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Royal Commissions Amendment Bill 2013

Introduced into the House of Representatives on 13 February 2013
Portfolio: Prime Minister

Summary of committee view

1.1        The committee seeks clarification regarding:

(a) the compatibility of the contempt powers in section 6O of the Royal Commissions Act 1902 with the right to a fair hearing in article 14 of the International Covenant on Civil and Political Rights (ICCPR); and

(b) the compatibility of the arrest powers in section 6B of the Royal Commissions Act 1902 with the prohibition against arbitrary detention in article 9(1) of the ICCPR.

Overview

1.2        This bill proposes a number of amendments to the Royal Commissions Act 1902 in order to facilitate the work of the Royal Commission into Institutional Reponses to Child Sexual Abuse (the Commission). This Royal Commission was established by Letters Patent issued by the Governor-General on 11 January 2013[1] and has been enjoined ‘to inquire into institutional responses to allegations and incidents of child sexual abuse and related matters’, detailed further in the Letters Patent. The Letters Patent specifically refer to the fact that Australia has undertaken ‘international obligations to take all appropriate legislative, administrative, social and educational measures to protect children from sexual abuse and other forms of abuse, including measures for the prevention, identification, reporting, referral, investigation, treatment and follow up of incidents of child abuse’. This language is drawn in part from article 19 of the Convention on the Rights of the Child.

1.3        The bill proposes two main amendments to the Royal Commissions Act 1902. The first is to permit the President or Chair of a multi-member Royal Commission to appoint one member of the Commission to hold a hearing at which evidence may be taken on oath or affirmation. This is not possible under the current Act – a quorum of the Commission is required to hold such a hearing. This change would apply to all multi-member Royal Commissions, including the current Commission.

1.4        The second amendment is intended to support the work of the present Commission and to reflect the sensitive nature of the testimony and information that will be provided by persons appearing before the Commission in relation to their experiences of abuse. The bill will permit evidence to be given in ‘private sessions’ ‘to facilitate the Commission’s receipt of information from persons directly or indirectly affected by child sexual abuse in a manner less formal than a hearing’:[2]

The proposed measures will facilitate persons directly or indirectly affected by child sexual abuse and related matters in institutional contexts to present their account to a Commissioner in a setting that is less formal than a hearing.[3]

Compatibility with human rights

1.5        The bill is accompanied by a self-contained statement of compatibility that states that the bill engages the right to privacy in article 17 of the International Covenant on Civil and Political Rights (ICCPR) and the right to freedom of expression in article 19 of the ICCPR. The statement contends that the bill does not engage the fair trial and fair hearing rights in article 14 of the ICCPR because 'a Royal Commission is not a court or tribunal and cannot adjudicate on a person's guilt or liability'.[4]

1.6        To these should also be added a number of rights contained in the Convention on the Rights of the Child which guarantee the protection of children from sexual and other forms of abuse and imposes an obligation on the State to take appropriate steps to prevent, investigate, and punish such acts, as well as to provide support for those who have been subjected to such abuse. The establishment of the Commission is such a step.

1.7        A significant shortcoming of the statement of compatibility is that it does not address a number of human rights issues to which the principal Act, the Royal Commissions Act 1902, gives rise and which may arise if the Commission draws upon some of the powers conferred by that Act.

Right to privacy

1.8        The statement of compatibility notes that the bill:

will promote the right to privacy by enabling persons who wish to give information to the Royal Commission into Institutional Responses to Child Sexual information to the Royal Commission into Institutional Responses to Child Sexual Abuse to do so voluntarily in a private session that will not be open to the public. This is considered appropriate given the deeply personal and distressing nature of people’s experiences of child sexual abuse. The purpose of receiving the information is to assist the lawful purposes of the Royal Commission’s inquiry. Information relating to a natural person could only be used in a report of the Royal Commission if the information is also given as evidence to the Commission or under a summons, requirement or notice under section 2 (proposed paragraph 6OD(3)(a)) or if it is de-identified (proposed paragraph 6OD(3)(b)).^[5]

Right to freedom of expression and to receive and impart information and ideas

1.9        The statement of compatibility notes that the bill will limit article 19 of the ICCPR (right to freedom of expression and to receive and impart information and ideas) ‘by restricting who may attend private sessions and limiting the use and disclosure of information obtained at a private session’.[6] This restriction will take the form of making it an offence to use or disclose information obtained at a private session, subject to certain exceptions relating to the purposes of the Commission or where the information is de-identified when used in a report of the Commission. ‘These amendments are considered appropriate given the deeply personal and distressing nature of people’s experiences of child sexual abuse. The offence will serve to protect the privacy of participants. As the information obtained at a private session will not be given on oath or affirmation these measures will also serve to protect the reputations of other people’.[7]

Other rights engaged by the provisions of the Royal Commissions Act 1902 but not referred to in the statement of compatibility

1.10      In its February 2010 report,^[8] the Australian Law Reform Commission (ALRC) published the results of its review of the Royal Commissions Act 1902. The ALRC made recommendations for amendments to the Act, including to a number of provisions which it considered give rise to human rights concerns. According to the ALRC website, the report has not yet been implemented.^[9]

1.11      The committee notes that where an amending Act incorporates by reference the provisions of an existing enactment, the statement of compatibility should include an analysis of the human rights implications and compatibility of the provisions of that enactment as they are applied or extended by the amendment. This is so, even where the Act being amended or incorporated by reference commenced operation before the commencement of the Human Rights (Parliamentary Scrutiny) Act 2011. This approach is consistent with the committee’s functions under the Act insofar as the operation of amendments have to be analysed in terms of their legal effect and practical impact, which can only be done by reviewing their operation in the statutory framework of which they form part. Further, such a review contributes to the committee’s performance of its mandate ‘to examine Acts for compatibility with human rights, and to report to both Houses of the Parliament on that issue’.^[10]

1.12      In this case the statement of compatibility should have provided an analysis of the powers in the Royal Commissions Act 1902 which are to be exercisable in the context of the Royal Commission. Among the provisions which give rise to concerns on human rights grounds – and which in the absence of the amendments recommended by the ALRC are applicable to the proceedings of the Royal Commission into Institutional Reponses to Child Sexual Abuse – are:

• the right to a fair hearing before an independent and impartial tribunal under article 14(1) of the ICCPR in relation to the powers of a Royal Commission to punish for contempt in the face of the Commission; and
• the right not to be subject to arbitrary arrest or detention guaranteed by article 9(1) of the ICCPR in relation to the power of a Royal Commission to issue a warrant for the arrest of a person who has been summoned to appear before a Commission as a witness but fails to appear.

Contempt powers: right to a fair hearing before an independent and impartial tribunal

1.13      Section 6O(2) of the Royal Commissions Act 1902 purports to confer on certain Royal Commissioners the same powers as a judge sitting in court to determine certain forms of contempt.[11] Such Commissioners ‘have all the powers of a Justice of the High Court sitting in open Court in relation to a contempt committed in face of the Court’, with the maximum punishment limited to $200 or 3 months imprisonment.[12] These powers include the power of the judge/Commissioner to formulate, hear and determine any charge of contempt and to impose a penalty if the person is found guilty.

1.14      The ALRC questioned whether the notion of contempt was appropriate to ‘bodies established by the executive arm of government’, arguing that:

The law of contempt was developed to protect the administration of justice, and is not directly applicable to public inquiries. Applying the concept of contempt to Royal Commissions and other public inquiries confuses the role and functions of the judiciary with the role and functions of public inquiries, which are established by the executive.[13]

1.15      The ALRC also noted that the conferral of the power to punish for contempt may be constitutionally flawed because it appears to confer the judicial power of the Commonwealth on a body which is not a ‘court’ within the meaning of Chapter III of the Constitution.[14]

1.16      The Commission also noted that the provision may violate the right to a fair hearing before an independent and impartial court or tribunal guaranteed by article 14(1) of the ICCPR.[15] Proceedings for contempt in the face of the court carrying the possibility of a sentence of imprisonment have been viewed as involving the determination of a ‘criminal charge’ under human rights law.[16] Under the common law, legislation and rules of court in Australia and other common law jurisdictions, the courts have developed a range of protections to ensure that the consideration of a charge of contempt of court observes basic principles of fairness,[17] though it is not clear that even the adoption of these would satisfy international requirements of independence and impartiality in all circumstances.[18] For example, the European Court of Human Rights has held that, in certain circumstances, the determination of guilt and imposition of sentence by the same judge who was presiding at the time of the alleged contempt, is inconsistent with the requirement of objective impartiality under article 6(1) of the European Convention on Human Rights[19] (which provides a similar guarantee to article 14(1) of the ICCPR).[20]

1.17      The ALRC recommended repeal of section 6O[21] and its replacement by a provision that would have made it an offence ‘to cause substantial disruption to the proceedings of a Royal Commission or Official Inquiry, with the intention to disrupt the proceedings, or recklessness as to whether the conduct would have that result’.[22]

Right not to be subject to arbitrary deprivation of liberty

1.18      Section 6B(1) of the Royal Commissions Act 1902 provides that the President or Chair of a Royal Commission may issue a warrant for the arrest of a person, if the person has been served with a summons to attend the Commission as a witness but fails to attend the Commission in answer to the summons. However, as the ALRC pointed out, when a Royal Commission wishes to enter, search and seize relevant material, it must apply to a court to obtain such a warrant.[23]

1.19      Article 9(1) of the ICCPR provides:

Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

1.20      The concept of ‘arbitrariness’ includes notions of reasonableness and proportionality; the extent of safeguards against abuse is part of the overall assessment. The ALRC commented in relation to this provision:

Given the potential for the rights and liberties of individuals to be adversely affected by arrest powers, it is appropriate that these be subject to certain limits and safeguards. The ALRC recommends, therefore, that the power in s 6B of the Royal Commissions Act should be redrafted in the recommended Inquiries Act. Royal Commissions should be required to apply to a judge to issue a warrant for the apprehension and immediate delivery of a person to a police officer or judicial officer.[24]

1.21             Before forming a view on the compatibility of the bill with human rights, the committee intends to write to the Prime Minister to seek further information on the following issues:

• the compatibility of the contempt powers in section 6O of the Royal Commissions Act 1902 with the right to a fair hearing in article 14 of the ICCPR, including whether consideration has been given to amending the provision along the lines suggested by the ALRC; and
• the compatibility of the arrest powers in section 6B of the Royal Commissions Act 1902 with the prohibition against arbitrary detention in article 9(1) of the ICCPR, including whether consideration has been given to requiring a judge to issue a warrant for the arrest of a person who has been summoned to appear before the Commission and fails to do so.

1.22             The committee requests the Prime Minister provide it with information about the stage at which the government’s consideration of the ALRC’s recommendations contained in its 2010 report Making Inquiries: A New Statutory Framework has reached, in particular those recommendations relating to the human rights concerns identified by the ALRC.

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