House of Representatives

Revised Explanatory Memorandum

(Circulated by authority of the Attorney-General, Senator the Honourable Michaelia Cash)

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Royal Commissions Amendment (Protection of Information) Bill 2021

1. 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

2. The main purpose of the Bill of the Royal Commissions Amendment (Protection of Information) Bill 2021 is to amend the Part 4 of the Royal Commissions Act 1902 (Cth) to:

a.

ensure the confidentiality of certain information given by, or on behalf of a natural person, to the Disability Royal Commission by applying limitations on the use and disclosure of information, and identities given by individuals to the Commission about their experience of violence, abuse, neglect and exploitation, or an account of the natural person's, or another person's, experiences of systemic violence, abuse, neglect or exploitation, where that information was given for purposes other than a private session and the information was treated as confidential by the Commission at all times after being given to the Commission;

b.

streamline arrangements to enable certain members of a Royal Commission to make directions, known as non-publication directions, more efficiently. These directions will ensure that any evidence, documents or descriptions of any thing produced that might enable a person to be identified, shall not be published or shall not be published except in such a manner, and to such persons, as the Commission specifies; and

c.

improves arrangements for Commonwealth Royal Commissions to communicate information and evidence obtained during the course of its inquiry with a Royal Commission, and a commission of inquiry, of a State or Territory.

3. The confidentiality protection in the Bill will apply limitations on the use and disclosure of certain information provided by individuals to the Disability Royal Commission outside of a private session, regarding an individual's own, or their knowledge of others', experience or experience of systemic violence, abuse, neglect or exploitation where the Commission indicated that it would be treated as confidential at all times. This will ensure that this information provided to the Disability Royal Commission outside private sessions will be accorded the same confidentiality as material obtained for the purposes of a private session, meaning people can engage in confidence with the Commission without fear of further disclosures. The privacy of all parties who may be named in the information will also be protected. This is consistent with the treatment of sensitive information provided to the Child Abuse Royal Commission by persons who were informed the information would be treated as confidential.

4. The amendments also provide that confidentiality protections apply where information is given to the Royal Commission on behalf of another person. The protections will apply to both the person who gives the information, and also the person on whose behalf the information is given.

5. The amendments will also enable the Royal Commission to use the confidential information in a report or recommendation only if it was also given as evidence under a summons or if the information is de-identified.

Human rights implications

6. This Bill engages, or may be seen to engage, the following rights:

a.

Article 17 of the International Covenant on Civil and Political Rights (ICCPR) and Article 22 of the Convention on the Rights of Persons with Disabilities (CRPD) - the prohibition against unlawful or arbitrary interferences with privacy

b.

Article 19 of the ICCPR and Article 21 of the CRPD - the right to freedom of expression; and

c.

Articles 14(1) and (3) of the ICCPR - the right to a fair trial and impact on procedural fairness.

Right to privacy

7. Article 17 of the ICCPR prohibits arbitrary or unlawful interference with an individual'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.

8. Article 22 of the CRPD makes similar provision for persons with disability.

9. The right to privacy includes respect for informational privacy, including in relation to storing, using and sharing private information, as well as the right to control the dissemination of personal and private information. To be permissible as a matter of international human rights law, interferences with privacy must be according to law and not arbitrary. In order not to be arbitrary, they must be reasonable and necessary in the particular circumstances, as well as proportional to the objectives they seek to achieve.

10. This Bill advances the right to privacy by taking a trauma-informed approach to protecting private information, including giving individuals the option of telling their story in a private session. Further, when the information is to be used as evidence, the Bill provides for more streamlined arrangements for the making of non-publication directions. It is imperative for inquiries of public significance that individuals can disclose personal and sensitive information and engage with full confidence with the protections that are available. Royal Commissions already have strong protections in place and this Bill will further enable persons engaging with Royal Commissions to do so with confidence about the protections available for information and identity.

11. It is important to protect certain information obtained other than for the purposes of a private session to enable individuals telling accounts of personal matters, related to matters into which a Royal Commission is inquiring, to be treated as though that information has been obtained in a private setting. Extending the protections made available through the private session regime enhances the privacy of the individual sharing their account with the Disability Royal Commission. However, as the information is kept confidential at all times, limits on use and disclosure of the information will also protect the privacy and reputation of third parties who may be named in the information.

12. Where information is not being treated as confidential at all times by the Royal Commission and is being used as evidence, procedural fairness obligations apply and ensure that third parties are provided with an opportunity to respond to any adverse material raised.

Right to freedom of expression

13. Article 19(2) of the ICCPR provides that everyone shall have the right to freedom of expression and 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.

14. Article 19(3) of the ICCPR provides that the right to freedom of expression may be restricted where necessary for the respect of the rights and reputation of others.

15. Article 21 of the CRPD makes similar provision for persons with disability.

16. The Bill (clause 6OP refers) engages and limits the right to freedom of expression by limiting disclosure of certain information. That is, information that has been provided to the Disability Royal Commission which regards an account of an individual's experience of, or experience of systemic violence, abuse, neglect or exploitation.

17. The purpose of expanding confidentiality protections to limit the use and disclosure of certain information provided to the Disability Royal Commission outside of a private session is to enable individuals to share their account about the violence, abuse, neglect and exploitation that they, or someone on whose behalf the information is given, occurs without fear of retaliation or further disclosure.

18. The Bill extends existing provisions to apply to the use and disclosure of information to which proposed clause 6OP applies so that:

a.

the information is not admissible in evidence against the person in any civil or criminal proceedings (section 6OE of the Act refers)

b.

the information may only be included in a report or recommendation of the Disability Royal Commission only if it was also given as evidence or if the information is de-identified (section 6OE of the Act refers)

c.

it is an offence to use or disclose the information subject to exceptions (section 6OH of the Act refers)

d.

it is a defence to 6OH where a person discloses the information to the person who gave the information (section 6OK of the Act refers)

e.

a provision of another law requiring or authorising a person to use or disclose the information will have no effect unless the use or disclosure is permitted under Division 3 of Part 4 of the Act (section 6OL of the Act refers)

f.

records containing the information are treated in the same way as Census information so that these records would come into the open access period under the Archives Act 1983 (Cth) 99 years after the record came into existence (section 6OM of the Act refers), and

g.

documents containing the information cannot be accessed under the Freedom of Information Act 1982 (item 9 refers).

19. These limits on the use and disclosure of information are necessary and reasonable to protect the privacy of the individual giving their account, as well as to respect the privacy and reputation of others who may be named in the account. This is important as certain information may not be given under oath or affirmation and may not be subject to cross-examination. If information is given that is adverse to a third party, the privacy afforded means that the third party is not able to respond to allegations against them. For that reason, this information can only be used in a report of a Royal Commission if it is de-identified or 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.

20. A person who (voluntarily) provides confidential information, may allege another person has committed an offence. A Commissioner will retain a power under section 6P of the Act 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, proposed clause 6OP does not limit any rights of an accused to access information held by the prosecution.

21. Consistent with section 6DD of the Act, information, as described under new clause 6OP or private session information, given by an individual is not able to be used against that person in civil or criminal proceedings (section 6OE of the Act refers). The Bill inserts an additional new provision regarding the use and disclosure of information to which proposed clause 6OP applies, so that protected information is inadmissible against the natural person who gave the information, and a natural person on whose behalf the information was given. This 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.

22. The Bill safeguards information which has been provided by individuals to the Disability Royal Commission and ensures that information about experiences of violence, abuse, neglect and exploitation remains private and confidential. The safeguards are reasonable, necessary and proportionate and are sufficiently narrow so as to remain consistent with the right to freedom of expression.

Right to fair trial or hearing

23. 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.

24. Article 14(3) of the ICCPR establishes that, in the determination of any criminal charge, everyone shall be entitled to certain minimum guarantees, including: to be informed promptly and in details 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)).

25. Article 14(1) of the ICCPR allows a hearing, or part of a hearing, to be held in private 'for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires'.

26. A Royal Commission is not a court or tribunal, and cannot determine criminal charges or civil liability, but can refer information or evidence relating to a contravention of a law to law enforcement authorities or prosecutors. A Royal Commission does have powers to conduct inquiry processes similar to civil proceedings - for example, it can compel evidence, summon witnesses, convene hearings and administer an oath or affirmation. A Royal Commission is also empowered to make findings and recommendations following an inquiry.

27. The Bill reinforces the protection of certain information given to the Disability Royal Commission other than for purposes of a private session (clause 6OP refers).

28. While the Disability Royal Commission generally conducts hearings that are open to the public, the Bill extends protections to information given by, or on behalf of, a natural person where the information contains an account of a person's experiences of violence, abuse, neglect or exploitation and identifies the natural person who gave the information, or on whose behalf the information was given other than for the purposes of a private session, which is treated as confidential by the Commission at all times after being given to the Commission.

29. The protection of certain information given to the Royal Commission balances the importance of the inquiry process being transparent and open, with flexibility for the Commissioner/s to account for the sensitivity of certain information being disclosed in an open hearing with the need for certain information to be treated as private and confidential.

30. Where information is not being treated as confidential at all times by the Royal Commission and is being used as evidence, procedural fairness obligations apply and ensure that third parties are provided with an opportunity to respond to any adverse material raised.

31. To the extent that section 6OL of the Act has the effect of overriding requirements or authorisations under a law to use or disclose private session information, or otherwise than for the purposes of a private session, unless authorised under Division 3 of Part 4, access to this information could not be compelled by either the prosecution or the defence. A Commissioner will retain power under section 6P of the Act 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 Commissioner under section 6P, the proposed amendments to the Act do not limit any rights of an accused to access related information held by the prosecution.

32. Whilst 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. 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.

33. The confidentiality provisions in this Bill will extend protections to participants who provide sensitive confidential information to the Disability Royal Commission. Whilst a Royal Commission is not a judicial body and is not able to hold trials, a Commission has powers and functions to hold inquiries which uphold fair hearing rights and, to the extent that it may also limit some fair hearing rights, those limitations are reasonable, necessary and proportionate to the legitimate objective of protecting the confidentiality of participants to facilitate a full and genuine inquiry.

Conclusion

34. The Royal Commissions Amendment (Protection of Information) Bill 2021 is compatible with the human rights and freedoms recognised or declared in the international instruments listed in the definition of human rights in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. 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 and the right to a fair hearing or trial, the limitations are reasonable, necessary and proportionate.