The expectation is that the amended Act will facilitate the Royal Commission into Institutional Responses to Child Sexual Abuse but and will apply to all future Commonwealth royal commissions.
The Explanatory Memo indicates that
Where a Royal Commission is constituted by more than one Commissioner, the Act currently allows evidence to be taken on oath or affirmation at a hearing by all the Commissioners or by a quorum. The first main purpose of the Bill, to apply to multi-member Royal Commissions, is to enable the President or Chair to authorise one or more members to hold a hearing. The proposed amendment will allow for efficient distribution of work between Commissioners where it is appropriate to do so.People who want to give evidence will be able to do so in a less formal setting, with scope to go before a private hearing, not swear an oath or affirmation, but receive the same protections as those giving evidence at formal hearings. The amendments also strengthen confidentiality measures surrounding information given in a private session.
The Memo indicates that the amendments will
facilitate persons directly or indirectly 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 Letters Patent recognise that it is important that persons affected by child sexual abuse and related matters in institutional contexts can share their experiences in appropriate ways recognising that many participants will be severely traumatised or will have special support needs. Private sessions would also allow Commissioners the opportunity to better understand the context and circumstances of child sexual abuse. The proposed amendments will permit the Chair Commissioner to authorise members of the Commission to hold private sessions. The amendments will apply similar protection to participants who give information as would apply to a person giving evidence at a formal hearing. The information will not be taken on oath or affirmation and the sessions will be conducted in private and information that is received and used in a report of the Royal Commission will not identify individuals.In discussing privacy protection the Memo states that
The Bill will promote the right to privacy by enabling persons who wish to give information to the Royal Commission into Institutional Responses to Child Sexual Abuse to do so voluntarily in a private session that will not be open to the public. This is considered appropriate given the deeply personal and distressing nature of people's experiences of child sexual abuse. The purpose of receiving the information is to assist the lawful purposes of the Royal Commission's inquiry. Information relating to a natural person could only be used in a report of the Royal Commission if the information is also given as evidence to the Commission or under a summons, requirement or notice under section 2 (proposed paragraph 6OD(3)(a)) or if it is de-identified (proposed paragraph 6OD(3)(b)).
Article 19(2) of the International Convention on Civil & Political Rights 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 Bill will limit Article 19 by restricting who may attend private sessions and limiting the use and disclosure of information obtained at a private session. An amendment is proposed to make it an offence to use or disclose information obtained at a private session which is subject to exceptions including where the use or disclosure is for the purposes of performing functions or duties or exercising powers in relation to the Royal Commission .... or where the information is de-identified when used in a report of the Commission. These amendments are considered appropriate given the deeply personal and distressing nature of people's experiences of child sexual abuse. The offence will serve to protect the privacy of participants. As the information obtained at a private session will not be given on oath or affirmation these measures will also serve to protect the reputations of other people.
The fair trial and fair hearing rights contained in article 14 of the ICCPR are not engaged by the amendments. A Royal Commission is not a court or tribunal and cannot adjudicate on a person's guilt or liability. A Royal Commission may report and make recommendations on matters into which it is inquiring.The Memo states that
Participation at a private session will be voluntary. The Commission would not use compulsory powers at these sessions to require attendance, an answer to an inquiry or production of documents. Information received at a private session would not be taken on oath or affirmation. For these reasons, proposed subsections 6OC(1) and 6OC(2) provide that a person who appears at a private session is not a witness and does not give evidence to the Commission and makes clear that a private session is not a hearing of the Commission. The purpose of proposed subsection 6OC(3) is to ensure that certain powers available to the Royal Commission will apply to information or a document received at a private session. This includes powers under section 6F of the Act to inspect, copy and retain documents that may be voluntarily provided at a private session, and under section 6P of the Act to communicate information to certain office holders, including the Commissioner of a police force.The Bill reflects restrictions on access under the Freedom of Information Act 1982 (Cth). Personal information in private sessions will not be accessible under that Act. The Bill provides for restrictions on public access to archived Commission records containing information obtained at a private session, with those
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.