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Protections for people engaging with the Royal Commission

 

Video Transcript – Protections for people engaging with the Royal Commission

We've heard some current and ex-serving members and their families are unsure about sharing their very personal stories with the Royal Commission.

Whether it's about life in the ADF or their experience with the Department of Veterans Affairs.

We understand your concerns, but we want to assure you that there are very strong systems in place to protect people who want to provide information to us.

We Commissioners have recently signed an information sharing agreement with the Chief of Defence and the secretaries of the Departments of Defence and DVA.

It further strengthens the legal protections available to current and ex-serving members, as well as current and former Defence and DVA employees who wish to speak to us about their experience at work or while performing official duties.

The agreement ensures you can talk to us about these experiences, and as long as it's relevant to our terms of reference, you can't be penalised for doing so.

If you're worried about providing information to the Royal Commission, you can request a copy of this agreement from us so you and your lawyers can review the details.

There are other protections that are specifically related to giving evidence and responding to notices to provide information to the Commission.

It's a criminal offence to injure a person for giving information to or appearing before a Royal Commission. It's also illegal for your employer to fire or dismiss you for engaging with us.

If you are threatened in any way about speaking to the Royal Commission please let us know.

If you give evidence at a public or private hearing or private session nothing you say to the Royal Commission can be used against you in any civil or criminal court proceedings.

And remember, if you'd like to make a submission, you can remain anonymous.

The information you share in a private session is protected by statute, by law, and will be kept confidential unless you give consent for it to be shared.

If you have any questions or concerns about sharing information with the Royal Commission, we strongly encourage you to seek legal advice.

You may have your own lawyer or you can get in touch with the Defence and Veterans Legal Service, a free, independent national service for those wishing to engage with the Royal Commission.

We are aware that people need to feel safe to engage with the Royal Commission and we continue to work with the government to look at how we can protect people who may want to disclose information that might be considered operationally sensitive.

In most cases, it's not necessary for people to disclose operationally sensitive information when sharing their stories about suicide and suicidality.

We will continue to focus our efforts to make sure people that come forward to share with the Royal Commission are protected.

This is your chance to tell your story and help make a difference.

Our Interim Report recommended broader protections

In our Interim Report, we urged the Australian Government to make legislative reform to provide stronger and broader protections for members wishing to engage with the Commission (Rec 6), particularly for two cohorts:

  • serving members disclosing personal information that could impact their career in the service
  • serving or ex-serving members whose lived experience is intrinsically linked to classified or operationally sensitive information.

Our recommendation does not mean that those currently engaging or wishing to engage with the Commission do not receive protections. We are asking the Australian Government to review and expand the current protections to ensure the Commission can hear from as many people as possible.

Specific protections currently exist to support members, ex‑serving members, their families and other parties in coming forward to speak to the Commission. We have outlined these protections below.

There are some laws which prevent current or former Commonwealth officers from disclosing certain types of information, such as confidential information obtained during their employment with the Commonwealth or very sensitive information such as classified intelligence or operationally sensitive information. There are some exceptions to these laws and we encourage you to seek legal advice from the services listed at the end of this page.

What protections are currently available?

Submissions

All submissions are valuable and help to inform our inquiry. We continue to encourage people with lived experience, including serving ADF members, to share their story with us.

It's important that you feel safe when providing us information. The Chief of Defence Force has given the Royal Commission a commitment that those who share their story with us will not suffer any consequences; however, the Commission has also co-signed an agreement with the Secretaries of the Departments of Defence and Veterans' Affairs to provide stronger protections so that both past and present ADF members, as well as departmental employees, can voluntarily share with us information which is relevant to our terms of reference without the fear of being punished. A copy of that information sharing arrangement can be provided to you or your lawyers on request.

These protections do not extend to highly sensitive information like classified or intelligence information. The Commission is currently working with Government to provide certainty to individuals who may need to disclose certain operationally sensitive information to share their story, as relevant to our terms of reference; however, in the vast majority of cases it's not necessary for people to disclose such information when sharing their stories or concerns with us.

When sharing your story in a submission, it’s important to remember:

  • all submissions are confidential between you and the Royal Commission
  • you can make a submission under your own name, on behalf of an organisation or on behalf of someone else, such as a family member, friend or colleague, and elect for it to be published on our website or in our reports
  • we will only publish your submission if you have given us permission to do so.
  • if you make a submission on behalf of another living person, we will not publish that submission unless you are able to provide evidence that you have their permission to share their story with us
  • you can request that your submission be de-identified – meaning your submission will be published but with your name and any other identifying information removed
  • you can also choose to remain anonymous when making a submission (not even the Commission will have access to your name and contact information); however, this means that we will not be able to reach out to you to offer support or seek further information about your story. If you choose this option, you’re still able to contact us and ask to speak to one of our counsellors without it being linked to your anonymous submission
  • if you choose for any reason for us not to make your submission public, your submission will remain confidential between you and the Commission.

If you are still unsure, you can reach out to DAVLS for free, independent legal advice about making a submission.

For more information on making a submission visit - Share your story | Royal Commission into Defence and Veteran Suicide

Protections are available

Giving evidence before the Royal Commission

Certain protections are available under the Royal Commissions Act 1902 (Cth) if you appear as a witness at a hearing or if you respond to a compulsory notice given to you by the Royal Commission. A compulsory notice might ask you to provide information, a witness statement or a document to the Royal Commission.

The protections currently offered for people giving evidence before the Commission take the form of offences in the Royal Commissions Act 1902 (Cth). For example:

  • information or documents provided in response to a compulsory notice cannot be used in evidence against you in civil or criminal proceedings;
  • it is a criminal offence for an employer to dismiss their employee or to prejudice any employee in their employment for appearing as a witness, or producing information to, the Royal Commission in response to a compulsory notice or summons;
  • it is a criminal offence to injure a person appearing as a witness before, or producing information to, the Royal Commission in response to a compulsory notice or summons. In this context, injury includes causing or inflicting any violence, punishment, damage, loss or disadvantage.

The Departments of Defence and Veterans' Affairs fully support and encourage their staff to share their important experiences with the Royal Commission, if they wish to do so.

The Chief of the Defence Force has also reassured serving and ex-serving members there will be no consequences for those sharing their personal experience of serving in the ADF.

 

Video Transcript – Commissioner Nick Kaldas (Protections available)

We want to hear from serving and former-serving members about life in the ADF, especially as it relates to well-being and risks of suicide.

The Chief of Defence, General Angus Campbell, was unequivocal in his evidence last week that there will be no consequences, whatsoever, for any former or current-serving member, who provides relevant information to the Royal Commission.

I want to make it clear, that it is a criminal offence under the Royal Commission's Act to inflict ANY disadvantage on ANY person for giving evidence to the Royal Commission.

In addition, any evidence provided to the Royal Commission cannot be used against that person in any Civil or Criminal Court proceedings, except for offences against the Royal Commission Act itself.

The Royal Commission has strong protections and can keep information confidential, including the identity of people who wish to remain anonymous.

Information sharing arrangement

There are various laws and regulations that usually prevent Commonwealth officials, such as Australian Defence Force personnel and people who work for the Australian Public Service, from disclosing certain information they obtained or created as part of their job. However, the Royal Commission has reached an official information sharing arrangement with the Australian Government, which allows for the disclosure of Commonwealth information (except for highly sensitive information) by serving and ex-serving Australian Defence Force members and current and former employees of the Department of Defence and Department of Veterans' Affairs.

This information sharing arrangement works in two ways:

  • It records that the Chief of the Australian Defence Force, the Secretary of the Department of Defence and the Secretary of the Department of Veterans' Affairs have decided to allow their personnel or staff to voluntarily provide relevant information to the Royal Commission as part of their duties (except for highly sensitive information). This means that current Defence and DVA employees, and serving ADF members, may disclose relevant Commonwealth information to the Royal Commission without breaking the law.
  • It is an agreement for the purposes of section 122.5(1)(b) of the Criminal Code. This means, in effect, that any current and former Defence and DVA employee, or current and ex-serving ADF members, who shares relevant Commonwealth information with the Royal Commission (except for highly sensitive information) will not be guilty of an offence under section 122.4 of the Criminal Code.

Only information that is relevant to the Royal Commission's terms of reference can be shared under this information sharing arrangement, and this arrangement does not apply to sharing Commonwealth documents or highly sensitive information like classified or intelligence information.

If you have any questions or concerns about sharing information with the Royal Commission, we strongly encourage you to seek legal advice. You might have your own lawyer – or you can get in touch with the Defence and Veterans Legal Service – a free, independent, national service for people who want to engage with the Royal Commission. You and your lawyer can request access to the document that records the information sharing arrangement.

Private Sessions

The information you provide in a private session will be kept confidential unless you consent to its disclosure.

Confidentiality applies to information given in a private session, including that:

  • the information must be kept confidential for 99 years after the year in which the session was held
  • the information cannot be used as evidence against you in civil or criminal proceedings.

If you give information at a private session, you cannot be disadvantaged or prejudiced due to giving that information.

For more information on requesting a private session visit - Share your story | Royal Commission into Defence and Veteran Suicide

Seek legal advice about sharing information with the Royal Commission

We encourage you to seek legal advice if you have any questions or concerns about sharing information with the Royal Commission.

National Legal Advice Service

A legal service has been established for people who wish to engage with the Royal Commission. The Defence and Veterans Legal Service (DAVLS)- external site is a free, national service. It provides independent information and legal advice to serving and ex-serving Australian Defence Force personnel and their families, carers and supporters.

DAVLS is funded by the Australian Government through National Legal Aid. It is an independent service and separate from the Royal Commission, the Department of Defence, and the Department of Veterans' Affairs.

The DAVLS service is trauma informed, culturally safe and accessible. DAVLS can help you understand your legal rights and options while engaging with the Royal Commission. It can also provide referrals to counselling and other social support.

The DAVLS service will run for the duration of the Royal Commission. To contact the Defence and Veterans Legal Service:

1800 33 1800 (Monday to Friday)
defencevetslegal@legalaid.qld.gov.au

Legal Financial Assistance Scheme

You can also seek legal advice independently and, if called to give evidence by the Royal Commission, apply for legal financial assistance to meet reasonable legal fees.

The Australian Government will provide legal financial assistance to individuals and entities to help meet the costs of legal representation and disbursements associated with engaging with the Royal Commission. The legal financial assistance scheme is administered by the Attorney-General's Department, independently of the Royal Commission.

For more information, see the Attorney-General's Department- external site or contact Legal Financial Assistance Casework:

02 6141 4770 or 1800 117 995 (between 8:30 am and 5:00 pm, Monday to Friday)
finass@ag.gov.au

More detailed information on applying for legal financial assistance, including what is payable and at what rate, is available on the Attorney-General Department's website at: Legal assistance for people engaging with the Royal Commission into Defence and Veteran Suicide | Attorney General's Department'. You can also contact the Attorney-General's Department Legal Financial Assistance Casework at finassgeneral@ag.gov.au or on 02 6141 4770 or 1800 117 995 between 8.30am – 5.00pm, Monday to Friday.