On 13 September, the Royal Commissions Amendment (Private Sessions) Act 2019 (Cth) received assent as Act 64 of 2019. The Royal Commissions Amendment (Private Sessions) Bill 2019 was originally introduced into the House of Representatives by the Hon. Ben Morton MP, Assistant Minister to the Prime Minister and Cabinet (‘the Minister’). The Bill was amended in the Senate and finally passed through both Houses on 10 September 2019.
Prior to the passing of the Bill, private sessions were exclusively developed and used for investigations into the Child Sexual Abuse Royal Commission. The purpose of the Act was to amend Part 4 of the Royal Commissions Act 1902 (‘the RC Act’) such as to allow other royal commissions to conduct private sessions, provided a regulation is made granting the commission authority to do so.
On the 31 July 2019, the Hon. Ben Morton MP, Assistant Minister to the Prime Minister and Cabinet (‘the Minister’), introduced the Royal Commissions Amendment (Private Sessions) Bill 2019 (Cth) (‘the Bill’) to the House of Representatives. On the 10 September, the Bill was passed as theRoyal Commissions Amendment (Private Sessions) Act 2019 (CTH) (‘the Act’) with amendments by both houses and was granted assented on the 13 September 2019.
According to the Explanatory Memorandum, private sessions were originally established to "enable individuals to tell their story about matters into which the Commission was inquiring in a less formal setting than a hearing."
Section 6OB of the RC Act states that private sessions are not to be considered as hearings of the commission and therefore, participants are not considered to be witnesses nor do they give evidence. However section 6OF stipulates that participants of private sessions are “granted the same protections as a witness in any case tried in the High Court”. Further, Division 3 specifies the terms of privacy for private sessions which includes restricting attendance to private sessions to only authorised persons and affirming that any unauthorised use or disclosure of information given at a private session is an offence.
The Act amends Section 6OAB of the RC Act to define the scope of operation of private sessions as follows:
This Part applies to:
(a) the Child Sexual Abuse Royal Commission; and
(b) any other Royal Commission prescribed by the regulations
Prior to the passing of the Bill, the RC Act only imposed limitations on the use and disclosure of information obtained at a private session that were produced before, delivered or given to, or otherwise obtained or received by, the Commission. The Act furthers those limitations by including information provided for private sessions regardless of whether the private session is held or not as well as providing protections for information not given for the purpose of a private session but indicated by the Commission to be treated as confidential.
The Bill passed with amendments which removed provisions that would have allowed qualified and senior staff members to be authorised to conduct private sessions. Effectively, this enables only a sole Commissioner, the Chair of a multi-member Commission, or a Commissioner authorised by the Chair to conduct private sessions. The justification of these amendments is that while the flexibility and discretion in the authorisation power for private sessions is essential for effective investigation, the number of people authorised to conduct private sessions in the Bill as it was first introduced was excessive in light of the purpose of private sessions. The intent of the regime when first introduced in 2013 was to enable one or two Commissioners to conduct private sessions during the inquiry. The amendments are intended to uphold the integrity of the regime, particularly in regards to confidentiality and the ability to be heard by a person in a position of power promised to participants.
With regards to the intended application of the Act, while there is no exhaustive list of commissions the Act applies to, in passing the Bill, the government proposed to recommend the use of the private sessions regime in particular to the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability and the Royal Commission into Aged Care Quality and Safety. Referring to these Commissions, the Minister stated in his second reading speech:
“These are challenging and confronting royal commissions. (…) Royal commissions are the highest level of public inquiry and are reserved for matters of significant public importance. The private session framework can be a very important format to supplement the way that a commission gathers information to complete its reporting obligations.”.
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Royal Commissions Amendment (Private Sessions) Act 2019 (Cth), Bill and explanatory material, available from TimeBase's LawOne service
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