Part 4Private sessions for certain Royal Commissions

Part 4—Private sessions for certain Royal Commissions 6OA  Definitions  (1) In this Part: Assistant Commissioner, for a Royal Commission, means a person authorised under subsection 6OB(2A) to be an Assistant Commissioner for the sole purpose of holding private sessions for the Commission. Child Sexual Abuse Royal Commission means the Royal Commission into Institutional Responses to Child Sexual Abuse issued by the Governor‑General by Letters Patent on 11 January 2013 (and including any later variations of those Letters Patent). Defence and Veteran Suicide Royal Commission means the Royal Commission into Defence and Veteran Suicide, issued by the Governor‑General by Letters Patent on 8 July 2021 (and including any later variations of those Letters Patent). defence member means a member of the Defence Force. Disability Royal Commission means the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, issued by the Governor‑General by Letters Patent on 4 April 2019 (and including any later variations of those Letters Patent). private session means a private session held under section 6OB. veteran means a person who has served, or is serving, as a member of the Permanent Forces or as a member of the Reserves.  (2) In subsection (1), the following terms have the same meaning as in the Defence Act 1903:  (a) Defence Force;  (b) Permanent Forces;  (c) Reserves. 6OAB  Royal Commissions to which this Part applies   This Part applies to:  (a) the Child Sexual Abuse Royal Commission; and  (b) any other Royal Commission prescribed by the regulations. Division 2—Private sessions 6OB  Power to hold private sessions Who may hold a private session  (1) If a Royal Commission is constituted by 2 or more members, the following persons may hold a private session for the Commission to obtain information in relation to matters into which the Commission is inquiring:  (a) the Chair of the Commission;  (b) a member who is authorised in writing by the Chair of the Commission;  (c) an Assistant Commissioner for the Commission.  (2) If a Royal Commission is constituted by a sole Commissioner, the following persons may hold a private session for the Commission to obtain information in relation to matters into which the Commission is inquiring:  (a) the sole Commissioner;  (b) an Assistant Commissioner for the Commission. Assistant Commissioners  (2A) The Chair of a Royal Commission or the sole Commissioner (as the case may be) may, in writing, authorise a person to be an Assistant Commissioner for the sole purpose of holding private sessions for the Commission if:  (a) the person is a member of the staff of the Commission; and  (b) the Chair of the Commission or the sole Commissioner (as the case may be) considers that:  (i) the person has suitable qualifications and experience, and an appropriate level of seniority, to hold private sessions for the Commission; and  (ii) circumstances exist that justify the person holding private sessions for the Commission. Number of persons who may hold a private session  (3) A private session held under subsection (1) or (2) may be held only by one or 2 persons. Conduct of a private session  (4) If a private session is held for a Royal Commission under subsection (1), any member of the Commission or Assistant Commissioner holding the private session may (subject to the Letters Patent establishing the Commission and Division 3) determine any matters relating to the conduct of the private session, having regard to any directions given by the Chair of the Commission.  (5) If a private session is held for a Royal Commission under subsection (2):  (a) in the case of the holding of the private session by the sole Commissioner—the sole Commissioner may (subject to the Letters Patent establishing the Commission and Division 3) determine any matters relating to the conduct of the private session; or  (b) in the case of the holding of the private session by an Assistant Commissioner—the Assistant Commissioner may (subject to the Letters Patent establishing the Commission and Division 3) determine any matters relating to the conduct of the private session, having regard to any directions given by the sole Commissioner. 6OC  Status of private sessions etc.  (1) A person who appears at a private session for a Royal Commission:  (a) is not a witness before the Commission; and  (b) does not give evidence to the Commission.  (2) A private session for a Royal Commission is not a hearing of the Commission. Powers of Commission and custody and use of records  (3) Sections 6F (power of Commission in relation to documents and other things), 6P (Commission may communicate information) and 9 (custody and use of records of Royal Commission) apply as if information, a document, record or other thing that was:  (a) obtained at a private session for a Royal Commission by a member or Assistant Commissioner holding the private session; or  (b) given to a member, or member of the staff, of a Royal Commission for the purposes of a private session (whether or not a private session was, or is to be, held for the Commission); were produced before, delivered or given to, or otherwise obtained or received by, the Commission.  (4) Section 9 (custody and use of records of Royal Commission) also applies as if a record that was produced:  (a) at a private session for a Royal Commission by a member or Assistant Commissioner holding the private session; or  (b) by a member, or member of the staff, of a Royal Commission for the purposes of a private session (whether or not a private session was, or is to be, held for the Commission); were produced by the Commission. Application of Part 4 (offences)  (5) Sections 6H (false or misleading evidence), 6I (bribery of witness), 6J (fraud on witness), 6L (preventing witness from attending), 6M (injury to witness) and 6N (dismissal by employers of witness) apply as if:  (a) a person who appears, or intends to appear, at a private session for a Royal Commission were called or summoned, or appeared, as a witness before the Commission; and  (b) any information provided, or that a person intends to provide, at a private session for a Royal Commission were testimony or evidence given at a hearing before the Commission; and  (c) any document or other thing that a person produces, or intends to produce, at a private session for a Royal Commission was produced or would have been produced because the person was required to do so under a summons, requirement or notice under section 2.  (6) Section 6O (contempt of Royal Commission) applies in relation to a private session for a Royal Commission as if:  (a) the person or persons holding the private session were the Commission; and  (b) the private session were proceedings of the Commission. Note: Members or Assistant Commissioners can hold private sessions: see subsections 6OB(1) and (2). 6OE  Certain statements made and documents produced etc. not admissible in evidence  (1) The following are not admissible in evidence against a natural person in any civil or criminal proceedings in any court of the Commonwealth, of a State or of a Territory:  (a) a statement or disclosure made by the person at a private session;  (b) the production of a document or other thing by the person at a private session;  (c) a statement or disclosure made by the person to a member, or member of the staff, of a Royal Commission for the purposes of a private session (whether or not a private session was, or is to be, held for the Commission).  (1A) The following are also not admissible in evidence against a natural person in any civil or criminal proceedings in any court of the Commonwealth, of a State or of a Territory:  (a) a statement or disclosure made on behalf of the person at a private session;  (b) the production of a document or other thing on behalf of the person at a private session;  (c) a statement or disclosure made on behalf of the person to a member, or member of the staff, of a Royal Commission for the purposes of a private session (whether or not a private session was, or is to be, held for the Commission).  (2) Subsections (1) and (1A) do not apply to the admissibility of evidence in proceedings for an offence against this Act. 6OEA  Protection of Assistant Commissioners   An Assistant Commissioner for a Royal Commission who holds a private session for the Commission has the same protection and immunity as a Justice of the High Court. 6OF  Protection of those who appear, or are authorised to be present, at a private session  (1) Any person who appears, or is authorised to be present, at a private session has the same protection and, in addition to the penalties provided by this Act, is to be subject to the same liabilities in any civil or criminal proceeding, as a witness in any case tried in the High Court.  (2) A legal practitioner who appears on behalf of a person at a private session has the same protection and immunity as a barrister has in appearing for a party in proceedings in the High Court. Division 3—Privacy in relation to private sessions 6OG  Privacy of private sessions   A private session must be held in private, and only persons who are authorised by a member or Assistant Commissioner holding the private session may be present during the private session. 6OH  Offence for unauthorised use or disclosure of information given at a private session etc.   A person commits an offence if:  (a) the person obtains information:  (i) at a private session for a Royal Commission; or  (ii) that was given at a private session for a Royal Commission; or  (iii) that was given by a natural person to a member, or member of the staff, of a Royal Commission for the purposes of a private session (whether or not a private session was, or is to be, held for the Commission) and identifies the person who gave the information; and  (b) the person makes a record of, uses or discloses the information; and  (c) none of the following applies:  (i) the record, use or disclosure is for the purposes of performing functions or duties or exercising powers in relation to the Commission;  (ii) the person is authorised to make the record of, or use, disclose or publish, the information in accordance with section 6OJ (inclusion of information in reports and recommendations), 6P (Commission may communicate information) or 9 (custody and use of records of Commission);  (iii) in the case of information referred to in subparagraph (a)(i) or (ii)—the person makes the record of, uses or discloses the information with the consent of the person who gave the information at the private session;  (iv) in the case of information referred to in subparagraph (a)(iii)—the person makes the record of, uses or discloses the information with the consent of the person who gave the information to the member, or member of the staff, of the Commission. Penalty: 20 penalty units or imprisonment for 12 months or both. Note 1: For a defence to this offence, see section 6OK. Note 2: The person who gave the information at the private session, or to the member, or member of the staff, of the Royal Commission, does not commit an offence under this section by making a record of, using or disclosing the information, because the person is not covered by paragraph (a). 6OJ  Inclusion of information in reports and recommendations   Information that relates to a natural person that has been obtained at a private session for a Royal Commission or that was given to a member, or member of the staff, of a Royal Commission for the purposes of a private session (whether or not a private session was, or is to be, held for the Commission) may be included in a report or recommendation of the Commission only if:  (a) the information is also given as evidence to the Commission or under a summons, requirement or notice under section 2; or  (b) the information is de‑identified. 6OK  Defence for disclosure to person who provided the information   Section 6OH does not apply to a disclosure of information to the person who gave the information:  (a) in the case of information referred to in subparagraph 6OH(a)(i) or (ii)—at the private session; or  (b) in the case of information referred to in subparagraph 6OH(a)(iii)—to the member, or member of the staff, of the Commission. Note: A defendant bears an evidential burden in relation to the matter in this section (see subsection 13.3(3) of the Criminal Code). 6OL  No other exceptions under other laws  (1A) This section applies if a person obtains information:  (a) at a private session for a Royal Commission; or  (b) that was given at a private session for a Royal Commission; or  (c) that was given by a natural person to a member, or member of the staff, of a Royal Commission for the purposes of a private session (whether or not a private session was, or is to be, held for the Commission) and identifies the person who gave the information.  (1) A provision of a law of the Commonwealth, a State or a Territory has no effect to the extent that it would otherwise require or authorise the person who obtains the information to make a record of, use or disclose the information if the record, use or disclosure:  (a) would contravene a provision of this Division; or  (b) would not be permitted by a provision of this Division.  (2) Subsection (1) has effect whether the provision concerned is made before or after the commencement of this section. 6OM  Relationship with the Archives Act 1983  (1) For the purposes of the Archives Act 1983, a record:  (a) that contains information obtained at a private session; or  (b) that relates to a private session and identifies a natural person who appeared at a private session; or  (c) that contains information that was given by a natural person to a member, or member of the staff, of a Royal Commission for the purposes of a private session (whether or not a private session was, or is to be, held for the Commission) and identifies the person who gave the information; is in the open access period on and after 1 January in the year that is 99 years after the calendar year that the record came into existence.  (2) To avoid doubt, subsection (1) applies in relation to a record whether it came into existence before, during or after a private session (if any) was held.  (3) Subsection 3(7) and section 56 of the Archives Act 1983 do not apply to a record referred to in subsection (1). 6ON  Protection of certain information given to the Child Sexual Abuse Royal Commission  (a) the information was given by, or on behalf of, a natural person to the Child Sexual Abuse Royal Commission other than for the purposes of a private session; and  (b) the information contains an account of:  (i) the natural person’s experiences of child sexual abuse in an institutional context; or  (ii) what happened to other people regarding child sexual abuse in an institutional context; and  (c) the information identifies the natural person who gave the information, or on whose behalf the information was given; and  (d) the Commission indicated that the information, if given, would be treated as confidential; and  (e) the information was treated as confidential by the Commission.  (2) Section 6OE applies in relation to the information as if it were a statement or disclosure made by the natural person at a private session for the Commission.  (3) Sections 6OH, 6OK and 6OL apply in relation to the information as if it were information given by the natural person at a private session for the Commission.  (4) Section 6OM applies in relation to the information as if it were a record that contains information obtained at a private session for the Commission. 6OP  Protection of certain information given to the Disability Royal Commission  (a) the information was given by, or on behalf of, a natural person to the Disability Royal Commission other than for the purposes of a private session; and  (b) the information contains any of the following:  (i) an account of the natural person’s, or another person’s, experiences of violence, abuse, neglect or exploitation;  (ii) an account of the natural person’s, or another person’s, experiences of systemic violence, abuse, neglect or exploitation; and  (c) the information directly or indirectly identifies the natural person who gave the information, or on whose behalf the information was given; and  (d) the information was treated as confidential by the Commission at all times after being given to the Commission.  (2) Section 6OE applies:  (a) in all cases—in relation to the natural person who gave the information to the Commission, as if the information were a statement or disclosure made by that person at a private session for the Commission; and  (b) if the information was given to the Commission on behalf of another natural person—in relation to the other natural person as if the information were a statement or disclosure made on behalf of that other person at a private session for the Commission.  (3) Sections 6OH, 6OK and 6OL apply in relation to the information as if it were information given by the natural person at a private session for the Commission.  (3A) Section 6OJ applies in relation to the information as if it were information obtained at a private session for the Commission.  (4) Section 6OM applies in relation to the information as if it were a record that contains information obtained at a private session for the Commission.  (5) A reference in subparagraph (1)(b)(ii) to experiences of systemic violence, abuse, neglect or exploitation is a reference to experiences, or an awareness, of a policy, procedure, practice, act or omission that contributed, or may have contributed, to a natural person experiencing violence, abuse, neglect or exploitation. 6OQ  Protection of certain information given to the Defence and Veteran Suicide Royal Commission  (a) the information was given by, or on behalf of, a natural person to the Defence and Veteran Suicide Royal Commission other than for the purposes of a private session; and  (b) the information contains any of the following:  (i) an account of a person’s experiences of suicide, suicidality or poor mental health as a defence member or veteran;  (ii) an account of a person’s experiences of systemic issues as a defence member or veteran; and  (c) the information directly or indirectly identifies the natural person who gave the information, or on whose behalf the information was given; and  (d) the information was treated as confidential by the Commission at all times after being given to the Commission.  (2) Section 6OE applies:  (a) in all cases—in relation to the natural person who gave the information to the Commission, as if the information were a statement or disclosure made by that person at a private session for the Commission; and  (b) if the information was given to the Commission on behalf of another natural person—in relation to the other natural person as if the information were a statement or disclosure made on behalf of that other person at a private session for the Commission.  (3) Sections 6OH, 6OK and 6OL apply in relation to the information as if it were information given by the natural person at a private session for the Commission.  (4) Section 6OJ applies in relation to the information as if it were information obtained at a private session for the Commission.  (5) Section 6OM applies in relation to the information as if it were a record that contains information obtained at a private session for the Commission.  (6) A reference in subparagraph (1)(b)(ii) to experiences of systemic issues is a reference to experiences, or an awareness, of a policy, procedure, practice, act or omission that contributed, or may have contributed, to a person’s suicide, suicidality or poor mental health. Part 4A—Other provisions relating to certain Royal Commissions 6PA  Definitions   In this Part: Australian Defence Force has the same meaning as in the Defence Act 1903. Australian intelligence entity means:  (a) the Australian Secret Intelligence Service; or  (b) the Australian Security Intelligence Organisation; or  (c) that part of the Defence Department known as the Australian Geospatial‑Intelligence Organisation; or  (d) that part of the Defence Department known as the Defence Intelligence Organisation; or  (e) the Australian Signals Directorate; or  (f) the Office of National Intelligence. Defence Department means the Department administered by the Minister administering the Defence Force Discipline Act 1982. head, of an Australian intelligence entity, means:  (a) in relation to the Australian Security Intelligence Organisation—the Director‑General of Security; or  (b) in relation to the Australian Secret Intelligence Service—the Director‑General of the Australian Secret Intelligence Service; or  (c) in relation to the Australian Signals Directorate—the Director‑General of the Australian Signals Directorate; or  (d) in relation to the part of the Defence Department known as the Australian Geospatial‑Intelligence Organisation—the Director of that part of the Department; or  (e) in relation to the part of the Defence Department known as the Defence Intelligence Organisation—the Director of that part of the Department; or  (f) in relation to the Office of National Intelligence—the Director‑General of National Intelligence. intelligence information means any information:  (a) that was acquired or prepared by or on behalf of an Australian intelligence entity in connection with its functions; or  (b) that relates to the performance by an Australian intelligence entity of its functions; or  (c) that identifies a person as being, or having been, a staff member (within the meaning of the Intelligence Services Act 2001) or agent of the Australian Secret Intelligence Service or the Australian Security Intelligence Organisation. intelligence information arrangement means an arrangement between the President or Chair, or the sole Commissioner, of a Commission and the head of an Australian intelligence entity for obtaining, storing, accessing, using, disclosing and returning intelligence information relating to the Australian intelligence entity. law enforcement or security agency means any of the following:  (a) the Australian Transaction Reports and Analysis Centre continued in existence by the Anti‑Money Laundering and Counter‑Terrorism Financing Act 2006;  (b) the Australian Defence Force;  (c) the Australian Federal Police;  (d) the Australian Criminal Intelligence Commission established by the Australian Crime Commission Act 2002;  (e) the Department administered by the Minister administering the Australian Border Force Act 2015. operationally sensitive information means:  (a) information about information sources or operational activities or methods available to a law enforcement or security agency; or  (b) information about particular operations that have been, are being or are proposed to be undertaken by a law enforcement or security agency, or about proceedings relating to those operations; or  (c) information provided by a foreign government, or by an agency of a foreign government, where that government does not consent to the public disclosure of the information. operationally sensitive information arrangement means an arrangement between the President or Chair, or the sole Commissioner, of a Commission and the Commonwealth for obtaining, storing, accessing, using and disclosing operationally sensitive information. secrecy provision means:  (a) a provision of a law of the Commonwealth that purports to prohibit; or  (b) anything done, under a provision of a law of the Commonwealth, to prohibit; any of the following:  (c) the use of information or a document;  (d) dealing with information or a document;  (e) making a record of information, or a copy of a document;  (f) the disclosure or publication of information;  (g) the production of, or the publication of the contents of, a document;  (h) access to information or a document; regardless of whether the provision of the law of the Commonwealth:  (i) commenced before the commencement of this definition; or  (j) is expressed to apply despite any other law. Secretary means the Secretary of the Department. 6PB  Royal Commissions to which this Part applies   This Part applies to a Royal Commission prescribed by the regulations. Division 2—Provision of intelligence information or operationally sensitive information to a Commission 6PC  Persons to comply with requirements to give intelligence information or operationally sensitive information  (1) It is not a reasonable excuse for the purposes of subsection 3(2B) or (5) or 6AB(4) for a person to refuse or fail to produce a document that contains intelligence information or operationally sensitive information on the ground that the production of the document would contravene a secrecy provision.  (2) It is not a reasonable excuse for the purposes of subsection 3(6B) for a person to refuse or fail to:  (a) give information that is intelligence information or operationally sensitive information; or  (b) give a statement containing intelligence information or operationally sensitive information; that the person is required to give under subsection 2(3C) on the ground that giving the information or statement would contravene a secrecy provision.  (3) A person is not excused from answering a question that the person is required to answer by a member of a Commission on the ground that answering the question would disclose intelligence information or operationally sensitive information in contravention of a secrecy provision. Note: For protections in relation to intelligence information and operationally sensitive information provided to a Commission, see section 6PD. 6PD  Protections for intelligence information and operationally sensitive information—provision to Commission  (1) This section applies if:  (a) a person:  (i) voluntarily gives information or a document to a Commission and, at that time, reasonably believes that the information or document is relevant to the matters into which the Commission is inquiring; or  (ii) makes a statement or disclosure in the course of giving evidence before a Commission; or  (iii) makes a statement or disclosure in writing in response to a notice under subsection 2(3C); or  (iv) produces a document pursuant to a summons, requirement or notice under section 2 or subsection 6AA(3); and  (b) either:  (i) the information is intelligence information or operationally sensitive information; or  (ii) the document, statement or disclosure contains intelligence information or operationally sensitive information; and  (c) the giving, making or production of the information, document, statement or disclosure is consistent with procedures established in accordance with:  (i) in the case of intelligence information—an intelligence information arrangement, a copy of which has been published in accordance with section 6PG; or  (ii) in the case of operationally sensitive information—an operationally sensitive information arrangement, a copy of which has been published in accordance with section 6PG. Note: A defendant bears an evidential burden in relation to the matters in subsection (1): see subsection 13.3(3) of the Criminal Code. Protection from liability  (2) The person does not commit an offence, and is not liable to any penalty, under a secrecy provision for giving, making or producing the information, document, statement or disclosure. Information etc. not admissible in evidence  (3) The information, document, statement or disclosure, and the giving, making or production of the information, document, statement or disclosure, is not admissible in evidence against the person in any civil or criminal proceedings in any court of the Commonwealth, of a State or of a Territory in relation to a contravention of a secrecy provision. Exceptions  (4) Subsections (2) and (3) do not apply in relation to proceedings for an offence against this Act. 6PE  Protections for intelligence information and operationally sensitive information—legal advice and representation  (1) This section applies if:  (a) a person uses or communicates intelligence information or operationally sensitive information; and  (b) the use or communication is for the primary purpose of obtaining or providing legal advice or legal representation in relation to the application of any right, privilege, immunity, defence or obligation under this Act in connection with a Commission (including any interaction of that right, privilege, immunity, defence or obligation with any other law of the Commonwealth); and  (c) in the case of a use or communication for the purpose of obtaining legal advice or legal representation—the advice or representation is obtained from a legal practitioner; and  (d) in the case of a use or communication for the purpose of providing legal advice or legal representation—the person is a legal practitioner; and  (e) in the case of a communication—if the person knew, or ought reasonably to have known, that the information has a security classification, the recipient of the information holds the appropriate level of security clearance; and  (f) if a copy of a relevant intelligence information arrangement or operationally sensitive information arrangement has been published in accordance with section 6PG—the use or communication is otherwise not inconsistent with that arrangement. Protection from liability  (2) The person does not commit an offence, and is not liable to any penalty, under a secrecy provision for the use or communication of the information. Information etc. not admissible in evidence  (3) The information, and the use or communication of the information, is not admissible in evidence against the person in any civil or criminal proceedings in any court of the Commonwealth, of a State or of a Territory in relation to a contravention of a secrecy provision. Exceptions  (4) Subsections (2) and (3) do not apply in relation to proceedings for an offence against this Act. 6PF  Commission may use and communicate intelligence information and operationally sensitive information Use of information etc.  (1) The Commission may use information, a document, a statement or a disclosure to which section 6PD applies for the purposes of performing or exercising any of the Commission’s functions or powers. Communication of information etc.  (2) The Commission may, in accordance with section 6P:  (a) communicate information to which section 6PD applies; or  (b) furnish evidence containing information, a document, a statement or a disclosure to which section 6PD applies. Commission to exercise powers in accordance with arrangements  (3) The Commission must exercise a power under subsection (1) or (2) in accordance with any relevant intelligence information arrangement or operationally sensitive information arrangement. Note: Intelligence information arrangements and operationally sensitive information arrangements are required to be published: see section 6PG. Relationship with other provisions  (4) Subsections (1) and (2) have effect despite any secrecy provision.  (5) Subsections (1) and (2) do not limit section 6F, 6P or any other provision of this Act. 6PG  Publication of arrangements   The Secretary must, by notifiable instrument, publish a copy of any intelligence information arrangement or operationally sensitive information arrangement, including any such arrangement as varied.