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Royal Commissions Amendment (Confidentiality Protections) Bill 2020

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2019-2020

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

SENATE

 

Royal Commissions Amendment (Confidentiality Protections) Bill 2020

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

(Circulated by authority of Senator Jordon Steele-John)

 

 

 

 

 

 

 

 

ROYAL COMMISSIONS AMENDMENT (CONFIDENTIALITY PROTECTIONS) BILL 2020

General Outline

The Royal Commissions Amendment (Confidentiality Protections) Bill 2020 will amend the Royal Commissions Act 1902 and make consequential amendments to the Freedom of Information Act 1982 to ensure ongoing confidentiality protections for people giving evidence  to the Royal Commission into Violence, Abuse, Neglect, and Exploitation of People with Disability (the Disability Royal Commission). The proposed amendments will apply limitations on use and disclosure to information given by individuals to the Disability Royal Commission. It will do so by extending the privacy protections for private sessions of a Commission to other information given to the Disability Royal Commission if:

●        The Disability Royal Commission indicated that the information would be treated as confidential before it was given; and

●        After it was received by the Disability Royal Commission, it was treated by the Commission as confidential

These changes will occur via the insertion of a proposed new Section 6OO into the Royal Commissions Act 1902 , and a consequential amendment to Section 7 of the Freedom of Information Act 1982 .

Currently, evidence treated as confidential by the Disability Royal Commission is not guaranteed to remain so once the work of the Disability Royal Commission has been completed. This Bill aims to address the limitations of current legislation to guarantee confidentiality beyond the life of the Disability Royal Commission. These limitations have been acknowledged by the Disability Royal Commission, people with disability, carers, and advocates to be a significant barrier to people making submissions and having their experiences heard by the Royal Commission. These changes are necessary to ensure people who seek to engage with the Royal Commission can be assured that their information will be protected, particularly in circumstances where instances of violence, abuse, neglect, and exploitation articulated in confidential evidence are contemporary.  Further, these changes are important in ensuring that people who seek to confidentially engage with the Disability Royal Commission are not confined to a private session and can give their evidence through other means, including through making submissions and in public hearings. The effect of these changes will be that the Disability Royal Commission is enabled to engage as fully as possible with the disability community and fully investigate all aspects captured in its Terms of Reference.

 

 

Financial Impact Statement

The amendments proposed in this Bill will have no direct financial impact on the Australian Government.

NOTES ON CLAUSES

Clause 1 - Short Title

1.              Clause 1 provides for the Bill, when enacted, to be cited as the Royal Commissions Amendment (Confidentiality Protections) Act 2020 .

Clause 2 - Commencement

2.              This clause provides that the whole of the Act commences on the after day the Act receives the Royal Assent.

Clause 3 - Schedules

3.                Clause 3 is an application provision specifying that each Act specified in a Schedule to the Act is amended or repealed as is set out in the applicable items in the Schedule, and that any other item in a Schedule has effect according to its terms.

Schedule 1 - Amendments

4.              Schedule 1 to the Bill contains amendments to the Freedom of Information Act and the  Royal Commissions Act relating to the protection of evidence given as confidential beyond the life of the Royal Commission into Violence, Abuse, Neglect, and Exploitation of People with Disability.

Freedom of Information Act 1982

Item 1 - At the end of paragraph 7(2E)(a)

5.              Currently, paragraph 7(2E)(a) of the FOI Act excludes access to documents containing information obtained at a private session, or that relates to a private session of the Commission and identifies a natural person who appeared at a private session for the Commission, or that contains information that was given by a natural person to a member, or member of the staff, of the Commission for the purposes of a private session (whether or not a private session was, or is to be, held for the Commission) and identifies the person who gave the information, or that contains information to which section 6ON of that Act (which deals with certain information given to the Child Sexual Abuse Royal Commission) applies.

6.              This item will apply that exclusion to information in documents of the Disability Royal Commission covered by proposed new section 6OO (at item 4).

7.              The exclusion is aimed at encouraging people to come forward and share information and experiences that are especially sensitive and personal, and that would inform and assist the Disability Royal Commission with its inquiry.

Item 2 - Application provision

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

Royal Commissions Act 1902

Item 3 - Section 6OA

9.              This item inserts a definition for the Disability Royal Commission to mean the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability issued by the Governor-General by Letters Patent on 4 April 2019 (and including any later variations of those Letters Patent).

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

10.          This item inserts, at the end of Part 4, a new section 6OO. This provision is proposed to apply only to the Disability Royal Commission. The proposed section largely mirrors existing section 6ON of the Act. 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 (6OE), to information given to the Disability Royal Commission, for purposes other than a private session, where the Commission has indicated the information is to be treated as confidential and treated it as such.

11.          This measure is to address the limitations of the Act to ensure that confidentiality protections for persons giving evidence to the Disability Royal Commission can be assured once the Disability Royal Commission has ended.



 

Statement of Compatibility with Human Rights

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

 

Royal Commissions Amendment (Confidentiality Protections) Bill 2020

 

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

The main purpose of the Royal Commissions Amendment (Confidentiality Protections) Bill 2020 is to amend Section 6 of the Royal Commissions Act 1982 to extend privacy protections for private sessions held by the DRC to other information given to the Disability Royal Commission if:

●               The Commission indicated that the information would be treated as confidential before it was given; and

●               After it was received by the Commission, it was treated by the Commission as confidential

These changes will occur via the insertion of a proposed new Section 6OO into the Royal Commissions Act 1902 , and a consequential amendment to Section 7 of the Freedom of Information Act 1982 .

 

Human rights implications

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

●               the prohibition against unlawful and arbitrary interferences with privacy in Article 17 of the International Covenant on Civil and Political Rights (ICCPR) and Article 22 of the Convention on the Rights of Persons with Disabilities (CRPD);

●               the right to freedom of opinion and expression - Article 19 of the ICCPR

The Prohibition against Unlawful and Arbitrary Interferences with Privacy

Article 17 of the ICCPR prohibits unlawful or arbitrary interference with a person’s privacy, family, home or correspondence, and unlawful attacks on their honour and reputation.

Article 22 of the CRPD makes similar provisions for people with disability.

This bill proposes limits on the use and disclosure of information in Part 4 of the Royal Commissions Act 1902 (Royal Commissions Act), and in the Freedom of Information Act 1982 , apply to persons who give evidence to the Disability Royal Commission other than for the purposes of a private session, and the Commission indicated that the information would be treated as confidential and treated it as such (proposed section 6OO, contained in item 4 of Schedule 1 to the Bill). This measure is designed to remove a significant barrier to engaging with the Disability Royal Commission by assuring people with disability and their families, carers, support workers, and others who wish to have their experiences heard by the Disability Royal Commission that their identities and information are protected beyond the life of the Disability Royal Commission. This is particularly relevant to those who provide information about instances of violence, abuse, neglect and exploitation of people with disability which are contemporaneous. The restrictions on use and disclosure aim to provide sufficient protections for people so that they are comfortable with participating with the inquiry of the Disability Royal Commission. Ultimately, the amendments proposed by this bill enhance the privacy of people giving evidence to the Disability Royal Commission.

The right to freedom of opinion and expression

Article 19 of the ICCPR, amongst other things, stipulates that everyone shall have the right to freedom of expression; this right shall include 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. Article 19(3) states that the exercise of the rights provided for may be subject to certain limitations, but these shall only be such as are provided by law and are necessary. This includes the protections of the rights and reputations of others.

This bill makes amendments which place limitations on the disclosure of information treated as confidential by the Disability Royal Commission. These limitations are similar to whistleblower protection regimes internationally, and they reflect the same limitations imposed under section 6ON of the Royal Commissions Act for the Royal Commission into Institutional Responses to Child Sexual Abuse. It is necessary to reduce the risks and detriment suffered by individuals who seek to expose wrongdoing in their evidence, particularly where instances of violence, abuse, neglect, and exploitation are contemporary and/or ongoing. These limitations are proportional to those risks, and reflect the sensitive nature of evidence coming before the Disability Royal Commission. These limitations also reflect the importance of ensuring that people feel safe to give evidence to an inquiry that is of significant public importance.

Conclusion

The Bill is compatible with human rights because it advances the protection of human right and to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.

Senator Jordon Steele-John