Since we last wrote about the Royal Commission into Institutional responses to child sexual abuse, we have received a number of enquiries in relation to the difference between the conduct by the Royal Commission of private sessions and private or public hearings.
The idea of a private session in a Royal Commission is relatively new. Indeed, the Royal Commission Act was specifically amended to allow for private sessions within the context of the current Royal Commission.
The Royal Commission will receive its information in a number of different forms. Essentially, those wanting to tell their stories to the Royal Commission can either do so in writing or by way of oral evidence. The private session is in large part an acknowledgement of the requirement that the Royal Commission act to “bear witness of behalf of the nation to the abuse and consequential trauma inflicted on upon many people who have suffered sexual abuse as children”. The private session is really a meeting between the person who wants to tell their story and one or two commissioners. The person telling their story is entitled to have a support person present but no others. In the private session the person will not be asked to take an oath or affirm to tell the truth. The information provided in a private session is not evidence before the Royal Commission, however the information received by the Commissioners will be used to assist the Commission in the conduct of its investigation role.
It would appear that any information given within the private sessions remains completely confidential unless the person giving the information agrees to that information being disclosed or if the Chair of the
Royal Commission believes that it is necessary to disclose that information to a law enforcement agency and, then, only to prevent harm to any person.
Of course, many people who tell their stories in a private session may also wish to give more formal evidence by way of a Royal Commission hearing. These hearings will generally be in public but can be held in private if the Commissioners consider it appropriate.
In the process of receiving information about child sexual abuse it has become clear that some people may also disclose their own sexual offending against children. It is clear that any disclosure by a person, attending either a private session or as a witness at a hearing, of an offence that has been committed by that person is likely to fall within the Royal Commissions exceptions to its confidentiality provisions. That means that the information given either in private sessions or in a hearing could therefore be disclosed by the Royal Commission to a law enforcement agency.
Equally, it is clear that any statements or disclosures made or documents handed over in a private session cannot be used in evidence in the criminal proceedings. The website of the Royal Commission makes this statement in relation to disclosure of a person’s own sexual offending against children
“this information or evidence could therefore be disclosed by the Royal Commission to a law enforcement agency. However, the actual information or evidence given by the person to the Royal Commission will not be used by subsequent court proceedings”.
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