Monday, 15 February 2021
Royal Commissions Amendment (Confidentiality Protections) Bill 2020; Second Reading
That the second reading be made an order of the day for the next sitting.
The government is moving for this message to be made an order of the day for the next sitting, not be dealt with today, as the government does not support this bill, the Royal Commissions Amendment (Confidentiality Protections) Bill 2020, which has passed in the other place. The government agrees this is a significant issue and it is important to ensure that people with disability can engage and fully take part in this nationally significant inquiry. The government has listened to people with disability, their families and carers, and the broader public about the importance of ensuring that people have the confidence to come forward and tell their story. While there are extensive protections after a royal commission has ended, we understand that there may be some concerns about the willingness of some to come forward. Of course we want people to come forward, but we cannot support the Greens bill today, as it does not fully capture what is needed for this particular royal commission. On 20 October 2020, the government announced it would introduce measures to protect the confidentiality of information given to this royal commission. We've been carefully considering the full implications of these protections on criminal prosecutions and civil proceedings, and the government's bill will be sensitive to the various ways in which people have given information to the royal commission. The government intends to bring forward its bill in the coming weeks.
There are issues with the bill, which I will briefly outline. There are several problems with the Greens bill. First, the bill appears to try to replicate section 60N of the Royal Commissions Act, which protects information if the commission has indicated that the information would be treated as confidential after the inquiry ends. However, this may be problematic as the disability royal commission has said publicly that some information may not be confidential. It's important that the legislation protects information which was not provided on an understanding of confidentiality by the commission. Second, the Greens bill does not attempt to identify the types of sensitive information caught by this provision. Item 600 of the Greens bill appears to try and replicate section 60N of the act but has removed the description of the types of information the section is intended to apply to. By contrast the government's bill will provide comprehensive protections to appropriate categories of information, for example in relation to the child abuse royal commission protections where applied to the accounts of an actual person's experiences of child sexual abuse and also accounts of what happened to other people.
Unlike the Greens bill, the government's bill also includes other amendments to the Royal Commissions Act 1902 sought by the commission's chair—amendments to streamline information-sharing between Commonwealth royal commissions and concurrent state royal commissions, and amendments to address practical issues raised by the chair, including the issue of non-publication orders. This is important as they often need to be made in urgent circumstances to protect a person's identity and they currently need to be made by a number of commissioners together, despite them being geographically located in different states and territories. With that, I reiterate to the House that the government is moving for this message to be made an order of the day for the next sitting, not be dealt with today, as we do not support this bill.
That all words after "That" be omitted with a view to substituting the following words—
"the Bill be considered immediately".
There is a loophole that has been open since November 2019 that is hampering the work of the disability royal commission and that is stopping people having the confidence to come and tell their stories. The government has known about this loophole since it was first raised by the commissioner. Then, in this parliament, Senator Steele-John took the matter to the government in February last year and said, 'There is a problem with the legislation.' The problem with the legislation that the royal commission itself has identified is this: there is a real question mark, in many instances, over whether evidence that someone gives or comments that someone makes or information that someone provides to the commission remains confidential when the commission concludes its work.
You only have to think about this for a couple of minutes to understand why this would make some people—people who have already been through a lot; more than any of us should have to go through—think twice before coming to give their stories. You can understand why it led the commissioner and the royal commission, in its recent report, to say, 'This question around confidentiality is getting in the way of us doing our work.' So we brought it to the government's attention.
The royal commission raised it in 2019. We brought it to the government's attention back in February 2020 and said, 'You need to introduce a bill to fix this.' That was a year ago. A year ago we put this to the government, and the government said, 'Yes, we accept it's a problem.' Great, you accept it's a problem. It's a problem that is hurting people with a disability who want the confidence to tell their story. It's a problem that the commissioner says is affecting the commission's ability to do its work. The government has known this for over a year and has admitted it is a problem.
We kept waiting and waiting and waiting for the government to bring in a bill to fix it, and it won't do it. The government refuses to do it. It's either laziness, malice or a distinct lack of care. Whatever the excuse is, it is inexcusable. The government can rush into this place legislation that takes away people's rights at work and say, 'It's urgent; we've got to deal with it.' But, when they've had over a year to close a loophole in one of the most important royal commissions we have had for some time, they can't get around to doing it.
So we have taken action. We have taken action to close the loophole. We have taken action and brought into the Senate a bill that will close the loophole. With the support of the Labour Party and the crossbench working together, that bill got through the Senate. That doesn't happen every day. It does not happen every day that we sit here in this chamber and deal with a bill that has majority support in the Senate. Think about the varying interests represented in the Senate. Think about what it takes to get them all lined up against the government. The government has to have seriously stuffed up for the whole Senate to join together and say, 'You have refused to close this loophole for a year with no good reason, so we are doing it for you.'
The government comes in here today and says, 'No, we can't consider it immediately because—just take it from us—we've got a bill in the works.' Well, that's what you said back in October, government. When we introduced this bill and brought it to the Senate in October you said: 'No, we can't support it now, because we've got our own bill. It's coming. Just you wait.' We are here in February 2020, a year after we raised it with the government, and there is still no bill.
I guess it shouldn't surprise us, because that's exactly what the government have done when it comes to establishing an independent anticorruption commission. They said, 'Oh, no, we cannot possibly deal with a bill that has passed the Senate and got support from the Senate, because we've got our own.' It shouldn't have surprised us. But we did hold out hope that, even if they wouldn't listen to the Greens, they would at least listen to the royal commission.
The Second progress report of the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability makes it clear that the limitations of the confidentiality provisions are impinging on people's willingness to speak with the commission and affecting the scope of the commission's work. An entire section of this progress report is devoted to confidentiality protections, or the lack thereof, and the challenges this situation presents to the important work of the commission. You can only be left with the conclusion that, if they won't bring a bill in when they are being asked to fix a problem and close a loophole, the government are perhaps deliberately trying to undermine the work of the commission. They have had over a year to bring in a bill that deals with a technical matter about confidentiality. All of the words from the government about supporting the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability evaporate when you understand that they are not giving the commission the tools to do its job, and one is invited to form the conclusion that they are doing it deliberately. Why else would you sit on your hands for more than a year? Maybe it's laziness, or maybe it's priorities—maybe it's more important to cut people's rights at work than it is to give people with a disability the right to go and tell their story.
We have had ample opportunity during the course of a year, in what is the longest and most expensive royal commission in Australia's history, to tidy up this loophole and to help the commission do its work, and the government has refused to act. When this bill was being debated in the Senate today, members of the government were almost embarrassed to get up and make their contributions. They were falling over themselves to say, 'We not only support the commission; we understand this is a problem and we really hope it's going to be fixed.' They are right to be embarrassed. The people with responsibility have dragged their heels for over a year, and they cannot come up with a single good excuse as to why it has taken this long, other than that it is supposedly complicated. Well, that's why you've got a department. That's why you've got the resources of government at your disposal—to deal with things that actually aren't that complicated. We all know what the problem is. The royal commission has spelt it out in detail. Bring in a bill to fix it.
I heard those embarrassed members of the government backbench saying today, 'Look, just take it on trust that this problem will be fixed by the time the commission concludes.' Has anyone else ever been asked to give information or evidence to a royal commission, under circumstances where they think it's confidential, to just be told, 'Oh, no, it might not be confidential now, but trust us and we'll fix it up by the end'? No-one has ever been asked to appear before a royal commission or to provide information to a royal commission on the basis of an IOU from the government that they'll fix it up before the commission ends. No! And no-one should be asked to do it for this critical royal commission either.
I say to the government: we've heard this before. We've heard your excuses before, over and over again—'Don't worry, a bill is in the works.' Well, it is now at the point where the royal commission itself is pleading in its interim report to fix this problem. You know, government, that this is hampering the commission's ability to do its work. You know that it's inhibiting people from feeling the confidence they need to come and tell their stories, at a time when they need everyone supporting them, including the government and the force of law. I hope the government reconsiders. It tells you something when the whole political array of the Senate lines up together to say, 'Fix this loophole.' Bills like this don't come very often, and, when they do, it's a sign the government has failed to do its job. The government should support this amendment, debate the bill and pass it.
I rise to second this most important amendment by the member for Melbourne. The Royal Commissions Amendment (Confidentiality Protections) Bill 2020 would amend the Royal Commissions Act 1902 and make consequential amendments to the Freedom of Information Act 1982 to ensure ongoing confidentiality protections for people seeking to give evidence to the disability royal commission.
Just to explain to Australians who are listening to this parliamentary debate and to those in the media who are curious why the government is opposing this, the status quo is that there's a disability royal commission underway, one which I called for with Labor in 2007 and one which the Greens have been on the record as supporting for a very long time. The federal government did move to set up a disability royal commission in 2019 I think or at the end of 2018.
This royal commission is underway, and it's heard horrific stories. Currently, the process is that evidence which is received in private sessions conducted by the disability royal commission is guaranteed to remain confidential after the commission's work is done; however—and this is where the need for these amendments, supported by the Senate, remarkably, comes into play—the same privacy protections do not apply where evidence or information was received by the commission outside of private session. Not all evidence is given in private session; some evidence is given outside of private session. Prior to the evidence or information being given, the commission indicated to the person providing the evidence or information that it would be treated as confidential, so, even if the commission said they'd treat it as private, that can't be enforced. In fact, even after it was received by the commission, the material was treated as confidential, but the privacy protections do not apply. So this is an important bill.
We're fixing up something which should be fixed up. Most significantly, even though the government demonstrated some recalcitrance, to which I'll return, the majority of the Senate, one of the two houses of the Australian parliament, passed this bill. Bizarrely, although the coalition oppose this bill and they were in the minority in the Senate voting against it, they've actually agreed with what the bill proposes. For Australians driving home or listening to this debate, I'll repeat that. There is a flaw in the disability royal commission. The flaw has been pointed out. The Senate has, by a majority, voted to rectify the flaws, and we seek to now do that in the lower house, but the coalition said, 'Yes, you're right: there are flaws. But no, we will not vote for it.' This is why people hate Australian politics! This is game playing at its most extreme.
It is up to the coalition and the backbench of the coalition to explain why they are holding a position which is so bendable, so rubbery that on the one hand they think it should be fixed but on the other hand they don't think they should fix it now. The position of the coalition would not be out of place in the famous illustrated Indian Sanskrit text—this Australian government is so contorted. In fact, the Attorney-General put out a media release in October of last year and he entitled it 'Legislative reforms to provide greater privacy protections for participants in disability royal commission'. In it, the government pledged to make amendments to the Royal Commissions Act, which this bill before the House does today, to provide the confidentiality of information given to this nationally significant inquiry. So the Attorney-General has said that they want to have a bill which does what we're doing today, but they can't actually vote for it.
The reason why this has come about is the chair of the royal commission, the Honourable Ronald Sackville, AO, QC, requested these amendments which we're putting up. So not only has the government agreed there's a flaw, not only have the opposition and the crossbenchers recognised there is a flaw, but it's on the basis of the chair of the royal commission, who the government appointed to do the work. He's said people with disability should get the reassurance their information will be protected during the life of the royal commission and after it's concluded its work. So the Attorney-General, when he was taking his sensible pill, said he's instructed his department 'to work swiftly on the amendments.' Well, they certainly haven't won any medals for swiftness. In fact, the government's been so plodding and ponderous on this that others have had to step into the breach, hence this bill.
Disability advocates have argued persuasively that to maintain the integrity of the royal commission people should have their privacy protected. The amendments in this bill have been sought by disability advocates and sought by the chair of the disability royal commission. In fact, it is impossible to find anyone who doesn't agree with the amendments. But this is the stupidity of Australian politics at this point in time. The coalition know our amendments are right, they just cannot vote for them. I say again: they know this is correct, they just won't vote for it. They privately say it's correct. Everyone says this is correct. But we are stuck in this very unusual situation. So, despite the Morrison government's aversion to following through on its agenda and actually doing what it says it'll do, are the House of Reps coalition members really going to vote against legislation their own Attorney-General said should be swiftly enacted, the royal commission said should be enacted, disability advocates said should be enacted and the Senate said should be enacted?
The reason why they oppose it, though—and this really needs to be explored—is that this is essentially their own plan. The unkind would call this an act of bastardry. Perhaps it is, perhaps it isn't. I'll leave it to the people of Australia to judge this. But, whatever you call this act, it is certainly strange and surreal. They're saying to Australians with disability, 'We'll get around to giving you a royal commission where your privacy is protected but on our terms and only on our time line.' They're simply saying, 'Too bad, so sad; we can't do this.' This is actually ridiculous. Members of the government might say, 'If the opposition and the Greens want to do it, we must vote against it.' That's what people hate about Australian politics. Disability organisations raised this privacy problem 300 days ago, in May 2020. Yet we're still here and we're still waiting—waiting for people with disability just to be able to have the protections of privacy in the royal commission which this government's called.
The government have consistently shown a disinterest in acting on things, and this is what I want to talk about in the remaining few minutes of this presentation on this amendment. People with disability, and carers, have worked this government out: they're just not interested—for whatever reason. This is a case where the government have said, 'Yes, we know it should change, but, because someone else is saying it, we won't do it.' This is arrogance. This is hubris. This is conceited behaviour. This is pompous behaviour. This is haughty. This is a government with an exaggerated sense of their own infallibility.
But we've seen this throughout the handling of the disability portfolio and government services. We've had the poor old head of the National Disability Insurance Agency declare, in year eight of this government, that they're going to go back to basics for the NDIS. What have you been doing for the last eight years? Now we're paying senior public servants and ministers to go back to basics, but what have you been doing for the last eight years? We've got the robodebt issue, which was pointed out by advocates as being a problem for years. I had the temerity to write an article in a newspaper saying it was probably an illegal scheme more than a year ago—but this government has to wait till the Dawe report and its own ministers and senior public servants will be dragged to give evidence to finally settle. This is an out-of-touch government. We've already celebrated the third birthday of Labor's call to set up a national anti-corruption commission and this government won't do it. They spent a year and a half fighting the advocates once it was absolutely established beyond doubt that robodebt was illegal—and they wasted hundreds of millions of dollars more in fighting the claim. We've got the disability support pensioners, who were neglected during the COVID crisis. The government's ultimate salt on the wound of its treatment of disability and carers is to give us Stuart Robert as the minister for that area, showing what the government really thinks of the portfolio.
But all issues aside—that laundry list of government neglect and disinterest—this bill should be supported because there is a flaw in the ability of people to have privacy when they give evidence in a royal commission. The flaw has been spotted and identified. The Attorney-General said he wanted swift action. Disability advocates have said this is a terrible flaw. The chairman of the royal commission, the Hon. Ronald Sackville, has said something needs to be done about this. And yet, like the good old troops that they are, the coalition lions on the backbench led by the donkeys on the frontbench are going to march into the guns of voting on something which is errantly stupid. There is no argument. What the government spinners say behind lines is: 'Oh well, the royal commissioner can do this anyway. This is all a fuss about nothing.' Well, if it was a fuss about nothing, why would the chairman of the royal commission be raising it? If it was a fuss about nothing, why did the Attorney-General say to act swiftly? I would just say to coalition members that blind obedience to stupid orders isn't always the wisest course of action for your constituents. (Time expired)
The original question was that this motion be agreed to. To this the honourable member for Melbourne has moved an amendment. The question now is that the amendment be disagreed to.
A division having been called and the bells being rung—
To Senator Steele-John: thank you very much for joining us here in the chamber. During the division, would you mind coming to sit near the advisers' box, please, just to allow members to come in. Thank you.