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:

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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;

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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;

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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;

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that any evidence, documents or descriptions of any thing produced that might enable a person to be identified, shall not be published or shall not be published except in such a manner, and to such persons, as the Commission specifies; and

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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.