Protecting the Confidentiality of Witnesses: An Ableist Tale of Two Inquiries


By Catia Malaquias

 The Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Disability Royal Commission) states the following on its website in relation to the confidentiality of evidence and submissions:

“Under the current law, the Royal Commission can only guarantee confidentiality while the Royal Commission exist [ie. until it provides its final report – presently expected to be in 2022 but the Commission has sought an 18 month extension].  However, the Government has agreed to amend the law in 2021 so that your information is protected after the Royal Commission ends, for a period of 99 years.”

The importance of people being able to give evidence and make submissions to the Disability Royal Commission without fear that they will be exposed to victimisation, withdrawal of services or other adverse consequences (e.g. loss of employment) is critical.  Confidentiality is essential to ensuring that the Disability Royal Commission receives full and frank information.

After a number of disability representative and advocacy organisations demanded enhanced confidentiality protections for submissions and witnesses, the Disability Royal Commission first wrote to Prime Minister Morrison in February 2020 seeking amendments to the Royal Commissions Act 1902 (Cth)  – and again in September 2020 – with the Commonwealth Government announcing in October 2020 that it would introduce legislative amendments to protect the confidentiality of submissions beyond the life of the Disability Royal Commission.

On 17 March 2021, the Commonwealth Government (following the Senate passing on 15 February 2021 an amending Bill to the Royal Commissions Act sponsored by Greens Senator Jordon Steele-John to enhance confidentiality protections for the Disability Royal Commission) introduced its own Royal Commissions Amendment (Protection of Information) Bill 2021 (Royal Commissions Amendment Bill) for consideration by the Senate.

The Royal Commissions Amendment Bill, through proposed section 6OP, seeks to extend confidentiality protections for 99 years beyond the life of the Disability Royal Commission where:

  • the information is given by, or on behalf, of an individual; and
  • the information contains an account of the individual’s, or another individual’s, experience of violence, abuse, neglect or exploitation; and
  • the information identifies the individual who gave the information, or on whose behalf the information was given.

This means that the enhanced confidentiality protection is not available for:

  • information that is not given on by or on behalf of an individual – for example, by or on behalf of an organisation;
  • information that does not “contain” an “account” of another individual’s “experience” of violence, abuse, neglect or exploitation – for example, the submission or evidence may relate to the practices or data of an organisation in a more general or systemic sense (e.g. of an organisation operating a group home, a sheltered workshop, a residential facility or a special school); and
  • a submission or evidence that does not identify the individual who gave the information or on whose behalf the information is given – for example, a submission given with details that could be used with other information to identify the relevant individual.

It also is unclear if a submission or evidence that comprises both an “account” of an “experience” of an individual together with other information that is not related to that “account” (as may be often the case) would attract the additional confidentiality protections for both classes of information. For example, if an application under freedom of information laws were made, could the application be granted by redacting the “account” information and disclosing the other class of information?

Now let us compare the Commonwealth Government’s response to a request for enhanced confidentiality protections for the independent review into sexual harassment and the culture of workplaces of Parliamentarians and their staff to be conducted by the Sex Discrimination Commissioner under the Australian Human Rights Act 1986. The independent review was instigated by Prime Minister Morrison on 5 March 2021 and on 18 March 2021 (less than two weeks later) the Archives and Other Legislation Amendment Bill 2021 (Independent Review Bill) was introduced into and passed by the Senate.  That Bill seeks to apply 99 year confidentiality protections broadly to “a document given to, or received by the Independent Review” or “a document brought into existence by the Independent Review”.

Accordingly, and by comparison to the Royal Commissions Bill, the Independent Review Bill, does not limit the enhanced confidentiality protections to individuals, or individuals sharing their own or another individual’s account of an ‘experience’ or to an account that identifies the relevant individual.  All documents given to or created by the Independent Review are accorded confidentiality for 99 years.

The Explanatory Memorandum to the Independent Review Bill states:

“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 [i.e. disapply them] so that the resources of the Independent Review can focus on examining the serious and systemic issues affecting Commonwealth Parliamentary workplaces”.

I would submit that there are serious and systemic issues in numerous settings resulting in violence, abuse, neglect and exploitation of people with disability that equally justify the extension of long-term confidentiality protections to any individual or organisation prepared to make a submission or give evidence to the Disability Royal Commission – their protection should not be limited to “individual accounts of experiences” – but should be extended to evidence and submissions relating to general organisational attitudes, patterns of behaviour and other systemic issues and practices, including associated aggregated information and data.

It is vitally important that people within the institutions and structures (managers, service providers and employees etc) that interact with people with disability are also given the confidence and protections to speak out.

The difference in approach by the Commonwealth Government cannot be justified by additional sensitivities and vulnerabilities of victims of sexual violence and abuse – people with disability, and particularly women with intellectual disability, are far more likely to be victims of sexual violence and abuse than Parliamentarians and their staffers.  In fact a new report released by the Disability Royal Commission this week found that young women with a disability are twice as likely to experience sexual violence than those without a disability – but even these shocking findings are not likely to reflect the full extent of the problem given that they did not extend to women with disabilities in settings such as group homes.

Unfortunately, ableism may even infect Governmental responses to sexual violence and abuse.