House of Representatives

Revised Explanatory Memorandum

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

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 The note to subclause 2(1) clarifies that the table only relates to provisions of the Act as originally enacted and will not be amended to deal with any later amendments.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 Clause 3 provides that legislation that is specified in a Schedule to the Act would be amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to the Act has effect according to its terms.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.