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National Commissioner for Defence and Veteran Suicide Prevention (Consequential Amendments) Bill 2020

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2019-2020

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

SENATE

 

 

NATIONAL COMMISSIONER FOR DEFENCE AND VETERAN SUICIDE PREVENTION (CONSEQUENTIAL AMENDMENTS) BILL 2020

 

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

 

Amendments to be Moved on Behalf of the Government

 

 

(Circulated by authority of the

Attorney-General, the Honourable Christian Porter MP)

                                                                                                        



 

AMENDMENTS TO THE NATIONAL COMMISSIONER FOR DEFENCE AND VETERAN SUICIDE PREVENTION (CONSEQUENTIAL AMENDMENTS) BILL 2020

 

(Government)

general Outline

1.                   The purpose of these amendments to the National Commissioner for Defence and Veteran Suicide Prevention (Consequential Amendments) Bill 2020 (the Consequential Amendments Bill) is to model the arrangements for the handling of National Commissioner for Defence and Veteran Suicide Prevention related records for the purposes of the Archives Act 1988 (Cth) (Archives Act) on the arrangements applicable to Royal Commission records, as provided in section 22 of the Archives Act.

2.                   In summary, the Archives Act would be amended so that it does not apply to National Commissioner records that are required to be readily available for the purposes of the National Commissioner. This means that the National Archives of Australia (National Archives) is not entitled to have access to such records or to have them transferred to the National Archives in the usual way. Instead, the amendments would enable a more specific and tailored approach to National Commissioner records once they cease to be current Commonwealth records, reflecting the arrangements for Royal Commission records under section 22 of the Archives Act. In summary:

·          the National Archives would be entitled to access to and the care of National Commissioner records as provided in a direction the Attorney-General would make as the relevant portfolio Minister

·          the National Archives would not assume custody of, or have access to, or care of, any intelligence information made or obtained by the National Commissioner or staff assisting the Commissioner, except in accordance with an agreement made between the Commissioner and intelligence entity heads under clause 42 of the National Commissioner for Defence and Veteran Suicide Prevention Bill 2020 (the Bill)

·          a direction given by the National Commissioner prohibiting the publication of any document or matter (such as a non-publication direction under clause 53 of the Bill), would not apply to the provision of public access to the document or matter during the open access period under the Archives Act

·          this does not affect public access under the Archives Act (including the application of relevant exemptions) to any records that are in the open access period, or to the publication of records that are available for public access in accordance with the Archives Act.

 

3.                   This reflects that the arrangements in relation to National Commissioner records should be similar to those of Royal Commission records, given the strong alignment in the functions and powers of the Commissioner with a Royal Commission.

FINANCIAL IMPACT

4.                   There are no financial impacts associated with these amendments.  



 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

National Commissioner for Defence and Veteran Suicide Prevention (Consequential Amendments) Bill 2020

1.                   The amendments to the Bill 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 Bill

2.                   The amendments to the National Commissioner for Defence and Veteran Suicide Prevention (Consequential Amendments) Bill 2020 model the arrangements for the handling of National Commissioner for Defence and Veteran Suicide Prevention related records for the purposes of the Archives Act 1988 (Cth) (Archives Act) on the arrangements applicable to  Royal Commission records, as provided in section 22 of the Archives Act.

Human rights implications

3.                   The amendments engage the right to privacy under article 17 of the International Covenant on Civil and Political Rights.

4.                   The amendments provide that a direction given by the National Commissioner prohibiting the publication of any document or matter (such as under section 53 of National Commissioner for Defence and Veteran Suicide Prevention Act 2020 ) does not apply to the provision of public access to any records that are in the open access period under the Archives Act.

5.                   The usual safeguards in the Archives Act apply to access to records in the open access period, including exemptions available in section 33 of the Archives Act. 

6.                   To the extent that the amendments may limit the right to privacy (if personal information was subject to a particular direction given by the Commissioner, for example), that effect is limited by the following:

·          records may be determined to be partially or wholly exempt from public access under section 33 of the Archives Act, including on the basis that a record contains information that would involve the unreasonable disclosure of information relating to the personal affairs of any person (including a deceased person) (paragraph 33(1)(g))

·          the Director-General of the National Archives and the Attorney-General (or a person authorised by the Attorney-General) may make an arrangement under section 35 of the Archives Act determining records in the open access period that are to be treated by the National Archives as exempt records (or the extent to which access in part may be given), and

·          the National Commissioner may provide advice to the Director-General of the National Archives about any continuing sensitivities relevant to a record, which would inform the Director-General’s decision making processes about the release of a record in the open access period.



 

NOTES ON AMENDMENTS

Amendment 1: Schedule 1, page 3 (before line 3), before the heading specifying Freedom of Information Act 1983

1.                   This amendment would insert a new section 22AA in the Archives Act.

2.                   The amendment provides that the usual arrangements where Commonwealth records are transferred to the care of the National Archives (in accordance with sections 27 and 28 of Archives Act), once they cease to be current Commonwealth records, would not apply to a ‘National Commissioner record’, as defined in subclause 22AA(6) (subclause 22AA(1)).

3.                   Subclause 22AA(2) provides the National Archives, except in accordance with a direction made under subclause 22AA(3), is not entitled to have access to or care of, records of the Commissioner that cease to be a current Commonwealth record at a particular time, and was required up until that time, to be readily available for the purposes of the Commissioner. 

 

4.                   Subclause 22AA(3) provides that records to which paragraphs 22AA(2)(a) and (b) apply, must be kept in the custody as the Attorney-General, as the Minister administering the National Commissioner for Defence and Veteran Suicide Prevention Act 2020 (National Commissioner Act) , directs. This is subject to any arrangement entered into under section 42 of the National Commissioner Act with the head of the relevant intelligence entity.

5.                   Without limiting subclause 22AA(3), the Attorney-General may direct that the National Archives have access to, or have the care of, a National Commissioner record to which paragraphs 2(a) and (b) apply (subclause 22A(4)).

6.                   Subclause 22AA(5) provides that a direction given by the Commissioner prohibiting the publication of any document or matter (such as under section 53 of National Commissioner Act) does not apply to the provision of public access to any records that are in the open access period under the Archives Act. The record may still be an exempt record under other provisions of the Archives Act, including section 33, for example.

7.                   In subclause 22AA, a ‘National Commissioner record’ means a record created or obtained for the purposes of the National Commissioner Act by the Commissioner or a member of staff assisting the Commissioner (subsection 22AA(6)).