if the custodian had acquired the records in the performance of the custodian’s functions or the exercise of the custodian’s powers.
If:
the custodian of a Royal Commission record gives a person or body (the recipient) the record or access to the record; and
the recipient is a public office holder or a public authority;
the recipient may use the record for:
the purposes of the performance of the recipient’s functions and the exercise of the recipient’s powers; and
any other purpose for which the recipient could use the record if the recipient had acquired the record in the performance of the recipient’s functions or the exercise of the recipient’s powers.
Subsections (6) and (7) have effect subject to any regulations that:
specify purposes for which the custodian or the recipient must not use some or all of the records; or
impose conditions to be complied with by the custodian or the recipient.
See paragraphs (2)(b) and (e) and subsection (4).
The purposes referred to in subparagraphs (2)(b)(i) and (e)(i) and subsections (6) and (7) need not be purposes for which the Royal Commission concerned produced, obtained or was given the Royal Commission records.
Custodian’s right to retain possession of records
A custodian of a Royal Commission record may retain possession of the record for so long as the custodian considers it desirable to do so for the purposes of the performance of any of the custodian’s functions or the exercise of any of the custodian’s powers, despite any request from the record’s owner for the return of the record.
Records may be dealt with without consent, notice or opportunity to be heard
If regulations made for the purposes of paragraph (2)(a) provide that a person or body is to have custody of Royal Commission records:
the custodian may, for law enforcement purposes:
use the records under subsection (6); and
give the records to another person or body under regulations made for the purposes of paragraph (2)(c); and
allow another person or body access to the records under regulations made for the purposes of paragraph (2)(d); and
a public office holder, or public authority, to whom the custodian gives the records, or access to the records, may, for law enforcement purposes, use the records under subsection (7);
without obtaining the consent of, giving notice to, giving an opportunity to make submissions to or taking into account submissions made by the owner of the records or any other person.
Operation of sections 6DD and 6OE not affected
Nothing in this section affects the operation of sections 6DD and 6OE (admissibility of statements etc. made by witness) in relation to Royal Commission records that are dealt with in accordance with:
regulations made for the purposes of subsection (2); or
a direction under subsection 22(3) of the Archives Act 1983.
Legal professional privilege not affected
A Royal Commission record, or material in or referred to in a Royal Commission record, does not cease to be the subject of legal professional privilege merely because a person or body has custody of the record, or is given the record or access to the record, under:
regulations made for the purposes of subsection (2); or
a direction under subsection 22(3) of the Archives Act 1983.
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