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ROYAL COMMISSIONS AMENDMENT BILL 2013

                             2010-2011-2012-2013





               THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA





                                 THE SENATE









                    ROYAL COMMISSIONS AMENDMENT BILL 2013






                    SUPPLEMENTARY EXPLANATORY MEMORANDUM




             Amendments to be moved on behalf of the Government









               (Circulated by authority of the Prime Minister,
                          the Hon Julia Gillard MP)

Royal Commissions Amendment Bill 2013


Outline
The proposed government amendments to the Royal Commissions Amendment
Bill 2013 are designed to strengthen the confidentiality of information
received at a private session by:
    . extending the scope of the secrecy provision in the Bill to override
      requirements or authorisations under other laws to make a record of,
      use or disclose information obtained at or given at a private session,


    . excluding a right of access under the Freedom of Information Act 1982
      to documents containing information obtained at a private session, and
    . providing for records containing information obtained at a private to
      be treated 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.

Other government amendments are consequential to or related to the main
amendments above.

Financial Impact Statement
The Government amendments have no financial impact on Government revenue.


Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary
Scrutiny) Act 2011

Amendments to the Royal Commissions Amendment Bill 2013

The amendments are 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 Amendments
The Bill, in support of the work of the Royal Commission into Institutional
Responses to Child Sexual Abuse, introduces measures to facilitate persons
affected by child sexual abuse and related matters in institutional
contexts to present their account to a Commissioner in a setting that is
less formal than a hearing.  The Bill refers to this type of hearing as a
'private session'.  The proposed government amendments to the Royal
Commissions Amendment Bill 2013 are designed to strengthen the
confidentiality of information received at a private session by:
    . extending the scope of the secrecy provision in the Bill to override
      requirements or authorisations under other laws to make a record of,
      use or disclose information obtained at or given at a private session,


    . excluding a right of access under the Freedom of Information Act 1982
      ('the FOI Act') to documents containing information obtained at a
      private session, and
    . providing for records containing information obtained at a private
      session to be treated 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.

Human rights implications
The amendments to the Bill engage the following applicable rights or
freedoms:
     . the right to freedom of expression in Article 19 of the International
       Covenant on Civil and Political Rights ('ICCPR'); and
     . the prohibition against unlawful and arbitrary interferences with
       privacy in Article 17 of the ICCPR.

Article 19(2) of the ICCPR provides that everyone shall have the right to
freedom of expression and that 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 media of his choice.  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.

The proposed amendments will limit Article 19 by limiting the use and
disclosure of information obtained at a private session.  The amendment
extends the scope of the secrecy provision contained in the Bill, in
particular through the effect of proposed section 6OL which will negate the
effect of other laws to the extent they require or authorise making a
record of, use or disclosure of information obtained at a private session.
The proposed amendment to the FOI Act will operate to exclude from access a
document that contains information obtained at a private session, or that
identifies a natural person who appeared at a private session.  Proposed
section 6OM will have the effect that a record containing information
obtained at a private session will not be available for public access under
the Archives Act until 99 years after the year it came into existence.
These amendments promote the right to privacy of those persons who
voluntarily provide information to the Royal Commission into Institutional
Responses to Child Sexual Abuse which is expected to largely relate to
deeply personal information concerning people's experiences of child sexual
abuse.  As the information obtained at a private session will not be given
on oath or affirmation these measures, which have an effect of restricting
public access to information given at a private session, will also serve to
protect the privacy of other people.

The collection, security, use, disclosure or publication of personal
information will engage Article 17 of the ICCPR.  Article 17 prohibits
unlawful or arbitrary interferences with a person's privacy, family, home
or correspondence.  Interferences with privacy may be permissible, provided
they are authorised by law and not arbitrary.  In order for an interference
with the right to privacy not to be 'arbitrary', the interference must be
for a reason consistent with the provisions, aims and objectives of the
ICCPR and be reasonable in the particular circumstances.  The United
Nations Human Rights Committee has interpreted 'reasonableness' in this
context to imply that 'any interference with privacy must be proportional
to the end sought and be necessary in the circumstances of any given case'.


The amendments to the Bill will promote the right to privacy by
strengthening the confidentiality of the personal information that is given
at a private session.  These measures are outlined above in connection with
article 19 of the ICCPR.  A person will not be compelled to give
information at a private session.  Rather, a person will give their account
on a voluntary basis.

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 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.

Proposed section 6OL will have the effect of overriding requirements or
authorisations under a Commonwealth, State or Territory law to make a
record of, or to use or disclose information obtained at a private session,
unless it was authorised under proposed Division 3.  This will mean that
compulsory legal requirements to produce documents, including a subpoena
issued by a court, or to give statements about information obtained at a
private session, would not be effective when issued to an officer at the
Royal Commission or to an officer of the agency responsible for the custody
of the Commission's records after the Commission has completed its inquiry.


The amendments are not considered to limit the right to a fair trial and
fair hearing, because access to private session information would not be
able to be compelled by either the prosecution or the defence.  None of the
amendments limit the existing rights of the accused to access information
held by the prosecution.  This applies even in instances where the Royal
Commission refers information under section 6P of the Royal Commissions Act
to police and other authorities.

Conclusion
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, it is reasonable, necessary and proportionate.
Royal Commissions Amendment Bill 2013 ('the Bill')

Notes on Amendments

Amendment (1) [Freedom of Information Act 1982]
The Freedom of Information Act 1982 (the FOI Act) does not apply to a Royal
Commission which means that a person could not make an access request under
that Act to the Royal Commission while it is undertaking its inquiry.  When
a Royal Commission has ceased its inquiries, an access request can be made
under the FOI Act to the Commonwealth agency that becomes responsible for
the records.

This amendment amends the FOI Act to exempt from right of access under that
Act a document that has originated with, or been received from, the Royal
Commission into Institutional Responses to Child Sexual Abuse and (a) that
contains information obtained at a private session or (b) that relates to a
private session and identifies a natural person who appeared at a private
session.  The exemption would apply where a document of this kind was in
the possession of an agency or a Minister.  The exemption is proposed as
these documents will contain information about personal accounts of
people's experiences relating to child sexual abuse.

Amendments (2) and (3) [Division title]
These amendments insert Divisions and titles to assist with readability.

Amendments (4) and (5)
These amendments are consequential to amendment 6.  Proposed section 6OD of
the Bill dealing with the privacy of private sessions is to be opposed and
replaced by Division 3 which introduces new measures to strengthen the
confidentiality of information obtained or given at a private session.

Amendment (6) [secrecy offence and Archives Act 1983]
This amendment amends the Bill to insert a Division dealing with the
privacy of private sessions, in particular to extend the scope of the
secrecy offence and, for the purposes of the Archives Act, to provide for a
right of public access to a record containing information obtained at a
private session only 99 years after the year the record came into
existence.

Proposed section 6OG (privacy of private sessions) is in the same terms as
proposed subsection 6OD(1) of the Bill, which is to be opposed by amendment
5.

Proposed section 6OH is a secrecy offence replacing the offence in proposed
subsection 6OD(2) of the Bill.  Proposed section 6OH will make it an
offence to make a record of, use or disclose information obtained or given
at a private session except where the recording, use or disclosure is for
an authorised purpose.  The authorised purposes are for the purposes of
performing functions or duties or exercising powers in relation to the
Royal Commission into Institutional Responses to Child Sexual Abuse, or
where disclosure is used in a report of the Commission in accordance with
proposed section 6OJ, or where the information may be communicated to
certain public officials and authorities under section 6P of the Royal
Commissions Act (for example, a Police Commissioner or the Director of
Public Prosecutions).  The offence will also not apply where the disclosure
is made pursuant to regulations made under section 9 of the Royal
Commissions Act dealing with the custody and use of records of a Royal
Commission that are no longer required for the purposes of the Commission.
The persons and authorities who may be given custody of Royal Commission
records under regulations, and who may use those records subject to any
conditions that are imposed, include those persons or authorities under
section 6P of the Royal Commissions Act.  The offence will not apply where
the recording, use or disclosure is by the person who gave the information
at the private session, or where such a person consents to the making of a
record, use or disclosure of information they gave at a private session.

Proposed section 6OJ (inclusion of information in reports and
recommendations) is in the same terms as proposed subsection 6OD(3) of the
Bill, which is opposed by amendment 5.

Proposed section 6OK provides that it will be a defence to the secrecy
offence at proposed section 6OH if there is a disclosure back to the person
who gave the information at a private session.  This may occur for example
where a person who gives the information at a private session subsequently
makes an inquiry about that information.

The effect of proposed section 6OL is to override requirements or
authorisations under a Commonwealth, State or Territory law to make a
record of, or to use or disclose information obtained at a private session
where to do so would not be authorised under Division 3.  This will mean
that legal requirements to produce documents, or to give statements about
information obtained at a private session, would not be effective when
issued to an officer at the Royal Commission or to an officer of the agency
responsible for the custody of the Commission's records after the
Commission has completed its inquiry.  The provision would have effect
regardless of when the law was enacted.

The effect of proposed subsection 6OM(1) is that a record that contains
information obtained at a private session, or that relates to a private
session and identifies a natural person who appeared at a private session,
will come into the 'open access period' for the purposes of the Archives
Act 99 years after the year that the record came into existence.  When a
record is in the open access period under the Archives Act, a person has a
right of access to the record unless it is an exempt record within the
meaning of that Act.  The FOI Act governs access to Commonwealth records
before they come into the open access period.  For records created after
2000, the usual open access period is 21 years after the year the record is
created.  There are exceptions to this, including for Census information
and Cabinet notebooks.  The personal and sensitive nature of people's
accounts of how they have been affected by child sexual abuse justifies
excluding information obtained at a private session from public access for
the period proposed.  Even when a record containing private session
information comes into the open access period, access will be subject to
whether the information meets one of the grounds for exemption under the
Archives Act.

Proposed subsection 6OM(2) confirms that a record meeting the criteria in
proposed subsection 6OM(1) will fall within the 99 year open access period
even if the record came into existence after the private session.

Proposed subsection 6OM(3) is consequential to the amendment proposed by
subsection 6OM(1).  A record meeting the criteria in proposed subsection
6OM(1) would not be in the open access period until 99 years after the year
it is created, not the period set out in subsection 3(7) of the Archives
Act, and these records could not be authorised for public access before
that period has elapsed through accelerated or special access arrangements
under section 56 of the Archives Act.

Amendment (7)
Section 6P of the Royal Commissions Act permits a Royal Commission, if the
Commission considers it appropriate to do so, to communicate information or
furnish evidence that relates, or may relate, to a contravention of a law
to certain public officials and authorities, such as the Director of Public
Prosecutions or a Police Commissioner. This amendment amends section 6P of
the Act to confirm, and place beyond doubt, that a person who obtains
information, evidence, a document or a thing from the Commission under
section 6P may make a record, use or disclose the information, evidence,
document or thing for the purposes of performing their own functions or
exercising their own powers.  This amendment will have general application
to the Royal Commissions Act as well as to the Royal Commission into
Institutional Responses to Child Sexual Abuse.  The authorisation is made
subject to the protections in section 6DD of the Act and proposed section
6OE of the Bill.  These provisions prevent statements made, or documents
produced, by an individual at a hearing or at a private session from being
admitted in evidence in any civil or criminal proceeding against that
individual.  Similar provision of this kind is made under subsections 9(6),
9(7) and 9(12) of the Royal Commissions Act, which deal with regulations
that may be made relating to the custody and use of Royal Commission
records when they are no longer required for the purposes of the
Commission.