Don Farrell (SA, Australian Labor Party, Parliamentary Secretary for Sustainability and Urban Water) Share this | Link to this | Hansard source

I table a supplementary explanatory memorandum relating to the government amendments to be moved to this bill. I seek leave to move government amendments (1) to (4), (6) and (7) on sheet BN267 together.

Leave granted.

I move government amendments (1) to (4), (6) and (7) on sheet BN267 together:

(1) Schedule 1, page 3 (before line 3), before item 1 (before the heading relating to the Royal Commissions Act 1902), insert:

Freedom of Information Act 1982

1A After subsection 7(2D)

  Insert:

  (2E) A Minister and an agency are exempt from the operation of this Act in relation to the following documents:

  (a) a document that has originated with, or has been received from, the Child Sexual Abuse Royal Commission (within the meaning of Part 4 of the Royal Commissions Act 1902) and:

     (i) that contains information obtained at a private session (within the meaning of that Part); or

     (ii) that relates to a private session and identifies a natural person who appeared at a private session;

  (b) a document that contains a summary of, or an extract or information from, a private session.

(2) Schedule 1, item 30, page 7 (after line 24), after the heading to Part 4, insert:

Division 1—Definitions

(3) Schedule 1, item 30, page 8 (after line 3), after section 6OA, insert:

Division 2—Private sessions

(4) Schedule 1, item 30, page 8 (line 15), omit "section 6OD", substitute "Division 3".

(6) Schedule 1, item 30, page 11 (after line 10), at the end of Part 4, add:

Division 3—Privacy of private sessions

6OG Privacy of private sessions

     A private session must be held in private, and only persons who are authorised by a member of the Child Sexual Abuse Royal Commission holding the private session may be present during the private session.

6OH Offence for unauthorised use or disclosure of information given at a private session

     A person commits an offence if:

  (a) the person obtains information:

     (i) at a private session; or

     (ii) that was given at a private session; and

  (b) the person makes a record of, uses or discloses the information; and

  (c) none of the following applies:

     (i) the record, use or disclosure is for the purposes of performing functions or duties or exercising powers in relation to the Child Sexual Abuse Royal Commission;

     (ii) the person is authorised to make the record of, or use, disclose or publish, the information in accordance with section 6OJ (inclusion of information in reports and recommendations), 6P (Commission may communicate information) or 9 (custody and use of records of Commission);

     (iii) the person gave the information at the private session;

     (iv) the person makes the record of, uses or discloses the information with the consent of the person who gave the information at the private session.

Penalty:   20 penalty units or imprisonment for 12 months or both.

Note: For a defence to this offence, see section 6OK.

6OJ Inclusion of information in reports and recommendations

     Information that relates to a natural person that has been obtained at a private session may be included in a report or recommendation of the Child Sexual Abuse Royal Commission only if:

  (a) the information is also given as evidence to the Commission or under a summons, requirement or notice under section 2; or

  (b) the information is de-identified.

6OK Defence for disclosure to person who provided the information

     Section 6OH does not apply to a disclosure of information to the person who gave the information at a private session.

Note: A defendant bears an evidential burden in relation to the matter in this section (see subsection 13.3(3) of the Criminal Code).

6OL No other exceptions under other laws

(1) A provision of a law of the Commonwealth, a State or a Territory has no effect to the extent that it would otherwise require or authorise a person to make a record of, use or disclose information obtained at a private session if the record, use or disclosure:

  (a) would contravene a provision of this Division; or

  (b) would not be permitted by a provision of this Division.

(2) Subsection (1) has effect whether the provision concerned is made before or after the commencement of this section.

6OM Relationship with the Archives Act 1983

(1) For the purposes of the Archives Act 1983, a record:

  (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;

is in the open access period on and after 1 January in the year that is 99 years after the calendar year that the record came into existence.

(2) To avoid doubt, subsection (1) applies in relation to a record even if the record came into existence after the private session.

(3) Subsection 3(7) and section 56 of the Archives Act 1983 do not apply to a record referred to in subsection (1).

(7) Schedule 1, page 11 (after line 14), after item 31, insert:

31A After subsection 6P(2B)

  Insert:

  (2C) A person who obtains information, evidence, a document or a thing in accordance with this section may (subject to sections 6DD and 6OE) make a record of, use or disclosethe information, evidence, document or thing for the purposes of performing his or her functions or exercising his or her powers.

The government also opposes schedule 1 in the following terms:

(5) Schedule 1, item 30, page 9 (line 27) to page 10 (line 23), section 6OD to be opposed.

The CHAIRMAN: The question is that amendments (1) to (4), (6) and (7) on sheet BN267 be agreed to.

Question agreed to.

The CHAIRMAN: The question is that schedule 1 stand as printed.

Question negatived.

The CHAIRMAN: Senator Xenophon, I know that you were on the second reading list, but we have now concluded that part of the debate. Do you wish to make any comment in the committee stage?

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I will make a short comment, thank you, Mr Chairman. I am sorry I could not be here for the second reading stage of the bill, but I do support this bill. I think that announcing this royal commission will be a lasting legacy of this government. I congratulate the government for getting on with this. It is very important for those who have suffered to ensure that there is a process for the healing to begin, and I think that what the government has established here is welcome. I think that having multiple hearings is something that is very welcome. Those multiple hearings are in the sense that we have a number of commissioners and that there can be hearings held in a number of states, because if only one commissioner were hearing the evidence then we would be in a situation where this could go on and on for a number of years. I think the multiple commissioners will clearly expedite the work of this royal commission.

What I want to ask the minister in relation to this particular exemption is whether he could walk us through it briefly in terms of the privacy of practice sessions and the amendments that affect the Freedom of Information Act. How will this help facilitate the work of the royal commission, and what weight of evidence will there be for those private sessions? In other words, if evidence is given in a private session, what constraints will there be on the royal commission in referring to that publicly? If that information indicates an allegation of a criminal offence, will that information be forwarded as a matter of course to the authorities? I just want to understand in a constructive sense how it would work. If Senator Farrell, who as parliamentary secretary has the conduct of this, can give a brief explanation then that would be useful, I think, in the context of how the royal commission would work, because so far I have been encouraged by what the government has proposed in terms of the structures and the like but I think it is important to know, if it can be put into context, how the privacy of the private sessions will operate, what weight will be given to those and also how the Freedom of Information Act amendment will operate in the scheme of this particular amendment.

Don Farrell (SA, Australian Labor Party, Parliamentary Secretary for Sustainability and Urban Water) Share this | Link to this | Hansard source

I thank Senator Xenophon for his question. My understanding is that the private sessions will allow the royal commission to hear personal accounts directly from people affected by the child sexual abuse in a less formal setting than a hearing. One of the outcomes of the public consultation on the terms of reference for the commission was the importance of putting in place processes sensitive to the needs of victims so that they could tell their stories to the commission. Hearing these personal accounts will be important to the commission so that it can develop its recommendations for institutional reforms, which I know you have a significant interest in. As is ordinarily the case in the conduct of a royal commission, issues relating to procedural fairness for the third parties named in evidence or information received will be a matter for the royal commission to determine, and I am advised that the royal commission intends to publish draft procedures and will be inviting comments on those draft procedures.

Some features of the private sessions are that they will serve to preserve not only the privacy of persons giving information at a private session but also the reputations of people referred to in information given at the private session. In particular, the sessions will not be open to the public. Information relating to a natural person could only be used in the report of the royal commission if the information is de-identified or if the information is also given in evidence to the commission or in response to a summons, and it will be an offence to use or disclose information obtained at a private session except in certain permitted circumstances.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I thank Senator Farrell for his answer on behalf of the government. Can I just confirm this—and I apologise if it is apparent in the explanatory memorandum and I have not seen this: if a person goes before a private session of the royal commission and they say, 'It is my wish to go public in respect of these allegations,' does the discretion lie with the commissioner about it being a private session? Further, in relation to the matter I raised earlier, if there appears on the face of it to be allegations of a criminal nature, will they be referred to the relevant authorities—to the police, for instance—for appropriate investigation?

Don Farrell (SA, Australian Labor Party, Parliamentary Secretary for Sustainability and Urban Water) Share this | Link to this | Hansard source

The short answer to that question, Senator Xenophon, is that they can be. I might make some reference here to some information I have. Under the existing section 6P of the Royal Commissions Act, the commission is able to communicate information it receives that relates or may relate to a contravention of the law to a range of specified authorities and persons, including the police. The commission is able to communicate this information where it considers it is appropriate to do so and for this purpose it is not a requirement that consent be obtained from the person who gave the information.

The bill enables the commission to communicate information it receives at a private session to authorities like the police under existing section 6P of the act where the commission considers that it is appropriate to do so. The Commonwealth letters patent directs the commissioners to consider the need to establish mechanisms to facilitate the timely communication of information in accordance with section 6P of the act, including, for example, for the purposes of enabling the timely investigation and prosecution of offences.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I have one final question in relation to this. Senator Farrell would well now, as a fellow South Australian, of the work of the Mullighan commission of inquiry into institutional abuse—into child abuse; something established by the former Rann government when now Premier Weatherill was the relevant minister. I think almost all South Australians would agree that that was a very worthy and good exercise by the late Ted Mullighan QC. My question is this: insofar as there have been other inquiries at a state level—and I note there is currently an inquiry or there has been a commission of inquiry through the New South Wales government in relation to allegations of abuse in a particular region of New South Wales— or even if it is at federal level, to what extent can the findings or the evidence or statements taken form a part of this inquiry, or will this particular commission start from the beginning and make its own inquiries? In other words, what capacity is there to take statements or findings from the Mullighan commission of inquiry, for instance, or other state commissions of inquiry in other states, in relation to this inquiry?

Don Farrell (SA, Australian Labor Party, Parliamentary Secretary for Sustainability and Urban Water) Share this | Link to this | Hansard source

Thank you for the question. As I say, I know you have taken a great deal of interest in this area of concern. Ultimately it is a matter for the royal commission; but, in terms of the federal government's approach to this matter, the government would encourage it to consider other inquiries. Obviously ultimately it is a decision for the royal commission to make a determination about, but the government would encourage consideration of other inquiries.

Bill, as amended, agreed to.

Bill reported with amendments; report adopted.