Purpose of the Bill

The purpose of the Royal Commissions Amendment (Protection of Information) Bill 2021 (the Bill) is to amend the Royal Commissions Act 1902 (the Act) to ensure the confidentiality of certain information given to the Disability Royal Commission, and for related purposes. The changes were requested by the Chair of the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (the Disability Royal Commission), people with disability, and disability advocates.

Structure of the Bill

The Bill has one Schedule in two Parts—Part 1 contains amendments to the Royal Commissions Act 1902 and Part 2 contains consequential amendments to the Freedom of Information Act 1982.

Background

The Disability Royal Commission was established in April 2019 in response to community concern about widespread reports of violence against, and the neglect, abuse and exploitation of, people with disability. These incidents might have happened recently or a long time ago.[1]

The setting up and operation of Royal Commissions are governed by the Act. Generally speaking, Royal Commissions are inquiries conducted in public, although there is no legal requirement to do so and Royal Commissions have the discretion to sit in private or public.

Ronald Sackville AO QC was appointed as Royal Commissioner. The Commission’s Terms of Reference, among other things, required the Commission to have regard to the stories of individuals, as follows:

(e) all forms of violence against, and abuse, neglect and exploitation of, people with disability, whatever the setting or context;

(f) all aspects of quality and safety of services, including informal support, provided by governments, institutions and the community to people with disability, including the National Disability Insurance Scheme (NDIS) and the NDIS Quality and Safeguarding Framework agreed by all Australian Governments in 2017;

(g) the specific experiences of violence against, and abuse, neglect and exploitation of, people with disability are multilayered and influenced by experiences associated with their age, sex, gender, gender identity, sexual orientation, intersex status, ethnic origin or race, including the particular situation of Aboriginal and Torres Strait Islander people and culturally and linguistically diverse people with disability.[2]

In order to collect evidence for the Commission’s purposes, the Commission recognised that it would be extremely beneficial to hear the stories of the treatment of individuals in the system—normally from those individuals themselves or from their families or carers. However, most of the stories that needed to be told were those of people still in the disability system, if not the same institution, and who were concerned that any evidence they gave could lead to future problems, such as being treated as trouble-makers. On the other hand, if such people chose not to give evidence to the Royal Commission, the Commission would miss the opportunity to gain relevant information.

Previous confidentiality amendments

Similar issues relating to the giving of evidence arose during the Royal Commission into Institutional Responses to Child Sexual Abuse and, in 2013, the Royal Commissions Amendment Act 2013 amended the 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.

The amendments made to the Act in relation to private sessions included inserting ‘Part 4­—Private sessions for the Child Sexual Abuse Royal Commission’. In 2019, the Royal Commissions Amendment (Private Sessions) Act 2019 (the Private Sessions Amendments) enabled those provisions to be applied in other Royal Commissions.

In a Royal Commission such as those on Child Abuse, Aged Care and Disability, the respective Commissions have looked to affected persons to come forward and share their stories. If these potential witnesses did not come forward, they would remain unknown. This would mean that provisions in the Act allowing Royal Commissions to summon witnesses and documents could not in practice apply to those witnesses, and their stories would remain untold.[3]

Witnesses will frequently only come forward on the promise of anonymity. In her speech on the second reading debate of a Bill introduced by Senator Steele-John, which is discussed below, Senator Siewert said:

I chaired the Senate inquiry into violence, abuse and neglect against people with disability in institutional settings, and the accounts that we heard during that inquiry absolutely broke my heart. There were accounts of the sort of treatment that people received not only in residential facilities but in their homes, in schools and on school buses. In fact, for every setting where a disabled person was receiving care, we heard accounts of the mistreatment and abuse—sexual, physical and verbal as well—that disabled people received. People need to feel confident that they will be protected, and they are telling us, in particular telling Senator Steele-John, that that's not how they feel.[4] [emphasis added].

Gaps in the confidentiality protections

The Private Sessions Amendments covered how information gained in private sessions could be used and stored. Some of these provisions are mentioned in more detail in the ‘Key issues and provisions’ section of this Digest. However, not all information that it would be desirable to protect can be the subject of a private hearing. Logistically, this is just not possible—there is a small number of Commissioners and a large number of stories. As well, the Explanatory Memorandum to the Private Sessions Amendments Bill noted:

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.[5]

Consequently, the current Bill addresses the issue of the protection of private information provided to the Disability Royal Commission other than in a private session of the Commission. The Bill also addresses some issues with how the information will be handled after the winding-up of the Royal Commission. The relevant Royal Commission has discretion over how it handles information during the course of its investigation; but once its report is delivered the Commission effectively no longer exists and the information it has gathered moves into other hands.[6]

Previous legislation

Senator Steele-John introduced a private member’s Bill to the Senate on 6 October 2020; the Royal Commissions Amendment (Confidentiality Protections) Bill 2020. The Bill passed the Senate on 15 February 2021 but has not had a second reading in the House of Representatives. Instead the Government introduced the Bill that is the subject of this Digest. The Steele-John Bill contained a provision almost identical to proposed section 6OP in the current Bill; but it did not contain some of the other provisions in the current Bill.

Committee consideration

Senate Selection of Bills Committee

In its most recent Report, as at the time of writing, the Committee had deferred consideration of the Bill.[7]

Senate Standing Committee for the Scrutiny of Bills

At the time of writing, the Committee has not commented on the Bill.

Policy position of non-government parties/independents

The fact that the Steele-John Bill passed the Senate, and that the Government has introduced a Bill on a similar subject, suggests the policy of the Bill is widely supported across the Parliament. The record of the division by which the Steele-John Bill passed shows support from the Opposition, Greens and such other non-government members as voted. 

Position of major interest groups

Interest groups are supportive of, indeed may be considered to some extent as driving, these amendments. In his second reading speech for the Bill, Senator Duniam said:

The Chair of the Royal Commission has said to the Government that people with disability, their families, supporters, or people who identify as whistleblowers do not feel confident that the information they provide to the Royal Commission can remain confidential after the Royal Commission ends.

… The Government has listened to the Royal Commission, and people with disability, their families and carers, and the broader Australian public, about the importance of ensuring people have the confidence to come forward and tell their story.[8]

Financial implications

The Explanatory Memorandum to the Bill states that there are no financial impacts associated with the amendments in the Bill.[9]

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.[10]

Parliamentary Joint Committee on Human Rights

The Committee had no comment on the Bill.[11]

Key issues and provisions

Non-publication orders

Section 6D of the Act is entitled the ‘Rights of Witness’. Subsection 6D(3) states that the Commission (that is, any Royal Commission) may direct that any evidence, or document, or information that might enable a person who has given evidence before a Commission to be identified shall not be published, or shall be published only in such manner and to such persons, as the Commission specifies.

Under the current provisions it may be difficult for the Commission to make a timely decision on non-publication, as this requires a quorum of all members of the Commission.[12]

Items 1 and 4 of the Bill amend the capacity to make non-publication orders by adding proposed subsection 6D(3A), which specifies who can issue such a direction. In short, such a direction can be given by:

• the sole Commissioner, where there is a sole Commissioner
• in other cases, in relation to an authorised member hearing of the Commission, the President or Chair of the Commission, unless that person is not holding the hearing in which case the member or members holding the hearing may give the direction
• where the direction is given at other than an authorised member hearing, the President or Chair of the Commission or a majority of members of the Commission.

The Explanatory Memorandum states that the purpose of these amendments is:

… to facilitate the efficient operations of the Disability Royal Commission and to provide greater flexibility for Commissioners of future Royal Commissions to make directions. Non-publication directions are an essential feature for protecting the identity of individuals giving evidence or providing information to a Royal Commission.[13]

Item 3 modernises the language of subsection 6D(3) by changing the word ‘shall’, wherever it appears, to ‘must’.

Broader confidentiality protections

Item 5 inserts proposed section 6OP which is a key amendment. Proposed section 6OP provides that if:

• information was given to the Disability Royal Commission by or on behalf of a natural person,[14] other than for the purposes of a private session
• the information given contains an account of the natural person’s or another person’s experience of violence, abuse, neglect or exploitation
• the information identifies the natural person who gave the information or on whose behalf the information was given and
•  the information was treated at all times by the Commission as confidential since being given,

then certain provisions already in the Act apply to that information, specifically the provisions in sections 6OE, 6OH, 6OK, 6OL and 6OM.

These provisions relate to information provided to private sessions, in particular:

• section 6OE – certain statements made and documents produced not admissible in evidence against a natural person in any civil or criminal proceedings in an Australian court
• section 6OH – it is an offence to use or disclose, without authorisation, information given at a private session, with maximum penalties of 20 penalty units or 12 months’ imprisonment, or both, applying
• section 6OK – it is a defence to section 60H to disclose information to the person who provided the information
• section 6OL – no exceptions to section 60H apply where other laws may otherwise require or authorise the person to record, use or disclose the information obtained at a private session
• section 6OM – open access and special and accelerated access provisions in subsection 3(7) and section 56 of the Archives Act 1983 do not apply to information given at or about a private session.

In each case, information given in accordance with proposed section 6OP will be treated as though it were given in a private session so that the above five sections will apply.

Item 7 inserts proposed subsection 6P(2D) which will ensure that the expression ‘another Commission’ in subsection 6P(2) of the Act includes a reference to State Royal Commissions or commissions of inquiry. This will mean that a Commonwealth Royal Commission can legally furnish information or evidence to State Commissions. This is important to the Disability Royal Commission because it is being run concurrently with State Commissions.

Retrospective effect

Item 8 ensures that the provisions in the Bill refer to relevant information given to a Royal Commission at any time, including before the provisions in this Bill take effect.

Exemptions from Freedom of Information legislation

Items 9 and 10 make consequential changes to the Freedom of Information Act 1982 (FOI ACT). Subsection 7(2E) of that Act lists some documents and information that are exempt from the provisions of the FOI Act, including documents or information provided to other Royal Commissions. Item 9 adds information provided under proposed section 6OP to the list in subsection 7(2E).

This will apply to requests received under section 15 (requests for access) or section 48 (application for amendment or annotation of personal records) of the FOI Act on or after the date that the Disability Royal Commission submits its final report to the Governor-General (item 10).