House of Representatives

Explanatory Memorandum

(Circulated by the authority of the Minister for Families and Social Services, Senator the Hon Anne Ruston)

Schedule 2 - Disclosure for the purposes of Royal Commissions

Summary

Schedule 2 amends the Family Assistance Administration Act, the Business Services Wage Assessment Tool Payment Scheme Act, the Disability Services Act and the Social Security Administration Act. The amendments would require person served with a formal notice or summons by a Royal Commission to produce documents or information, or give evidence, to comply with that requirement even if the document or information is protected by secrecy provisions in those Acts. The amendments will ensure that the production or disclosure of the protected information, or giving of evidence including the protected information, will not breach confidentiality provisions of those Acts.

The amendments mirror those recently made to the National Disability Insurance Scheme Act by the National Disability Insurance Scheme Amendment (Streamlined Governance) Act 2019.

Schedule 2 commences the day after the Royal Assent.

Background

Officers cannot ordinarily be compelled to produce protected information or disclose protected information to a court, tribunal or authority or person that has power to require the production of documents or answering of questions (section 80 of the Business Services Wage Assessment Tool Payment Scheme Act, subsection 28(4) of the Disability Services Act, section 167 of the Family Assistance Administration Act and section 207 of the Social Security Administration Act).

It is possible for an agency head to agree to provide such information under existing sections (section 81 of the Business Services Wage Assessment Tool Payment Scheme Act, subsection 28(7) of the Disability Services Act, section 168 of the Family Assistance Administration Act and section 208 of the Social Security Administration Act). However, this cannot be compelled. It is appropriate for a Royal Commission to be able to access all information it requires to properly conduct its inquiries, subject only to the limitations in the Royal Commissions Act.

In order to avoid delay and increase public confidence in the conduct of a Royal Commission, these amendments will result in any information a Royal Commission formally seeks from a department being required to be provided to the Royal Commission.

This is subject only to any claims of public interest immunity or similar. Any person compelled by a Royal Commission to produce documents or give evidence may decline to provide that document or evidence on the basis they have a reasonable excuse for not providing that information (see generally section 3 of the Royal Commissions Act). Examples of reasonable excuse are legal professional privilege and public interest immunity. Maintaining this exception places the department in the same position as any other person served with a requirement by a Royal Commission.

In addition to the limitations on compulsion, the production or disclosure of protected information would generally be subject to the confidentiality provisions of the Act concerned. The amendments will ensure that in giving such information to a Royal Commission, department (or their officers) will not breach the confidentiality provisions of the Act concerned. Once disclosed to a Royal Commission, the Royal Commission's use and disclosure of the information for the purposes of undertaking its inquiry under the Royal Commissions Act will not breach the confidentiality provisions of the Act concerned. The Royal Commission will determine its own processes for handling information that is personal and sensitive. However, where it needs to use this information to effectively conduct its inquiry and make recommendations, or to allow others to consider contraventions of laws, it will be able to do so.

Explanation of the changes

Family Assistance Administration Act

Items 1 and 2 amend sections 167 and 168 of the Family Assistance Administration Act.

Item 2 inserts new subsection 168(5). Section 168 provides circumstances in which the Secretary may disclose protected information without this being a breach of the confidentiality provisions.

New subsection 168(5) provides that if the Secretary or an officer is served with a summons or notice, or is otherwise subject to a requirement under the Royal Commissions Act, and in order to comply with the summons, notice or requirement, the Secretary or officer would be required to disclose information that is protected information, then the Secretary or officer must disclose that information.

This is subject only to the Royal Commissions Act, which then allows reliance upon reasonable excuse for the purposes of that Act to resist disclosure. The disclosure is required despite section 164, which ordinarily renders disclosure an offence, and section 167, which prevents such a requirement being imposed in other circumstances. Item 1 amends section 167 to ensure this result.

The information is taken to have been disclosed for the purposes of the Royal Commissions Act and for the purposes of the Royal Commission. As a result of paragraph 162(2)(e) of the Family Assistance Administration Act and section 6F of the Royal Commissions Act, the Royal Commission may only use the information for the purpose for which the information was disclosed. Any use outside that purpose would not come within the exception.

Business Services Wage Assessment Tool Payment Scheme Act

Items 3 and 4 amend sections 80 and 81 of the Business Services Wage Assessment Tool Payment Scheme Act.

Item 4 inserts new subsection 81(4). Section 81 provides circumstances in which the Secretary may disclose protected information without this being a breach of the confidentiality provisions.

New subsection 81(4) provides that if the Secretary or an officer is served with a summons or notice, or is otherwise subject to a requirement under the Royal Commissions Act, and in order to comply with the summons, notice or requirement, the Secretary or officer would be required to disclose information that is protected information, then the Secretary or officer must disclose that information.

This is subject only to the Royal Commissions Act, which then allows reliance upon reasonable excuse for the purposes of that Act to resist disclosure. The disclosure is required despite section 77, which ordinarily renders disclosure an offence, and section 80, which prevents such a requirement being imposed in other circumstances. Item 3 amends section 80 to ensure this result.

The information is taken to have been disclosed for the purposes of the Royal Commissions Act and for the purposes of the Royal Commission. As a result of paragraph 75(2)(e) of the Business Services Wage Assessment Tool Payment Scheme Act and section 6F of the Royal Commissions Act, the Royal Commission may only use the information for the purpose for which the information was disclosed. Any use outside that purpose would not come within the exception.

Disability Services Act

Items 5 and 6 amend section 28 of the Disability Services Act.

Item 6 inserts new subsection 28(7A). Section 28, in particular subsections 28(5) and (7), provides circumstances in which the Secretary may disclose protected information without this being a breach of the confidentiality provisions.

New subsection 28(7A) provides that if the Secretary or an officer is served with a summons or notice, or is otherwise subject to a requirement under the Royal Commissions Act, and in order to comply with the summons, notice or requirement, the Secretary or officer would be required to disclose information that is protected information, then the Secretary or officer must disclose that information.

This is subject only to the Royal Commissions Act, which then allows reliance upon reasonable excuse for the purposes of that Act to resist disclosure. The disclosure is required despite subsection 28(2), which together with subsection 28(3), ordinarily renders disclosure an offence. Item 5 amends subsection 28(4), which prevents such a requirement being imposed in other circumstances, to ensure this result.

The information is taken to have been disclosed for the purposes of the Royal Commissions Act and for the purposes of the Royal Commission. As a result of section 6F of the Royal Commissions Act, the Royal Commission may only use the information for the purpose for which the information was disclosed. Any use outside that purpose would not be authorised.

Social Security (Administration) Act

Items 7 and 8 amend sections 207 and 208 of the Social Security Administration Act.

Item 8 inserts new subsection 208(5). Section 208 provides circumstances in which the Secretary may disclose protected information without this being a breach of the confidentiality provisions.

New subsection 208(5) provides that if the Secretary or an officer is served with a summons or notice, or is otherwise subject to a requirement under the Royal Commissions Act, and in order to comply with the summons, notice or requirement, the Secretary or officer would be required to disclose information that is protected information, then the Secretary or officer must disclose that information.

This is subject only to the Royal Commissions Act, which then allows reliance upon reasonable excuse for the purposes of that Act to resist disclosure. The disclosure is required despite section 204, which ordinarily renders disclosure an offence, and section 207, which prevents such a requirement being imposed in other circumstances. Item 7 amends section 207 to ensure this result.

The information is taken to have been disclosed for the purposes of the Royal Commissions Act and for the purposes of the Royal Commission. As a result of paragraph 202(2)(e) of the Social Security Administration Act and section 6F of the Royal Commissions Act, the Royal Commission may only use the information for the purpose for which the information was disclosed. Any use outside that purpose would not come within the exception.

Application provision

Item 9 makes the new obligations to produce information or documents to a Royal Commission apply to:

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information covered by a notice or requirement from a Royal Commission that is served or made after commencement; and

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information that existed before or after commencement.