This speech was delivered on 11/09/2013 in the NSW Upper House. You can read the debate online here, which continued later into the sitting day here.
ROYAL COMMISSIONS AND OMBUDSMAN LEGISLATION AMENDMENT BILL 2013
Mr DAVID SHOEBRIDGE [12.57 p.m.]: The Greens do not oppose the Royal Commissions and Ombudsman Legislation Amendment Bill 2013. Today we received a briefing from the Government about this legislation, and we have had the benefit of the information in the second reading speech of the Parliamentary Secretary, as well as in the other place. The bill effectively does four things. It ensures that witnesses attending or appearing before a royal commission established under the 1923 Act are not excused from answering any question or producing any document when required by the royal commission to do so, despite any other Act. That beefs up section 17 of the Royal Commissions Act 1923 to make it clear that any secrecy or gag provisions put in place since the 1923 Act was legislated do not prevail over section 17 of the Royal Commissions Act 1923. Section 17 allows for a royal commission to require people to answer questions, notwithstanding any other duty or privilege they may have. This provision is intended to say that even if other gag or secrecy provisions have been enacted since 1923, section 17 still overrides them and gives the power to the royal commission to compel answers.
The Greens support that because the Federal royal commission needs those powers to get to the bottom of what is a truly terrible and troubling history of sexual abuse of children. The bill makes amendments to the Children and Young Persons (Care and Protection) Act 1998 to ensure that the identity of any person who makes a report under that Act that a child or young person is at significant risk of harm may be disclosed to the royal commission only in limited circumstances. That is almost contrary to what I said about section 17 and the absolute ability of the royal commission to get answers. The rationale behind protecting the identity of persons who make disclosures under the Children and Young Persons (Care and Protection) Act is sound. We want to ensure that people can make disclosures about potential abuse or evidence of abuse and not have their identity revealed in the royal commission.
The bill states, “unless there is leave of a commissioner” and the commissioner can only grant leave if the information concerned is of significant importance to the inquiry. Section 17 must not be used broadly to undermine confidentiality provided in the Children and Young Persons (Care and Protection) Act to people who make disclosures about their partners, family members or others who are close to them. In many cases, people are encouraged to make disclosures by the ability to ensure that their name is not disclosed because of the recriminations that can happen in those situations. The Greens understand that balancing act. Another object of the bill is to enable the royal commission to give directions preventing the publication of evidence, information or documents. I understand that royal commissions have used that power in the past and legislating for it is only common sense. In particular, in child sexual abuse cases there will be occasions when that power will be necessary, and codifying it makes sense.
[Deputy-President (Reverend the Hon. Fred Nile) left the chair at 1.01 p.m. The House resumed at 2.30 p.m.]
Debate resumed from an earlier hour.
Mr DAVID SHOEBRIDGE [3.37 p.m.]: The third object of this bill is to enable a royal commission to give directions preventing the publication of evidence, information or documents given to it and directions requiring any part of an inquiry to take place in private. Effectively royal commissions have operated that way to date without the need for a specific legislative provision. But given the nature of this inquiry, which will deal often with very emotionally difficult and factually difficult issues regarding the sexual abuse of children, questions about whether allegations can be properly substantiated and the reputation of people need to be considered. Primarily it is a protective measure for victims who want to speak to the commission in an open and frank fashion without the glare of public hearings. The Greens strongly support this additional power to royal commissions.
The last object of the bill is a kind of grab-back miscellaneous set of provisions in relation to the Ombudsman Act 1974 to enable the Ombudsman to disclose information, obtained in the course of an investigation by the Ombudsman, for the purpose of certain criminal proceedings resulting from the investigation and for the purpose of certain proceedings under the Public Interest Disclosures Act 1994. A better way to describe it is that they wanted to tidy up an unholy mess that the Government had created through its rush to put secrecy provisions into the Ombudsman Act when it wanted to shut down any public scrutiny of the Ombudsman’s inquiry into Strike Force Emblems. The Government created an absolute dog’s breakfast. The complete shroud of secrecy cast over the Ombudsman’s Act when it put in provisions to deal with Strike Force Emblems meant that the Ombudsman could not even forward that material for the purpose of prosecutions under the Ombudsman’s Act or the Public Interest Disclosures Act or for the purpose of criminal proceedings arising from Strike Force Emblems.
The Hon. Catherine Cusack: That is just untrue.
Mr DAVID SHOEBRIDGE: I note the interjection from the member opposite but I suggest she read schedule 3. Item [1] of schedule 3 states:
Section 34 Disclosure by Ombudsman or officer
- Insert after section 34 (1) (b4):
- (b5) for the purpose of any proceedings under section 20 or 20B of the
Public Interest Disclosures Act 1994,
- (b6) for the purpose of any criminal proceedings resulting from an investigation under this Act, but only if the investigation related (whether or not entirely) to a matter referred by the Inspector of the Police Integrity Commission, or the Inspector of the Crime Commission, to the Ombudsman for investigation.
That was designed entirely to remedy the problem that the Government created by its unholy rush to have that gag provision put in during the last parliamentary session. Given that The Greens did not support the extent of that gag provision, and given that this legislation winds back some of that to allow the Ombudsman to do his or her work—to actually refer matters that have been investigated for prosecution—and for the purpose of proceedings under the Public Interest Disclosures Act, we will now support that aspect of the legislation as well.
This is a complicated bill. For example, I do not pretend to have come fully to grips with schedule 4 and its impact. Both The Greens and the Opposition are reliant upon the Government’s word that, first, it is essential the bill be pushed through before the first public hearings of the royal commission start on Monday and, second, the way in which the Government has characterised this legislation, particularly advice from the Premier’s office, is in fact accurate. We have had to rely upon that assurance in a way that ordinarily we would not. We have been told that the legislation is urgent to allow the royal commission to start its public hearings on Monday. In those circumstances and for those reasons The Greens will not oppose the bill.
