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Practice Guidelines 6

  • Practice Guidelines
Publication date

This Practice Guideline is about the conduct of private sessions by the Royal Commission into Defence and Veteran Suicide. 

Practice Guidelines 6 - Private sessions

Introductory matters

  1. This Practice Guideline (Guideline)[1] is about the conduct of private sessions by the Royal Commission into Defence and Veteran Suicide (the Royal Commission).
  2. The Royal Commissions Act 1902 (Cth) (the Act)[2] and the Royal Commissions Regulations 2019[3]  allow the Royal Commission to hold private sessions.
 

[1]    As with other Practice Guidelines, this Guideline should be read in conjunction with the Act, the terms of reference, available on the Royal Commission’s website at https://defenceveteransuicide.royalcommission.gov.au/about/terms-reference and all other practice guidelines published by the Royal Commission. The Royal Commission may vary or replace this Guideline at any time.

[2]    Section 6OAB(b).

[3]    Section 7(c), added by the Royal Commissions Amendment (Defence and Veteran Suicide Private Sessions) Regulations 2021

What is a private session?

  1. The Royal Commission’s terms of reference require the Royal Commission to be informed by individual experiences. Private sessions are one way that the Royal Commission can hear and learn about those experiences.
  2. A private session is a meeting between a person or people and one or more Commissioners where information that falls within the terms of reference can be shared with the Royal Commission in a confidential way, where your story will not be disclosed to the public in any manner that could identify you. You can share information with the Royal Commission in different ways for the purpose of a private session. For example, you can speak to a Commissioner at a private session, and/or provide information in a document or other record before, during or after your private session.
  3. A private session can be held in person or via telephone or video conferencing.
  4. A private session is not a formal hearing of the Royal Commission.[4] When you attend a private session with the Royal Commission, you are not a witness[5] before the Royal Commission and you are not giving evidence.
  5. A private session is your opportunity to share your experiences with one or two Commissioners in confidence. During a private session the Commissioner or Commissioners may ask you questions about your experiences, but will not make findings or provide advice. 
  6. During a private session, you will also have an opportunity to make any suggestions you may have for change.
 

[4]    A formal hearing is designed for the purpose of further investigation, to test matters that have been raised and to allow the Royal Commission to inform itself about relevant matters and issues that may be the subject of findings or recommendations. The Royal Commission is not a court and cannot make decisions about criminal matters. You can find further information on the conduct of hearings in Practice Guideline 4.

[5]    Section 6OC of the Royal Commissions Act 1902 (Cth).

Conduct of private sessions

  1. Usually, a private session will be with one Commissioner, but sometimes it might be with two. The Commissioner will decide who else can attend your private session. Apart from you, that will generally be a support person or people you have chosen, and an officer of the Royal Commission.[6] Your legal representative may attend with you as your support person, but they will not be there to speak for you unless the Commissioner holding the private session agrees.
  2. The person(s) or institution(s) you want to tell the Commissioner about will not attend, or be represented at, your private session.
  3. The Royal Commission will not ask you to provide any documents at your private session. However, you can give the Commissioner any relevant documents during or after your private session.
  4. The Royal Commission will seek your consent to audio record your private session. The audio record is treated in the same way as other information provided in the context of private sessions, as detailed at paragraphs 15 to 23 below.
 

[6]    The officer of the Commission will take notes and may ask questions during the private session.

Adjustments and support

  1. The Royal Commission will, as far as practicable, support you to share your experience in a private session in the way that best suits you, including by covering costs where appropriate. Please tell us how we can support you. For example, please tell us if you:
    1. will need to take breaks;
    2. prefer a particular time of day to attend your private session;
    3. would like your private session to be in person or via telephone or video link;
    4. have a preference for the location of the private session ;
    5. would like to have a relative, friend or other support person with you;
    6. would like the Royal Commission to provide a support person to attend your private session;
    7. would like to share your experience with the help of an interpreter or someone else who may communicate on your behalf or help you with communication;
    8. need any aids or equipment to help share your experience;
    9. would like to have your private session with a particular Commissioner (please note the Royal Commission may not always be able to meet such requests due to Commissioner availability);
    10. have any concerns about a particular Commissioner being present in your private session;
    11. would prefer to tell your story to a female or male Commissioner; and
    12. need us to make any adjustments to ensure your cultural or other needs are met.
  2. Counselling support will be available for you before, during and after your private session.
  3. If you need to travel to attend a private session, the Royal Commission may arrange and cover the cost of travel and accommodation for you, and your support person.

Use of information provided in a private session

  1. The Royal Commission will keep confidential the information you provide before, during or after your private session, where that information identifies you and is provided for the purposes of your private session. That information will remain confidential even after the Royal Commission comes to an end and produces its Final Report.[7] This means that the Royal Commission will not disclose your information except in the circumstances set out in paragraphs 17 to 19 below.
  2. The circumstances in which the Royal Commission can disclose the information you give at a private session or for the purposes of a private session include the following:
    1. limited circumstances in which the Royal Commission may provide information to a law enforcement body or certain other commissions (see paragraphs 18 - 21 below);
    2. if the Royal Commission de-identifies the information and includes it in its reports or recommendations; and/or
    3. where the information has also been disclosed as evidence before the Royal Commission, or produced to it in response to a formal notice or summons.
 

[7]    Records of private sessions will not become publicly accessible by being in the “open access period” under the Archives Act 1983 (Cth) until 99 years after the record comes into existence: s 6OM(1) of the Royal Commissions Act 1902 (Cth).

Disclosure to law enforcement or other Commissions

  1. Section 6P(1) of the Royal Commissions Act gives the Royal Commission the power to communicate to certain authorities (including the police) any information or evidence it collects during the inquiry that relates or may relate to a breach of a Commonwealth, State or Territory law for which a person could be liable for a criminal or civil penalty.[8] A list of the bodies to which the Royal Commission can communicate information is set out in section 6P of the Royal Commissions Act.
  2. In most cases, you will be asked to agree to information you have provided being given to police and law enforcement bodies. However, in exceptional circumstances, the Royal Commission has the power to provide the information to police and law enforcement bodies even if you do not agree. We will only disclose information that you provide without first discussing the matter with you if the Royal Commission believes that disclosure is necessary to prevent imminent harm to any person.
 

[8]    Under s 6P(1) of the Act, the Royal Commission may communicate information to the Attorney-General of the Commonwealth or of any State or Territory; the Director of Public Prosecutions; a Special Prosecutor appointed under the Special Prosecutors Act 1982 (Cth); the Commissioner of the Australian Federal Police or of the Police Force of a State or of the Northern Territory; or the authority or person responsible for the administration or enforcement of a law, where the information given to the Royal Commission relates, or may relate, to a contravention of that law.

No use of information in civil or criminal proceedings

  1. The information you give the Royal Commission during or for the purposes of a private session cannot be used as evidence against you in civil or criminal proceedings in an Australian court.[9] For example, if you provide information in a private session alleging that someone had suffered violence, neglect, abuse or exploitation because of the acts of a person or an institution then that information cannot be used against you in any court proceedings. This would mean that the person or institution could not use that information to sue you for defamation. It would also mean that if you sued the person or institution in relation to the violence, neglect, abuse or exploitation, the person or institution could not use the information from the private session to try to prove you told a different story in the private session.  This protection is also available to any person who attends a private session with you and who provides information in a private session.
 

[9]    This does not apply to proceedings for an offence against the Act.

Subpoenas and freedom of information applications

  1. During the Royal Commission, the Royal Commission itself has custody of all records of the Royal Commission. For the first 20 years after the conclusion of the Royal Commission, the Commonwealth Attorney-General’s Department has custody of the records of the Royal Commission. After 20 years has passed, the National Archives of Australia has custody of the records of the Royal Commission. If the Royal Commission (or, once the Royal Commission has finished, the Commonwealth Attorney-General’s Department or National Archives of Australia), receives a subpoena (or other compulsory process) to produce the information you have given the Royal Commission for the purposes of your private session, those bodies cannot, without your consent, disclose your information. Similarly, if an application is made to access that information under freedom of information legislation, those bodies cannot, without your consent, disclose the information. This protection extends for a period of 99 years after the year in which the information was provided to the Royal Commission.

Priorities for private sessions

  1. The Royal Commission may not be able to offer a private session to everyone who requests one. The Royal Commission may prioritise attendees based on individual circumstances and need. This includes in circumstances where people are not able to give the information to the Royal Commission in any other way.
  2. People who are not offered a private session may still share information with the Royal Commission by making a submission (in writing or via video or audio recording), being invited to attend a Roundtable or being called by the Royal Commission to give evidence in a formal hearing.
  3. Each of the above engagements with the Royal Commission affords the person different protections under the Act and the information provided attracts various levels of confidentiality.