Purpose of the Bill

The purpose of the Royal Commissions Amendment (Private Sessions) Bill 2023 (the Bill) is to amend Part 4 of the Royal Commissions Act 1902 (the RC Act) to adjust the private sessions regime. The Bill provides for a sole Commissioner or Chair of a multi-member Commission to authorise a senior and experienced member of staff to hold private sessions.

As explained in the Attorney-General’s second reading speech:

Currently under the Act, only a sole Commissioner, the Chair of a multi-member royal commission, or another Commissioner who is authorised in writing by the Chair, may conduct private sessions.

This bill proposes amendments to Part 4 of the Act to introduce a new definition of ‘Assistant Commissioner’ into the Act and related amendments to enable an Assistant Commissioner to hold private sessions for royal commissions, whether they are constituted by a sole Commissioner or multiple Commissioners.

Private sessions were first established for the Royal Commission into Institutional Responses to Child Sexual Abuse as a way of facilitating the telling of very personal and sensitive matters in a manner that was less formal or threatening. Private sessions allow people to share their experiences with a Royal Commissioner in a confidential setting with the aim, as stated in the Attorney-General’s second reading speech for the Bill to:

…allow more people to engage with the royal commission and have their experience heard.

Private sessions can now be used by Royal Commissions that have been prescribed under section 7 of the Royal Commissions Regulations 2019. The regulations permit both the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability and the Royal Commission into Defence and Veteran Suicide to hold private sessions. The Royal Commission into Aged Care Quality and Safety (October 2018 to March 2021) was also permitted to hold private sessions but did not do so.

Background

Part 4 of the RC Act was introduced by the Royal Commissions Amendment Act 2013 to facilitate private sessions for the Royal Commission into Institutional Responses to Child Sexual Abuse (Child Sexual Abuse Royal Commission).[1]

The Royal Commissions Amendment (Private Sessions) Act 2019 (2019 Act) provided that the holding of private sessions be extended to other royal commissions.[2]

The 2019 Act also provided that only sole commissioners, the chair of multi-member commissions or a commissioner authorised by the chair could hold private sessions. The 2019 Bill as introduced into Parliament would have allowed assistant commissioners to hear private evidence,[3] but the Government changed that provision after consulting with the disability community:

Following further engagement with stakeholders, the Government has determined that only Royal Commissioners should be empowered to hold private sessions.[4]

The removal of the provision at that time was explained in the following terms:

While there may be circumstances where it is appropriate for a senior staff member with particular skills to receive evidence in a private session in the context of some future royal commissions, Labor agrees that it would not be appropriate in the context of the disability royal commission. Labor recognises that survivors of abuse should have the opportunity to have their stories heard by a commissioner and not by a senior staff member, however qualified that person may be. While there was no suggestion that the chair of the disability royal commission would in fact delegate to senior staff members the power to hold private sessions, the existence of such a power caused understandable anxiety for some in the disability community. We thank Senator Steele-John and disability advocates for raising their concerns with Labor on this issue. We also thank the government for working with Labor to positively and constructively respond to those concerns by moving this amendment.[5]

The proposed changes in the 2023 Bill will allow the Chair of a multi-member Royal Commission or a sole Commissioner (as the case may be) to give written authorisation for other delegates to conduct private sessions. These individuals would be drawn from the existing pool of senior staff working for any given Royal Commission.[6]

Assistant Commissioner appointees would only be made in circumstances that justified the authorisation, and the determination of whether that person had appropriate seniority, qualifications and experience would be made by the appointing Chair of a multi-member Royal Commission or a sole Commissioner. The Assistant Commissioners will not be authorised to undertake any other role or to exercise any powers of a commissioner for the royal commission.[7]

Under the reforms, Assistant Commissioners will be granted the same protections and immunity as High Court justices in the exercise of their duties.[8]

Involvement in private sessions is voluntary, and participants are afforded similar protections to witnesses. Information given at private sessions is not given under oath or affirmation. Private sessions are not hearings of the Royal Commission, the information provided at a private session is not evidence and the person giving information at the private session is not considered a Royal Commission witness.[9] A number of strong protections apply in relation to private sessions, to encourage people to give information to a Royal Commission without being concerned about adverse consequences of doing so.[10]

CEO of Disability Advocacy Network Australia Jeff Smith praised the idea of private sessions:

"(They are) less stressful - insofar as it is more informal and less alienating for people - and may make people feel and be safer," he told AAP.

"Private sessions are a more flexible, trauma-informed way for people to get access to and (offer) stories and information before royal commissions”.[11]

Committee consideration

At the time of writing, the Bill had not been referred to, or reported on by, any committees.

Financial implications

According to the Explanatory Memorandum there are no financial impacts in relation to this Bill (p. 2). The costs will be managed by a Royal Commission within its budget.

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.[12]

Resources

At the time of writing this preliminary Bills Digest, there was little commentary or views on the Bill. The following links provide broader background information on Royal Commission private sessions:

• ‘Private sessions’, Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability.
• ‘Private sessions’, Royal Commission into Defence and Veteran Suicide.
• ‘Private sessions’, Royal Commission into Institutional Responses to Child Sexual Abuse.
• ‘Final report private sessions’, Royal Commission into Institutional Responses to Child Sexual Abuse.
• ‘How am I protected in a private session?’, Your Story Disability Legal Support.
• ‘How am I protected in a private session?’, Defence and Veterans Legal Service.
• Attorney-General’s Department, Review of confidentiality protections in the Royal Commissions Act 1902, Report, March 2022.
• J. Tjandra, ‘From fact finding to truth-telling: an analysis of the changing functions of Commonwealth Royal Commissions’, UNSW Law Journal, 45(1), 2022, 341–369.