Public Inquiries, Royal Commissions & Special Projects Q&A’s
Published on February 27, 2014 by and CODEA Staff
1. What is a Royal Commission?
This is an inquiry set up under the Commonwealth or State Royal Commissions Acts (or under both) authorising the person appointed as Royal Commissioner to make an inquiry and report. For this purpose the Commissioner (sometimes commissioners) are given very extensive powers, including to require production of information and answers that might otherwise be protected from disclosure under legal privilege, or privilege against self incrimination.
2. Are the powers of the Commission to obtain answers and documents absolute or subject to exceptions?
There are some exceptions, which vary depending on which state or federal legislation the Royal Commission has been instigated under, including relating to current charges or penalty proceedings, and where other legislation may specifically prohibit production. There are sometimes tricky issues in determining how to manage documentation which might be required by a Commission, where disclosure may breach other laws or contractual obligations. Identification and dealing with these issues requires specialist input.
3. What if you do not comply with orders to produce documents or answer questions?
There are powers of arrest and penalty, unless specific exceptions apply.
4. Are the hearings public or private?
Whilst generally proceedings before the Commissioner or Commissioners will be in public, there may be special arrangements made for private hearings and witnesses can in certain circumstances make an application where, for example, the hearing of evidence in public would be unfairly prejudicial to the interests of the person.
5. Can statements made by a witness and documents produced by a witness under a summons in a Royal Commission be admitted in other proceedings?
No, unless the proceedings are for breach of the obligations under the Royal Commissions Acts, including to answer questions truthfully. However, even if statements and documents are not admissible elsewhere, knowledge of them may assist other parties to obtain production of documents outside the Commission, although in those circumstances the documents may be protected under laws relating to self incrimination or legal privilege. This type of protection will only arise when production of documents or information is compulsorily required by the Royal Commissioner. Accordingly it is important that only documents which respond to a compulsory request are produced, if the producing party wishes to maintain these privileges elsewhere.
6. How does the Commission work?
Whilst the procedure may be determined separately by each Commissioner, the steps generally run as follows:
- An investigation phase by a team of investigators employed by the Commissioner. They may be assisted by other resources including police, crime commission, wire tapping and other means of obtaining material. In the investigation phase they may interview many witnesses. Witnesses will need to consider the extent and contents of any voluntary participation in this phase and whether they should obtain legal assistance.
- An agenda/list of issues and priorities will be issued, together with orders for people to attend the Commission or produce documents.
- Persons who may be subject to inquiry or affected by the inquiry may seek permission to be represented by lawyers. Witnesses’ legal expenses may be partially re-imbursed by the government.
- As the inquiry goes into any specific area, counsel assisting the Commission will ask questions of witnesses. Witnesses may by prior arrangement obtain permission for their own lawyer to cross examine witnesses who might have given adverse evidence, and to re-examine or further examine their own client to try and give more balanced/accurate picture. Lawyers representing a witness may also be able to take objection to questions which lack clarity, and on some other limited grounds.
- It is the usual practice for a Commission through its counsel assisting to indicate potential findings adverse to individuals or organisations and for the legal representatives of those individuals or organisations to then be given an opportunity to make submissions. This can be valuable in obtaining proper consideration of issues.
7. What about protecting documentation?
It is a criminal offence to destroy documents or other things that may be required. There are other offences relating to preventing witnesses from attending, dismissal by employers of witnesses and generally relating to contempt of the Royal Commission.
8. Do the rules of evidence apply?
9. How significant are the terms of reference?
The terms of reference are significant in that a Commission may be prevented from going outside those terms. However, in practice commissioners may seek an extension to the terms if that becomes an issue. In the recently announced Royal Commission in relation to trade union governance and corruption, the terms included a paragraph which gives the Commissioner considerable latitude to go outside the priority areas.
10. What should you do initially if you believe that you may attract interest from a Royal Commission or be affected by it?
There are a number of strategic elements to consider, including whether or not to be proactive in identifying potential issues and candidly dealing with the authorities and demonstrating a capacity to apply the highest standards , so that you may be less liable for further inquiry or criticism. It is wise to establish a capable working group who can assist and also respond to the legal and any media enquiries as they develop.
11. Can I appeal against a decision of the Commissioner?
Except in extremely rare circumstances, no. However, the Commissioner does not have power to impose penalties. Frequently there is a concurrent or follow up investigation and prosecution action according to what comes out of the Commission.
12. Does insurance cover apply?
You should seek prompt advice on this – the terms and extent of cover will be important.
If you have any further questions, please contact us and ask to speak a member of the Royal Commissions Working Group: Peter Punch, Selwyn Black, Michael Barnes, Martin Slattery or Janine Smith.