House of Representatives

Revised Explanatory Memorandum

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

GENERAL OUTLINE

1. The Royal Commissions Amendment (Protection of Information) Bill 2021 introduces improvements to the Royal Commissions Act 1902 (the Act) and implements changes requested by Commissioner the Hon Ronald Sackville AO QC, Chair of the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Disability Royal Commission), people with disability and disability advocates.

2. The Bill amends the Act to:

•

ensure the confidentiality of certain information given by, or on behalf of individuals, to the Disability Royal Commission by applying limitations on the use and disclosure of information given by individuals to the Commission about their experiences 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;

•

ensure that protected information given by a person, or information which another person has given on their behalf, will not be admissible as evidence in proceedings against either person;

•

enable the Royal Commission to use certain protected information in a report or recommendation only if it was also given as evidence under a summons or if the information is de-identified;

•

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that any evidence, documents or descriptions of any thing produced that might enable a person to be identified, shall not be published or shall not be published except in such a manner, and to such persons, as the Commission specifies; and

•

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. Private sessions were first established for the Royal Commission into Institutional Responses to Child Sexual Abuse (the Child Sexual Abuse Royal Commission) to enable individuals to tell their story about matters into which the Commission was inquiring in a trauma-informed and less formal setting than a hearing. Participants did not give evidence and information was not given under oath or affirmation. In recognition of that feature, and the very personal nature of the accounts, it was appropriate that limits applied to the use and disclosure of that information. The private session framework is an important feature that enables individuals to share highly sensitive and personal information in confidence which is why it has been extended to individuals who wish to engage with the Disability Royal Commission.

4. Individuals will, and want to, provide sensitive and highly personal information in ways other than in private sessions to the Disability Royal Commission expecting that it will be kept confidential. In practice, information about an individual's experience can be received and recorded by a Commission outside of a private session. This can occur for a number of reasons, including by providing confidential written submissions and accounts, through interview processes where the Royal Commission needs to be satisfied that the matters fall within the terms of the inquiry, or in deciding whether an individual's account should be heard in a formal hearing. This information should properly receive protections similar to private session information.

5. 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 of violence, abuse, neglect or exploitation where the Commission indicated that it would be treated as confidential at all times. The confidentiality protections in the Bill are not confined to an individual account and can be applied more broadly to systemic accounts relating to policies, procedures, or practices, or acts or omissions that have contributed to experiences of violence, abuse, neglect or exploitation. 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 private sessions.

6. It will further encourage participants to share their direct experience with the Disability Royal Commission, meaning people can engage in confidence with the Commission without fear of further disclosures. This is consistent with the treatment of vulnerable groups who provided sensitive personal information to the Child Abuse Royal Commission.

7. The Bill also amends the Act to ensure that certain protected information will be inadmissible as evidence in civil or criminal proceedings. People with severe or cognitive disabilities may be unable to give information to the Royal Commission by themselves and may require a third party to give information on their behalf. Protected information given by a person, or information which another person has given on their behalf, will not be admissible in proceedings against either person. The amendment will apply to the Disability Royal Commission and future Royal Commissions authorised to hold private sessions.

8. The Royal Commission has committed to treat accounts of an experience of violence, abuse, neglect and exploitation, confidential at all times. The Bill amends the Act to ensure that certain protected information may only be used in a report or recommendation if it was either given as evidence under a summons, or if the information is de-identified. This will assist in ensuring that all people who wish to tell their stories to the Royal Commission can do so with confidence that sensitive information they share will be treated confidentially.

9. The Bill will also streamline arrangements to enable certain members of a Royal Commission to make directions, known as non-publication directions, which will improve the efficient conduct and performance of the Disability Royal Commission and future Royal Commissions. The Bill will remove certain requirements that necessitate multiple members agreeing to a direction, thereby improving the efficiency of making directions, particularly where they are required urgently.

10. Finally, the Bill will improve information sharing between Commonwealth Royal Commissions and Royal Commissions, and commissions of inquiry of a State and Territory.

FINANCIAL IMPACT

11. There are no financial impacts associated with these amendments.

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.

Notes on Clauses

Preliminary

Clause 1 - Short title

1. Clause 1 provides for the short title of the Act to be the Royal Commissions Amendment (Protection of Information) Act 2021.

Clause 2 - Commencement

2. Clause 2 provides for the commencement of each provision in the Act, as set out in the table at subclause 2(1). The table provides that the whole of this Act commences the day after Royal Assent.

3. The note to subclause 2(1) clarifies that the table only relates to provisions of the Act as originally enacted and will not be amended to deal with any later amendments.

4. Subclause 2(2) specifies that information in column 3 of the table at subclause 2(1) is not part of the Act, and information may be inserted into column 3, or information in it may be edited, in any published version of this Act.

Clause 3 - Schedules

5. Clause 3 provides that legislation that is specified in a Schedule to the Act would be amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to the Act has effect according to its terms.

Part 1 - Main amendments

Royal Commissions Act 1902

Item 1 - Subsection 6D(3)

6. Item 1 provides that the Commissioner, in making a direction pursuant to subsection 6D(3), must do so in accordance with new subsection (3A).

Item 2 - At the end of paragraph 6D(3)(a)

7. Item 2 inserts the word 'or' at the end of paragraph 6D(3)(a).

8. This is a minor technical amendment.

Item 3 - Subsection 6D(3)

9. Item 3 omits the word 'shall' and substitutes the word 'must' in subsection 6D(3).

10. This item provides greater certainty to obligations in relation to the non-publication of certain evidence, documents and information.

Item 4 - After subsection 6D(3)

11. Item 4 inserts new subclause 6D(3A) to complement the existing powers of a Royal Commission to make non-publication directions in a hearing and non-hearing setting.

12. Under the current Act for a direction, known as a non-publication direction, to be made other than at an authorised member hearing where the direction must be made by all members, the direction must be made by a quorum of the Commission. This requirement presents practical difficulties for Commissioners of the Disability Royal Commission when making a non-publication direction, particularly when an urgent direction is required, as Commissioners may fulfil their duties at different locations within Australia.

13. The effect of new subclause 6D(3A) is to enable directions to be made by differently configured groups of Commissioners in or outside a hearing setting.

14. Subclause 6D(3A) provides that a direction made under subsection 6D(3) of the Act may be given (a) if the direction is given at an authorised member hearing of the Commission by either the President or Chair of the Commission (unless the President or Chair is not the member, or one of the members, of the Commission holding the hearing); or the member, or all of the members of the Commission holding the hearing; or (b) if the Commission is constituted by 2 or more members and the direction is not given at an authorised member hearing of the Commission, by either the President or Chair of the Commission; or a majority of the members of the Commission; or (c) if the Commission is constituted by a sole Commissioner - the sole Commissioner.

15. The purpose of subclause 6D(3A) 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.

16. 'Authorised member hearing' and 'member' are defined terms in section 1B of the Act.

Item 5 - Section 6OA

17. Item 5 inserts a new definition of 'Disability Royal Commission' into section 6OA of Part 4 of the Act.

18. The new definition provides, the "Disability Royal Commission means the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability as issued by the Governor-General by Letters Patent on 4 April 2019 and including any later variations to the Letters Patent".

19. The term Disability Royal Commission is used in new clause 6OP. Part 4 of the Act already applies to the Disability Royal Commission by virtue of the Disability Royal Commission being prescribed in the Royal Commission Regulations 2019 (Cth), in accordance with subsection 6OAB(b) of the Act.

Item 5A - After section 6OE(1)

20. Item 5A inserts new subclause 6OE(1A) so that the following 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:

a.

a statement or disclosure made on behalf of the person at a private session;

b.

a document or other thing on behalf of the person at a private session; and

c.

a statement or disclosure made on behalf of the person to a member, or member of the staff, of a Royal Commission for the purposes of a private session (whether or not a private session was, or is to be, held for the Commission).

21. Private session information that is given to a Royal Commission on behalf of another person, is not admissible in evidence against the other person.

Item 5B - Subsection 6OE(2)

22. Amendment 1 omits "Subsection (1) does not" at the beginning of subsection 6OE(2), and substitute with "Subsections (1) and (1A) do not". The amendment clarifies that new subclause 6OE(1A) does not apply to the admissibility of evidence in proceedings for an offence against this Act.

Item 6 - At the end of Division 3 of Part 4

23. Item 6 inserts new clause 6OP at the end of Division 3 of Part 4 of the Act. New clause 6OP provides for the protection of certain information given to the Disability Royal Commission.

24. New subclause 6OP(1) applies to information if (a) the information was given by, or on behalf of, a natural person to the Disability Royal Commission other than for the purposes of a private session; and (b) the information contains an account of the natural person's, or another person's, experiences of violence, abuse, neglect or exploitation, or an account of the natural person's, or another person's, experiences of systemic violence, abuse, neglect or exploitation.; and (c) the information directly or indirectly identifies the natural person who gave the information, or on whose behalf the information was given; and (d) the information was treated as confidential by the Commission at all times after being given to the Commission.

25. The purpose of new clause 6OP is to protect information if given by, or on behalf of, a natural person to the Disability Royal Commission other than for the purposes of a private session. Clause 6OP ensures that information, where it includes an account of the natural person's, or another person's, experiences of violence, abuse, neglect or exploitation, or an account of the natural person's, or another person's, experiences of systemic violence, abuse, neglect or exploitation given to the Royal Commission may be protected and treated as confidential information where that information directly or indirectly identifies the natural person who gave the information or on whose behalf the information was given. Information given to the Disability Royal Commission will be protected if it either directly or indirectly identifies a person, because in some circumstances there may be an identifiable connection between certain information and a natural person, even where the person may not in the first instance appear to directly be the subject of the information.

26. Clause 6OP will limit the use, disclosure and admissibility of confidential information by extending existing protections of private session information in Division 3 of Part 4 of the Act (sections 60H, 6OK, 6OL, 6OM and 6OE refers) to include confidential information given to the Disability Royal Commission about a person's experiences of violence, abuse, neglect or exploitation. An account of an experience is not limited to an individual account, and could be applied more broadly to accounts of systemic forms of violence, abuse, neglect or exploitation.

27. The extension of existing protections to a broader type of information is intended to encourage persons to come forward with information to the Disability Royal Commission.

28. Subclause 6OP(2) provides that section 6OE of the Act applies to information that was given to the Commission other than for the purposes of a private session, and contains an account of the natural person's, or another person's, experiences of violence, abuse, neglect or exploitation, identifies the natural person who gave the information, or on whose behalf the information was given, and was treated as confidential by the Commission at all times after being given to the Commission. Protected information is both inadmissible against the natural person who gave the information, and a natural person on whose behalf the information was given.

29. Subclause 6OP(3) provides that sections 6OH, 6OK and 6OL of the Act applies in relation to the information as if it were information given by the natural person at a private session for the Commission. Subclause 6OP(3A) provides that certain protected information may only be included in a report or recommendation of the Disability Royal Commission only if it was also given as evidence to the Commission or under a summons, requirement or notice under section 2 or if the information is de-identified.

30. Section 6OH of the Act provides that it is an offence for a person to use or disclose information obtained or given at a private session for a Royal Commission, unless certain exceptions apply. The offence is punishable by imprisonment for 12 months or 20 penalty units. It is appropriate and proportionate to apply this offence to the unauthorised disclosure of information at subclause 6OP(1) as an unauthorised disclosure of information of this kind would harm the public interest by damaging confidence in the processes and powers of a Royal Commission and result in individuals being reluctant to provide information important to assist the Disability Royal Commission in its inquiries into matters of public significance.

31. Section 6OK of the Act provides that the offence of unauthorised use or disclosure of information under section 6OH does not apply where a person discloses the information to the person who gave the information.

32. Section 6OL of the Act provides that a law has no effect to the extent it would otherwise require or authorise a person to make a record of, or to use or disclose certain information, unless it would be permitted by Division 3 of Part 4 of the Act.

33. Subclause 6OP(4) provides that section 6OM of the Act applies in relation to the information as if it were a record that contains information obtained at a private session for the Royal Commission. The effect of this amendment is to treat records containing information as described at subclause 6OP(1) in the same way as Census information so that these records would enter the open access period under the Archives Act, 99 years after the year the record came into existence. The extended exclusion period is aimed at encouraging participants to come forward and share information that might be of a particularly sensitive personal nature, and that would inform the Disability Royal Commission's inquiry.

34. Subclause 6OP(5) explains what constitutes an account of an experience of systemic violence, abuse, neglect or exploitation. A systemic account may include reference to experiences, or an awareness, of a policy, procedure, practice, act or omission that contributed, or may have contributed, to a natural person experiencing violence, abuse, neglect or exploitation.

Item 7 - After subsection 6P(2C)

35. Item 7 inserts new subclause 6P(2D). Subclause 6P(2D) provides that a reference in subsection 6P(2) to another Commission includes a reference to a Royal Commission of a State or Territory, and a commission of inquiry of a State or Territory.

36. Subclause 6P(2D) will enable a Royal Commission, during the course of inquiring into a matter, to communicate information, or furnish evidence, to another Commission, including a Royal Commission, or commission of inquiry, of a State or Territory.

37. Subclause 6P(2D) will enable the Commonwealth Disability Royal Commission to more efficiently and effectively manage the sharing of information and evidence with the six concurrent state Disability Royal Commissions and to simplify the preparation and delivery of a single final report that will draw upon all evidence obtained by the seven concurrent Disability Royal Commissions.

Item 8 - Application provisions

38. Item 8 provides the circumstances in which the amendments in Schedule 1 apply.

39. Subitem (1) of item 8 provides that that a direction given by a Royal Commission in section 6D of the Act as amended by Schedule 1 to the Bill, applies on or after the commencement of this item, whether the Royal Commission is established before, on, or after that commencement. It is intended that these amendments apply to the Disability Royal Commission.

40. Subitem (1A) of item 8 inserts an application provision for the commencement of amendments to section 6OE. An amended section 6OE would apply to a document or thing given to the Commission at, or for the purposes of a private session, on or after the Bill is passed and receives Royal Assent. In relation to the Disability Royal Commission, section 6OE applies to a document or thing produced to the Commission from the commencement of the inquiry, up until its final reporting date.

41. Subitem (2) of item 8 provides that new clause 6OP of the Act, as inserted by Schedule 1 to this Bill, applies in relation to information given before, on or after the commencement of this item.

42. Subitem (3) of item 8 provides that section 6P of the Act, as amended by Schedule 1 to this Bill, applies in relation to information obtained, evidence taken and documents and things received by a Royal Commission before, on or after the commencement of this item, whether the Royal Commission is established before, on or after that commencement.

43. The purpose of item 8 is to apply to relevant information obtained, evidence taken and documents received and held by the Disability Royal Commission. Royal Commissions already have strong protections in place and enable persons engaging with Royal Commissions to do so with confidence about protections for information and identity. New clause 6OP expressly provides additional comprehensive protections for personal information at the conclusion of the inquiry.

Part 2 - Other amendments

Freedom of Information Act 1982

Item 9 - At the end of paragraph 7(2E)(a)

44. Item 9 adds new paragraph (v) to paragraph 7(2E)(a) of the Freedom of Information Act.

45. New paragraph 7(2E)(a)(v) exempts agencies from the operation of the Freedom of Information Act, in relation to a document that contains information to which section 6OP of the Act (which deals with certain information given to the Disability Royal Commission) applies.

46. The purpose of new paragraph 7(2E)(a)(v) of the Freedom of Information Act is to encourage persons to come forward and share information that will inform a Royal Commission inquiry, and is considered to be of a particularly sensitive personal nature with the Disability Royal Commission. It is consistent with the treatment of information provided to a Commission in a private session and for information that was provided to Child Abuse Royal Commission to which section 6ON of the Act applies.

Item 10 - Application provision

47. Item 10 provides that the amendment to section 7 of the Freedom of Information Act as described in Schedule 2 of this Bill, applies in relation to:

a.

a request for access, made under section 15 of the Freedom of Information Act that is received on or after the day the final report of the Disability Royal Commission is submitted to the Governor-General;

b.

an application, made under section 48 of the Freedom of Information Act, that is received on or after the day the final report of the Disability Royal Commission is submitted to the Governor-General.

48. The purpose of item 10 is to apply to documents obtained by the Disability Royal Commission.