Purpose of the Bill

The purpose of the Royal Commissions Amendment (Enhancing Engagement) Bill 2023 (the Bill) is to amend the Royal Commissions Act 1902 to ensure the confidentiality of certain information given to the Royal Commission into Defence and Veteran Suicide. The amendments were recommended in the Royal Commission’s Interim Report.[1]

The Bill will also make consequential amendments to the Freedom of Information Act 1982 (the FOI Act).

Structure of the Bill

The Bill has one Schedule in two Parts—Part 1 contains amendments to the Royal Commissions Act and Part 2 contains consequential amendments to the FOI Act.

Background

Royal Commissions

The setting up and operation of Commonwealth Royal Commissions is governed by the Royal Commissions Act 1902. The Act authorises the Governor-General to issue Letters Patent establishing a Royal Commission, appointing Commissioners and describing the terms of reference.[2]

The Royal Commissions 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 public or private. 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.[3] 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.[4]

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 Royal Commissions 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)).

Since 2013, the Royal Commissions Act has also included a private sessions regime which has been utilised in certain Royal Commissions.[5] Private sessions have been important in inquiries where sensitive and personal information of affected individuals and their families is considered of vital importance to the outcome. The private sessions regime provides significant protection for the use and disclosure of personal information given in those sessions. It is described in more detail below.

Royal Commission into Defence and Veteran Suicide

The Royal Commission into Defence and Veteran Suicide, also referred to as the Defence and Veteran Suicide Royal Commission,[6] was established on 8 July 2021, its purpose being to examine the high rates of suicide amongst the Defence and veteran communities and make recommendations to government. The Royal Commission delivered an interim report on 11 August 2022 and is required to produce a final report by 17 June 2024.[7]

At the time of writing in late February 2023 the Commission has received 3,200 submissions and heard 243 witnesses.[8]

The Commission’s Terms of Reference require the Commission to inquire into a range of matters including amongst others:

systemic issues and any common themes among defence and veteran deaths by suicide, or defence members and veterans who have other lived experience of suicide behaviour or risk factors (including attempted or contemplated suicide, feelings of suicide or poor mental health outcomes);

a systemic analysis of the contributing risk factors relevant to defence and veteran death by suicide, including the possible contribution of pre-service, service (including training and deployments), transition, separation and post-service issues,

 …

impact of culture within the ADF, the Department of Defence and the Department of Veterans' Affairs on defence members' and veterans' physical and mental wellbeing;

 …

protective and rehabilitative factors for defence members and veterans who have lived experience of suicide behaviour or risk factors;

any systemic issues in the current availability and effectiveness of support services for, and in the engagement with, families and others:

• affected by a defence and veteran death by suicide; or
• who have supported a defence member or veteran with lived experience of suicide behaviour or risk factors; [paragraph letters and numbers have been removed]

The preamble to the Terms of Reference emphasises the importance of personal stories of those serving and former Defence members, their families, carers and advocates, directing the Commissioners that ‘individual experiences will be a central contribution to your inquiry and these experiences can inform best-practice, strategies and reforms and can assist in prevention and healing’. The Terms of Reference also makes explicit reference to ‘the need to establish accessible and appropriate trauma-informed arrangements’ for witnesses ‘to provide evidence to you, and share information with you, about their experiences.’[9]

Accordingly, the Prime Minister’s media release announcing the establishment of the Royal Commission noted that private sessions would be available[10] and the Royal Commissions Regulations 2019 have been updated to allow private sessions to occur.[11] By late February 2023, the Royal Commission website indicates that 363 private sessions had been held.[12]

Interim Report and Government Response

The Defence and Veteran Suicide Royal Commission’s Interim Report provided 13 recommendations to the Australian Government. The recommendations centred around issues identified by the Royal Commission as requiring ‘urgent and immediate action’. These include legislative reform; claims processing at the Department of Veterans’ Affairs; protections for those wishing to engage with the Royal Commission; and improving the Royal Commission’s access to information protected by parliamentary privilege and public interest immunity.[13] The Government in its response has accepted the majority of these recommendations.[14]

In terms of protections for those wishing to engage with the Royal Commission, the Interim Report recommended:

The Australian Government should work closely with this Royal Commission to design urgently an amendment or series of legislative amendments that provide protections for persons who wish to provide relevant information to this Royal Commission, including […]

For serving ADF members disclosing sensitive personal information who are currently, and intend to remain, in service, similar protections to section 6OP of the Royal Commissions Act 1902 (Cth) should be introduced. [Recommendation 6(1)][15]

The Interim Report explains the need for this amendment pointing to the particular nature of ADF service and the underrepresentation of submissions from serving ADF members:

The Royal Commission into Defence and Veteran Suicide faces unique circumstances due to our terms of reference and the nature of ADF service. Information provided to us by witnesses may be about their current employer or may relate to events which are operationally sensitive or attract some form of security classification. We remain concerned about the potential ramifications for the individual making such a disclosure. However, our concerns are not limited to such matters. We urge the Australian Government to work closely with us to design an amendment or series of legislative amendments that appropriately address the challenges faced by serving and ex-serving ADF members. Such amendments would encourage submissions from serving ADF members who are underrepresented in submissions received to date.[16]

With regard to Recommendation 6.1, the Government agreed in principle to this recommendation stating:

The Government will take forward suggested legislative reforms to the Royal Commissions Act 1902. The Government will consult the Royal Commission and other key stakeholders on drafting of the amendments.[17]

The Bill proposes amendments to implement this recommendation (Recommendation 6.1).

Recommendation 6 also included a second cohort that needed further protection stating:

For serving and ex-serving ADF members whose lived experience is intrinsically linked to security classified or operationally sensitive information, the defence available under the Criminal Code section 122.5(5) should be extended to cover information communicated to a Royal Commission.^[18] A defence to other secrecy offences will also be needed. (Recommendation 6.2).

The Government in its response, agreed that ‘serving and ex-serving ADF members should have protections to communicate information to the Royal Commission without breaching the general secrecy offences in the Criminal Code’. However, the Government response indicates that this would be achieved through agreement rather than by legislative amendment. It states:

… the Government welcomes continued engagement with the Royal Commission in relation to the agreement referred to in Chapter 6.2 of the Interim Report.[19] Conclusion of this agreement will permit serving and ex serving ADF members to access existing defences, including paragraph 122.5(1)(b) of the Criminal Code.

The Government will also consider secrecy offences for future Royal Commissions as part of the Secrecy Provisions Review being undertaken by the Attorney-General’s Department.[20]

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.[21]

In Royal Commissions such as those on Child Abuse, Aged Care, Disability, and Defence and Veteran Suicide, 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.[22]

Gaps in the confidentiality protections

The Private Sessions Amendments covered how information gained in private sessions could be used and stored. However, not all information that it would be desirable to protect can be the subject of a private hearing. Logistically, this is not possible—there is a small number of Commissioners and a large number of stories. As well, as the Explanatory Memorandum to the Bill notes:

The Defence and Veteran Suicide Royal Commission receives sensitive information in ways other than in a private session, including through written submissions, phone interviews and other records of information of an individual’s experience (for example, those created when considering whether to publicly refer to an individual’s experience). The Defence and Veteran Suicide Royal Commission expressed concern in its Interim Report that the existing confidentiality protections in the Act were not adequate to encourage ADF members to tell their stories. In particular, the Defence and Veteran Suicide Royal Commission indicated serving members who intend to remain in the ADF were concerned about the impact their disclosure of sensitive information may have on their career or their subsequent experience in service. To address these concerns, information of this kind provided and recorded outside of a private session should properly be eligible to receive protections equivalent to those provided for information given in a private session.[23]

Consequently, the Bill addresses the issue of the protection of private information provided to the Defence and Veteran Suicide 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 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.[24]

The Bill is modeled on existing section 6OP which was enacted in September 2021. It applies equivalent confidentiality protections to certain information disclosed to the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disabilities (Disability Royal Commission) outside private sessions.[25] Protection is provided where the Disability Royal Commission has treated the information disclosed as confidential at all times.

Committee consideration

At the time of writing, the Bill has not been referred to a committee for inquiry and report.

Senate Standing Committee for the Scrutiny of Bills

At the time of writing, the Committee had not reported on the Bill.

Policy position of non-government parties/independents

It appears that there has been no public comment about the position of non-government parties or independents.

The previous Coalition Government introduced equivalent amendments in relation to the Disability Royal Commission.[26] It would appear, therefore, that the Bill may have bipartisan support in the Parliament.

Senator Jacqui Lambie has not made specific comments on the Bill, however, more generally, she welcomed the release of the Interim Report in 2022 and said she wanted all the recommendations implemented as soon as possible.[27]

Senator Lambie has expressed particular concern that the Government has not accepted a recommendation of the Royal Commission relating to parliamentary privilege.[28] In response, Senator Lambie introduced a private member’s Bill (Parliamentary Privileges Amendment (Royal Commission Response) Bill 2022), aimed at implementing the Royal Commission’s recommendations. (For further information regarding this Bill and the Senate Legal and Constitutional Affairs Legislation Committee report into the Bill, see the Bill’s homepage).

Liberal Senator Paul Scarr has not commented on the Bill but has expressed concern regarding issues of parliamentary privilege as raised by the Royal Commission.[29]

Position of major interest groups

At the time of writing, there appears to be little public comment on the Bill.

Financial implications

The Explanatory Memorandum states that the Bill will have no financial impact.[30]

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.[31]

Parliamentary Joint Committee on Human Rights

At the time of writing, the Committee had not reported on the Bill.

Key issues and provisions

Broader confidentiality protections

As noted above, Part 4 of the Royal Commission Act provides the legislative framework for private sessions for certain Royal Commissions. Amongst other things the provisions of Part 4:

• empower the Chair and members of a 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 (section 6OG)
• create an offence for unauthorised use or disclosure of information given at a private session with a penalty of 20 penalty units[32] 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 (section 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).

Part IV also includes two additional provisions providing:

• protection of certain information given to the Child Sexual Abuse Royal Commission (section 6ON)
• protection of certain information given to the Disability Royal Commission (section 6OP).

The effect of sections 60N and 60P is that certain personal information given to these two Royal Commissions in situations other than private sessions, is to be treated as if it were given in private sessions.

Item 4 of the Bill inserts proposed section 6OQ at the end of Division 3 of Part 4 of the Act. It is the key provision and provides for the protection of certain information given to the Defence and Veteran Suicide Royal Commission. It is modelled on section 60P mentioned above.

Proposed subsection 6OQ(1) sets out the criteria which must be met for the protections under section 6OQ to apply. For information given to the Defence and Veteran Suicide Royal Commission outside of a private session, to be protected, it must be:

• information that was given to the Royal Commission by or on behalf of a natural person,[33] other than for the purposes of a private session (paragraph 6OQ(1)(a))
• information that contains any of the following:
  • an account of a defence member’s or veteran’s experiences of suicide, suicidality[34] or poor mental health, or
  • an account of the person’s own, or another’s systemic issues[35] related to any period of ADF pre-service, service, transition, separation and post-service that contributed, or may have contributed, to a person’s suicide, suicidality or poor mental health (paragraph 6OQ(1)(b) and proposed subsection 6OQ(6))
• information that directly or indirectly identifies the natural person who gave the information or on whose behalf the information was given (paragraph 6OQ(1)(c)) and
• information that has been treated at all times by the Commission as confidential since being given (paragraph 6OQ(1)(d)).

Providing these criteria are met, then certain provisions already in Part 4 of the Act apply to that information, specifically the provisions in sections 6OE, 6OH, 60J, 6OK, 6OL and 6OM (described above).

Their effect will be that information given to the Royal Commission other than in a private session and to which the protections apply:

• will not be admissible in evidence against a natural person in any civil or criminal proceedings in any Commonwealth, state or territory court (the effect of section 6OE)
• it will be a criminal offence to use or disclose the information in an unauthorised manner, but a defence will apply where the information is given to those who provided the information (the effect of sections 6OH and 6OK). No exceptions will apply where other laws may otherwise require or authorise the person to record, use or disclose the information (the effect of section 6OL)
• the information will only be able to be included in a report of the Royal Commission if it is de-identified or if it is separately provided to the Royal Commission in a non-confidential manner (the effect of section 6OJ)
• the information will be excluded from the open access period under the Archives Act for 99 years (the effect of section 6OM).

Retrospective effect

Item 5 ensures that the provisions in the Bill refer to relevant information given to the Defence and Veteran Suicide Royal Commission at any time, including before the provisions in this Bill take effect. The Explanatory Memorandum explains the rationale for this retrospective application stating:

There may have been information given to the Defence and Veteran Suicide Royal Commission prior to the commencement of new clause 6OQ that it has treated confidentially at all times and over which the new protections in this Bill will apply. This Item ensures that all information of the type protected by 6OQ, regardless of when it was provided to the Defence and Veteran Suicide Royal Commission, is protected under the provisions during and after the life of the Royal Commission.[36]

Exemptions from Freedom of Information legislation

Items 6 and 7 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 6 adds information covered by proposed section 6OQ 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 Royal Commission submits its final report to the Governor-General (item 7). An exemption is only required from this point onwards, as the FOI Act does not apply to a Royal Commission during the period of its inquiry.