Royal Commissions Regulations 2019

I, General the Honourable David Hurley AC DSC (Retd), Governor‑General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following regulations.

Dated 19 September 2019

David Hurley

Governor‑General

By His Excellency’s Command

Ben Morton

Assistant Minister to the Prime Minister and Cabinet
Parliamentary Secretary to the Prime Minister

Contents

Part 1—Preliminary

1 Name

2 Commencement

3 Authority

4 Definitions

Part 2—Service of documents and witnesses’ expenses and allowances

5 Service of notices and summonses

6 Witnesses’ expenses and allowances

Part 3—Private sessions

7 Royal Commissions for which private sessions may be held

Part 4—Custody and use of records

Division 1—General

8 General

Division 2—Custody of Royal Commission records

9 Custody of historical Royal Commission records

10 Custody of future Royal Commission records

11 Custody of Royal Commission records of listed Royal Commissions

Division 3—Copying and accessing records of listed Royal Commissions during interim access period

12 Requests for copies of, or access to, records of listed Royal Commissions during interim access period

13 NT Royal Commission and Child Sexual Abuse Royal Commission—Requests on behalf of States or Territories etc.

14 Way in which requests under section 12 or 13 are responded to

Part 5—Application, saving and transitional provisions

15 Application of Part 2 to Commissions

Schedule 1—Historical Royal Commissions

Part 1—Preliminary

1  Name

  This instrument is the Royal Commissions Regulations 2019.

2  Commencement

 (1) Each provision of this instrument specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Note: This table relates only to the provisions of this instrument as originally made. It will not be amended to deal with any later amendments of this instrument.

 (2) Any information in column 3 of the table is not part of this instrument. Information may be inserted in this column, or information in it may be edited, in any published version of this instrument.

3  Authority

  This instrument is made under the Royal Commissions Act 1902.

4  Definitions

  In this instrument:

Act means the Royal Commissions Act 1902.

Aged Care Royal Commission means the Royal Commission into Aged Care Quality and Safety, established by Letters Patent dated 6 December 2018 (as amended by Letters Patent dated 13 September 2019).

Banking, Superannuation and Financial Services Royal Commission means the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry, established by Letters Patent dated 14 December 2017.

Child Sexual Abuse Royal Commission has the same meaning as in Part 4 of the Act.

Disability Royal Commission means the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, established by Letters Patent dated 4 April 2019 (as amended by Letters Patent dated 13 September 2019).

interim access period for a Royal Commission has the meaning given by paragraph 11(a).

listed Royal Commission means a Royal Commission mentioned in the table in section 11.

NT Royal Commission means the Royal Commission into the Protection and Detention of Children in the Northern Territory, established by Letters Patent dated 1 August 2016 (as amended by Letters Patent dated 9 February 2017, 27 June 2017 and 7 September 2017).

Oil‑for‑Food Inquiry means the inquiry into Certain Australian Companies in relation to the UN Oil‑for‑Food Programme that was established by Letters Patent dated 10 November 2005 (as amended by Letters Patent dated 6 February 2006, 10 March 2006, 17 March 2006, 22 June 2006 and 21 September 2006).

Royal Commission into Trade Union Governance and Corruption means the Royal Commission into matters relating to the affairs of various entities, mainly employee organisations, that was established by Letters Patent dated 13 March 2014 (as amended by Letters Patent dated 30 October 2014).

Part 2—Service of documents and witnesses’ expenses and allowances

5  Service of notices and summonses

 (1) For the purposes of subsections 2(3A), 2(3C), 3(1), 3(2) and 6AA(3) of the Act, a notice or summons (the document) may be served, for the purposes of a Commission, on a person (the named person) named in the document in a way set out in this section.

 (2) The document may be served on a named person who is an individual by:

 (a) handing the document to the named person; or

 (b) if on tender of the document to the named person the person refuses to accept it—putting it down in the person’s presence after the person has been told of the nature of the document.

 (3) The document may be served on a named person which is a corporation by:

 (a) handing the document to a person (the served person) apparently an officer of, or in the service of, the corporation and apparently of or above the age of 16 years:

 (i) at the registered office of the corporation; or

 (ii) if there is no registered office, at the principal place of business or the principal office of the corporation; or

 (b) if on tender of the document to the served person the person refuses to accept it—putting it down in the person’s presence after the person has been told of the nature of the document.

 (4) The document may be served on a named person (whether an individual or a corporation) by handing the document to a legal practitioner who:

 (a) has authority to accept service of the document on the named person’s behalf; and

 (b) accepts service of the document on the named person’s behalf.

 (5) The document may be served on a named person (whether an individual or a corporation), or any other person, in a particular way if:

 (a) before the document is served, the named person has agreed in writing to accept service for the purposes of the Commission in that way; and

 (b) the agreement is still in force.

Note: This subsection extends to electronic ways of serving the document.

 (6) If a member of the Commission has previously served the named person with a notice for the purposes of subsection 2(3A) or (3C) or 6AA(3) of the Act under any of the ways set out in subsections (2) to (5) of this section, that member (or another member) of the Commission may later serve another notice for those purposes on the person by sending the notice by pre‑paid post addressed to the person at:

 (a) an address provided by the named person to the Commission; or

 (b) the named person’s residential or business address last known to the member of the Commission serving the later notice.

6  Witnesses’ expenses and allowances

Expenses for attending a Commission

 (1) For the purposes of subsection 6G(1) of the Act, the following scale is prescribed for a witness attending a Commission in the circumstances set out in subsection (2) of this section:

 (a) an initial amount of:

 (i) if the witness is attending because of the witness’ professional, scientific or other special skill or knowledge—$1,174.90 per day; or

 (ii) otherwise—$123.90 per day;

 (b) if attending on a day causes the witness to lose wages, salary or fees otherwise payable to the witness for that day—a further amount equal to what an authorised person considers to be a reasonable loss of wages, salary or fees for that day by the witness;

 (c) if:

 (i) the witness is attending because of the witness’ professional, scientific or other special skill or knowledge; and

 (ii) preparing on a day for the attendance causes the witness to lose wages, salary or fees that are otherwise payable for that day;

  a further amount equal to what an authorised person considers to be a reasonable loss of wages, salary or fees for that day by the witness.

 (2) Subsection (1) applies to a witness in either of the following circumstances:

 (a) the witness attends the Commission in answer to a summons under the Act;

 (b) the witness attends the Commission without being summoned under the Act, and a member of the Commission decides that the scale in subsection (1) is to apply for the witness.

Allowances for travelling expenses and maintenance

 (3) For the purposes of subsection 8(1) of the Act, the following scale of allowances is prescribed for a witness summoned under the Act to attend a Commission:

 (a) if the witness’ usual place of abode is more than 50 kilometres from the location of the Commission—an amount worked out, for the witness, by an authorised person as a reasonable allowance for the witness’:

 (i) travelling expenses for that attendance; and

 (ii) maintenance while absent from that place of abode;

 (b) otherwise—a nil amount.

Definition

 (4) In this section:

authorised person means:

 (a) the Secretary of the Attorney‑General’s Department; or

 (b) an SES employee, or acting SES employee, in that Department authorised, in writing, by that Secretary for the purposes of this section.

Part 3—Private sessions

7  Royal Commissions for which private sessions may be held

  For the purposes of paragraph 6OAB(b) of the Act, the following Royal Commissions are prescribed:

 (a) the Aged Care Royal Commission;

 (b) the Disability Royal Commission.

Part 4—Custody and use of records

Division 1—General

8  General

Parts of Royal Commission records

 (1) To avoid doubt, a reference in this Part to a Royal Commission record includes a reference to a part of a Royal Commission record.

Note: For Royal Commission record, see subsection 9(1) of the Act.

No limitation on circumstances or operation of Act

 (2) For the purposes of section 9 of the Act, this Part does not limit the circumstances in which a custodian of a Royal Commission record may:

 (a) give a copy of the Royal Commission record to a person or body; or

 (b) allow access to the Royal Commission record to a person or body.

 (3) This Part does not limit subsections 9(6) and (7) of the Act.

Division 2—Custody of Royal Commission records

9  Custody of historical Royal Commission records

  For the purposes of paragraph 9(2)(a) of the Act, Royal Commission records of a Royal Commission mentioned in the table in Schedule 1 are to be kept in the custody of the National Archives of Australia.

Note: The National Archives of Australia is a custodian of these Royal Commission records for the purposes of section 9 of the Act (see the definition of custodian in subsection 9(1) of the Act).

10  Custody of future Royal Commission records

 (1) For the purposes of paragraph 9(2)(a) of the Act, this section applies in relation to Royal Commission records of a Royal Commission for which the Final Report is presented to the Governor‑General after the commencement of this section.

 (2) The records are to be kept in the custody of the Secretary of the Attorney‑General’s Department during the 20‑year period beginning on the day the Final Report for the Royal Commission is presented to the Governor‑General.

 (3) After the end of that 20‑year period, the records are to be kept in the custody of the National Archives of Australia.

 (4) However, this section does not apply in relation to a Royal Commission record if a direction under subsection 22(3) of the Archives Act 1983 is in force in relation to the record.

Note 1: Subject to subsection (4), the Secretary of the Attorney‑General’s Department or the National Archives of Australia is a custodian of these Royal Commission records for the purposes of section 9 of the Act (see the definition of custodian in subsection 9(1) of the Act).

Note 2: A person who, or a body that, has custody of a Royal Commission record under a direction under subsection 22(3) of the Archives Act 1983 is a custodian of the record for the purposes of section 9 of the Act (see the definition of custodian in subsection 9(1) of the Act).

11  Custody of Royal Commission records of listed Royal Commissions

  For the purposes of paragraph 9(2)(a) of the Act, the following person or body has custody of the Royal Commission records mentioned in column 1 of an item of the following table:

 (a) during the 20‑year period beginning on the day the Final Report for that Royal Commission was presented to the Governor‑General (the interim access period for that Royal Commission)—the person mentioned in column 2 of that item;

 (b) after the end of the interim access period for that Royal Commission—the National Archives of Australia.

Note: This person or body is a custodian of these Royal Commission records (see the definition of custodian in subsection 9(1) of the Act).

Note 1: The Final Report for the Oil‑for‑Food Inquiry was presented to the Governor‑General on 24 November 2006 and tabled in the Parliament on 27 November 2006.

Note 2: The Final Report for the Royal Commission into Trade Union Governance and Corruption was presented to the Governor‑General on 28 December 2015 and tabled in the Parliament on 30 December 2015.

Note 3: The Final Report for the NT Royal Commission was presented to the Governor‑General on 17 November 2017 and tabled in the Parliament on the same day.

Note 4: The Final Report for the Child Sexual Abuse Royal Commission was presented to the Governor‑General on 15 December 2017 and tabled in the Parliament on the same day.

Note 5: The Final Report for the Banking, Superannuation and Financial Services Royal Commission was presented to the Governor‑General on 1 February 2019 and tabled in the Parliament on 4 February 2019.

Division 3—Copying and accessing records of listed Royal Commissions during interim access period

12  Requests for copies of, or access to, records of listed Royal Commissions during interim access period

Requesting copies of records given to Royal Commission

 (1) For the purposes of paragraphs 9(2)(c) and (d) of the Act, if:

 (a) a person or body requests a copy of a Royal Commission record of a listed Royal Commission or access to such a record; and

 (b) the request is made during the interim access period for the Royal Commission;

circumstances in which the custodian of the record may give the person or body a copy of, or access to, the record are that:

 (c) free access to the record is not publicly available (for example, by being published on a website); and

 (d) the requesting person or body:

 (i) gave the listed Royal Commission the record, or information or matter that the record contains or that can be obtained from it; or

 (ii) in the case of a record of a private session of the Child Sexual Abuse Royal Commission under section 6OB of the Act—appeared at the private session; or

 (iii) is an authorised representative of a person or body to whom subparagraph (i) or (ii) applies; and

 (e) the custodian is reasonably satisfied of the identity of the requesting person or body, and (for a representative) that the representative’s authorisation is genuine and currently effective; and

 (f) in the case of a record of the NT Royal Commission or the Child Sexual Abuse Royal Commission—the request is not made on behalf of a State or Territory, or a Department of State or agency of a State or Territory.

Access to records for law enforcement purposes

 (2) For the purposes of paragraphs 9(2)(c) and (d) of the Act, circumstances in which the custodian of a Royal Commission record of a listed Royal Commission may give a copy of the record to a person or body during the interim access period for the listed Royal Commission, or allow a person or body access to the record during that period, are that:

 (a) free access to the record is not publicly available (for example, by being published on a website); and

 (b) the person or body performs a function relating to law enforcement purposes; and

 (c) a copy of, or access to, the record is requested for those purposes; and

 (d) in the case of a record of the Child Sexual Abuse Royal Commission—the record does not:

 (i) contain information or a matter, or enable information or a matter to be obtained, that was given or obtained at a private session under section 6OB of the Act, unless the information or matter is included under section 6OJ of the Act in a report or recommendation of the Child Sexual Abuse Royal Commission; or

 (ii) identify a natural person, or enable a natural person to be identified, as a person who appeared at any private session under section 6OB of the Act; or

 (iii) contain information mentioned in subsection (3), unless the information is included under section 6OJ of the Act in a report or recommendation of the Child Sexual Abuse Royal Commission.

 (3) For the purposes of subparagraph (2)(d)(iii), the information is the following:

 (a) information that was given by a natural person to a member, or member of the staff, of the Child Sexual Abuse Royal Commission for the purposes of a private session under section 6OB of the Act (whether or not a private session was held for the Commission) and identifies the person who gave the information;

 (b) information to which section 6ON of the Act applies.

Note 1: For law enforcement purposes, see subsection 9(1) of the Act.

Note 2: In 2019, archived versions of the Oil‑for‑Food Inquiry website could be viewed at the National Library of Australia’s Trove website (https://trove.nla.gov.au/website).

Note 3: In 2019, archived versions of the Royal Commission into Trade Union Governance and Corruption website could be viewed at the National Library of Australia’s Trove website (https://trove.nla.gov.au/website).

Note 4: In 2019, the NT Royal Commission website could be viewed at https://childdetentionnt.royalcommission.gov.au.

Note 5: In 2019, the Child Sexual Abuse Royal Commission website could be viewed at https://www.childabuseroyalcommission.gov.au.

Note 6: In 2019, the Banking, Superannuation and Financial Services Royal Commission website could be viewed at https://financialservices.royalcommission.gov.au.

13  NT Royal Commission and Child Sexual Abuse Royal Commission—Requests on behalf of States or Territories etc.

Scope

 (1) For the purposes of paragraphs 9(2)(c) and (d) of the Act, this section applies in relation to:

 (a) Royal Commission records of the NT Royal Commission; and

 (b) Royal Commission records of the Child Sexual Abuse Royal Commission.

Requesting copies of records given to Royal Commission

 (2) If:

 (a) a person, on behalf of a State or Territory, or a Department of State or agency of a State or Territory, requests a copy of, or access to, a Royal Commission record of a Royal Commission; and

 (b) the request is made during the interim access period for the Royal Commission;

circumstances in which the custodian of the record may give the person a copy of, or access to, the record are that:

 (c) free access to the record is not publicly available (for example, by being published on a website); and

 (d) the record, or information or matter that the record contains or that can be obtained from it, was given to the NT Royal Commission, or the Child Sexual Abuse Royal Commission, by any person on behalf of:

 (i) that State or Territory; or

 (ii) any Department of State or agency of that State or Territory.

Note 1: In 2019, the NT Royal Commission website could be viewed at https://childdetentionnt.royalcommission.gov.au.

Note 2: In 2019, the Child Sexual Abuse Royal Commission website could be viewed at https://www.childabuseroyalcommission.gov.au.

14  Way in which requests under section 12 or 13 are responded to

  For the purposes of paragraphs 9(2)(c) and (d) of the Act, the custodian of a Royal Commission record of a listed Royal Commission may:

 (a) respond to a request by a person or body under section 12 or 13 for a copy of the record by allowing the person or body access to the record; or

 (b) respond to a request by a person or body under section 12 or 13 for access to the record by giving a copy of the record to the person or body; or

 (c) give a copy of the record, or allow access to the record, to a person or body in any form reasonably considered by the custodian to allow access to information or a matter contained in the record, or that can be obtained from it.

Example: For a record that is an audio recording, a copy of, or access to, the record may be given in the form of a transcript of the recording.

Part 5—Application, saving and transitional provisions

15  Application of Part 2 to Commissions

 (1) Part 2 applies in relation to:

 (a) a Commission established on or after the commencement day; and

 (b) the Disability Royal Commission.

 (2) For the purposes of the Aged Care Royal Commission:

 (a) section 5 applies in relation to serving a notice or summons on or after the commencement day; and

 (b) section 6 applies in relation to the attendance of a witness on or after the commencement day; and

 (c) despite the repeal of the Royal Commissions Regulations 2001, section 7 of those Regulations, as in force immediately before the commencement day, continues to apply in relation to the attendance of a witness before the commencement day.

 (3) In this section:

commencement day means the day this instrument commences.

Schedule 1—Historical Royal Commissions

Note: See section 9.