House of Representatives

Explanatory Memorandum

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

NOTES ON CLAUSES

Abbreviations

The Act means the Royal Commissions Act 1902.

Child Sexual Abuse Royal Commission means the Royal Commission into Institutional Responses to Child Sexual Abuse.

FOI Act means the Freedom of Information Act 1982.

Clause 1: Short title

28. Clause 1 is a formal clause which provides the citation of the Bill upon its enactment.

Clause 2: Commencement

29. Clause 2 provides for the provisions of the Bill to commence on the day after the Bill receives the Royal Assent.

Clause 3: Schedules

30. This clause provides for each Act specified in a Schedule to the Bill to be amended in accordance with the items set out in the relevant Schedule. The Bill proposes main amendments to the Act as set out in Schedule 1 to the Bill, and amendments to the FOI Act as set out in Schedule 2 to the Bill.

Schedule 1 - Main Amendments

Royal Commissions Act 1902

Item 1 - Subsection 1B(1)

31. Item 1 amends subsection 1B (definitions) in Part 1 of the Act to include a definition of 'member of the staff'. This definition is relevant to those amendments to Part 4 of the Act that envisage that a person can give information for the purposes of a private session to a member of the staff of a Royal Commission. This could include a person who is engaged to work for the Royal Commission as a counsellor or support person, or who is otherwise tasked with liaising with members of the public about participation in a private session.

Item 2 - Subsection 5(3)

32. This item makes minor amendments consequential to item 1.

Items 3 and 4 - Part 4 (heading)

33. Item 3 amends the heading of Part 4 of the Act from 'Private sessions for the Child Sexual Abuse Royal Commission' to 'Private sessions for certain Royal Commissions'. It is consequential to the proposed amendment at item 6 to enable private sessions to be engaged for other Royal Commissions, in addition to the Child Sexual Abuse Royal Commission.

34. Item 4 is a minor amendment to the heading of Division 1 of Part 4, so that the heading is changed from 'Definitions' to 'Preliminary'.

Item 5 - Section 6OA

35. Item 5 amends section 6OA to include a definition of 'Assistant Commissioner'. This definition relates to items 7 and 13 which give a discretion to the Chair, or sole Commissioner, of a Royal Commission (as the case may be) to authorise appropriately qualified and senior staff members of a Commission to hold private sessions when circumstances exist to justify such an authorisation.

Item 6 - At the end of Division 1 of Part 4

36. Item 6 inserts section 6OAB into Part 4 of the Act, which would enable a Royal Commission to hold private sessions where a regulation is made by the Governor-General authorising the Royal Commission to do so. Currently, the private session regime only applies to the Child Sexual Abuse Royal Commission. While that inquiry has been completed, provisions in Part 4 continue to have application to the Child Sexual Abuse Royal Commission, including provisions relating to the use and disclosure of private session information.

37. Section 17 of the Act allows the Governor-General to make regulations prescribing matters: required or permitted by the Act to be prescribed; or necessary or convenient to be prescribed for giving effect to the Act.

38. The conduct of private sessions is just one way that a Royal Commission can obtain sensitive and personal information to inform its inquiry. Using the regulation power to engage the private session regime will mean a discrete decision will be made as to whether or not private sessions will be useful for a particular inquiry. Private sessions can have implications for the cost and constitution of a Royal Commission. As is the normal case for gathering information relevant to a Royal Commission inquiry, it will be a matter for the Commissioner/s to determine how many private sessions are held, and from whom they hear, in order to inform the inquiry.

Item 7 - Subsection 6OB(1)

39. Presently, subsection 6OB(1) provides that the Chair of the Child Sexual Abuse Royal Commission, or a Commissioner authorised by the Chair, may hold private sessions. Item 7 repeals and substitutes subsection 6OB(1), to enable the Chair of a multi-member Commission, or a sole Commissioner, respectively, to hold private sessions to obtain information in relation to matters into which the Commission is inquiring. In the case of a multi-member Commission, the Chair may also authorise another Commissioner to hold a private session.

40. As a modification to the regime that applied to 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, called an Assistant Commissioner, to hold a private session (see item 13).

41. Proposed subsection 6OB(1B) establishes a presumption that a private session will be held by a Commissioner, unless the Chair of a multi-member Commission, or a sole Commissioner, considers circumstances exist to justify an Assistant Commissioner holding private sessions. This provision is intended to give a Commission more flexibility, particularly for a Commission constituted by one or two Commissioners, and may enable a Commission to hold more private sessions over the duration of the inquiry.

Items 8, 9, 10, 11 and 12 - Subsections 6OB(2) and (3)

42. These items make minor amendments consequential to item 7.

Item 13 - At the end of section 6OB

Item 13 supplements item 7 and adds new subsection 6OB(4) giving the Chair of a multi-member Commission, or a sole Commissioner, discretion to authorise appropriately qualified and senior staff of the Commission to hold a private session. These authorised persons are to be called an Assistant Commissioner.

Item 14 - Section 6OC (heading)

43. This item makes a minor amendment to the heading of section 6OC, to change it from 'Status of private sessions' to 'Status of private sessions etc.'. This is to clarify the scope and content of section 6OC.

Item 15 - Subsections 6OC(1) and (2)

44. Subsections 6OC(1) and (2) of the Act provide that a person who appears at a private session is not a witness, and does not give evidence, and that a private session is not a hearing. This item makes minor technical amendments so that the references to a private session in those subsections read 'private session for a Royal Commission '.

Item 16 - Subsections 6OC(3) and (4)

45. Item 16 essentially updates subsections 6OC(3) and (4) so that the provisions of the Act referenced in those subsections are applied both in the context of information obtained 'at' a private session as well as to information given to a Commissioner or to a member of the staff of a Royal Commission for the purposes of a private session (whether or not a private session is held).

Item 17 - Paragraph 6OC(5)(a)

46. This item makes a minor technical amendment so that the reference to private session in this paragraph reads 'private session for a Royal Commission '.

Item 18 - Paragraph 6OC(5)(a)

47. This item is consequential to item 6 and essentially replaces a reference to the Child Sexual Abuse Royal Commission with a reference to a Royal Commission that can hold private sessions.

Item 19 - Paragraphs 6OC(5)(b) and (c)

48. This item makes a minor technical amendment so that the references to a private session in these paragraphs read 'private session for a Royal Commission '.

Item 20 - Subsection 6OC(6)

49. This item makes a minor technical amendment so that the reference to a private session in this subsection reads 'private session for a Royal Commission '.

Item 21 - Paragraph 6OC(6)(a)

50. This item is consequential to item 7 and replaces a reference to a Commissioner of the Child Sexual Abuse Royal Commission holding a private session with a reference to a person holding a private session. Subsection 6OC(6) essentially applies subsection 6O(1) of the Act, dealing with contempt of a Royal Commission, as if a private session were proceedings of the Commission.

Item 22 - Section 6OE (heading)

51. This item is a minor amendment to the heading of section 6OE.

Item 23 - At the end of subsection 6OE(1)

52. Section 6OE of the Act provides that statements, disclosures or documents that a person makes, or produces, at a private session are not admissible in evidence against that person in civil or criminal proceedings (similar to the protections in section 6DD). While participation at a private session is voluntary, this protection serves to encourage participants to give personal stories to a Royal Commission, on matters relevant to an inquiry, without being concerned that proceedings may be brought against them for doing so (for example, for defamation or breach of a confidentiality undertaking).

53. This item amends subsection 6OE(1) so that this protection applies not only to information given by a person 'at' a private session but also to information given by a person to a Commissioner, or to a member of the staff of a Royal Commission, for the purposes of a private session (whether or not a private session is held).

54. In practice, information about an individual's experiences will be received or recorded by a Commission outside a private session (that is, 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 for the purpose of determining whether the Commission will hear a person's story. An individual may not ultimately participate in a private session but may have given information about their experience to a Commissioner, or to a member of staff, for the purpose of participating in a private session.

Item 24 - Section 6OF (heading)

55. This item makes a minor amendment to the heading of section 6OF.

Item 25 - At the end of section 6OF

56. This item is consequential to item 7. Section 6OF of the Act provides protections for persons who appear at, or who hold, private sessions (noting protections for Commissioners are provided at section 7 of the Act).

57. The item inserts new subsection 6OF(3) which would extend protections to Assistant Commissioners who are authorised to hold a private session.

Item 26 - Division 3 of Part 4 (heading)

58. This item makes a minor amendment to the heading of Division 3 of Part 4 of the Act.

Item 27 - Section 6OG

59. Section 6OG of the Act provides that a private session must be held in private and only persons who are authorised may be present during the private session. This item is consequential to item 7 and amends section 6OG to reflect that the person who holds a private session (which can be a Commissioner or an Assistant Commissioner authorised to hold private sessions) can authorise other persons to attend a private session.

Item 28 - Section 6OH (heading)

60. This item makes a minor amendment to the heading of section 6OH.

Item 29 - Paragraph 6OH(a)

61. 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, unless certain exceptions apply.

62. This item amends section 6OH so that the restrictions on use or disclosure of information also apply to information that was given to a Commissioner or a member of the staff of a Royal Commission for the purposes of a private session and identifies the person who gave the information, whether or not a private session is held.

63. In practice, information about an individual's experiences will be received or recorded by a Commission outside a private session (that is, 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 for the purpose of determining whether the Commission will hear a person's story. An individual may not ultimately participate 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.

Item 30 - Subparagraph 6OH(c)(i)

64. This item is consequential to item 6 and removes a reference to the Child Sexual Abuse Royal Commission and effectively replaces it with a reference to a Royal Commission that can hold private sessions.

Item 31 - Subparagraphs 6OH(c)(iii) and (iv)

65. Subparagraphs 6OH(c)(iii) and (iv) provide exceptions to the offence of unauthorised use or disclosure under section 6OH, so that a person will not commit an offence if they use or disclose information that they gave at a private session, or they use or disclose information given at a private session with the consent of the person who gave the information.

66. This item is consequential to item 29 so that it is an exception to the offence where the information used or disclosed was given 'at' a private session and the person who gave it consents to the use or disclosure, or where the information was given for the purposes of a private session and the person who gave the information consents to a use or disclosure.

Items 32 and 33 - At the end of section 6OH

67. Items 32 and 33 insert 'Note 2' at the end of section 6OH to confirm that a person who gave private session information does not commit an offence under section 6OH by making a record of or, using or disclosing the information. This is currently addressed in the Act at subparagraph 6OH(c)(iii). That provision has not been retained as the offence only applies under paragraph 6OH(a) where a person 'obtains' information at a private session rather than where a person 'gives' information (see item 31 which repeals subparagraph 6OH(c)(iii)).

Item 34 - Section 6OJ

68. Section 6OJ provides that information that has been obtained at a private session may only be included in a report or recommendation of a Royal Commission if the information is also given as evidence, or if the information is de-identified.

69. This item amends section 6OJ so that the above limitations also apply to information given to a Commissioner or member of the staff of a Royal Commission for the purposes of a private session, whether or not a private session was held.

70. In practice, information about an individual's experiences will be received or recorded by a Commission outside a private session (that is, 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 for the purpose of determining whether the Commission will hear a person's story. An individual may not ultimately participate 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.

Item 35 - Section 6OJ

71. This item is consequential to item 6 and removes a reference to the Child Sexual Abuse Royal Commission and effectively replaces it with a reference to a Royal Commission that can hold private sessions.

Item 36 - Section 6OK

72. Section 6OK provides that the offence of unauthorised use or disclosure of information given at a private session under section 6OH does not apply where a person discloses the information to the person who gave the information. This item is consequential to item 29 and amends section 6OK to cover information given at a private session as well as information given to a Commissioner or member of the staff of a Royal Commission for the purposes of a private session.

Item 37 - Before subsection 6OL(1)

73. Subsection 6OL(1) 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 information obtained at a private session, unless it would be permitted by Division 3 of Part 4 of the Act. This means that compulsory legal requirements to produce documents, such as subpoenas, for information given at a private session have no effect (whether issued to an active Royal Commission or to the agency that is responsible for records of a Royal Commission which has completed its inquiry).

74. This item amends section 6OL so that the restriction applies to information given at a private session as well as to information that was given to a Commissioner, or a member of the staff of a Royal Commission, for the purposes of a private session and identifies the person who gave the information, whether or not a private session is held.

75. In practice, information about an individual's experiences will be received or recorded by a Commission outside a private session (that is, 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 for the purpose of determining whether the Commission will hear a person's story. An individual may not participate 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.

Item 38 - Subsection 6OL(1)

76. This item is consequential to item 37 and amends subsection 6OL(1) to clarify that it relates to the information outlined in the new subsection 6OL(1A).

Item 39 - After paragraph 6OM(1)(b)

77. The effect of section 6OM of the Act is to treat records containing information obtained at 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. The lengthy exclusion period is aimed at encouraging people to come forward and share information that might be of a particularly sensitive personal nature, and that would inform a Royal Commission inquiry.

78. This item amends subsection 6OM(1) to also apply that measure to information that was given to a Commissioner or a member of the staff of a Royal Commission for the purposes of a private session and identifies the person who gave the information, whether or not a private session is held.

79. In practice, information about an individual's personal experiences will be received or recorded by a Commission outside a private session (that is, 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 for the purpose of determining whether the Commission will hear a person's story. An individual may not ultimately participate 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.

Item 40 - Subsection 6OM(2)

80. This item clarifies that subsection 6OM(1) applies to relevant private session information, whether it came into existence before, during or after a private session (if any) was held.

Item 41 - At the end of Division 3 of Part 4

81. This item inserts, at the end of Part 4, new section 6ON. This provision is proposed to only apply to the Child Sexual Abuse Royal Commission. The effect of the provision is to apply the limits on use and disclosure of private session information in Division 3 of Part 4 (sections 6OH, 6OK, 6OL and 6OM), and the restriction on admissibility of private session information in evidence against the person who gave the information (section 6OE), to information that was given to the Child Sexual Abuse Royal Commission, for purposes other than a private session, about an individual's experience of child sexual abuse, or regarding other people's experience of child sexual abuse, where the Commission indicated the information would be treated as confidential and treated it as such.

82. 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.

Item 42 - Application provisions

83. Paragraph (1) of item 42 provides that subsection 5(3) as amended by Schedule 1 to the Bill applies to an application for a search warrant under subsection 4(1) that is made by telephone, on or after the commencement of this item.

84. Paragraph (2) of item 42 provides that the power to use a regulation to prescribe a Royal Commission that can hold private sessions will be able to be used for the two Royal Commissions that are active at the time the Bill is introduced, namely, the Royal Commission into Aged Care Quality and Safety and the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability , as well as future Royal Commissions established after commencement of this item.

85. Paragraph (3) of item 42 provides that subsections 6OC(3) and (4) as amended by Schedule 1 to the Bill apply to information and documents obtained, given or produced before, on or after commencement of this item. It is intended that these amendments have application to relevant information of the Child Sexual Abuse Royal Commission.

86. Paragraph (4) of item 42 provides that the restriction on admissibility of private session information into evidence against the person who gave the information in section 6OE, as amended in Schedule 1 to the Bill, applies to proceedings instituted on or after the commencement of this item (whether the information was given before, on or after that commencement). It is intended that these amendments have application to relevant information of the Child Sexual Abuse Royal Commission.

87. Paragraph (5) of item 42 provides that sections 6OH, 6OK and 6OL, as amended by Schedule 1 to the Bill, and proposed new section 6ON, will apply to uses and disclosures of relevant information made on or after commencement of this item (whether the person obtains the information before, on or after that commencement). It is intended that these amendments have application to relevant information of the Child Sexual Abuse Royal Commission.

88. Paragraph (6) of item 42 provides that section 6OM, as amended by Schedule 1 to the Bill, and proposed new section 6ON, will apply to a record that comes into existence before, on or after the commencement of this item. It is intended that these amendments would have application to relevant records of the Child Sexual Abuse Royal Commission.