Explanatory Memorandum
(Circulated by the authority of the Prime Minister, the Hon Scott Morrison MP)OUTLINE
This Bill would strengthen the confidentiality of information given to the Independent Review into the workplaces of Parliamentarians and their staff conducted by the Sex Discrimination Commissioner, by:
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- excluding a right of access under the Freedom of Information Act 1982 to all documents provided to, or created by, the Independent Review; and
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- providing that these records would come into the open access period under the Archives Act 1983 ninety-nine years after the year the record came into existence.
These proposed amendments would not prevent the Independent Review from publishing such information as it considers appropriate.
FINANCIAL IMPACT STATEMENT
The Bill has no financial impact.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
The full statement of compatibility with human rights is attached to this Explanatory Memorandum.
Notes on Clauses
Abbreviations and Acronyms used in this explanatory memorandum
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- Archives Act means the Archives Act 1983
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- FOI Act means the Freedom of Information Act 1982
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- Independent Review means the Independent Review into the workplaces of Parliamentarians and their staff conducted by the Sex Discrimination Commissioner in accordance with section 11 of the Australian Human Rights Commission Act 1986.
Clause 1 - Short title
This clause sets out the short title for the Bill upon its enactment by the Parliament- that is the Archives and Other Legislation Amendment Act 2021.
Clause 2 - Commencement
Clause 2 sets out the commencement dates for the Act. The whole Act is to commence the day after this Bill receives the Royal Assent.
Clause 3 - Schedules
This clause provides that legislation that is specified in a Schedule to this Act is amended or repealed as set out in that Schedule, and any other item in a Schedule has effect according to its terms.
Schedule 1 - Amendments
Archives Act 1983
Item 1 Subsection 3(1)
This item is consequential to the amendment proposed in item 5 and inserts new definitions into subsection 3(1) of the Archives Act.
A definition is inserted for the Independent Review into workplaces of Parliamentarians and their staff (the Independent Review). This is the review conducted by the Sex Discrimination Commissioner in accordance with section 11 of the Australian Human Rights Commission Act 1986.
A definition is also inserted for an 'Independent Review document' to cover all documents given to, or received by, the Independent Review, and all documents brought into existence by the Independent Review.
Item 2 Subsection 3(1) (after paragraph (b) of the definition of open access period)
This item is a minor amendment to subsection 3(1) of the Archives Act, and amends the definition of 'open access period'. It is consequential to the amendment proposed in item 5.
Item 3 Subsection 3(7)
This item is a minor amendment to subsection 3(7) of the Archives Act that is consequential to the amendment proposed in item 5.
Item 4 Subsection 3(7) (note)
Item 4 is a minor amendment to the footnote to subsection 3(7) of the Archives Act that is consequential to the amendment proposed in item 5.
Item 5 After section 22B
This item inserts proposed new section 22C into the Archives Act. The effect of proposed section 22C is that a record that is an Independent Review document (defined at item 1) would come into the 'open access period' for the purposes of the Archives Act on 1 January ninety-nine years after the calendar year that the record is created.
When a record is in the open access period under the Archives Act, a person has a right of access to the record unless it is an exempt record within the meaning of that Act. The FOI Act governs access to Commonwealth records before they come into the open access period. For records created after 2000, the usual open access period is 21 years after the year the record is created. There are exceptions to this, including for Census information and certain records for the purposes of the Royal Commissions Act 1902. Proposed new section 22B applies the same open access period as those records.
The proposed amendment will encourage individuals to come forward to the Independent Review and give information that is relevant to its terms of reference. This information could include accounts which are of a deeply personal and sensitive nature, as well as allegations about the conduct of other people. By precluding a right of access under the Archives Act to records of this kind for close to 100 years, individuals will have confidence that the information provided to inform the Independent Review will be kept confidential.
The item disapplies section 56 of the Archives Act to prevent the Minister or authorised person, in accordance with arrangements approved by the Prime Minister, from causing accelerated open or special access before the open access period. This is consistent with the approach to Census records and other Royal Commission records and is considered necessary to provide certainty of confidentiality until 99 years have expired after the record came into existence.
Freedom of Information Act 1982
Item 6 Subsection 4(1)
This item amends subsection 4(1) of the FOI Act to insert a new definition and is consequential to the amendment proposed in item 7. Item 6 inserts a new definition for the Independent Review into workplaces of Parliamentarians and their staff (the Independent Review). This is the review conducted by the Sex Discrimination Commissioner under the Australian Human Rights Commission Act 1986.
Item 7 After subsection 7(2D)
This item inserts a new subsection 7(2DA) into the FOI Act. The effect of proposed new subsection 7(2DA) is to exclude from FOI access all documents given to, or received by, the Independent Review, and all documents brought into existence by the Independent Review.
The proposed amendment will encourage individuals to come forward to the Independent Review and give information that is relevant to its terms of reference. This information could include accounts which are of a deeply personal and sensitive nature, as well as allegations about the conduct of other people. By precluding a right of access under the FOI Act, individuals will have confidence that the information provided to inform the Independent Review will be kept confidential.
The introduction of the new exemption does not mean that existing FOI Act exemptions do not adequately protect against inappropriate disclosure of documents containing personal information or information received in confidence by agencies.
The Government recognises that the matters that will be reviewed by the Sex Discrimination Commissioner are the focus of significant public debate, and therefore the new exemption is primarily intended to simplify FOI processing arrangements so that the resources of the Independent Review can focus on examining the serious and systemic issues affecting Commonwealth Parliamentary workplaces.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
ARCHIVES AND OTHER LEGISLATION AMENDMENT BILL 2021
This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Bill
This Bill would strengthen the confidentiality of information given to the Independent Review into the workplaces of Parliamentarians and their staff conducted by the Sex Discrimination Commissioner, by:
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- excluding a right of access under the Freedom of Information Act 1982 to all documents provided to, or created by, the Independent Review; and
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- providing that these records would come into the open access period under the Archives Act 1983 ninety-nine years after the year the record came into existence.
These proposed amendments would not prevent the Independent Review from publishing such information as it considers appropriate.
Human rights implications
This Bill engages the following rights:
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- The right to freedom of expression in Article 19(2) of the International Covenant on Civil and Political Rights (ICCPR), in so far as that article includes freedom to seek, receive and impart information; and
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- The right to privacy in Article 17 of the ICCPR, in so far as that article includes the right to the protection of the law against unlawful or arbitrary interferences with an individual's privacy.
Article 19 of the ICCPR provides that:
1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order, or of public health or morals.
Article 17 of the ICCPR provides that:
1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
2. Everyone has the right to the protection of the law against such interference or attacks.
The Bill proposes to exclude a right of access under the Freedom of Information Act 1982 to all documents provided to, or created by, the Independent Review.
The Bill also makes amendments to the Archives Act 1983 so that records of that kind would come into the open access period 99 years after the year the record came into existence.
The proposed amendments are intended to encourage individuals to come forward to the Independent Review and give information that is relevant to its terms of reference. This information could include accounts which are of a deeply personal and sensitive nature, as well as allegations about the conduct of other people.
To the extent that the measures in the Bill would limit access to information, these measures limit the right to seek, receive and impart information in Article 19(2). However, the limitations placed on Article 19(2) are permissible in that they meet the requirements of Article 19(3) as they will be provided by law, and are necessary for the respect of the rights or reputations of others. The measures are designed to protect personal information (including potentially sensitive information) as well as confidential information given to the Independent Review and to encourage individuals to come forward and participate in the Independent Review.
To the extent that the measures in the Bill engage Article 17 of the ICCPR, the measures enhance the right to privacy of the individual who is providing information to the Independent Review, and the privacy of third parties who may be named in the information.
Conclusion
The Bill is compatible with human rights; to the extent Article 19(2) is limited by the Bill, the restriction is permissible under Article 19(3) of the ICCPR, as the amendments are provided by law and are necessary for the respect of the rights or reputations of others. The Bill enhances the right to privacy under Article 17 of the ICCPR.