Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2022-2023
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
ROYAL COMMISSIONS AMENDMENT (PRIVATE SESSIONS) BILL 2023
EXPLANATORY MEMORANDUM
(Circulated by authority of the
Attorney-General, the Hon Mark Dreyfus KC MP)
ROYAL COMMISSIONS AMENDMENT (PRIVATE SESSIONS) BILL 2023
GENERAL OUTLINE
1. This Bill amends the Royal Commissions Act 1902 (the Act) to enable a sole
Commissioner or the Chair of a Royal Commission constituted by 2 or more members (a
multi-member Royal Commission) to which Part 4 of the Act applies to authorise, in writing,
an Assistant Commissioner (a suitably qualified and experienced member of staff of a Royal
Commission with an appropriate level of seniority) to hold private sessions. This power is
not able to be delegated and can only be used where the sole Commissioner or Chair
considers that circumstances exist that justify the person holding private sessions. The Bill
also includes appropriate protections for an Assistant Commissioner who holds a private
session.
2. Part 4 of the Act enables certain Royal Commissions to hold private sessions. Private
sessions enable individuals to tell their experience about the highly sensitive and personal
matters into which a Royal Commission is inquiring, in a trauma informed and less formal
setting than a hearing. Participation in a private session is voluntary and participants have
similar protections to witnesses. The information that participants give is not considered as
evidence and it is not taken on oath or affirmation. There are strict limitations on the use and
disclosure of that information, which apply both during and after a Royal Commission's
inquiries. Currently under the Act, only a sole Commissioner, the Chair of a multi-member
Commission, or another Commissioner who is authorised in writing by the Chair, may
conduct private sessions.
3. Private sessions have implications for the resourcing, cost and constitution of a
Royal Commission. Amending the Act to enable a suitably qualified, experienced and
appropriately senior staff member to be authorised as an Assistant Commissioner to conduct
private sessions will provide more flexibility to Royal Commissions to conduct their
inquiries. It will assist the sole Commissioner or Chair of a multi-member
Royal Commission to ensure resources are used appropriately and that the inquiry is
conducted in an effective and efficient manner, while still enabling a private session
participant to have their private session conducted by a suitably qualified, experienced and
senior member of staff.
FINANCIAL IMPACT
4. The Bill will have no financial impact. A Royal Commission will manage the cost of
an Assistant Commissioner and the conduct of private sessions within its budget.
2
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Royal Commissions Amendment (Private Sessions) Bill 2023
1. This 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. This Bill amends the Royal Commissions Act 1902 (the Act) to enable a sole
Commissioner or the Chair of a multi-member Royal Commission that is permitted to
hold private sessions to authorise, in writing, a suitably qualified and experienced
member of staff of a Royal Commission with an appropriate level of seniority
(Assistant Commissioner) to hold private sessions. This power is not able to be delegated
and can only be used where the sole Commissioner or Chair considers that circumstances
exist that justify the person holding private sessions. The amendments include appropriate
protections for an Assistant Commissioner who holds a private session.
3. The Act enables certain Royal Commissions to hold private sessions. Private sessions
enable individuals to tell their experience about highly sensitive and personal matters into
which a Royal Commission is inquiring, in a trauma informed and less formal setting than
a hearing. Participation in a private session is voluntary and participants have similar
protections to witnesses. A private session is not considered a hearing of a
Royal Commission and a person who appears at a private session for a
Royal Commission is not a witness, nor is the information they give considered as
evidence and it is not taken on oath or affirmation. There are strict limitations on the use
and disclosure of that information, which apply both during and after a
Royal Commission's inquiries. Currently under the Act, only a sole Commissioner, the
Chair of a multi-member Royal Commission or another Commissioner who is authorised
in writing by the Chair, may conduct private sessions.
4. Private sessions have implications for the resourcing, cost and constitution of a
Royal Commission. Amending the Act to enable a suitably qualified, experienced and
appropriately senior staff member to be authorised as an Assistant Commissioner to
conduct private sessions will provide more flexibility to Royal Commissions to conduct
their inquiries. It will assist the sole Commissioner or Chair of a multi-member
Royal Commission to ensure resources are used appropriately and that the inquiry is
conducted in an effective and efficient manner, while still enabling a private session
participant to have their private session conducted by a suitably qualified, experienced
and senior member of staff.
Human rights implications
5. The Bill engages, or may be seen to engage, the following rights:
• the right to freedom of expression in Article 19 of the International Covenant on Civil
and Political Rights (ICCPR) and Article 13 of the Convention on the Rights of the
Child (CRC);
3
• the prohibition against unlawful and arbitrary interferences with privacy in Article 17
of the ICCPR;
• the right to a fair trial and hearing and impact on procedural fairness in Articles 14(1)
and 14(3) of the ICCPR; and
• the right to effective access to justice for persons with disabilities in Article 13 of the
Convention on the Rights of Persons with Disabilities (CRPD).
Right to freedom of expression
6. Articles 19(2) and (3) of the ICCPR provide that everyone shall have the right to
freedom of expression, with limited restrictions. 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 chosen media. This right
may be restricted, but only where provided by law and where necessary to respect the
rights or reputations of others, or to protect national security, public order, or public
health or morals.
7. Article 13 of the CRC provides a similar provision for children.
8. The purpose of a private session is to facilitate a Royal Commission's receipt of
information from persons directly or indirectly affected by matters related to the terms of
reference of the inquiry in a manner less formal that a hearing. The Bill engages the right
to freedom of expression by allowing an individual (including a child) to voluntarily tell
their personal experience of a matter that is the subject of a Royal Commission inquiry to
an Assistant Commissioner in a private session, rather than in a public hearing, where the
sole Commissioner or Chair considers that circumstances exist that justify this to occur.
The Bill does not restrict an individual's right to freedom of expression and facilitates a
forum for the person to tell their experience to inform an official inquiry.
Prohibition against unlawful and arbitrary interferences with privacy
9. Article 17 of the ICCPR prohibits unlawful or arbitrary interference with a person's
privacy, family, home or correspondence, as well as unlawful attacks on a person's
honour and reputation.
10. Article 16 of the CRC provides a similar provision for children.
11. The Bill amends the Act to enable a sole Commissioner or the Chair of a multi-member
Royal Commission that is permitted to hold private sessions to authorise an Assistant
Commissioner to hold private sessions. This will engage Article 17 of the ICCPR and
Article 16 of the CRC.
12. The Bill does not make any further amendments to the private session framework set out
in the Act, which promotes the right to privacy by providing people (including children)
with the option to voluntarily give information to certain Royal Commissions in a session
that will not be open to the public. The Bill also does not make any amendment to how
information provided in relation to that private session will be handled and stored. The
4
purpose of receiving the information is to assist the lawful purposes of a Royal
Commission's inquiry and persons participating in a private session have the same
protections as would apply to a person giving evidence at hearing.
13. As such, the Bill promotes the right to unlawful and arbitrary interferences with privacy
as persons participating in a private session have the same protections as would apply to a
person giving evidence at a hearing.
Right to fair trial or hearing
14. Article 14(1) of the ICCPR protects the right for all persons to be treated equally before
courts and tribunals. It protects the right to a fair and public hearing before a competent,
independent and impartial court or tribunal, and allows for all, or part, of a hearing to be
held in private 'for reasons of morals, public order ... or national security ... , or when
the interest of the private lives of the parties so requires'.
15. Article 14(3) of the ICCPR establishes that, in the determination of any criminal charge,
everyone shall be entitled to certain minimum guarantees, including: to be informed
promptly and in details of the nature and cause of the charge against them (14(3)(a)); and
not to be compelled to testify against themselves or to confess guilt (14(3)(g)).
16. A Royal Commission is not a court or tribunal and cannot determine criminal charges or
civil liability, but it can refer information or evidence relating to a contravention of a law
to law enforcement authorities or prosecutors. A Royal Commission also has powers to
conduct inquiry processes similar to civil proceedings, as it has the power to compel
evidence, summon evidence, convene hearings and administer oaths and affirmations. A
Royal Commission is also empowered to make findings and recommendations following
an inquiry. This can include criticism of certain persons or bodies that may have been at
fault for certain actions or processes, or findings that certain steps should, or should not,
have been taken in particular circumstances.
17. As such, this Bill may be seen to engage Article 14 of the ICCPR. However, as no
amendments are being made to the functions of a Royal Commission, or the process of
private sessions, the Bill does not engage Article 14 of the ICCPR.
Right to effective access to justice for persons with disabilities
18. Article 13(1) of the CRPD protects the right of persons with disabilities to effective access
to justice on an equal basis with others, including through the provision of procedural and
age-appropriate accommodations, in order to facilitate their effective participation in all
legal proceedings, including at investigative and other preliminary stages.
19. The purpose of a private session is to facilitate a Royal Commission's receipt of
information from persons directly or indirectly affected by matters related to the terms of
reference of the inquiry in a manner less formal that a hearing. This includes people with
disability. The Bill engages the right to effective access to justice by allowing vulnerable
persons to voluntarily tell their personal experience of a matter that is the subject of a
Royal Commission inquiry to an Assistant Commissioner in a trauma-informed and less
formal setting than a hearing, where the sole Commissioner or Chair considers that
circumstances exist that justify this to occur. The Bill does not restrict an individual's
5
access to justice and facilitates a forum for the person to tell their experience to inform an
official inquiry.
20. As such, the Bill may be seen to promote this right as it prescribes a new process that
would better enable the participation of persons with vulnerability (e.g. with disability or
other factors that might impact their ability to participate in a public or private hearing).
Conclusion
21. The Royal Commissions Amendment (Private Sessions) Bill 2023 is compatible with the
human rights and freedoms recognised or declared in the international instruments listed
in the definition of human rights in section 3 of the Human Rights (Parliamentary
Scrutiny) Act 2011. The Bill promotes the right to privacy, the right to effective access to
justice and the right to freedom of expression. It does not engage or limit the right to fair
trial and/or hearing.
6
NOTES ON CLAUSES
Preliminary
Clause 1 - Short title
1. This clause provides for the short title of the Act to be the Royal Commissions
Amendment (Private Sessions) Act 2023.
Clause 2 - Commencement
2. This clause provides for the commencement of each provision in the Act, as set out in
the table at subclause 2(1). Item 1 in the table provides that the whole of the Act commences
the day after the Act receives Royal Assent.
3. The note to subclause 2(1) clarifies that the table relates only to provisions of this Act
as originally enacted and will not be amended to deal with any later amendments.
4. Subclause 2(2) specifies that any information in column 3 of the table at subclause 2(1)
is not part of the Act, and notes that information may be inserted into column 3, or information
in it may be edited, in any published version of the Act.
Clause 3 - Schedules
5. Clause 3 provides that legislation that is specified in a Schedule to the Act is amended
or repealed as set out in the applicable items in the Schedule concerned, and any other item in
a Schedule to the Act has effect according to its terms.
Schedule 1 - Amendments
Royal Commissions Act 1902 (the Act)
Item 1 - Subsection 6OA(1)
6. Item 1 inserts a new definition of 'Assistant Commissioner' into subsection 6OA(1) in
Part 4 of the Act. Part 4 of the Act relates to private sessions for certain Royal Commissions.
An 'Assistant Commissioner' for a Royal Commission is proposed to be defined as 'a person
authorised under subsection 6OB(2A) to be an Assistant Commissioner for the sole purpose of
holding private sessions for the Commission'.
7. Further information about an Assistant Commissioner is found in item 4. It is proposed
that an Assistant Commissioner will be a suitably qualified and experienced member of staff
of a Royal Commission who has an appropriate level of seniority. An Assistant Commissioner
will be able to be authorised in writing to conduct private sessions by a sole Commissioner of
a Royal Commission, or the Chair of a multi-member Royal Commission, that is permitted to
hold private sessions, where the sole Commissioner or Chair of the Royal Commission
considers that circumstances exist to justify an Assistant Commissioner holding private
sessions.
7
8. The role of an Assistant Commissioner is solely to hold private sessions, as authorised
in writing by the sole Commissioner or Chair of the Royal Commission. The Assistant
Commissioner is not authorised to undertake any other role or to exercise any powers of a
Commissioner for the Royal Commission.
Item 2 - Subsection 6OB(1)
9. Item 2 replaces the wording 'following members' in subsection 6OB(1) with 'following
persons'. 'Member' is defined in section 1B of the Act. It provides that a member is a person
appointed to conduct the inquiry for the purposes of a commission of inquiry, including a Royal
Commission, established by Letters Patent (that is, a Commissioner). Assistant Commissioners
are therefore not included in the wording 'following members' and the term needs to be
expanded to 'following persons'.
10. This amendment is necessary to facilitate the amendment at Item 3 to insert 'Assistant
Commissioner' into subsection 6OB(1).
Item 3 - At the end of subsection 6OB(1)
11. Item 3 adds a paragraph (c) to subsection 6OB(1) of the Act to include 'an Assistant
Commissioner for the Commission'. Subsection 6OB(1) of the Act outlines who may hold a
private session for a Royal Commission constituted by 2 or more members (a multi-member
Royal Commission) to obtain information in relation to matters into which the Royal
Commission is inquiring. This amendment will allow an Assistant Commissioner to hold a
private session for a multi-member Royal Commission.
Item 4 - Subsection 6OB(2)
12. Item 4 repeals subsection 6OB(2) of the Act and replaces it with a new subsection
6OB(2). It also adds a subsection 6OB(2A).
13. Subsection 6OB(2) of the Act outlines who may hold a private session for a Royal
Commission constituted by only one Commissioner. Currently this section states that a sole
Commissioner may hold a private session for a Royal Commission where they are the only
Commissioner. It is proposed that this subsection is replaced by a new subsection 6OB(2)
which states that both a sole Commissioner and an Assistant Commissioner may hold a private
session to obtain information in relation to matters into which the Royal Commission is
inquiring.
Assistant Commissioners
14. Proposed new subsection 6OB(2A) outlines how and when an Assistant Commissioner
can be authorised to hold private sessions. It provides that the Chair of a Royal Commission or
a sole Commissioner may authorise a person to be an Assistant Commissioner for the sole
purpose of holding private sessions for the Royal Commission. The person must be a member
of staff of the Royal Commission and the authorisation must be in writing. The subsection
further provides that the Chair or a sole Commissioner of a Royal Commission can authorise a
person to be an Assistant Commissioner if they consider that:
a. the person has suitable qualifications and experience, and an appropriate level of
seniority, and
8
b. circumstances exist that justify the person holding private sessions for the
Commission.
15. The sole Commissioner or Chair of a Royal Commission will determine whether
circumstances exist that justify authorising an Assistant Commissioner for the purpose of
holding private sessions for the Royal Commission. The sole Commissioner or Chair of a Royal
Commission will also decide if the person to be authorised has suitable qualifications and
experience and an appropriate level of seniority. The sole Commissioner or Chair should ensure
that individuals who share their personal accounts in a private session feel confident in the
process.
16. The provision is intended to give a Royal Commission more flexibility to conduct its
inquiry. There is no limit on the number of Assistant Commissioners that can be appointed,
although it is expected that an Assistant Commissioner will only be appointed in exceptional
circumstances. A sole Commissioner or Chair of a Royal Commission will still need to ensure
that resources are used appropriately and that the inquiry is conducted in an effective and
efficient manner. The provision may enable a Royal Commission to hold more private sessions
over the duration of its inquiry than it otherwise might have, and therefore allow more people
to engage with a Royal Commission and have their experience heard.
Item 5 - Subsection 6OB(3) (heading)
17. Item 5 proposes to replace the word 'members' in the heading before subsection 6OB(3)
of the Act with the word 'persons'. As noted at Item 2, an Assistant Commissioner is a member
of staff of a Royal Commission, and is therefore not captured by the definition of 'member' in
the Act.
18. This Item amends the heading to subsection 6OB(3) to cover both Commissioners and
Assistant Commissioners. This amendment is necessary to be consistent with the amendments
at Items 6 and 7.
Item 6 - Subsection 6OB(3)
19. Item 6 proposes to insert the words 'or (2)' after the words 'subsection (1)' in subsection
6OB(3) of the Act.
20. This item provides that subsection 6OB(3) of the Act applies to both subsections
6OB(1) and 6OB(2) of the Act. In effect, this amendment provides that subsection 6OB(3) of
the Act applies to both Commissioners and Assistant Commissioners.
Item 7 - Subsection 6OB(3)
21. Item 7 proposes to substitute the word 'persons' for the word 'members' in subsection
6OB(3) of the Act. As noted at Item 2, an Assistant Commissioner is a member of staff of a
Royal Commission, and is not captured by the definition of 'member' in the Act.
22. Subsection 6OB(3) of the Act currently states that a private session may only be held
by one or 2 members. Item 7 seeks to amend this subsection so that, in effect, it applies to
Assistant Commissioners as well as Commissioners. This item proposes that only one or 2
people can hold a private session. Read together, the amendments at Items 6 and 7 provide that
a private session held under subsections 6OB(1) or 6OB(2) of the Act may only be held by:
9
• one Chair or sole/authorised Commissioner or Assistant Commissioner (one
person)
• one Chair or sole/authorised Commissioner and one Assistant Commissioner (2
people)
• one Chair and one authorised Commissioner or 2 authorised Commissioners (2
people), or
• 2 Assistant Commissioners (2 people).
Item 8 - Subsection 6OB(4)
23. Item 8 proposes to insert the words 'or Assistant Commissioner' after 'any member of
the Commission' into subsection 6OB(4) of the Act.
24. Subsection 6OB(4) of the Act currently provides that matters relating to the conduct of
a private session under subsection 6OB(1) of the Act (that is, private sessions for a multi-
member Royal Commission) may be determined by the Commissioner or Commissioners
holding the private session, subject to the Letters Patent establishing the inquiry, and Division
3 of the Act relating to privacy in relation to private sessions. A Commissioner will also need
to have regard to any directions given by the Chair.
25. The amendment proposed to subsection 6OB(4) applies this section to an Assistant
Commissioner. The amendment means, in effect, that an Assistant Commissioner may
determine any matters relating to the conduct of the private session they are holding, subject to
the Letters Patent establishing the inquiry, and Division 3 of the Act relating to privacy in
relation to private sessions. If they are holding a private session with another Commissioner,
they will be expected to determine any matters in consultation with the other Commissioner.
They will also be required to have regard to any directions given by the Chair.
Item 9 - Subsection 6OB(5)
26. Item 9 proposes to repeal subsection 6OB(5) of the Act and replace it with a new
subsection 6OB(5) consisting of 2 parts relating to the conduct of private sessions held under
subsection 6OB(2) of the Act, that is, for a Royal Commission constituted by a sole
Commissioner.
27. Subsection 6OB(5) of the Act currently provides that the sole Commissioner holding
the private session may determine any matters relating to the conduct of a private session held
under subsection 6OB(2) of the Act, subject to the Letters Patent establishing the inquiry, and
Division 3 of the Act relating to privacy in relation to private sessions.
28. Proposed paragraph 6OB(5)(a) is in the same terms as existing subsection 6OB(5) and
provides that the sole Commissioner holding the private session may determine any matters
relating to the conduct of a private session held under subsection 6OB(2) of the Act, subject to
the Letters Patent establishing the inquiry, and Division 3 of the Act.
29. Proposed paragraph 6OB(5)(b) provides that an Assistant Commissioner may
determine any matters relating to the conduct of a private session held under subsection
6OB(2), having regard to any directions given by the sole Commissioner and subject to the
10
Letters Patent establishing the inquiry, and Division 3 of the Act. This amendment means, in
effect, that an Assistant Commissioner will generally be able to determine any matters relating
to the conduct of the private session they are holding. If they are holding a private session with
the sole Commissioner or another Assistant Commissioner, they will be expected to determine
any matters in consultation with the other Commissioner.
Item 10 - Paragraphs 6OC(3)(a) and (4)(a)
30. Item 10 proposes to amend paragraphs 6OC(3)(a) and (4)(a) of the Act by inserting the
words 'or Assistant Commissioner' after the words 'by a member'.
31. The purpose of subsection 6OC(3) of the Act 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, under section 6P of the Act to communicate
information to certain office holders, including the Commissioner of a police force, and under
section 9 of the Act in relation to the custody and use of records of a Royal Commission when
they are no longer required by the Royal Commission.
32. The effect of 6OC(4) of the Act is to make records and documents from a private
session, records of the Royal Commission for the purposes of section 9 of the Act.
33. The amendments proposed at item 10 seek to ensure that the paragraphs apply to
Assistant Commissioners undertaking a private session. Amendments are not required to
paragraphs 6OC(3)(b) or (4)(b) of the Act as those paragraphs already provide for 'a member
of the staff' of a Royal Commission, which covers an Assistant Commissioner.
Item 11 - Paragraph 6OC(6)(a)
34. Item 11 proposes to amend paragraph 6OC(6)(a) of the Act to replace the words
'member or members' with the words 'person or persons'. This amendment seeks to ensure
that the section applies to Assistant Commissioners holding a private session.
35. The purpose of subsection 6OC(6) of the Act is to apply the offence for contempt of a
Royal Commission (section 6O of the Act) to private sessions. Under section 6O of the Act, a
person will be guilty of an offence if they intentionally insult or disturb a Royal Commission,
interrupt the Royal Commission's proceedings, use insulting language towards a Royal
Commission, or use words false or defamatory of a Royal Commission, or is in any manner
guilty of an intentional contempt of a Royal Commission.
Item 12 - At the end of subsection 6OC(6)
36. Item 12 proposes to add a note after subsection 6OC(6) that both members
(Commissioners) or Assistant Commissioners can hold private sessions. The note refers readers
to subsections 6OB(1) and (2) of the Act.
Item 13 - After section 6OE
37. Item 13 proposes to insert new section 6OEA after section 6OE of the Act. Section
6OEA provides that an Assistant Commissioner for a Royal Commission who holds a private
11
session for the Royal Commission has the same protection and immunity as a Justice of the
High Court.
38. An Assistant Commissioner will be performing the same role as a Commissioner when
conducting a private session. As such, an Assistant Commissioner should be provided the same
level of protection and immunity as a Commissioner when holding private sessions.
Subsection 7(1) of the Act provides that a Commissioner shall have the same protection and
immunity as a Justice of the High Court in the exercise of his or her duty as a Commissioner.
39. A judge of the High Court enjoys judicial immunity, which means that no criminal or
civil action can be brought against them for acts done within jurisdiction in the course of
hearing and deciding a case that is before them. A judge of the High Court is also immune from
being compelled to give evidence or disclose their decision making. This immunity will be
extended to Assistant Commissioners under proposed section 6OEA.
Item 14 - Section 6OG
40. Item 14 proposes to amend section 6OG of the Act by inserting the words 'or Assistant
Commissioner' after the words 'by a member'.
41. Section 6OG of the Act provides that a private session must be held in private, and that
only people who are authorised by a member holding the private session may be present during
the private session.
42. These amendments will permit an Assistant Commissioner holding a private session to
authorise people to be present at a private session. This is consistent with the amendments
proposed in Items 8 and 9 that provide that an Assistant Commissioner can determine any
matters relating to the conduct of the private session they are holding.
Item 15 - Application provision
43. Item 15 provides for the application of the amendments in the Bill. It states that the
amendments in the Schedule of the Bill apply to a Royal Commission that is established before
or after the commencement of item 15 (which is the day after the Act received Royal Assent -
see Clause 2). This means that the amendments will apply to any existing Royal Commissions,
as well as Royal Commissions that may be established in the future.
12