EXPLANATORY STATEMENT

 

Select Legislative Instrument 2005 No. 11

 

Subject -          HIH Royal Commission (Transfer of Records) Act 2003

 

                        HIH Royal Commission (Transfer of Records) Regulations 2005

 

The HIH Royal Commission (Transfer of Records) Act 2003 (the Act) provides for the transfer of custody of certain records of the HIH Royal Commission to the Australian Securities and Investments Commission (ASIC).

 

Section 10 of the Act provides that the Governor‑General may make regulations prescribing matters: (a) required or permitted by the Act to be prescribed; or

(b) necessary or convenient to be prescribed for carrying out or giving effect to the Act.

 

The purpose of the Regulations is to provide ASIC with access to records of, or relating to, the HIH Royal Commission, (including electronic copies or versions of such records and associated data) in addition to those records or electronic versions to which ASIC has an entitlement under sections 4 and 5 of the Act.  Access is determined by the Secretary to the Department of the Prime Minister and Cabinet (the Secretary), being the agency with administrative responsibility for the records of royal commissions generally.

 

Section 4 of the Act entitles ASIC to the custody of records which are Commonwealth records and which are documents or things that were produced to the HIH Royal Commission.  The effect of the section is that ASIC is entitled to the custody of documents or things produced to the HIH Royal Commission which were still in its possession when it ceased to exist.

 

Section 5 of the Act entitles ASIC to be provided with electronic copies of any electronic versions of documents or things that were produced to the HIH Royal Commission in the Commonwealth’s possession.  The effect of the section is that ASIC is entitled to copies of electronic versions of documents or things produced to the HIH Royal Commission including such documents or things which were returned to their owners before the HIH Royal Commission ceased to exist.

 

Section 6 provides that the regulations may provide for ASIC to have access to other records of, or relating to, the HIH Royal Commission.

 

ASIC intends to use the records and copies of electronic versions to which it is entitled under sections 4 and 5 of the Act in its investigation and prosecution of possible offences.  Both the Commonwealth and ASIC need to be sure that all material to which ASIC is entitled under the Act has in fact been provided to ASIC.

 

The Regulations allow the Secretary to grant ASIC officers access to records of the HIH Royal Commission to which ASIC does not already have an entitlement under the Act.  Such access would facilitate a thorough assessment of the records to ensure that the Commonwealth meets its obligations to provide records and electronic copies under the Act in full.  The Regulations also allow the Secretary to delegate any or all of his powers under the Regulations to an SES employee in the Department of the Prime Minister and Cabinet.

 

The Regulations facilitate ASIC being provided with all material to which it is entitled under the Act in a timely manner for use in related prosecutions.

 

The Act specifies no conditions that need to be met before the power to make the Regulations may be exercised.

 

The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

 

Apart from consultations involving officers in the Department of the Prime Minister and Cabinet, the Treasury and ASIC, no broader consultation was undertaken because the Regulations merely facilitate giving effect to the Act and they do not broaden the categories of material to which ASIC has an entitlement under the Act.

 

The Regulations commence on 11 February 2005.