Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2019-2020-2021
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
ROYAL COMMISSIONS AMENDMENT (PROTECTION OF INFORMATION)
BILL 2021
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments to be Moved on Behalf of the Government
(Circulated by authority of the
Attorney-General, Senator the Honourable Michaelia Cash)
ROYAL COMMISSIONS AMENDMENT (PROTECTION OF INFORMATION)
BILL 2021
(Government)
GENERAL OUTLINE
1. The purpose of the amendment to the Royal Commissions Amendment (Protection of
Information) Bill 2021 (the Bill) and the Explanatory Memorandum to the Bill is to:
a. apply the confidentiality protections to accounts identifying systemic forms of
violence, abuse, neglect or exploitation experienced by a natural person or
another person;
b. 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; and
c. 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.
2. The Bill applies confidentiality protections to certain information given by, or on
behalf of individuals, to the Royal Commission into Violence, Abuse, Neglect and
Exploitation of People with Disability (the 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.
3. Following further engagement with stakeholders, the Government has determined
that the protections should apply to accounts of a systemic nature, which relate to an
experience of a natural person or another person. Item 6OP of the Bill will not be
limited to individual accounts, and could be applied more broadly to accounts of
systemic forms of violence, abuse, neglect or exploitation. The Bill is intended to
protect accounts of a systemic nature, so this amendment is proposed in the interests
of making this clear and explicit on the face of the legislation.
4. Protected information about an individual account, or an account of a systemic form
of violence, abuse, neglect or exploitation, experienced by a natural person or another
person, must still be given for purposes other than a private session, the information
must directly or indirectly identify the natural person who gave the information, or on
whose behalf it was given, and the information must have been treated as confidential
by the Royal Commission at all times.
5. The amendment reflects the original intent of the provision ensuring that sensitive
information provided to the Royal Commission outside private sessions about
systemic forms of violence, abuse, neglect and exploitation experienced by a natural
person or another person will be accorded the same confidentiality as material
obtained for the purposes of a private session.
2
6. The amendment will also ensure that certain protected information will be
inadmissible as evidence in civil or criminal proceedings. People with severe or
cognitive disability may be unable to give information to the Royal Commission by
themselves and may require a third party to give information on their behalf. People
with disability, and people giving information on their behalf, should be given
comprehensive legislative protections from claims for defamation or other
proceedings in connection with information they give. 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.
7. The amendment enables 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. While the Royal Commission has committed to
treat accounts of an experience of violence, abuse, neglect and exploitation,
confidential at all times, the amendment will give legislative certainty for individuals
engaging with the Commission that their information may only be used in a report or
recommendation in certain circumstances. 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.
8. It is the Government's intention that people can engage in confidence with the Royal
Commission without fear of further disclosures.
FINANCIAL IMPACT
9. There are no financial impacts associated with these amendments.
3
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Royal Commissions Amendment (Protection of Information) Bill 2021
1. The amendments to the Bill is 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 apply the confidentiality protections to accounts identifying
systemic forms of violence, abuse, neglect or exploitation experienced by a natural
person or another person. The provision in the Bill will not be limited to an
individual account, but could be applied more broadly to include accounts of
systemic forms of violence, abuse, neglect or exploitation.
3. The amendments also provide that confidentiality protections apply where
information is given to the Royal Commission on behalf of another person. The
protections will apply to both the person who gives the information, and also the
person on whose behalf the information is given.
4. The amendments will also enable the Royal Commission to use the confidential
information in a report or recommendation only if it was also given as evidence
under a summons or if the information is de-identified.
Human rights implications
5. The amendments do not affect the analysis of human rights issues set out in the
Explanatory Memorandum to the Bill.
4
NOTES ON AMENDMENTS
Amendment 1: Schedule 1, page 4 (after line 5), after item 5
1. Amendment 1 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).
2. Private session information that is given to a Royal Commission on behalf of another
person, is not admissible in evidence against the other person.
3. 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.
Amendment 2: Schedule 1, item 6, page 4 (lines 14 to 16)
4. Amendment 2 omits and substitutes new paragraph 6OP(1)(b) to provide that the
section would apply to certain protected information if it contains either 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.
5. Item 6OP of the Bill clarifies that an account is not limited to an individual account,
and could be applied more broadly to accounts of systemic forms of violence, abuse,
neglect or exploitation.
Amendment 3: Schedule 1, item 6, page 4 (line 17), after 'information'
6. Amendment 3 inserts text into new subsection 6OP(1)(c) to clarify that certain
information given to the Disability Royal Commission will be protected if the natural
person who gave the information, or on whose behalf the information was given, is
either directly or indirectly identifiable. 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.
Amendment 4: Schedule 1, item 6, page 4 (lines 23 to 25)
7. Amendment 4 omits and substitutes new subsection 6OP(2), so that section 6OE
similarly 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
5
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.
8. Protected information is inadmissible against the natural person who gave the
information, and a natural person on whose behalf the information was given.
Amendment 5: Schedule 1, item 6, page 4 (after line 28), after subsection 6OP(3)
9. Amendment 5 inserts new subsection 6OP(3A) to apply section 6OJ to protected
information as if it was information that was obtained by the Disability Royal
Commission at a private session. Protected information may only be included in a
report or recommendation of the 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.
Amendment 6: Schedule 1, item 6, page 4 (after line 31), at the end of section 6OP
10. Amendment 6 adds subsection 6OP(5) to explain 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.
Amendment 7: Schedule 1, item 8, page 5 (after line 10), after subitem (1)
11. Amendment 7 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.
6
Index]
[Search]
[Download]
[Bill]
[Help]