Monday, 9 September 2019
Royal Commissions Amendment (Private Sessions) Bill 2019; Second Reading
I rise to speak on the Royal Commissions Amendment (Private Sessions) Bill 2019. This is an important piece of legislation which will ensure that two current royal commissions, into aged care and disability, have the capacity to hold private sessions to hear from participants. The bill responds to a request to the government from the royal commissioners and draws on the lessons from the royal commission into child sexual abuse, which made use of private sessions. Given the highly sensitive nature of these royal commissions, we believe that this is a necessary and appropriate power for the commissioners to have.
Many people who seek to give evidence to these commissions are vulnerable members of our community who have been through terrible personal experiences. It is completely understandable why they may not be comfortable appearing in public before a royal commission. It is vital that the commissions do not lose the valuable insights that these people are able to share because of their discomfort in appearing publicly. These sessions will help supplement the evidence that the commissions will collect in their normal public hearings. Obviously, private sessions are not open to the public. Importantly, information obtained in these private sessions can only be used by the commission in its report if it has been de-identified to protect the privacy of participants.
Participants in private sessions are also not cross-examined and information given in the sessions cannot be used against the person in any civil or criminal proceedings. This includes defamation action. It is also an offence to inappropriately disclose information shared at a private session by a participant. These protections should give confidence to those potential participants that they can come forward and share their insights without any fear of repercussions. All of us have probably participated in parliamentary inquiries which have used private sessions in a similar way and for the same purpose. In my experience, in my short time in this place, these can be both valuable sources of information for committees, and an important vehicle for witnesses to ensure that their story is heard.
The government will also move amendments to the bill to respond to feedback from the community about the bill. It will ensure that only royal commissioners themselves, and not delegated staff, can conduct these private sessions. These amendments are designed to give further confidence to potential participants that the sensitive information that they may wish to share with a royal commission will be heard by an appropriate person—in this case, the commissioners themselves.
These two current royal commissions have incredibly important work to do, which is already underway. There is some urgency to this bill, to ensure that these commissions can make use of private sessions as soon as possible and before their work concludes. As a result, I commend its speedy passage to the chamber.
I rise tonight to speak on the Royal Commissions Amendment (Private Sessions) Bill 2019. This bill seeks to create a legislative framework that allows for private sessions to take place during royal commissions. While the Greens support the central tenet of the bill, we are concerned about the impact that certain provisions may have on survivors.
We are particularly concerned that these provisions are a departure from past royal commissions. This includes the Royal Commission into Institutional Responses to Child Sexual Abuse, where commissioners were the only ones allowed to undertake private sessions. Having spent a great deal of time working with survivors and people that did give evidence to that royal commission, I know how profoundly important it was for people to be able to talk directly to the commissioners about their lived experience. I'm sure most people in this chamber know that for some people it was the first time they were able to talk to somebody of such importance about their lived experience—or even to talk about it at all. So I know, from talking to survivors, how important it is that people have the capacity to talk directly about their deepest, darkest trauma to commissioners themselves.
By allowing assistant commissioners and senior staff to undertake private sessions, we are effectively creating what would be a three-tiered system for giving testimony, therefore creating inequality amongst those who give testimony in the form of a private session. This appears to be an attempt by government to address a capacity issue. We contend that, if there is a capacity issue, particularly for the disability royal commission, then this should be addressed through expanding the panel of commissioners. It is unjustifiable to try and address a capacity issue by creating a three-tiered system that will adversely affect the healing process of survivors. We agree that there could be a capacity issue with the disability royal commission. Only six commissioners have been appointed, two of whom have substantial conflicts of interest, as this chamber has heard on several occasions. This will affect their ability to be involved with the commission. And we know that there will likely be upwards of 10,000 submissions made. If this does occur, the government needs to increase the number of commissioners.
In our discussions with the community it was overwhelmingly clear that the concerns with the legislation as originally proposed have the potential to adversely affect survivors and diminish the significant impact that having a private session before a commissioner has. Matthew Bowden of PWDA made that clear to us when he said, 'There is something that comes from the royal commission communicating to the survivor that they are important enough and that they matter to Australia to the point that a commissioner will spend this time, one on one, with them and that this is their time and theirs only.' All of that would be lost if we had this delegated to senior staff of the royal commission, however qualified or compassionate they are.
It is unclear what the grounds are for someone being heard by a commissioner versus someone being heard by a senior staff member. Earlier today, the government circulated an amendment which amends provisions of the bill which delegate authority to conduct a private session to assistant commissioners or senior staff of the commission. We are supportive of this amendment as it seeks to remedy these issues with the potential for a three-tiered system of giving testimony.
I'm pleased to rise today to speak on the Royal Commissions Amendment (Private Sessions) Bill 2019. This is an important and sensible amendment which will assist royal commissions to hear personal and sensitive evidence from witnesses in an environment which best enables them to share their experiences. The main purpose of this bill, as we have heard tonight, is to enable royal commissions to hold private sessions when appropriate. Private sessions are—perhaps self-explanatorily—a private and supported way for individuals to tell their stories about personal experiences to a royal commission.
The private sessions regime was established in the act specifically to cater for the Royal Commission into Institutional Responses to Child Sexual Abuse. Over 8,000 sessions were held. We are all aware of the important work of that royal commission, both in setting out recommendations to make sure that these appalling abusers are stopped but also to give victims a chance to be heard, whether that was in a public hearing or a private one. The many thousands of people who contributed their stories to that royal commission, many of them through private sessions, led to the recommendations as a result of that royal commission being so comprehensive.
The government is committed to responding to that work, and we are already seeing legislation before this parliament to do just that. Clearly, for the Royal Commission into Institutional Responses to Child Sexual Abuse, it was highly necessary to have a framework in place to allow private sessions to take place. The royal commissions that have since been established by this government into aged-care quality and safety and into violence, abuse, neglect and exploitation of people with a disability are covering similarly sensitive and difficult subjects, and there is no doubt that private sessions will allow more people to share their stories.
Subsequent to the passage of this bill, it is the government's intention to recommend to the Governor-General that both the aged-care royal commission and the disability royal commission are able to utilise these private sessions. Indeed, the chair of the Royal Commission into Aged Care Quality and Safety, the Hon. Richard Tracey AM RFD QC, and the chair of the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, the Hon. Ronald Sackville AO QC, have told the government that private sessions will assist their inquiries. With both of these inquiries already underway, it is important that this bill that we are debating tonight be passed quickly so that both royal commissions can use private sessions. Of course, it would be expected that there would be future royal commissions where the option of private sessions would be needed. Indeed, this bill will ensure that can happen without having to pass further legislation to enable it.
However, the use of private sessions can have implications for the constitution of a royal commission, as well as funding impacts, and it is not a power that will be required by all royal commissions. Nor should the overuse of private sessions become the normal practice, as one of the important functions of royal commissions and one of the reasons that they are able to have such impact is that Australians can hear the evidence provided and understand the problem that is being investigated. For that reason, the bill provides that private sessions are enabled through regulation. That mechanism will require a discrete decision on whether private sessions will be useful for a particular inquiry.
What are the protections for witnesses in a private session that will be provided through this bill? A private session is not open to the public, and the information that is discussed in a private session can be used in a commission report only if it is de-identified or if the information is also given in evidence. Participation is voluntary. It is not given on an oath or affirmation and is not open to cross-examination. Importantly, a participant in a private session has the same protection as a witness. Information given by a participant cannot be used against the person in any civil or criminal proceedings. The bill largely preserves the framework for private sessions used for the child sexual abuse royal commission. However, some changes are proposed, the main change being that there will be limitations on the use and disclosure of information that will cover both information given at a private session and information given for the purposes of a private session, whether or not that session is actually held.
Private sessions in royal commissions are a very important way for us to support individuals giving evidence at royal commissions. As I've said tonight, with the two royal commissions currently underway it is pertinent to enable such sessions to be utilised in these royal commissions so that they can hear from people, many of whom are vulnerable members of our community, about their experiences and substandard care or abuse. It is certainly pertinent that this Senate addresses this issue with haste, given, as I have stated, that these two royal commissions are already underway. And I certainly hope this bill is supported by honourable senators. I commend it to the Senate.
I am particularly pleased to be able to make a contribution to the debate this evening on the Royal Commissions Amendment (Private Sessions) Bill 2019. I commence by recording that Labor supports the Royal Commissions Amendment (Private Sessions) Bill 2019. The reasons that we want to support this bill, which will enable the royal commission to hold private sessions where a regulation is made under the Royal Commissions Act authorising it to do so, is that it is the right thing to do if one understands what a participatory democracy might look like.
Just today I was having a conversation with some of my colleagues about the challenges embedded in some legislation that's about to come before us around people's participation in our democracy. Being a former teacher and being in school and teaching in the period when the concept of civics and citizenship has been discussed widely and reported on widely, I note that there is a great gap between teaching civics—the design and shape of our particular democracy in Australia—and citizenship. What it is about this bill that particularly appeals to me is that it is an active making of law, in our time here in the parliament, that acknowledges that citizenship and citizens' participation in parliamentary processes and formal processes of lawmaking and truth-telling in our country is not beyond our capacity to enable. That's why I think this particular piece of legislation is particularly important.
In 2013, when I was a member in the other place, I was very proud to be part of the Gillard government, which amended the Royal Commissions Act 1902 to allow the chair of the Royal Commission into Institutional Responses to Child Sexual Abuse to authorise a fellow commissioner to hold a private session to receive information from victims and others affected by child sexual abuse. That is our great shame, not just as a nation but as human beings—that the sort of truth-telling we've had about the incredible abuse of young people in institutional care is now a matter of record. But, happily, it is a matter of record that is both private and appropriately enabled and public in ways that protected individuals but allowed the truth to be told. And that is what is at the heart of this piece of legislation that we're debating this evening. In effect, this bill would extend the private sessions regime that applied to the Royal Commission into Institutional Responses to Child Sexual Abuse and to other royal commissions, including the disability and aged care royal commissions.
A traditional royal commission hearing setting is quite a formal place. For many people, it's the kind of encounter with the institutions that support democracy that they might never have seen, never have known, never have experienced and never have developed the skills to manage. So it's important that we provide ways to participate in our democracy that are not so far a stretch for ordinary citizens that they feel they can't participate. In fact, I recall in a number of hearings that we had around mental health—particularly, I'm recalling one in Sydney when we were talking about the impact of bullying in the workplace—that we were able to allow an open mic session at the end to allow people to come forward and put on the record their experience. Now, that was in a public forum and in a public setting. We took a small amount of in camera hearings from people speaking about their experience, but predominantly those who stepped forward were comfortable enough and determined enough to tell their story in a public place so that we could have the benefit of their lived experience to contribute to the way in which we might discern and determine policy going forward.
One of the things that good teachers across this country know is that not everybody in a classroom who has a view has the skills and capacity to speak into that classroom space. Those of us who enjoyed school—and certainly those of us in this chamber who quite like the sound of our own voices!—might have been quite comfortable speaking in the public place of a classroom. But for many young people in schools, the speech part of English language development—reading, writing, speaking and listening—is a very difficult thing to do. In fact, being in a room with more than just yourself is considered a form of public speaking. When you're speaking in a formal situation, such as giving evidence to a royal commission, not only is it predominantly in a public setting for the benefit of the public knowledge and the public policymaking that can be done but it is also there for the catharsis, sometimes, of the individual who wishes to put on the record and perhaps to distance themselves in some way from the action that they're reporting and tell the truth in the public place. Levels of competency to do that vary greatly across the country amongst Australians. That's why this innovation in our time as lawmakers with discernment to allow for private sessions is a significant step forward.
We know that private sessions in the recent Royal Commission into Institutional Responses to Child Sexual Abuse allowed them to hear from survivors and victims about their experience of abuse in a private and safe setting, which was the only setting for those particular people who had truth to tell, who were courageous enough to come forward, but didn't need or didn't seek or perhaps couldn't survive the further trauma of the experience of telling their story publicly. For many survivors, we know that telling their story is a deeply personal and sometimes traumatic experience. But, thanks to the private sessions that were enabled in the course of the Royal Commission into Institutional Responses to Child Sexual Abuse, that commission was actually able to hear over 8,000 personal stories in private sessions. I do wonder, from a mental health point of view, how challenging that was for both the participants in the telling of their stories and the participants in the receiving of those stories, because some of the evidence that has been made public is chilling.
It's hard to believe that men and women could be so inhumane as to inflict such violence on young people in their care. It's a great shame on our nation. It was heartbreaking for us as Australians to hear these stories, but the power of telling your story as one of those 8,000 people, where a private session was an option, is something that we as lawmakers learned from, because we knew that it did good work for the citizens of this country not only in what it revealed and enabled us to understand better but also in what it allowed those survivors to claim, to own and to have power over. For some of the survivors who put their story on the record, telling their story in one of those private sessions was the first time in their life that they'd actually been able to tell someone about their abuse—the first time! For others, it was perhaps not the first time of telling their story but the first time that someone in a position of authority had given value to their story by making the space to sit and listen. One survivor told the royal commission:
After 50 years I finally feel I've been heard. People have listened to me before, but no one has really heard me.
There is some significant detail in the legislation that's before us. The particular regime that's being proposed tonight is very likely to prove equally valuable to people with a disability and people living in aged care who have been subject to abuse. It's the experience of that former royal commission, with its significant recommendations, that's led us to be hopeful that that is the case. This legislation is like some other significant pieces of legislation that are being considered for listing on the Notice Paper, some that are already on the Notice Paper and some that are subject to review by the Senate. This bill does have human rights implications. I noticed in the explanatory memorandum that it particularly invokes article 19 of the International Covenant on Civil and Political Rights and article 13 of the Convention on the Rights of the Child. These go to the freedom provisions within the ICCPR to honour Australia's commitment to enacting legislation that provides that:
Everyone shall have the right to freedom of expression; this right shall include 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 respect of the rights or reputations of others.'
I am pleased that this piece of legislation, as I see it, does enable voice in a range of ways in the context of a private hearing. Further, the purpose of these private sessions doesn't restrict the individual's rights to freedom in terms of the mode in which they're able to provide their story. There are limits that will be wrapped around this piece of legislation. As some of the former contributors to the debate this evening have indicated, there will be protections to make sure that the disclosure of information that's received in private is properly managed. Importantly, the proposal is that it treats records containing information obtained at or given for the purposes of a private session 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; that refers to section 6OM as amended by items 39 and 40 of schedule 1 to the bill. Why is this important? When the sensible outreach into the community of survivors of child sexual abuse was achieved, there were some concerns about what would happen to that information that was received in private, in terms of reputational damage to others that might not be appropriate to have on the public record and what would happen to it. I am pleased that the legislation goes to some detail with regard to the security of that information.
For further confidence, this bill, in the same schedule, excludes the right of access under the Freedom of Information Act to documents containing information obtained at or given for the purposes of a private session. That is also an important thing for people to know. If I was in a situation where I had a truth to tell, I know that I might not feel comfortable about doing it in a public place. That could be the final thing to dissuade me from telling it—if I thought somebody could come and find that information—particularly if I've experienced any sort of trauma and felt a degree of vulnerability. If we put ourselves in the shoes of those who participated in the first major inquiry, which I've referred to a number of times now, the Royal Commission into Institutional Responses to Child Sexual Abuse—to the upcoming findings that we should expect with regard to disability and to abuse of people in aged-care settings—this provision in this bill is an important one to help give them the confidence that not only is the privacy of what they say contained within the room but the information that they share in that room is protected for 99 years. Even the most solicitous person who might come after information could not access that information through freedom-of-information laws. This is another very important part of this particular piece of legislation.
In closing, we know that in our country at this time there are a significant number of people in positions of authority who have the option to make ethical choices for the benefits of others or unethical choices, sometimes in the pursuit of profit over the dignity of people. While this particular piece of legislation allows truth-telling after the fact, we shouldn't miss this opportunity to make it known that the Australian parliament, as the representative of the people of this country, abhors the evidence of those 8,000 survivors with regard to child sexual abuse that it had to put on the record. The abuse of people with disability, the abuse of people in an aged-care setting, is something that is completely at odds with the spirit of the good people of this nation. Given the failings of humans, and, sadly, the recorded propensity for people in our midst to choose abuse over support, I'm pleased to support this legislation because it does good work in terms of the citizenship of this country and provides for a more civilised nation.
Firstly, I acknowledge the cooperation of the opposition, particularly in the work we've been doing on the amendments to the legislation. It's very much appreciated. On the bill itself, in the few moments that I have left: the bill passed in the other place made provision for the chair or sole commissioner to authorise assistant commissioners to hold private sessions. The bill placed limits on the circumstances in which an assistant minister could be authorised to hold a private session. Only appropriately qualified and senior staff on the commission can be authorised as an assistant commissioner. The bill made a presumption that private sessions must be held by a commissioner.