Mark Dreyfus (Isaacs, Australian Labor Party, Cabinet Secretary) Share this | Link to this | Hansard source

I move:

That this bill be now read a second time.

The Royal Commissions Amendment (Private Sessions) Bill proposes to amend the Royal Commissions Act 1902 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, experienced and senior member of staff of the royal commission to hold private sessions. A member of staff who is authorised for this purpose will be called an assistant commissioner.

Private sessions

Part 4 of the Royal Commissions Act enables certain royal commissions to hold private sessions. Private sessions were first established for the Royal Commission into Institutional Responses to Child Sexual Abuse to enable individuals to tell their experience about the highly sensitive and personal matters into which the royal commission was inquiring, in a trauma-informed and less formal setting than a hearing. Subsequently, royal commissions prescribed by the Royal Commissions Regulations 2019 have been able to utilise private sessions. This includes the two current royal commissions, the Royal Commission into Defence and Veteran Suicide and the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability.

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 royal commission, or another commissioner who is authorised in writing by the chair, may conduct private sessions.

Resourcing and cost implications of private sessions

Private sessions have implications for the resourcing, cost and constitution of a royal commission. Amending the act to enable a suitably qualified, experienced and senior staff member to be authorised as an assistant commissioner to conduct private sessions will provide more flexibility to royal commissions to conduct their inquiry. 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.

The am endments

The bill proposes amendments to part 4 of the act to introduce a new definition of 'assistant commissioner' into the act and related amendments to enable an assistant commissioner to hold private sessions for royal commissions, whether they are constituted by a sole commissioner or multiple commissioners.

The proposed 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. An assistant commissioner will not be authorised to undertake any other role or to exercise any powers of a commissioner for the royal commission.

The proposed amendments outline how and when an assistant commissioner can be authorised to hold private sessions. They provide 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 chair or a sole commissioner of a royal commission can authorise a person to be an assistant commissioner if they consider that:

The sole commissioner or chair of a royal commission will determine whether circumstances exist that justify authorising an assistant commissioner for the purposes 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.

The proposed amendments make it clear that an assistant commissioner will only be appointed where such an appointment is justified. 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.

It may be that some individuals who wish to participate in a private session would prefer to share their personal accounts with the chair of a royal commission or with a sole commissioner—rather than with an assistant commissioner. By contrast, there may be individuals who would feel more comfortable participating in private sessions held by experienced members of a royal commission's staff who have specialist training in engaging with vulnerable people.

The proposed amendments would enable the chair or sole commissioner to take these preferences into account in determining whether circumstances exist that justify authorising an assistant commissioner to hold private sessions.

Protections

The amendments also provide that an assistant commissioner for a royal commission who holds private sessions for the royal commission has the same protection and immunity as a justice of the High Court.

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. Subsection 7(1) of the Royal Commissions 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.

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.

Limitations and protections

This power to authorise an assistant commissioner 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.

Compatibility with human rights

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. 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 a fair trial or hearing.

Conclusion

This bill will provide more flexibility to royal commissions to conduct their inquiry and ensure resources are used appropriately and that the inquiry is conducted in an effective and efficient manner, while ensuring that individuals who wish to participate in private sessions in a less formal and trauma informed setting are able to do so. I commend the bill to the House.

Debate adjourned.