House of Representatives

Explanatory Memorandum

(Circulated by authority of the Prime Minister, the Honourable Scott Morrison MP)

Statement of Compatibility with Human Rights

Prepared for the purposes of the Human Rights (Parliamentary Scrutiny) Act 2011

Royal Commissions Amendment (Private Sessions) Bill 2019

6. This 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

7. The main purpose of the Royal Commissions Amendment (Private Sessions) Bill 2019 is to amend Part 4 of the Royal Commissions Act 1902 to:

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enable a Royal Commission to hold private sessions where a regulation is made authorising it to do so, noting that presently the private sessions regime only applies to the Child Sexual Abuse Royal Commission,

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enable the Chair of a multi-member Commission, or a sole Commissioner, to authorise Assistant Commissioners, being appropriately qualified and senior staff members of a Commission, to hold private sessions (noting that private sessions must be held by a Commissioner unless the Chair, or sole Commissioner, considers circumstances exist to justify such an authorisation),

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apply limitations on use and disclosure of private session information to information given for the purposes of a private session, whether or not a private session is held,

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apply limitations on use and disclosure to information given by individuals to the Child Sexual Abuse Royal Commission about their experience of child sexual abuse, or regarding other people's experience of child sexual abuse, where that information was not given for the purposes of a private session, but the Commission indicated the information would be treated as confidential and treated it as confidential.

8. The Bill will enable the private sessions regime in Part 4 of the Act to be applied to a Royal Commission through a regulation made by the Governor-General. As a modification to the regime that applied for the Child Sexual Abuse Royal Commission, where only a Commissioner could hold a private session, it is proposed that the Chair of a multi-member Commission, or a sole Commissioner, will have discretion to authorise appropriately qualified and senior staff of a Commission, as Assistant Commissioners, to hold private sessions. Private sessions must be held by a Commissioner unless the Chair, or sole Commissioner, considers circumstances exist to justify authorisation of Assistant Commissioners. The power to authorise Assistant Commissioners to hold private sessions will give a Commission more flexibility and may enable a Commission to hold more private sessions over the duration of the inquiry.

9. The limits on use and disclosure of private session information in Part 4 of the Act only apply to information given 'at' a private session held by the Child Sexual Abuse Royal Commission. The Bill will apply the limits on use and disclosure of information given 'at' a private session to information given 'for the purposes of a private session', whether or not a private session is held. It is proposed that this extended application will also apply to the Child Sexual Abuse Royal Commission. In practice, information about an individual's experiences will be received or recorded by a Commission outside a private session (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 to determine if the Commission will hear a person's story. An individual ultimately may not have participated 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. This information should properly receive the protections extended to other private session information.

Human rights implications

10. The Bill engages, or may be seen to engage, the following rights:

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the right to freedom of expression in Article 19 of the International Covenant on Civil and Political Rights ('ICCPR') and Article 13 of the Convention on the Rights of the Child ('CRC');

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the prohibition against unlawful or arbitrary interferences with privacy in Article 17 of the ICCPR and Article 16 of the CRC; and

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the right to a fair trial and hearing in Article 14 of the ICCPR.

The Right to Freedom of Expression

11. Article 19(2) of the ICCPR provides that everyone shall have the right to freedom of expression and that this right includes the freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other chosen media. This right may be subject to certain restrictions, but these shall only be such as are provided by law and are necessary on limited grounds, including for the respect of the rights or reputations of others.

12. Article 13 of the CRC makes similar provision for children.

13. The purpose of private sessions is to enable individuals to tell their story of a personal matter to a Commissioner or member of staff of a Commission in a private setting, rather than public hearing. Participation is voluntary. The Bill does not restrict that individual's right to freedom of expression and facilitates a forum for the person to tell their story to inform an official inquiry. Private sessions were engaged by the Child Sexual Abuse Royal Commission to enable children, as young as seven, to tell their story.

14. The Bill imposes limits on use and disclosure of private session information, including provision that:

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statements made, or documents produced, by a person at, or given for the purposes of, a private session are not admissible in evidence against the person in any civil or criminal proceedings (subsection 6OE(1) and proposed paragraph 6OE(1)(c) at item 23 of Schedule 1 to the Bill),

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it is an offence to use or disclose information obtained at, or given for the purposes of, a private session, subject to exceptions (section 6OH as amended by items 28 to 33 of Schedule 1 to the Bill),

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information obtained at, or given for the purposes of, a private session can only be included in a Royal Commission report if the information is de-identified or the information is also given as evidence to the Commission (section 6OJ as amended by items 34 and 35 of Schedule 1 to the Bill)

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a provision of another law requiring or authorising a person to use or disclose information obtained at, or given for the purposes of, a private session will have no effect unless the use or disclosure is permitted under Division 3 of Part 4 of the Act (section 6OL as amended by items 37 and 38 of Schedule 1 to the Bill),

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treats records containing information obtained at, or given for the purposes of, a private session in the same way as Census information so that these records would come into the open access period under the Archives Act 1983 99 years after the year the record came into existence (section 6OM as amended by items 39 and 40 of Schedule 1 to the Bill), and

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excludes a right of access under the Freedom of Information Act 1982 (the FOI Act) to documents containing information obtained at, or given for the purposes of, a private session (subsection 7(2E) of the FOI Act as amended by items 1 and 2 of Schedule 2 to the Bill).

15. The Bill also proposes that the limits on use and disclosure of information in Part 4 of the Act, and in the FOI Act, apply to information about a person's experiences of child sexual abuse, or regarding other people's experiences of child sexual abuse, that was given by the person to the Child Sexual Abuse Royal Commission, other than for the purposes of a private session, and the Commission indicated the information would be treated as confidential and treated it as such (proposed s 6ON at item 41 of Schedule 1 to the Bill and proposed subparagraph 7(2E)(a)(iv) of the FOI Act at item 1 of Schedule 2 to the Bill). 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.

16. These limits on use and disclosure of private session information are necessary and reasonable to protect the privacy of the individual telling their story, as well as to respect the privacy and reputation of others who may be named in the story. That is important as information given at a private session, or for the purposes of a private session, is not taken on oath or affirmation and is not subject to cross-examination. If information is given that is adverse to a third party, the privacy of a private session means that the third party is not able to respond to allegations against them. For that reason, private session information can only be used in a report of a Royal Commission if it is de-identified or if it is formally put into evidence. The restrictions on use and disclosure aim to provide sufficient protections for an individual so that they are comfortable with participating in an inquiry, and giving information to inform an inquiry on matters of public importance, while at the same time providing confidentiality to third parties who may be named in the information.

17. A person who (voluntarily) participates in a private session may allege another person has committed an offence. A Commissioner will retain a power under section 6P of the Act, in the context of Part 4 private sessions, to refer information that may relate to a contravention of a law to certain entities responsible for law enforcement. That power operates while a Royal Commission is active. Where information is referred to law enforcement authorities by an active Royal Commission under section 6P of the Act, the private session regime does not limit any rights of an accused to access information held by the prosecution.

The Prohibition against Unlawful and Arbitrary Interferences with Privacy

18. Article 17 of the ICCPR prohibits unlawful or arbitrary interferences with a person's privacy, family, home or correspondence, and unlawful attacks on their honour and reputation. Interferences with privacy may be permissible, provided they are authorised by law and not arbitrary.

19. Article 16 of the CRC makes similar provision for children.

20. It is a purpose of private sessions to enable individuals to tell accounts of personal matters, related to matters into which a Royal Commission is inquiring, in a private setting. In this respect, the private session regime enhances the privacy of the individual telling their story. However, as the information is not taken as evidence, limits on use and disclosure of the information are also aimed at protecting the privacy and reputation of third parties who may be named in the information.

The Right to Fair Trial and Hearing

21. Article 14(1) of the ICCPR protects the right to a fair and public criminal trial or a fair and public hearing in civil proceedings. Fair trial and fair hearing rights include the right that all persons are equal before courts and tribunals and the right to a fair and public hearing before a competent, independent and impartial court or tribunal.

22. Article 14(3) of the ICCPR establishes that, in the determination of any criminal charge, everyone shall be entitled certain minimum guarantees, including: to be informed promptly and in detail of the nature and cause of the charge against them (14(3)(a)); and not to be compelled to testify against themselves or to confess guilt (14(3)(g)).

23. These rights are not engaged as a Royal Commission is not a court or tribunal, does not exercise judicial power, and cannot adjudicate on a person's guilt or liability.

24. To the extent that proposed section 6OL of the Act (as amended by items 37 and 38 of Schedule 1 to the Bill) will have the effect of overriding requirements or authorisations under a law to use or disclose private session information, unless authorised under Division 3 of Part 4, access to this information could not be compelled by either the prosecution or the defence. However, the private session regime does not of itself prevent the individual from being examined in court proceedings if they give evidence. Where information is referred to law enforcement authorities by an active Royal Commission under s 6P of the Act, the private session regime does not limit any rights of an accused to access information held by the prosecution.

25. While a Royal Commission is not a court or tribunal, it does have powers to enable it to effectively investigate matters of public importance, which are balanced with limitations on uses of information obtained by the Commission. For example, while section 6A of the Act provides that self-incrimination is not a reasonable excuse for a person to refuse to make a statement or produce a document (when compelled to do so), section 6DD of the Act effectively provides a use immunity so that such statements or disclosures are not admissible against that person as evidence in any civil or criminal proceedings (except for an offence against the Act).

26. The private session regime in Part 4 of the Act gives no powers for a Royal Commission to compel a person to give information or documents in the context of a private session. Participation is voluntary. However, like section 6DD of the Act, information given by an individual at, or for the purposes of, a private session is not able to be used against that person in civil or criminal proceedings (see section 6OE as amended by items 22 and 23 of Schedule 1 to the Bill). This provision serves to assist a Royal Commission to hear from individuals on a voluntary basis by protecting individuals from claims for defamation or other proceedings in connection with information they give.

Conclusion

27. The Bill is compatible with human rights as it promotes the right to privacy and to the extent that it limits the right to freedom of expression, the limitations are reasonable, necessary and proportionate. It does not engage or limit the right to fair trial and hearing.