Introductory Info

Date introduced: 25 July 2019
House: House of Representatives
Portfolio: Prime Minister
Commencement: The day after Royal Assent.

Purpose of the Bill

The purpose of the Royal Commissions Amendment (Private Sessions) Bill 2019 (the Bill) is to amend the Royal Commissions Act 1902 (the RC Act) to enable Part 4, the private sessions regime inserted for the Royal Commission into Institutional Responses to Child Sexual Abuse (Child Sexual Abuse Royal Commission), to be applied to other Royal Commissions. The Bill will also make consequential amendments to the Freedom of Information Act 1982 (the FOI Act).

In his second reading speech for the Bill, the Assistant Minister to the Prime Minister and Cabinet, Ben Morton, stated:

The chair of the Royal Commission into Aged Care Quality and Safety, the Hon. Richard Tracey AM, RFD, QC, and the chair of the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, the Hon. Ronald Sackville AO, QC, have told the government that private sessions will assist in their important duties ...

Subject to passage of this bill, it is the government's intention to recommend to the Governor-General that both the aged-care royal commission and the disability royal commission are able to use private sessions.[1]

Structure of the Bill

The Bill has two schedules. Schedule 1 contains the amendments to the RC Act. Schedule 2 contains the consequential amendments to the FOI Act.

Background

Part 4 of the RC Act was introduced by the Royal Commissions Amendment Act 2013. The following background information draws on the Bills Digest prepared for that legislation.[2]

Royal Commissions

Commonwealth Royal Commissions are usually established under the RC Act. While at common law, the Crown has the power to appoint a person to conduct inquiries and make a report, such a person would have no coercive powers.[3] For this reason, Royal Commissions are established by statute endowing them with coercive powers—for instance the power to summon witnesses and compel evidence. The RC Act authorises the Governor-General to issue Letters Patent establishing a Royal Commission, appointing Commissioners and describing the terms of reference.[4]

The subject matter of a Royal Commission’s inquiry are set out in its terms of reference and determined by the Executive Government. Section 1A of the RC Act provides that the subject matter of a Royal Commission’s inquiry and report can be ‘upon any matter specified in the Letters Patent, and which relates to or is connected with the peace, order and good government of the Commonwealth, or any public purpose or any power of the Commonwealth’.

The RC Act also sets out the powers and procedures of Royal Commissions. For instance, a Royal Commission is empowered to:

• summon witnesses and take evidence (section 2)
• require a person appearing at a hearing to produce documents and things (section 2)
• apply to a judge for a warrant to search premises, vehicles et cetera (section 4)
• compel witnesses to give evidence, including self-incriminating evidence (sections 6 and 6A)
• issue an arrest warrant if a witness fails to appear (section 6B) and
• deal with contempt (section 6O).

Royal Commissions have the discretion to sit in private or public. Royal Commission hearings often sit in public, although there is no legal requirement that they do so. It has been suggested that Royal Commissioners are frequently reluctant to use private hearings, as they diminish the capacity of Commissions to acquire information from the public, undermine public confidence in Commissions, and reduce the ‘cleansing effect’ of hearings.[5] These concerns were encapsulated by Mason J when he observed that an order that a Commission proceed in private:

... seriously undermines the value of the inquiry. It shrouds the proceedings with a cloak of secrecy, denying to them the public character which to my mind is an essential element in public acceptance of an inquiry of this kind and of its report.[6]

Witnesses also have the right to request private hearings in certain circumstances, namely when the evidence relates to the profits or financial position of any person, and the taking of that evidence in public would be unfairly prejudicial to the interests of that person. In these cases the Commission may, if it thinks proper, take that evidence in private (subsection 6D(2)).

The RC Act also empowers the relevant commissioners to direct that evidence shall not be published except in such manner and to such persons as the Commission specifies (subsection 6D(3)). Publication in contravention of such a direction is an offence (subsection 6D(4)).

Amendments for Child Sexual Abuse Royal Commission

On 12 November 2012, in response to growing levels of concern regarding institutional sexual abuse of children, the then Prime Minister, Julia Gillard, announced the Government’s intention to establish a Royal Commission specifically examining ‘institutional responses to instances and allegations of child sexual abuse in Australia’.[7]

On 13 February 2013, the Government introduced the Royal Commissions Amendment Bill 2013 . The resulting Royal Commissions Amendment Act 2013 amended the RC Act to:

• enable the Chair of a multi-member Royal Commission to authorise one or more members to hold a hearing to take evidence in what are referred to as ‘authorised member hearings’ (these amendments applied to all Royal Commissions) and
• introduce and specify regulation of ‘private sessions’ for the Child Sexual Abuse Royal Commission to facilitate the Commission’s receipt of information from persons directly or indirectly affected by child sexual abuse in a manner less formal than a hearing.

Following amendments moved by the Government in the Senate ‘designed to strengthen the confidentiality of information received at a private session’, the Bill passed with bipartisan support and received Royal Assent on 28 March 2013.[8]

The amendments made to the RC Act in relation to private sessions included inserting ‘Part 4­—Private sessions for the Child Sexual Abuse Royal Commission’. The provisions of Part 4:

• empower the Chair and members of the Child Sexual Abuse Royal Commission authorised by the Chair to hold private sessions and determine any matters relating to their conduct (section 6OB)
• provide that a private session is not a hearing of the Commission and that a person appearing at a private session is not a witness and does not give evidence (section 6OC)
• apply the protections for custody and use of records of Royal Commissions to information, documents, records and things obtained at a private session (section 6OC)
• apply the offences relating to false or misleading evidence, preventing witness from attending and contempt et cetera to persons and evidence received in ‘private sessions’ (section 6OC)
• provide that statements and documents produced in a private session 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’ (section 60E)
• apply the same protections, penalties and liabilities to persons appearing in private sessions ‘as a witness in any case tried in the High Court’ (section 6OF)
• provide that only persons who are authorised by a member of the Commission holding the private session may be present during the private session (6OG)
• create an offence for unauthorised use or disclosure of information given at a private session with a penalty of 20 penalty units ($4,200) or imprisonment for 12 months or both (section 6OH) but include a defence for disclosure to those who provided the information (section 6OK)
• restrict the inclusion of information that relates to a natural person that has been obtained at a private session in a report or recommendation of the Commission unless:
  • the information has also been given in evidence (including under a summons, requirement or a notice to produce a document, thing or information in section 2) or
  • the information is de-identified (section 6OJ)
• provide that a law of the Commonwealth, a state or a territory has no effect to the extent that it would otherwise require or authorise a person to make a record of, use or disclose information obtained at a private session contrary to the provisions in the Division (6OL) and
• deal with the requirements of the Archives Act 1983 by providing that the open access period for records that contain information obtained at a private session or identify persons who appeared at private sessions to ‘on and after 1 January in the year that is 99 years after the calendar year that the record came into existence’ (section 6OM).[9]

Committee consideration

Senate Selection of Bills Committee

On 25 July 2019, the Senate Selection of Bills Committee deferred consideration of the Bill until its next meeting.[10]

Senate Standing Committee for the Scrutiny of Bills

At the time of writing, the Senate Standing Committee for the Scrutiny of Bills has not commented on the Bill.

Policy position of non-government parties/independents

The Bill passed the House of Representatives on 31 July 2019. In the second reading debate the Shadow Attorney-General, Mark Dreyfus noted the role of the Gillard Government in introducing the private sessions regime to assist the Child Sexual Abuse Royal Commission and indicated that the Australian Labor Party was ‘pleased to support’ the Bill.[11] He noted:

The use of private sessions made it possible for as many as 8,000 survivors of child sexual abuse to tell their stories to the Royal Commission into Institutional Responses to Child Sexual Abuse. Such a regime is likely to also prove valuable to survivors of elder abuse and also to people with disabilities who have been subjected to abuse. [12]

Mr Dreyfus also moved an amendment to the second reading proposal, related to the Government’s approach to the Royal Commissions into Disability and Aged Care Royal Commissions, which was negatived.[13]

Centre Alliance member Rebekha Sharkie also indicated that her party ‘strongly supports’ the Bill.[14] However, she indicated that Centre Alliance intended to move a series of amendments to the RC Act in the Senate drawing on previous recommendations for reform made by the Australian Law Reform Commission (ALRC).[15]

In response to Ms Sharkie’s comments, Assistant Minister Morton stated:

The government will consider these amendments in good faith. However, the government will be noting that this bill specifically relates to issues relating to private sessions of royal commissions, and the amendments that have been flagged are much wider ranging. While we'll look at these issues in good faith, we do note that the bill in front of the House today is a request of the two royal commissions that are currently active and I would be reluctant to do anything to delay the passing of this legislation that would inhibit, in any way, the functioning of those two commissions.[16]

Position of major interest groups

As noted above, the chairs of the Royal Commission into Aged Care Quality and Safety and the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability have indicated that ‘private sessions will assist in their important duties’.[17] It is likely to reflect that some members of relevant stakeholders groups to those inquiries are interested in being able to participate in private sessions. For example, the Chief Executive Officer of People with Disability Australia, Matthew Bowden, has expressed support ‘for a similar model to the Child Abuse Royal Commission’. He noted:

... from those private session and stories that the commissioners heard from survivors, then that information went into what became the public hearings where they were able to interrogate the themes of that particular violence, or interrogate what was happening in particular institutions or settings.[18]

Similarly, Disabled People’s Organisations Australia’s Roadmap for our Royal Commission webpage includes:

Our Royal Commission needs to centre people with disability in all ways and bear witness to the violence, abuse, neglect and exploitation we are subject to.  It needs to have accessible private sessions available wherever we live so that we can tell our stories with the adjustments and supports we require to do that.[19]

It is possible that legal organisations may raise previously expressed concerns regarding the procedural fairness of Royal Commissions in relation to the extension of the private sessions regime in Part 4. For example, during the initial consultation for the Child Sexual Abuse Royal Commission, the Law Council of Australia noted that the ALRC had previously raised concerns regarding the current lack of statutory protection for procedural fairness in Royal Commissions.[20]

In 2009, the ALRC report Making inquiries: a new statutory framework recommended new legislation to regulate the operation of Royal Commissions and other official inquiries. It recommended this legislation should provide that Royal Commissions and other official inquiries ‘may conduct inquiries and gather information as members consider appropriate, subject to any other provisions in the Act and the requirements of procedural fairness’.[21] The recommendations included that Royal Commissions and other official inquiries:

... should not make any finding that is adverse to a person, unless the inquiry has taken all reasonable steps to give notice of proposed adverse findings or the risk or likelihood of adverse findings, and disclosed the relevant material relied upon and the reasons on which such a finding might be based. Further, the inquiry should take all reasonable steps to give that person an opportunity to respond to the proposed finding, and the inquiry should properly consider any response given.[22]

When the Royal Commissions Amendment Bill 2013 was introduced, the then President of the Law Council, Joseph Catanzariti was reported as observing that the introduction of private sessions was ‘necessary’ but also raised questions:

This included whether information provided at the sessions would be passed on to other bodies such as the Attorney-General, the Director of Public Prosecutions or police commissioners around the country. ‘Will the relevant witnesses' consent be sought before such information is communicated?’ he asked. ‘If information can be passed on in this way, their confidence in the privacy of the sessions may be undermined’.

Mr Catanzariti said people who had allegations made against them in private hearings could also be affected. ‘Will individuals ... named in this information, for example as alleged perpetrators or as failing to prevent child sex abuse, be notified before the information is communicated? The Law Council considers that such questions need to be addressed before these amendments are passed’.

Mr Catanzariti said that in addition to victims, ‘people who are likely to be the subject of adverse findings are also particularly vulnerable, given the degree of public interest’.[23]

In response to these issues, the spokesperson for the then Attorney-General Mark Dreyfus said ‘[t]hese questions involve procedural aspects which will be a matter for the royal commission to determine’.[24]

Financial implications

The Explanatory Memorandum provides that the Bill ‘will have no financial impact’. It states:

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.[25]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.[26]

Parliamentary Joint Committee on Human Rights

At the time of writing, the Parliamentary Joint Committee on Human Rights has not commented on the Bill.

Key issues and provisions

Schedule 1—Main amendments

Definition of ‘member of staff’

Item 1 of Schedule 1 amends section 1B (which provides definitions for the RC Act) to insert a definition of ‘member of the staff’ of a Royal Commission. This broad definition includes APS employees, contractors and those engaged or employed by contractors who perform functions or duties relating to, or for the purposes of, the Commission. Paragraph (d) of the definition provides for persons who are ‘a legal practitioner appointed by the Attorney-General to assist the Commission’ or who are ‘appointed or otherwise engaged by, or on behalf of, the Commonwealth to assist the Commission as counsel’.

The Explanatory Memorandum states:

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.[27]

Applications for search warrants by telephone

Item 2 amends section 5 of the RC Act which deals with applications by telephone for search warrants which can be made ‘if the applicant for the warrant considers it necessary to do so because of circumstances of urgency’. Subsection 5(3) provides that where a search warrant is issued in these circumstances a ‘member of the staff of the relevant Commission or a member of the Australian Federal Police or of the Police Force of a State may complete a form of warrant in the terms indicated by a Judge’. The amendment will omit the reference to ‘a member of the staff of the relevant Commission’ and replace it with ‘a member of the relevant Commission, a member of the staff of the relevant Commission mentioned in paragraph (d) of the definition of the member of the staff in subsection 1B(1)’.

This appears to limit the persons associated with a Royal Commission who can complete the procedural steps associated with applications by telephone for search warrants. The rationale for this amendment is not elaborated in the Explanatory Memorandum. It states ‘[t]his item makes minor amendments consequential to item 1’.[28]

Item 5 inserts a definition for ‘Assistant Commissioner’ into section 6OA, which contains the definitions for Part 4. This term means a person authorised under proposed subsection 6OB(4) to be an Assistant Commissioner for the purposes of holding private sessions for the Commission.

Applying Part 4 to Royal Commissions

Item 6 inserts proposed section 6OAB with the heading ‘Royal Commissions to which this Part applies’ at the end of Division 1 of Part 4. It provides that Part 4 applies to:

• the Child Sexual Abuse Royal Commission and
• any other Royal Commission prescribed by the regulations.

Section 17 of the RC Act empowers the Governor-General to make regulations, not inconsistent with the legislation, prescribing all matters required or permitted by the RC Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the RC Act. In practical terms, this change will allow the Government to make a disallowable legislative instrument prescribing that the private sessions regime set out in amended Part 4 will apply to any other Royal Commission.

The Explanatory Memorandum states:

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.[29]

Who can hold a private session

Item 7 will repeal subsection 6OB(1), which concerns the power to hold private sessions, and inserts three subsections. The first two subsections have the subheading ‘Who may hold a private session’. Proposed subsection 6OB(1) provides that where a Royal Commission is constituted by two or more members any of the following may hold a private session to obtain information in relation to matters into which the Commission is inquiring:

• the Chair of the Commission
• a member who is authorised in writing by the Chair of the Commission
• an Assistant Commissioner for the Commission.

Proposed subsection 6OB(1A) provides that where a Royal Commission is constituted by a sole Commissioner either the sole Commissioner or an Assistant Commissioner for the Commission may hold a private session.

However, the above subsections are subject to proposed subsection 6OB(1B) which has the subheading ‘When member must hold a private session’. It provides that any private session must be held by a member of the Commission, unless the Chair or the sole Commissioner (as the case may be) considers that circumstances exist that justify an Assistant Commissioner holding one or more private sessions.

These amendments reflect that the use of private sessions is a discretionary decision of the Chair of the Commission (or sole Commissioner) where circumstances exist to justify their use. The Explanatory Memorandum characterises subsection 6OB(1B) as establishing ‘a presumption that a private session will be held by a Commissioner ...’:

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.[30]

It is possible that some persons and groups will prefer to give information at a private session to a member of the Commission rather than an appointed Assistant Commissioner.

Items 8 to 12 make further consequential amendments to subsections 6OB(2) and (3) as a result of proposed subsections 6OB(1), (1A) and (1B). These amendments, for example, include changing references to ‘members’ holding private sessions to ‘persons’.

Appointment of Assistant Commissioners

Item 13 inserts proposed subsection 6OB(4) which provides for Chair of the Commission (or sole Commissioner) to authorise a person, in writing, to be an Assistant Commissioner for the purposes of holding private sessions if:

• the person is a member of the staff of the Commission and
• the Chair of the Commission (or sole Commissioner) considers that the person has suitable qualifications and experience, and an appropriate level of seniority, to hold private sessions for the Commission.

Further guidance regarding the meaning of ‘suitable qualifications and experience’ and ‘an appropriate level of seniority’ required for the authorisation of an Assistant Commissioner is not provided.

Extension of protections

Items 15, 17, 18, 19, 20, 21 make minor technical amendments to section 6OC such as adding ‘for a Royal Commission’ after references to a ‘private session’ and replacing references to the ‘Child Sexual Abuse Royal Commission’ with ‘Commission’. Item 16 replaces subsections 6OC(3) and (4) which deal with the power of the Commission and custody and use of records in relation to a private session. The Explanatory Memorandum states:

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).[31]

Item 23 adds an additional paragraph to subsection 6OE(1) which currently provides that a statement and disclosures made, and documents and things produced, at private sessions ‘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’. Proposed paragraph 6OE(1)(c) would extend this to:

...a statement or disclosure made by 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).

The Explanatory Memorandum states:

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.[32]

Item 25 inserts proposed subsection 6OF(3) which adds Assistant Commissioners to the list of persons with legal protections in relation to private sessions. Under the amendment, Assistant Commissioners who hold private sessions will not be ‘liable to any civil or criminal proceedings in respect of anything done, or omitted to be done, in good faith for the purposes of the private session’.

Unauthorised use or disclosure of information given at a private session offence

Item 29 replaces paragraph 6OH(a) which outlines the first element of the offence for unauthorised use or disclosure of information given at a private session. In particular, proposed paragraph 6OH(a) includes an additional category of information covered by the offence where a person obtains information ‘that was given by a natural 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) and identifies the person who gave the information’. Essentially this amendment ensures that information which is preparatory or related to a private session is also protected by the offence.

The Explanatory Memorandum notes:

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.[33]

Paragraph 6OH(c) provides exceptions to the offence. Item 30 makes a consequential amendment, changing the reference to the ‘Child Sexual Abuse Royal Commission’ to the ‘Commission’. This means subparagraph 6OH(c)(i) provides that the offence does not apply where ‘the record, use or disclosure’ of private session information is ‘for the purposes of performing functions or duties or exercising powers in relation to the Commission’.

Item 31 repeals and replaces the last two exceptions in subparagraphs 6OH(c)(iii) and (iv). These amendments operate ‘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’.[34]

Items 32 and 33 add a second note to the end of section 6OH which clarifies that persons who give information related to a private session will not commit the offence ‘by making a record of, using or disclosing the information’ as they will not be covered by paragraph 6OH(a).

Inclusion of private session information in reports and recommendations

Currently section 6OJ provides that information ‘that relates to a natural person’ that has been obtained at a private session may only be included in a report or recommendation of the Child Sexual Abuse Royal Commission if the information is also given as evidence (or under a summons requirement or notice), or if the information is de-identified.

Item 34 will amend section 6OJ to extend this restriction to information ‘given 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)’. Item 35 will make a consequential amendment to apply the restriction in section 6OJ to all Royal Commissions covered by Part 4.

Disclosure to person who provided the information defence

Section 6OK provides that the offence in section 6OH ‘does not apply to a disclosure of information to the person who gave the information at a private session’. A defendant will bear an evidential burden in relation to raising this defence. Item 36 extends the defence 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.

No exceptions under other laws

Section 6OL currently contains a broad exception from the effect of laws which would ‘otherwise require or authorise a person to make a record of, use or disclose information obtained at a private session’. The Explanatory Memorandum states:

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).[35]

Item 37 inserts proposed subsection 6OL(1A) which clarifies this exception extends 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. Item 38 makes a related consequential amendment to subsection 6OL(1).

Operation of the Archives Act

Section 6OM provides that records containing information obtained at a private session will not come into the open access period under the Archives Act 1983 until 99 years after the year the record came into existence. The Explanatory Memorandum notes 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’.[36]

Item 39 inserts proposed paragraph 6OM(1)(c) to extend the application of this section 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’.[37] Item 40 makes a related consequential amendment to clarify that the section applies ‘in relation to a record whether it came into existence before, during or after a private session (if any) was held’.

Protection of Child Sexual Abuse Royal Commission information

Item 41 inserts proposed section 6ON titled ‘Protection of certain information given to the Child Sexual Abuse Royal Commission’. The section will apply to information if:

• the information was given by, or on behalf of, a natural person to the Child Sexual Abuse Royal Commission other than for the purposes of a private session
• the information contains an account of the natural person’s experiences of child sexual abuse in an institutional context or what happened to other people regarding child sexual abuse in an institutional context
• the information identifies the natural person who gave the information, or on whose behalf the information was given
• the Commission indicated that the information, if given, would be treated as confidential and
• the information was treated as confidential by the Commission.

Where information meets these criteria then the limits on admissibility of private session information in evidence (section 6OE) and on the use and disclosure of private session information (sections 6OH, 6OK, 6OL and 6OM) will apply.

This section operates to provide retrospective protection to sensitive information received by the Child Sexual Abuse Royal Commission. The Explanatory Memorandum states:

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.[38]

Application of amendments

Item 42 deals with the application of the amendments in Schedule 1. The commencement dates reflect that the amendments are intended to be applied to the operation of the Royal Commission into Aged Care Quality and Safety and the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability. They also indicate the intention to apply protections to information given to, and records of, the Child Sexual Abuse Royal Commission.

It provides:

• the change to telephone warrant applications in subsection 5(3) apply in relation to applications made by telephone on or after commencement
• the power to use a regulation to prescribe that a Royal Commission can hold private sessions will apply in relation to a Royal Commission that conducts an inquiry after commencement (whether the Royal Commission is established before, on or after that commencement)
• the changes to the powers of Commission and custody and use of records in section 6OC will apply to information and documents obtained, given or produced before, on or after commencement
• the restriction on admissibility of private session information in evidence in section 6OE will apply to proceedings instituted on or after commencement (whether the information was given before, on or after that commencement)
• the amendments to sections 6OH, 6OK and 6OL will apply to uses and disclosures made on or after commencement and
• section 6OM will apply will apply to a record that comes into existence before, on or after commencement.

Schedule 2—Consequential amendments

The items in Schedule 2 amend the FOI Act.

Section 7 of the FOI Act provides exemptions for certain persons and bodies from the operation of the legislation. Paragraph 7(2E)(a) currently provides that Ministers and agencies are exempt from the operation of the FOI Act in relation to documents received by the Child Sexual Abuse Royal Commission which contain information obtained at a private session or which relate to a private session and identify a natural person who appeared at a private session.

Item 1 will amend paragraph 7(2E)(a) to add two further categories of exempt documents. These are documents:

• which contain 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 contain information to which proposed section 6ON of the RC Act (which, as explained above, deals with certain information given to the Child Sexual Abuse Royal Commission) applies.

The Explanatory Memorandum states 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’.[39]

Item 2 inserts an interpretation provision at the end of section 7. Proposed subsection 7(5) provides that an expression used in subsection 7(2E) which is also used in Part 4 of the RC Act has ‘the same meaning’ as in that Part.

Item 3 is an application provision for the amendments. The amendments apply to requests for access to documents under section 15 and applications for amendment or annotation of personal records under section 48 received on or after commencement.

Concluding comments

The majority of the provisions of the Bill make consequential changes to facilitate the major amendments:

• enabling a regulation to be made to allow a Royal Commission to utilise the amended private sessions regime in Part 4 of the RC Act
• allowing Assistant Commissioners to be appointed to hold private sessions (where the Chair of a Commission or sole Commissioner considers circumstances exist to justify this approach)
• broadening the limitations and protections on the use and disclosure of private session information and records and
• applying limitations on use or disclosure of information given to the Child Sexual Abuse Royal Commission where that information was not given for the purposes of a private session but the Commission indicated it would be treated as confidential.

Balancing access to information with procedural fairness

Section 6OJ restricts the inclusion of information obtained from a private session which relates to a natural person in the reports or recommendations of a Royal Commission (but this does not apply to information also given as evidence or de-identified information). To an extent, this restriction works to protect persons who may be adversely commented on in private sessions while facilitating the receipt of information for the Royal Commission. Nonetheless, the Royal Commission may still receive information at a private session which reflects adversely on a person and the relevant person will not have an opportunity to respond to the matter. This raises the issue of how the private session regime balances procedural fairness considerations.

In particular, section 6P of the RC Act allows a Royal Commission to communicate information it has obtained ‘that relates, or that may relate, to a contravention of a law, or evidence of a contravention of a law’ to a range of senior law officers, prosecutors and law enforcement officers if, in the opinion of the Royal Commission, it is appropriate so to do. This includes information the Royal Commission has obtained at a private session.

The procedures adopted by the Child Sexual Abuse Royal Commission in relation to the use of the information obtained from private sessions, including referrals to law enforcement, appear reasonable and appropriate.[40] These processes led to a large number of referrals.[41] In its report on private sessions, the Child Sexual Abuse Royal Commission outlined the approach taken to the referral of information:

Where information is obtained during a private session, information can be forwarded to police or child protection authorities if:

-          the informant has requested or consented to the information being communicated; or

-          in the absence of consent, the Chair (or Commissioner, in his absence) believes it necessary to communicate the information to prevent harm to a child.[42]

There have been allegations in the past that certain Royal Commissions have been established by Governments for underlying political purposes.[43] This raises a question regarding how the proposed private session regime in the Bill could be applied, or misapplied, to the conduct of a Royal Commission. In particular, previously expressed concerns regarding the need for procedural fairness requirements (or guidance) applicable to Royal Commissions could become relevant. The Bill’s provision that a regulation (a disallowable instrument) must be made before a Royal Commission can utilise the private session regime may mitigate some concerns regarding this matter.