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Royal Commissions Amendment Bill 2013

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2010-2011-2012-2013

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

THE SENATE

 

 

 

 

 

 

 

 

 

ROYAL COMMISSIONS AMENDMENT BILL 2013

 

 

 

 

 

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

 

 

 

 

Amendments to be moved on behalf of the Government

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Prime Minister,

the Hon Julia Gillard MP) 

 



Royal Commissions Amendment Bill 2013

 

 

Outline

The proposed government amendments to the Royal Commissions Amendment Bill 2013 are designed to strengthen the confidentiality of information received at a private session by:

  • extending the scope of the secrecy provision in the Bill to override requirements or authorisations under other laws to make a record of, use or disclose information obtained at or given at a private session,
  • excluding a right of access under the Freedom of Information Act 1982 to documents containing information obtained at a private session, and
  • providing for records containing information obtained at a private to be treated in the same way as census information so that these records would come into the open access period under the Archives Act 1983 99 years after the year the record came into existence.

 

Other government amendments are consequential to or related to the main amendments above.

 

Financial Impact Statement

The Government amendments have no financial impact on Government revenue. 

 

 



Statement of Compatibility with Human Rights

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Amendments to the Royal Commissions Amendment Bill 2013

 

The amendments are compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

 

Overview of the Amendments

The Bill, in support of the work of the Royal Commission into Institutional Responses to Child Sexual Abuse, introduces measures to facilitate persons affected by child sexual abuse and related matters in institutional contexts to present their account to a Commissioner in a setting that is less formal than a hearing.  The Bill refers to this type of hearing as a ‘private session’.  The proposed government amendments to the Royal Commissions Amendment Bill 2013 are designed to strengthen the confidentiality of information received at a private session by:

  • extending the scope of the secrecy provision in the Bill to override requirements or authorisations under other laws to make a record of, use or disclose information obtained at or given at a private session,
  • excluding a right of access under the Freedom of Information Act 1982 (‘the FOI Act’) to documents containing information obtained at a private session, and
  • providing for records containing information obtained at a private session to be treated in the same way as census information so that these records would come into the open access period under the Archives Act 1983 99 years after the year the record came into existence.

 

Human rights implications

The amendments to the Bill engage the following applicable rights or freedoms:

·      the right to freedom of expression in Article 19 of the International Covenant on Civil and Political Rights (‘ICCPR’); and

·      the prohibition against unlawful and arbitrary interferences with privacy in Article 17 of the ICCPR.

 

Article 19(2) of the ICCPR provides that everyone shall have the right to freedom of expression and that this right includes the freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.  This right may be subject to certain restrictions, but these shall only be such as are provided by law and are necessary on limited grounds, including for the respect of the rights or reputations of others. 

 

The proposed amendments will limit Article 19 by limiting the use and disclosure of information obtained at a private session.  The amendment extends the scope of the secrecy provision contained in the Bill, in particular through the effect of proposed section 6OL which will negate the effect of other laws to the extent they require or authorise making a record of, use or disclosure of information obtained at a private session.  The proposed amendment to the FOI Act will operate to exclude from access a document that contains information obtained at a private session, or that identifies a natural person who appeared at a private session.  Proposed section 6OM will have the effect that a record containing information obtained at a private session will not be available for public access under the Archives Act until 99 years after the year it came into existence.  These amendments promote the right to privacy of those persons who voluntarily provide information to the Royal Commission into Institutional Responses to Child Sexual Abuse which is expected to largely relate to deeply personal information concerning people’s experiences of child sexual abuse.  As the information obtained at a private session will not be given on oath or affirmation these measures, which have an effect of restricting public access to information given at a private session, will also serve to protect the privacy of other people.

 

The collection, security, use, disclosure or publication of personal information will engage Article 17 of the ICCPR.  Article 17 prohibits unlawful or arbitrary interferences with a person’s privacy, family, home or correspondence.   Interferences with privacy may be permissible, provided they are authorised by law and not arbitrary.  In order for an interference with the right to privacy not to be ‘arbitrary’, the interference must be for a reason consistent with the provisions, aims and objectives of the ICCPR and be reasonable in the particular circumstances.  The United Nations Human Rights Committee has interpreted ‘reasonableness’ in this context to imply that ‘any interference with privacy must be proportional to the end sought and be necessary in the circumstances of any given case’. 

 

The amendments to the Bill will promote the right to privacy by strengthening the confidentiality of the personal information that is given at a private session.  These measures are outlined above in connection with article 19 of the ICCPR.  A person will not be compelled to give information at a private session.  Rather, a person will give their account on a voluntary basis.

 

Article 14(1) of the ICCPR protects the right to a fair and public criminal trial or a fair and public hearing in civil proceedings.  Fair trial and fair hearing rights include that all persons are equal before courts and tribunals and the right to a fair and public hearing before a competent, independent and impartial court or tribunal. 

 

Proposed section 6OL will have the effect of overriding requirements or authorisations under a Commonwealth, State or Territory law to make a record of, or to use or disclose information obtained at a private session, unless it was authorised under proposed Division 3.  This will mean that compulsory legal requirements to produce documents, including a subpoena issued by a court, or to give statements about information obtained at a private session, would not be effective when issued to an officer at the Royal Commission or to an officer of the agency responsible for the custody of the Commission’s records after the Commission has completed its inquiry. 

 

The amendments are not considered to limit the right to a fair trial and fair hearing, because access to private session information would not be able to be compelled by either the prosecution or the defence.  None of the amendments limit the existing rights of the accused to access information held by the prosecution.  This applies even in instances where the Royal Commission refers information under section 6P of the Royal Commissions Act to police and other authorities.

 

Conclusion

The Bill is compatible with human rights as it promotes the right to privacy and to the extent that it limits the right to freedom of expression, it is reasonable, necessary and proportionate.



Royal Commissions Amendment Bill 2013 (‘the Bill’)

 

Notes on Amendments

 

Amendment (1) [ Freedom of Information Act 1982 ]

The Freedom of Information Act 1982 (the FOI Act) does not apply to a Royal Commission which means that a person could not make an access request under that Act to the Royal Commission while it is undertaking its inquiry.  When a Royal Commission has ceased its inquiries, an access request can be made under the FOI Act to the Commonwealth agency that becomes responsible for the records. 

 

This amendment amends the FOI Act to exempt from right of access under that Act a document that has originated with, or been received from, the Royal Commission into Institutional Responses to Child Sexual Abuse and (a) that contains information obtained at a private session or (b) that relates to a private session and identifies a natural person who appeared at a private session.  The exemption would apply where a document of this kind was in the possession of an agency or a Minister.  The exemption is proposed as these documents will contain information about personal accounts of people’s experiences relating to child sexual abuse. 

 

Amendments (2) and (3) [ Division title ]

These amendments insert Divisions and titles to assist with readability.

 

Amendments (4) and (5)

These amendments are consequential to amendment 6.  Proposed section 6OD of the Bill dealing with the privacy of private sessions is to be opposed and replaced by Division 3 which introduces new measures to strengthen the confidentiality of information obtained or given at a private session.

 

Amendment (6) [secrecy offence and Archives Act 1983 ]

This amendment amends the Bill to insert a Division dealing with the privacy of private sessions, in particular to extend the scope of the secrecy offence and, for the purposes of the Archives Act, to provide for a right of public access to a record containing information obtained at a private session only 99 years after the year the record came into existence.

 

Proposed section 6OG (privacy of private sessions) is in the same terms as proposed subsection 6OD(1) of the Bill, which is to be opposed by amendment 5. 

 

Proposed section 6OH is a secrecy offence replacing the offence in proposed subsection 6OD(2) of the Bill.  Proposed section 6OH will make it an offence to make a record of, use or disclose information obtained or given at a private session except where the recording, use or disclosure is for an authorised purpose.  The authorised purposes are for the purposes of performing functions or duties or exercising powers in relation to the Royal Commission into Institutional Responses to Child Sexual Abuse , or where disclosure is used in a report of the Commission in accordance with proposed section 6OJ, or where the information may be communicated to certain public officials and authorities under section 6P of the Royal Commissions Act (for example, a Police Commissioner or the Director of Public Prosecutions).  The offence will also not apply where the disclosure is made pursuant to regulations made under section 9 of the Royal Commissions Act dealing with the custody and use of records of a Royal Commission that are no longer required for the purposes of the Commission.  The persons and authorities who may be given custody of Royal Commission records under regulations, and who may use those records subject to any conditions that are imposed, include those persons or authorities under section 6P of the Royal Commissions Act.  The offence will not apply where the recording, use or disclosure is by the person who gave the information at the private session, or where such a person consents to the making of a record, use or disclosure of information they gave at a private session.  

 

Proposed section 6OJ (inclusion of information in reports and recommendations) is in the same terms as proposed subsection 6OD(3) of the Bill, which is opposed by amendment 5.

 

Proposed section 6OK provides that it will be a defence to the secrecy offence at proposed section 6OH if there is a disclosure back to the person who gave the information at a private session.  This may occur for example where a person who gives the information at a private session subsequently makes an inquiry about that information. 

 

The effect of proposed section 6OL is to override requirements or authorisations under a Commonwealth, State or Territory law to make a record of, or to use or disclose information obtained at a private session where to do so would not be authorised under Division 3.  This will mean that legal requirements to produce documents, or to give statements about information obtained at a private session, would not be effective when issued to an officer at the Royal Commission or to an officer of the agency responsible for the custody of the Commission’s records after the Commission has completed its inquiry.  The provision would have effect regardless of when the law was enacted. 

 

The effect of proposed subsection 6OM(1) is that a record that contains information obtained at a private session, or that relates to a private session and identifies a natural person who appeared at a private session, will come into the ‘open access period’ for the purposes of the Archives Act 99 years after the year that the record came into existence.  When a record is in the open access period under the Archives Act, a person has a right of access to the record unless it is an exempt record within the meaning of that Act.  The FOI Act governs access to Commonwealth records before they come into the open access period.  For records created after 2000, the usual open access period is 21 years after the year the record is created.  There are exceptions to this, including for Census information and Cabinet notebooks.  The personal and sensitive nature of people’s accounts of how they have been affected by child sexual abuse justifies excluding information obtained at a private session from public access for the period proposed.  Even when a record containing private session information comes into the open access period, access will be subject to whether the information meets one of the grounds for exemption under the Archives Act. 

 

Proposed subsection 6OM(2) confirms that a record meeting the criteria in proposed subsection 6OM(1) will fall within the 99 year open access period even if the record came into existence after the private session.  

 

Proposed subsection 6OM(3) is consequential to the amendment proposed by subsection 6OM(1).  A record meeting the criteria in proposed subsection 6OM(1) would not be in the open access period until 99 years after the year it is created, not the period set out in subsection 3(7) of the Archives Act, and these records could not be authorised for public access before that period has elapsed through accelerated or special access arrangements under section 56 of the Archives Act.

 

Amendment (7)

Section 6P of the Royal Commissions Act permits a Royal Commission, if the Commission considers it appropriate to do so, to communicate information or furnish evidence that relates, or may relate, to a contravention of a law to certain public officials and authorities, such as the Director of Public Prosecutions or a Police Commissioner. This amendment amends section 6P of the Act to confirm, and place beyond doubt, that a person who obtains information, evidence, a document or a thing from the Commission under section 6P may make a record, use or disclose the information, evidence, document or thing for the purposes of performing their own functions or exercising their own powers.  This amendment will have general application to the Royal Commissions Act as well as to the Royal Commission into Institutional Responses to Child Sexual Abuse .  The authorisation is made subject to the protections in section 6DD of the Act and proposed section 6OE of the Bill.  These provisions prevent statements made, or documents produced, by an individual at a hearing or at a private session from being admitted in evidence in any civil or criminal proceeding against that individual.  Similar provision of this kind is made under subsections 9(6), 9(7) and 9(12) of the Royal Commissions Act, which deal with regulations that may be made relating to the custody and use of Royal Commission records when they are no longer required for the purposes of the Commission.