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Royal Commissions Amendment (Private Sessions) Bill 2019

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2019

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

HOUSE OF REPRESENTATIVES

 

 

ROYAL COMMISSIONS AMENDMENT (PRIVATE SESSIONS) BILL 2019

 

 

EXPLANATORY MEMORANDUM

 

 

(Circulated by authority of the Prime Minister,

the Honourable Scott Morrison MP )

 

 

 

 

 

 

 

 

 

ROYAL COMMISSIONS AMENDMENT (PRIVATE SESSIONS) BILL 2019

GENERAL OUTLINE

1.                 The main purpose of the Royal Commissions Amendment (Private Sessions) Bill 2019 (the Bill) is to amend Part 4 of the Royal Commissions Act 1902 (the Act) to:

·            enable a Royal Commission to hold private sessions where a regulation is made authorising it to do so, noting that presently the private sessions regime only applies to the Royal Commission into Institutional Responses to Child Sexual Abuse (Child Sexual Abuse Royal Commission),

·            enable the Chair of a multi-member Commission, or a sole Commissioner, to authorise Assistant Commissioners, being appropriately qualified and senior staff members of a Commission, to hold private sessions (noting that private sessions must be held by a Commissioner unless the Chair, or sole Commissioner, considers circumstances exist to justify such an authorisation),

·            apply limitations on use and disclosure of private session information to information given for the purposes of a private session, whether or not a private session is held,

·            apply limitations on use and disclosure to information given by individuals to the Child Sexual Abuse Royal Commission about their experience of child sexual abuse, or regarding other people’s experience of child sexual abuse, where that information was not given for the purposes of a private session but the Commission indicated it would be treated as confidential and treated it as such.

2.                 Private sessions were established for the Child Sexual Abuse Royal Commission to enable individuals to tell their story about matters into which the Commission was inquiring in a less formal setting than a hearing. Participants had similar protections to witnesses. Participation was voluntary. Participants did not give evidence and information was not taken on oath or affirmation. In recognition of that feature, and the very personal nature of the accounts, limits applied to use and disclosure of information given at a private session.

3.                 Private sessions are just one way that a Royal Commission can obtain sensitive and personal information to inform its inquiry. The Bill will enable the private sessions regime to be applied to other Royal Commissions where a regulation is made giving a Commission the power to do so. That mechanism will mean a discrete decision will be made on whether or not private sessions will be useful for a particular inquiry. Private sessions can have implications for the cost and constitution of a Royal Commission. As is the normal case for gathering information relevant to a Royal Commission inquiry, it will be a matter for the Commissioner/s to determine how many private sessions are held, and from whom they hear, in order to inform the inquiry.

4.                 Subject to passage of the Bill, the Government proposes to recommend to the

Governor-General that private sessions be applied to the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (the Disability Royal Commission) and the Royal Commission into Aged Care Quality and Safety (the Aged Care Royal Commission).

 

FINANCIAL IMPACT STATEMENT

5.                 The Bill will have no financial impact. A Royal Commission will manage the conduct of private sessions within its budget. Where it is proposed a Royal Commission be given the power to hold private sessions, it would normally be expected provision would be made in the budget for the Commission to do so. Provisions have been made in the budget for the Disability Royal Commission to hold private sessions. The Aged Care Royal Commission can accommodate private sessions within its existing budget.

 



 

Statement of Compatibility with Human Rights

Prepared for the purposes of the Human Rights (Parliamentary Scrutiny) Act 2011

 Royal Commissions Amendment (Private Sessions) Bill 2019

6.                 This Bill is 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 Bill

7.                 The main purpose of the Royal Commissions Amendment (Private Sessions) Bill 2019 is to amend Part 4 of the Royal Commissions Act 1902 to:

·            enable a Royal Commission to hold private sessions where a regulation is made authorising it to do so, noting that presently the private sessions regime only applies to the Child Sexual Abuse Royal Commission,

·            enable the Chair of a multi-member Commission, or a sole Commissioner, to authorise Assistant Commissioners, being appropriately qualified and senior staff members of a Commission, to hold private sessions (noting that private sessions must be held by a Commissioner unless the Chair, or sole Commissioner, considers circumstances exist to justify such an authorisation),

·            apply limitations on use and disclosure of private session information to information given for the purposes of a private session, whether or not a private session is held,

·            apply limitations on use and disclosure to information given by individuals to the Child Sexual Abuse Royal Commission about their experience of child sexual abuse, or regarding other people’s experience of child sexual abuse, where that information was not given for the purposes of a private session, but the Commission indicated the information would be treated as confidential and treated it as confidential.

8.                 The Bill will enable the private sessions regime in Part 4 of the Act to be applied to a Royal Commission through a regulation made by the Governor-General. As a modification to the regime that applied for the Child Sexual Abuse Royal Commission, where only a Commissioner could hold a private session, it is proposed that the Chair of a multi-member Commission, or a sole Commissioner, will have discretion to authorise appropriately qualified and senior staff of a Commission, as Assistant Commissioners, to hold private sessions. Private sessions must be held by a Commissioner unless the Chair, or sole Commissioner, considers circumstances exist to justify authorisation of Assistant Commissioners. The power to authorise Assistant Commissioners to hold private sessions will give a Commission more flexibility and may enable a Commission to hold more private sessions over the duration of the inquiry.

9.                 The limits on use and disclosure of private session information in Part 4 of the Act only apply to information given ‘at’ a private session held by the Child Sexual Abuse Royal Commission. The Bill will apply the limits on use and disclosure of information given ‘at’ a private session to information given ‘for the purposes of a private session’, whether or not a private session is held. It is proposed that this extended application will also apply to the Child Sexual Abuse Royal Commission. In practice, information about an individual’s experiences will be received or recorded by a Commission outside a private session (not just ‘at’ a private session). This could occur for a number of reasons, including through pre-screening processes where a Commission will need to be satisfied an individual’s story is relevant to the matters under inquiry, or to determine if the Commission will hear a person’s story. An individual ultimately may not have participated in a private session, but may have given information about their experience to a Commissioner, or to a member of the staff of a Royal Commission, for the purpose of participating in a private session. This information should properly receive the protections extended to other private session information.

 

Human rights implications

10.             The Bill engages, or may be seen to engage, the following rights:

·          the right to freedom of expression in Article 19 of the International Covenant on Civil and Political Rights (‘ICCPR’) and Article 13 of the Convention on the Rights of the Child (‘CRC’);

·          the prohibition against unlawful or arbitrary interferences with privacy in Article 17 of the ICCPR and Article 16 of the CRC; and

·          the right to a fair trial and hearing in Article 14 of the ICCPR.

 

The Right to Freedom of Expression

11.             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 chosen media. 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. 

12.             Article 13 of the CRC makes similar provision for children.

13.             The purpose of private sessions is to enable individuals to tell their story of a personal matter to a Commissioner or member of staff of a Commission in a private setting, rather than public hearing. Participation is voluntary. The Bill does not restrict that individual’s right to freedom of expression and facilitates a forum for the person to tell their story to inform an official inquiry. Private sessions were engaged by the Child Sexual Abuse Royal Commission to enable children, as young as seven, to tell their story.

14.             The Bill imposes limits on use and disclosure of private session information, including provision that:

·          statements made, or documents produced, by a person at, or given for the purposes of, a private session are not admissible in evidence against the person in any civil or criminal proceedings (subsection 6OE(1) and proposed paragraph 6OE(1)(c) at item 23 of Schedule 1 to the Bill),

·          it is an offence to use or disclose information obtained at, or given for the purposes of, a private session, subject to exceptions (section 6OH as amended by items 28 to 33 of Schedule 1 to the Bill),

·          information obtained at, or given for the purposes of, a private session can only be included in a Royal Commission report if the information is de-identified or the information is also given as evidence to the Commission (section 6OJ as amended by items 34 and 35 of Schedule 1 to the Bill)

·          a provision of another law requiring or authorising a person to use or disclose information obtained at, or given for the purposes of, a private session will have no effect unless the use or disclosure is permitted under Division 3 of Part 4 of the Act (section 6OL as amended by items 37 and 38 of Schedule 1 to the Bill),

·          treats records containing information obtained at, or given for the purposes of, a private session 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 (section 6OM as amended by items 39 and 40 of Schedule 1 to the Bill), and

·          excludes a right of access under the Freedom of Information Act 1982 (the FOI Act) to documents containing information obtained at, or given for the purposes of, a private session (subsection 7(2E) of the FOI Act as amended by items 1 and 2 of Schedule 2 to the Bill).

15.             The Bill also proposes that the limits on use and disclosure of information in Part 4 of the Act, and in the FOI Act, apply to information about a person’s experiences of child sexual abuse, or regarding other people’s experiences of child sexual abuse, that was given by the person to the Child Sexual Abuse Royal Commission, other than for the purposes of a private session, and the Commission indicated the information would be treated as confidential and treated it as such (proposed s 6ON at item 41 of Schedule 1 to the Bill and proposed subparagraph 7(2E)(a)(iv) of the FOI Act at item 1 of Schedule 2 to the Bill). This measure is to address practices of the Child Sexual Abuse Royal Commission that may have led persons giving this information to believe that their information would be subject to the same protections as applied to information given at a private session.

16.             These limits on use and disclosure of private session information are necessary and reasonable to protect the privacy of the individual telling their story, as well as to respect the privacy and reputation of others who may be named in the story. That is important as information given at a private session, or for the purposes of a private session, is not taken on oath or affirmation and is not subject to cross-examination. If information is given that is adverse to a third party, the privacy of a private session means that the third party is not able to respond to allegations against them. For that reason, private session information can only be used in a report of a Royal Commission if it is de-identified or if it is formally put into evidence. The restrictions on use and disclosure aim to provide sufficient protections for an individual so that they are comfortable with participating in an inquiry, and giving information to inform an inquiry on matters of public importance, while at the same time providing confidentiality to third parties who may be named in the information.

17.             A person who (voluntarily) participates in a private session may allege another person has committed an offence. A Commissioner will retain a power under section 6P of the Act, in the context of Part 4 private sessions, to refer information that may relate to a contravention of a law to certain entities responsible for law enforcement. That power operates while a Royal Commission is active. Where information is referred to law enforcement authorities by an active Royal Commission under section 6P of the Act, the private session regime does not limit any rights of an accused to access information held by the prosecution.

The Prohibition against Unlawful and Arbitrary Interferences with Privacy

18.             Article 17 of the ICCPR prohibits unlawful or arbitrary interferences with a person’s privacy, family, home or correspondence, and unlawful attacks on their honour and reputation. Interferences with privacy may be permissible, provided they are authorised by law and not arbitrary.

19.             Article 16 of the CRC makes similar provision for children.

20.             It is a purpose of private sessions to enable individuals to tell accounts of personal matters, related to matters into which a Royal Commission is inquiring, in a private setting. In this respect, the private session regime enhances the privacy of the individual telling their story. However, as the information is not taken as evidence, limits on use and disclosure of the information are also aimed at protecting the privacy and reputation of third parties who may be named in the information.

 

The Right to Fair Trial and Hearing

21.             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 the right 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.

22.             Article 14(3) of the ICCPR establishes that, in the determination of any criminal charge, everyone shall be entitled certain minimum guarantees, including: to be informed promptly and in detail of the nature and cause of the charge against them (14(3)(a)); and not to be compelled to testify against themselves or to confess guilt (14(3)(g)).

23.             These rights are not engaged as a Royal Commission is not a court or tribunal, does not exercise judicial power, and cannot adjudicate on a person’s guilt or liability.

24.             To the extent that proposed section 6OL of the Act (as amended by items 37 and 38 of Schedule 1 to the Bill) will have the effect of overriding requirements or authorisations under a law to use or disclose private session information, unless authorised under Division 3 of Part 4, access to this information could not be compelled by either the prosecution or the defence. However, the private session regime does not of itself prevent the individual from being examined in court proceedings if they give evidence. Where information is referred to law enforcement authorities by an active Royal Commission under s 6P of the Act, the private session regime does not limit any rights of an accused to access information held by the prosecution.

25.             While a Royal Commission is not a court or tribunal, it does have powers to enable it to effectively investigate matters of public importance, which are balanced with limitations on uses of information obtained by the Commission. For example, while section 6A of the Act provides that self-incrimination is not a reasonable excuse for a person to refuse to make a statement or produce a document (when compelled to do so), section 6DD of the Act effectively provides a use immunity so that such statements or disclosures are not admissible against that person as evidence in any civil or criminal proceedings (except for an offence against the Act).

26.             The private session regime in Part 4 of the Act gives no powers for a Royal Commission to compel a person to give information or documents in the context of a private session. Participation is voluntary. However, like section 6DD of the Act, information given by an individual at, or for the purposes of, a private session is not able to be used against that person in civil or criminal proceedings (see section 6OE as amended by items 22 and 23 of Schedule 1 to the Bill). This provision serves to assist a Royal Commission to hear from individuals on a voluntary basis by protecting individuals from claims for defamation or other proceedings in connection with information they give.

 

Conclusion

27.             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, the limitations are reasonable, necessary and proportionate. It does not engage or limit the right to fair trial and hearing.

 

 

 

 

 

 

 



 

NOTES ON CLAUSES

 

Abbreviations

 

The Act means the Royal Commissions Act 1902 .

 

Child Sexual Abuse Royal Commission means the Royal Commission into Institutional Responses to Child Sexual Abuse .

 

FOI Act means the Freedom of Information Act 1982 .

 

Clause 1: Short title

28.             Clause 1 is a formal clause which provides the citation of the Bill upon its enactment.

 

Clause 2: Commencement

29.             Clause 2 provides for the provisions of the Bill to commence on the day after the Bill receives the Royal Assent.

 

Clause 3: Schedules

30.             This clause provides for each Act specified in a Schedule to the Bill to be amended in accordance with the items set out in the relevant Schedule. The Bill proposes main amendments to the Act as set out in Schedule 1 to the Bill, and amendments to the FOI Act as set out in Schedule 2 to the Bill.   

 

 



 

Schedule 1 - Main Amendments

 

Royal Commissions Act 1902

 

Item 1 - Subsection 1B(1)

31.             Item 1 amends subsection 1B (definitions) in Part 1 of the Act to include a definition of ‘member of the staff’. This definition is relevant to those amendments to Part 4 of the Act that envisage that a person can give information for the purposes of a private session to a member of the staff of a Royal Commission. This could include a person who is engaged to work for the Royal Commission as a counsellor or support person, or who is otherwise tasked with liaising with members of the public about participation in a private session.

 

Item 2 - Subsection 5(3)

32.             This item makes minor amendments consequential to item 1.

 

Items 3 and 4 - Part 4 (heading)

33.             Item 3 amends the heading of Part 4 of the Act from ‘Private sessions for the Child Sexual Abuse Royal Commission’ to ‘Private sessions for certain Royal Commissions’. It is consequential to the proposed amendment at item 6 to enable private sessions to be engaged for other Royal Commissions, in addition to the Child Sexual Abuse Royal Commission.

34.             Item 4 is a minor amendment to the heading of Division 1 of Part 4, so that the heading is changed from ‘Definitions’ to ‘Preliminary’.

 

Item 5 - Section 6OA

35.             Item 5 amends section 6OA to include a definition of ‘Assistant Commissioner’. This definition relates to items 7 and 13 which give a discretion to the Chair, or sole Commissioner, of a Royal Commission (as the case may be) to authorise appropriately qualified and senior staff members of a Commission to hold private sessions when circumstances exist to justify such an authorisation.

 

Item 6 -  At the end of Division 1 of Part 4

36.             Item 6 inserts section 6OAB into Part 4 of the Act, which would enable a Royal Commission to hold private sessions where a regulation is made by the Governor-General authorising the Royal Commission to do so. Currently, the private session regime only applies to the Child Sexual Abuse Royal Commission. While that inquiry has been completed, provisions in Part 4 continue to have application to the Child Sexual Abuse Royal Commission, including provisions relating to the use and disclosure of private session information.

37.             Section 17 of the Act allows the Governor-General to make regulations prescribing matters: required or permitted by the Act to be prescribed; or necessary or convenient to be prescribed for giving effect to the Act.

38.             The conduct of private sessions is just one way that a Royal Commission can obtain sensitive and personal information to inform its inquiry. Using the regulation power to engage the private session regime will mean a discrete decision will be made as to whether or not private sessions will be useful for a particular inquiry. Private sessions can have implications for the cost and constitution of a Royal Commission. As is the normal case for gathering information relevant to a Royal Commission inquiry, it will be a matter for the Commissioner/s to determine how many private sessions are held, and from whom they hear, in order to inform the inquiry.

 

Item 7 - Subsection 6OB(1)

39.             Presently, subsection 6OB(1) provides that the Chair of the Child Sexual Abuse Royal Commission, or a Commissioner authorised by the Chair, may hold private sessions. Item 7 repeals and substitutes subsection 6OB(1), to enable the Chair of a multi-member Commission, or a sole Commissioner, respectively, to hold private sessions to obtain information in relation to matters into which the Commission is inquiring. In the case of a multi-member Commission, the Chair may also authorise another Commissioner to hold a private session.

40.             As a modification to the regime that applied to the Child Sexual Abuse Royal Commission where only a Commissioner could hold a private session, it is proposed that the Chair of a multi-member Commission, or a sole Commissioner, will have discretion to authorise appropriately qualified and senior staff of a Commission, called an Assistant Commissioner, to hold a private session (see item 13).

41.             Proposed subsection 6OB(1B) establishes a presumption that a private session will be held by a Commissioner, unless the Chair of a multi-member Commission, or a sole Commissioner, considers circumstances exist to justify an Assistant Commissioner holding private sessions. This provision is intended to give a Commission more flexibility, particularly for a Commission constituted by one or two Commissioners, and may enable a Commission to hold more private sessions over the duration of the inquiry.

 

Items 8, 9, 10, 11 and 12 - Subsections 6OB(2) and (3)

42.             These items make minor amendments consequential to item 7.

 

Item 13 - At the end of section 6OB

Item 13 supplements item 7 and adds new subsection 6OB(4) giving the Chair of a multi-member Commission, or a sole Commissioner, discretion to authorise appropriately qualified and senior staff of the Commission to hold a private session. These authorised persons are to be called an Assistant Commissioner.

 

Item 14 - Section 6OC (heading)

43.             This item makes a minor amendment to the heading of section 6OC, to change it from ‘Status of private sessions’ to ‘Status of private sessions etc.’. This is to clarify the scope and content of section 6OC.

 



 

Item 15 - Subsections 6OC(1) and (2)

44.             Subsections 6OC(1) and (2) of the Act provide that a person who appears at a private session is not a witness, and does not give evidence, and that a private session is not a hearing. This item makes minor technical amendments so that the references to a private session in those subsections read ‘private session for a Royal Commission ’. 

 

Item 16 - Subsections 6OC(3) and (4)

45.             Item 16 essentially updates subsections 6OC(3) and (4) so that the provisions of the Act referenced in those subsections are applied both in the context of information obtained ‘at’ a private session as well as to information given to a Commissioner or to a member of the staff of a Royal Commission for the purposes of a private session (whether or not a private session is held).

 

Item 17 - Paragraph 6OC(5)(a)

46.             This item makes a minor technical amendment so that the reference to private session in this paragraph reads ‘private session for a Royal Commission ’.

 

Item 18 - Paragraph 6OC(5)(a)

47.             This item is consequential to item 6 and essentially replaces a reference to the Child Sexual Abuse Royal Commission with a reference to a Royal Commission that can hold private sessions.

 

Item 19 - Paragraphs 6OC(5)(b) and (c)

48.             This item makes a minor technical amendment so that the references to a private session in these paragraphs read ‘private session for a Royal Commission ’.

 

Item 20 - Subsection 6OC(6)

49.             This item makes a minor technical amendment so that the reference to a private session in this subsection reads ‘private session for a Royal Commission ’.

 

Item 21 - Paragraph 6OC(6)(a)

50.             This item is consequential to item 7 and replaces a reference to a Commissioner of the Child Sexual Abuse Royal Commission holding a private session with a reference to a person holding a private session. Subsection 6OC(6) essentially applies subsection 6O(1) of the Act, dealing with contempt of a Royal Commission, as if a private session were proceedings of the Commission.

 

Item 22 - Section 6OE (heading)

51.             This item is a minor amendment to the heading of section 6OE.

 



 

Item 23 - At the end of subsection 6OE(1)

52.             Section 6OE of the Act provides that statements, disclosures or documents that a person makes, or produces, at a private session are not admissible in evidence against that person in civil or criminal proceedings (similar to the protections in section 6DD). While participation at a private session is voluntary, this protection serves to encourage participants to give personal stories to a Royal Commission, on matters relevant to an inquiry, without being concerned that proceedings may be brought against them for doing so (for example, for defamation or breach of a confidentiality undertaking). 

53.             This item amends subsection 6OE(1) so that this protection applies not only to information given by a person ‘at’ a private session but also to information given by a person to a Commissioner, or to a member of the staff of a Royal Commission, for the purposes of a private session (whether or not a private session is held).

54.             In practice, information about an individual’s experiences will be received or recorded by a Commission outside a private session (that is, not just ‘at’ a private session). This could occur for a number of reasons, including through pre-screening processes where a Commission will need to be satisfied an individual’s story is relevant to the matters under inquiry, or for the purpose of determining whether the Commission will hear a person’s story. An individual may not ultimately participate in a private session but may have given information about their experience to a Commissioner, or to a member of staff, for the purpose of participating in a private session.

 

Item 24 - Section 6OF (heading)

55.             This item makes a minor amendment to the heading of section 6OF.

 

Item 25 - At the end of section 6OF

56.             This item is consequential to item 7. Section 6OF of the Act provides protections for persons who appear at, or who hold, private sessions (noting protections for Commissioners are provided at section 7 of the Act).   

57.             The item inserts new subsection 6OF(3) which would extend protections to Assistant Commissioners who are authorised to hold a private session.

 

Item 26 - Division 3 of Part 4 (heading)

58.             This item makes a minor amendment to the heading of Division 3 of Part 4 of the Act.

 

Item 27 - Section 6OG

59.             Section 6OG of the Act provides that a private session must be held in private and only persons who are authorised may be present during the private session. This item is consequential to item 7 and amends section 6OG to reflect that the person who holds a private session (which can be a Commissioner or an Assistant Commissioner authorised to hold private sessions) can authorise other persons to attend a private session.

 

Item 28 - Section 6OH (heading)

60.             This item makes a minor amendment to the heading of section 6OH.

 

Item 29 - Paragraph 6OH(a)

61.             Section 6OH of the Act provides that it is an offence for a person to use or disclose information obtained or given ‘at’ a private session, unless certain exceptions apply.

62.             This item amends section 6OH so that the restrictions on use or disclosure of information also apply to information that was given to a Commissioner or a member of the staff of a Royal Commission for the purposes of a private session and identifies the person who gave the information, whether or not a private session is held.

63.             In practice, information about an individual’s experiences will be received or recorded by a Commission outside a private session (that is, not just ‘at’ a private session). This could occur for a number of reasons, including through pre-screening processes where a Commission will need to be satisfied an individual’s story is relevant to the matters under inquiry, or for the purpose of determining whether the Commission will hear a person’s story. An individual may not ultimately participate in a private session but may have given information about their experience to a Commissioner, or to a member of the staff of a Royal Commission, for the purpose of participating in a private session.

 

Item 30 - Subparagraph 6OH(c)(i)

64.             This item is consequential to item 6 and removes a reference to the Child Sexual Abuse Royal Commission and effectively replaces it with a reference to a Royal Commission that can hold private sessions.

 

Item 31 - Subparagraphs 6OH(c)(iii) and (iv)

65.             Subparagraphs 6OH(c)(iii) and (iv) provide exceptions to the offence of unauthorised use or disclosure under section 6OH, so that a person will not commit an offence if they use or disclose information that they gave at a private session, or they use or disclose information given at a private session with the consent of the person who gave the information.

66.             This item is consequential to item 29 so that it is an exception to the offence where the information used or disclosed was given ‘at’ a private session and the person who gave it consents to the use or disclosure, or where the information was given for the purposes of a private session and the person who gave the information consents to a use or disclosure.

 

Items 32 and 33 - At the end of section 6OH

67.             Items 32 and 33 insert ‘Note 2’ at the end of section 6OH to confirm that a person who gave private session information does not commit an offence under section 6OH by making a record of or, using or disclosing the information. This is currently addressed in the Act at subparagraph 6OH(c)(iii). That provision has not been retained as the offence only applies under paragraph 6OH(a) where a person ‘obtains’ information at a private session rather than where a person ‘gives’ information (see item 31 which repeals subparagraph 6OH(c)(iii)).

 

Item 34 - Section 6OJ

68.             Section 6OJ provides that information that has been obtained at a private session may only be included in a report or recommendation of a Royal Commission if the information is also given as evidence, or if the information is de-identified.

69.             This item amends section 6OJ so that the above limitations also apply to information given to a Commissioner or member of the staff of a Royal Commission for the purposes of a private session, whether or not a private session was held.

70.             In practice, information about an individual’s experiences will be received or recorded by a Commission outside a private session (that is, not just ‘at’ a private session). This could occur for a number of reasons, including through pre-screening processes where a Commission will need to be satisfied an individual’s story is relevant to the matters under inquiry, or for the purpose of determining whether the Commission will hear a person’s story. An individual may not ultimately participate in a private session but may have given information about their experience to a Commissioner, or to a member of the staff of a Royal Commission, for the purpose of participating in a private session.

 

Item 35 - Section 6OJ

71.             This item is consequential to item 6 and removes a reference to the Child Sexual Abuse Royal Commission and effectively replaces it with a reference to a Royal Commission that can hold private sessions.

 

Item 36 - Section 6OK

72.             Section 6OK provides that the offence of unauthorised use or disclosure of information given at a private session under section 6OH does not apply where a person discloses the information to the person who gave the information. This item is consequential to item 29 and amends section 6OK to cover information given at a private session as well as information given to a Commissioner or member of the staff of a Royal Commission for the purposes of a private session.

 

Item 37 - Before subsection 6OL(1)

73.             Subsection 6OL(1) provides that a law has no effect to the extent it would otherwise require or authorise a person to make a record of, or to use or disclose information obtained at a private session, unless it would be permitted by Division 3 of Part 4 of the Act. This means that compulsory legal requirements to produce documents, such as subpoenas, for information given at a private session have no effect (whether issued to an active Royal Commission or to the agency that is responsible for records of a Royal Commission which has completed its inquiry). 

74.             This item amends section 6OL so that the restriction applies to information given at a private session as well as to information that was given to a Commissioner, or a member of the staff of a Royal Commission, for the purposes of a private session and identifies the person who gave the information, whether or not a private session is held.

75.             In practice, information about an individual’s experiences will be received or recorded by a Commission outside a private session (that is, not just ‘at’ a private session). This could occur for a number of reasons, including through pre-screening processes where a Commission will need to be satisfied an individual’s story is relevant to the matters under inquiry, or for the purpose of determining whether the Commission will hear a person’s story. An individual may not participate in a private session but may have given information about their experience to a Commissioner, or to a member of the staff of a Royal Commission, for the purpose of participating in a private session.

 

Item 38 - Subsection 6OL(1)

76.             This item is consequential to item 37 and amends subsection 6OL(1) to clarify that it relates to the information outlined in the new subsection 6OL(1A).

 

Item 39 - After paragraph 6OM(1)(b)

77.             The effect of section 6OM of the Act is to treat records containing information obtained at a private session 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. The lengthy exclusion period is aimed at encouraging people to come forward and share information that might be of a particularly sensitive personal nature, and that would inform a Royal Commission inquiry.

78.             This item amends subsection 6OM(1) to also apply that measure to information that was given to a Commissioner or a member of the staff of a Royal Commission for the purposes of a private session and identifies the person who gave the information, whether or not a private session is held.

79.             In practice, information about an individual’s personal experiences will be received or recorded by a Commission outside a private session (that is, not just ‘at’ a private session). This could occur for a number of reasons, including through pre-screening processes where a Commission will need to be satisfied an individual’s story is relevant to the matters under inquiry, or for the purpose of determining whether the Commission will hear a person’s story. An individual may not ultimately participate in a private session but may have given information about their experience to a Commissioner, or to a member of the staff of a Royal Commission, for the purpose of participating in a private session.

 

Item 40 - Subsection 6OM(2)

80.             This item clarifies that subsection 6OM(1) applies to relevant private session information, whether it came into existence before, during or after a private session (if any) was held.

 



 

Item 41 - At the end of Division 3 of Part 4

81.             This item inserts, at the end of Part 4, new section 6ON. This provision is proposed to only apply to the Child Sexual Abuse Royal Commission. The effect of the provision is to apply the limits on use and disclosure of private session information in Division 3 of Part 4 (sections 6OH, 6OK, 6OL and 6OM), and the restriction on admissibility of private session information in evidence against the person who gave the information (section 6OE), to information that was given to the Child Sexual Abuse Royal Commission, for purposes other than a private session, about an individual’s experience of child sexual abuse, or regarding other people’s experience of child sexual abuse, where the Commission indicated the information would be treated as confidential and treated it as such.

82.             This measure is to address practices of the Child Sexual Abuse Royal Commission that may have led persons giving this information to believe that their information would be subject to the same protections as applied to information given at a private session.

 

Item 42 - Application provisions

83.             Paragraph (1) of item 42 provides that subsection 5(3) as amended by Schedule 1 to the Bill applies to an application for a search warrant under subsection 4(1) that is made by telephone, on or after the commencement of this item.

84.             Paragraph (2) of item 42 provides that the power to use a regulation to prescribe a Royal Commission that can hold private sessions will be able to be used for the two Royal Commissions that are active at the time the Bill is introduced, namely, the Royal Commission into Aged Care Quality and Safety and the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability , as well as future Royal Commissions established after commencement of this item.

85.             Paragraph (3) of item 42 provides that subsections 6OC(3) and (4) as amended by Schedule 1 to the Bill apply to information and documents obtained, given or produced before, on or after commencement of this item. It is intended that these amendments have application to relevant information of the Child Sexual Abuse Royal Commission.

86.             Paragraph (4) of item 42 provides that the restriction on admissibility of private session information into evidence against the person who gave the information in section 6OE, as amended in Schedule 1 to the Bill, applies to proceedings instituted on or after the commencement of this item (whether the information was given before, on or after that commencement). It is intended that these amendments have application to relevant information of the Child Sexual Abuse Royal Commission.

87.             Paragraph (5) of item 42 provides that sections 6OH, 6OK and 6OL, as amended by Schedule 1 to the Bill, and proposed new section 6ON, will apply to uses and disclosures of relevant information made on or after commencement of this item (whether the person obtains the information before, on or after that commencement). It is intended that these amendments have application to relevant information of the Child Sexual Abuse Royal Commission.

88.             Paragraph (6) of item 42 provides that section 6OM, as amended by Schedule 1 to the Bill, and proposed new section 6ON, will apply to a record that comes into existence before, on or after the commencement of this item. It is intended that these amendments would have application to relevant records of the Child Sexual Abuse Royal Commission.

 



Schedule 2 - Consequential Amendments

 

Freedom of Information Act 1982

 

Item 1 - Paragraph 7(2E)(a)

89.             Currently, paragraph 7(2E) in the FOI Act excludes access to documents containing information obtained at a private session, or that relates to a private session and identifies a natural person who appeared at a private session, or contains a summary or extract of private session information, in the context of the Child Sexual Abuse Royal Commission. This measure complements section 6OM of the Act which has application to the Archives Act 1983 .

90.             This item will apply that exclusion to information given at a private session, as well as to information given to a Commissioner or a member of the staff of a Royal Commission for the purposes of a private session (whether or not a private session is held). It would also apply the exclusion to information in documents of the Child Sexual Abuse Royal Commission covered by proposed new section 6ON (at item 41).

91.             The exclusion is aimed at encouraging people to come forward and share information that might be of a particularly sensitive personal nature, and that would inform a Royal Commission inquiry.

 

Item 2 - At the end of section 7

92.             This item inserts new subsection 7(5) which provides that an expression used in subsection ( 2E ) that is also used in Part 4 of the Royal Commissions Act has the same meaning as in that Part.

 

Item 3 - Application provision

93.             This item provides that the amendments to subsection 7(2E)(a) apply to applications for access to documents made under section 15, and applications to amend personal information made under section 48 of the Freedom of Information Act 1982 , received on or after the commencement of the item.