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Royal Commissions Amendment (Protection of Information) Bill 2021

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2019-2020-2021

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

SENATE

 

 

ROYAL COMMISSIONS AMENDMENT (PROTECTION OF INFORMATION) BILL 2021

 

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

 

Amendments to be Moved on Behalf of the Government

 

 

(Circulated by authority of the

Attorney-General, Senator the Honourable Michaelia Cash)

                                                                                                        



 

ROYAL COMMISSIONS AMENDMENT (PROTECTION OF INFORMATION) Bill 2021

 

(Government)

general Outline

1.                   The purpose of the amendment to the Royal Commissions Amendment (Protection of Information) Bill 2021 (the Bill) and the Explanatory Memorandum to the Bill is to:

a.        apply the confidentiality protections to accounts identifying systemic forms of violence, abuse, neglect or exploitation experienced by a natural person or another person;

b.       ensure that protected information given by a person, or information which another person has given on their behalf, will not be admissible as evidence in proceedings against either person; and

c.        enable the Royal Commission to use certain protected information in a report or recommendation only if it was also given as evidence under a summons or if the information is de-identified.

2.                   The Bill applies confidentiality protections to certain information given by, or on behalf of individuals, to the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (the Royal Commission) by applying limitations on the use and disclosure of information given by individuals to the Commission about their experiences of violence, abuse, neglect and exploitation.

3.                   Following further engagement with stakeholders, the Government has determined that the protections should apply to accounts of a systemic nature, which relate to an experience of a natural person or another person. Item 6OP of the Bill will not be limited to individual accounts, and could be applied more broadly to accounts of systemic forms of violence, abuse, neglect or exploitation. The Bill is intended to protect accounts of a systemic nature, so this amendment is proposed in the interests of making this clear and explicit on the face of the legislation.

4.                   Protected information about an individual account, or an account of a systemic form of violence, abuse, neglect or exploitation, experienced by a natural person or another person, must still be given for purposes other than a private session, the information must directly or indirectly identify the natural person who gave the information, or on whose behalf it was given, and the information must have been treated as confidential by the Royal Commission at all times.

5.                   The amendment reflects the original intent of the provision ensuring that sensitive information provided to the Royal Commission outside private sessions about systemic forms of violence, abuse, neglect and exploitation experienced by a natural person or another person will be accorded the same confidentiality as material obtained for the purposes of a private session.

6.                   The amendment will also ensure that certain protected information will be inadmissible as evidence in civil or criminal proceedings. People with severe or cognitive disability may be unable to give information to the Royal Commission by themselves and may require a third party to give information on their behalf. People with disability, and people giving information on their behalf, should be given comprehensive legislative protections from claims for defamation or other proceedings in connection with information they give. Protected information given by a person, or information which another person has given on their behalf, will not be admissible in proceedings against either person. The amendment will apply to the Disability Royal Commission and future Royal Commissions authorised to hold private sessions.

7.                   The amendment enables the Royal Commission to use certain protected information in a report or recommendation only if it was also given as evidence under a summons or if the information is de-identified. While the Royal Commission has committed to treat accounts of an experience of violence, abuse, neglect and exploitation, confidential at all times, the amendment will give legislative certainty for individuals engaging with the Commission that their information may only be used in a report or recommendation in certain circumstances. This will assist in ensuring that all people who wish to tell their stories to the Royal Commission can do so with confidence that sensitive information they share will be treated confidentially.

8.                   It is the Government’s intention that people can engage in confidence with the Royal Commission without fear of further disclosures.

 

FINANCIAL IMPACT

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

 



 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Royal Commissions Amendment (Protection of Information) Bill 2021

1.                   The amendments to the 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

2.                   The amendments apply the confidentiality protections to accounts identifying systemic forms of violence, abuse, neglect or exploitation experienced by a natural person or another person. The provision in the Bill will not be limited to an individual account, but could be applied more broadly to include accounts of systemic forms of violence, abuse, neglect or exploitation.

3.                   The amendments also provide that confidentiality protections apply where information is given to the Royal Commission on behalf of another person. The protections will apply to both the person who gives the information, and also the person on whose behalf the information is given.

4.                   The amendments will also enable the Royal Commission to use the confidential information in a report or recommendation only if it was also given as evidence under a summons or if the information is de-identified.

Human rights implications

5.                   The amendments do not affect the analysis of human rights issues set out in the Explanatory Memorandum to the Bill.



 

NOTES ON AMENDMENTS

Amendment 1: Schedule 1, page 4 (after line 5), after item 5

1.                   Amendment 1 inserts new subclause 6OE(1A) so that the following are not admissible in evidence against a natural person in any civil or criminal proceedings in any court of the Commonwealth, of a State or of a Territory:

a.        a statement or disclosure made on behalf of the person at a private session;

b.       a document or other thing on behalf of the person at a private session; and

c.        a statement or disclosure made on behalf of the person to a member, or member of the staff, of a Royal Commission for the purposes of a private session (whether or not a private session was, or is to be, held for the Commission).

2.                   Private session information that is given to a Royal Commission on behalf of another person, is not admissible in evidence against the other person.

3.                   Amendment 1 omits “Subsection (1) does not” at the beginning of subsection 6OE(2), and substitute with “Subsections (1) and (1A) do not”. The amendment clarifies that new subclause 6OE(1A) does not apply to the admissibility of evidence in proceedings for an offence against this Act.

Amendment 2: Schedule 1, item 6, page 4 (lines 14 to 16)

4.                   Amendment 2 omits and substitutes new paragraph 6OP(1)(b) to provide that the section would apply to certain protected information if it contains either an account of the natural person’s, or another person’s, experiences of violence, abuse, neglect or exploitation, or an account of the natural person’s, or another person’s, experiences of systemic violence, abuse, neglect or exploitation.

5.                   Item 6OP of the Bill clarifies that an account is not limited to an individual account, and could be applied more broadly to accounts of systemic forms of violence, abuse, neglect or exploitation.

Amendment 3: Schedule 1, item 6, page 4 (line 17), after ‘information’

6.                   Amendment 3 inserts text into new subsection 6OP(1)(c) to clarify that certain information given to the Disability Royal Commission will be protected if the natural person who gave the information, or on whose behalf the information was given, is either directly or indirectly identifiable. In some circumstances there may be an identifiable connection between certain information and a natural person, even where the person may not in the first instance appear to directly be the subject of the information.

Amendment 4: Schedule 1, item 6, page 4 (lines 23 to 25)

7.                   Amendment 4 omits and substitutes new subsection 6OP(2), so that section 6OE similarly applies to information that was given to the Commission other than for the purposes of a private session, and contains an account of the natural person’s, or another person’s, experiences of violence, abuse, neglect or exploitation, identifies the natural person who gave the information, or on whose behalf the information was given, and was treated as confidential by the Commission at all times after being given to the Commission.

8.                   Protected information is inadmissible against the natural person who gave the information, and a natural person on whose behalf the information was given.

Amendment 5: Schedule 1, item 6, page 4 (after line 28), after subsection 6OP(3)

9.                   Amendment 5 inserts new subsection 6OP(3A) to apply section 6OJ to protected information as if it was information that was obtained by the Disability Royal Commission at a private session. Protected information may only be included in a report or recommendation of the Commission only if it was also given as evidence to the Commission or under a summons, requirement or notice under section 2 or if the information is de-identified.

Amendment 6: Schedule 1, item 6, page 4 (after line 31), at the end of section 6OP

10.               Amendment 6 adds subsection 6OP(5) to explain what constitutes an account of an experience of systemic violence, abuse, neglect or exploitation. A systemic account may include reference to experiences, or an awareness, of a policy, procedure, practice, act or omission that contributed, or may have contributed, to a natural person experiencing violence, abuse, neglect or exploitation.

Amendment 7: Schedule 1, item 8, page 5 (after line 10), after subitem (1)

11.               Amendment 7 inserts an application provision for the commencement of amendments to section 6OE. An amended section 6OE would apply to a document or thing given to the Commission at, or for the purposes of a private session, on or after the Bill is passed and receives Royal Assent. In relation to the Disability Royal Commission, section 6OE applies to a document or thing produced to the Commission from the commencement of the inquiry, up until its final reporting date.