Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2019-2020
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
NATIONAL COMMISSIONER FOR DEFENCE AND VETERAN SUICIDE
PREVENTION (CONSEQUENTIAL AMENDMENTS) BILL 2020
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments to be Moved on Behalf of the Government
(Circulated by authority of the
Attorney-General, the Honourable Christian Porter MP)
AMENDMENTS TO THE NATIONAL COMMISSIONER FOR DEFENCE AND
VETERAN SUICIDE PREVENTION (CONSEQUENTIAL AMENDMENTS) BILL
2020
(Government)
GENERAL OUTLINE
1. The purpose of these amendments to the National Commissioner for Defence and
Veteran Suicide Prevention (Consequential Amendments) Bill 2020 (the Consequential
Amendments Bill) is to model the arrangements for the handling of National Commissioner
for Defence and Veteran Suicide Prevention related records for the purposes of the Archives
Act 1988 (Cth) (Archives Act) on the arrangements applicable to Royal Commission records,
as provided in section 22 of the Archives Act.
2. In summary, the Archives Act would be amended so that it does not apply to
National Commissioner records that are required to be readily available for the purposes of
the National Commissioner. This means that the National Archives of Australia
(National Archives) is not entitled to have access to such records or to have them transferred
to the National Archives in the usual way. Instead, the amendments would enable a more
specific and tailored approach to National Commissioner records once they cease to be
current Commonwealth records, reflecting the arrangements for Royal Commission records
under section 22 of the Archives Act. In summary:
the National Archives would be entitled to access to and the care of
National Commissioner records as provided in a direction the Attorney-General
would make as the relevant portfolio Minister
the National Archives would not assume custody of, or have access to, or care of, any
intelligence information made or obtained by the National Commissioner or staff
assisting the Commissioner, except in accordance with an agreement made between
the Commissioner and intelligence entity heads under clause 42 of the
National Commissioner for Defence and Veteran Suicide Prevention Bill 2020
(the Bill)
a direction given by the National Commissioner prohibiting the publication of any
document or matter (such as a non-publication direction under clause 53 of the Bill),
would not apply to the provision of public access to the document or matter during the
open access period under the Archives Act
this does not affect public access under the Archives Act (including the application of
relevant exemptions) to any records that are in the open access period, or to the
publication of records that are available for public access in accordance with the
Archives Act.
3. This reflects that the arrangements in relation to National Commissioner records
should be similar to those of Royal Commission records, given the strong alignment in the
functions and powers of the Commissioner with a Royal Commission.
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FINANCIAL IMPACT
4. There are no financial impacts associated with these amendments.
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STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
National Commissioner for Defence and Veteran Suicide Prevention
(Consequential Amendments) Bill 2020
1. The amendments to the Bill 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 Bill
2. The amendments to the National Commissioner for Defence and Veteran Suicide
Prevention (Consequential Amendments) Bill 2020 model the arrangements for the handling
of National Commissioner for Defence and Veteran Suicide Prevention related records for the
purposes of the Archives Act 1988 (Cth) (Archives Act) on the arrangements applicable to
Royal Commission records, as provided in section 22 of the Archives Act.
Human rights implications
3. The amendments engage the right to privacy under article 17 of the International
Covenant on Civil and Political Rights.
4. The amendments provide that a direction given by the National Commissioner
prohibiting the publication of any document or matter (such as under section 53 of National
Commissioner for Defence and Veteran Suicide Prevention Act 2020) does not apply to the
provision of public access to any records that are in the open access period under the
Archives Act.
5. The usual safeguards in the Archives Act apply to access to records in the open access
period, including exemptions available in section 33 of the Archives Act.
6. To the extent that the amendments may limit the right to privacy (if personal
information was subject to a particular direction given by the Commissioner, for example),
that effect is limited by the following:
records may be determined to be partially or wholly exempt from public access under
section 33 of the Archives Act, including on the basis that a record contains
information that would involve the unreasonable disclosure of information relating to
the personal affairs of any person (including a deceased person) (paragraph 33(1)(g))
the Director-General of the National Archives and the Attorney-General (or a person
authorised by the Attorney-General) may make an arrangement under section 35 of
the Archives Act determining records in the open access period that are to be treated
by the National Archives as exempt records (or the extent to which access in part may
be given), and
the National Commissioner may provide advice to the Director-General of the
National Archives about any continuing sensitivities relevant to a record, which
would inform the Director-General's decision making processes about the release of a
record in the open access period.
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NOTES ON AMENDMENTS
Amendment 1: Schedule 1, page 3 (before line 3), before the heading specifying Freedom
of Information Act 1983
1. This amendment would insert a new section 22AA in the Archives Act.
2. The amendment provides that the usual arrangements where Commonwealth records
are transferred to the care of the National Archives (in accordance with sections 27 and 28 of
Archives Act), once they cease to be current Commonwealth records, would not apply to
a 'National Commissioner record', as defined in subclause 22AA(6) (subclause 22AA(1)).
3. Subclause 22AA(2) provides the National Archives, except in accordance with a
direction made under subclause 22AA(3), is not entitled to have access to or care of, records
of the Commissioner that cease to be a current Commonwealth record at a particular time,
and was required up until that time, to be readily available for the purposes of the
Commissioner.
4. Subclause 22AA(3) provides that records to which paragraphs 22AA(2)(a) and (b)
apply, must be kept in the custody as the Attorney-General, as the Minister administering the
National Commissioner for Defence and Veteran Suicide Prevention Act 2020 (National
Commissioner Act), directs. This is subject to any arrangement entered into under section 42
of the National Commissioner Act with the head of the relevant intelligence entity.
5. Without limiting subclause 22AA(3), the Attorney-General may direct that the
National Archives have access to, or have the care of, a National Commissioner record to
which paragraphs 2(a) and (b) apply (subclause 22A(4)).
6. Subclause 22AA(5) provides that a direction given by the Commissioner prohibiting
the publication of any document or matter (such as under section 53 of National
Commissioner Act) does not apply to the provision of public access to any records that are in
the open access period under the Archives Act. The record may still be an exempt record
under other provisions of the Archives Act, including section 33, for example.
7. In subclause 22AA, a 'National Commissioner record' means a record created or
obtained for the purposes of the National Commissioner Act by the Commissioner or a
member of staff assisting the Commissioner (subsection 22AA(6)).
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