05 October 2021
#Dispute Resolution & Litigation, #Royal Commissions & Commissions of Inquiry
Royal Commissions and Commissions of Inquiry are the go-to policy response for complex public policy matters for both Commonwealth and State governments around the country. The recommendations made by a Royal Commission can be felt for years after the publication of the Commission’s final report.
The impact of matters unearthed in public hearings of a Royal Commission are instant and often result in same day headlines, long before the final recommendations are made.
Since Federation, over 130 Royal Commissions and Commissions of Inquiry have been established by the Commonwealth alone.
Holding Redlich has extensive experience acting for various parties in Commonwealth and State Royal Commissions and Commissions of Inquiry. Notably, Holding Redlich acted as Solicitors Assisting the Royal Commission into the Management of Police Informants (RCMPI), colloquially referred to as the ‘Lawyer X’ Royal Commission.
Most recently, we acted as solicitors for the State of Victoria in the Royal Commission into the Casino Operator and Licence (RCCOL), which concerned Crown Casino’s suitability to hold a casino licence in Victoria.
Royal Commissions are resource-intensive and can significantly impact individual witnesses, corporations and government agencies alike. Due to the public and fast-paced nature of Commissions, solicitors acting for any party must clearly understand the features of these unique creatures of statute.
In this article, we highlight some key issues solicitors acting for major parties and solicitors assisting Commissions will likely face and recommend ways to prepare for each.
Responding to notices to produce or attend is a significant aspect of Royal Commission work, which is akin to large scale litigation.
In the case of the Commonwealth, the Commission has the power to compel witnesses to attend or to produce documents as outlined in section 2 of the Royal Commissions Act 1902 (Cth). In Victoria, the source of the power to compel the production of documents or attendance of a witness is found in section 17 of the Inquiries Act 2014 (Vic).
Under section 19(1) of the Inquiries Act, a notice to produce must be served in a reasonable time, being not less than seven days, before the date on which the person is required to comply with the notice.
The penalties for a failure to comply with a notice or summons to produce or attend are severe. Under section 3(2) of the Royal Commissions Act, a failure to comply with a notice to produce or attend may result in imprisonment of up to two years. Similarly, in the Victorian context, if a person fails to comply with a notice to produce or attend without reasonable excuse, they may face a penalty of up to two years imprisonment under section 46 of the Inquiries Act.
The tight time frames for compliance and the penalties for non-compliance demonstrate the importance of document management for all parties involved in Commissions. For government agencies, compliance with internal approval pathways for the release of documents will also need to be considered. For this reason, we recommend that parties begin collating potentially relevant materials when the Letters Patent are issued and the Terms of Reference are publicly announced, especially in cases where it is likely that archived material will be relevant to the Commission’s inquiry.
Solicitors should also be aware that Commissions often issue document management protocols that must be complied with when producing documents. Therefore, engaging litigation support providers and ensuring they are familiar with the relevant document management protocol is strongly recommended.
It is important to note that there are limitations to the compulsive powers of Commissions. Under both Commonwealth and State legislation, a person is not required to comply with a notice to produce if they have a “reasonable excuse” for failing to comply with the notice.
The categories of what constitutes a “reasonable excuse” are not closed. Under section 18(2) of the Inquiries Act, examples of what constitutes a reasonable excuse include, but are not limited to, documents that are:
Notably, under section 6AA of the Royal Commissions Act and section 32 of the Inquiries Act, legal professional privilege is not a reasonable excuse for failing to comply with a notice to produce. A document must be produced to the Commission, but the privilege is not waived as a result of the production to the Commission.
Arguably, the most significant departure from court proceedings is that, in most cases, the privilege against self-incrimination is not a reasonable excuse in Commissions under section 6A of the Royal Commission Act and section 33 of the Inquiries Act. In other words, a person cannot refuse to answer or stay silent on a matter because to do otherwise will incriminate them. The privilege against self-incrimination will only apply when the requested information relates to an offence with which the witness has been charged, and that charge has not been finally dealt with by a court.
However, statements made by a witness in answer to any questions shall not, generally speaking, be admissible as evidence against the witness in any civil or criminal proceedings.
Solicitors should be mindful that certain privileges and the rules of evidence do not apply when preparing witnesses for Commission hearings and assisting them in responding to notices to produce. While requests for non-publication orders can be made to the Commissioner in respect of certain information, given the public nature of commission hearings, clients may want to consider engaging media consultants to address any reputational concerns raised during the course of the Commission.
Another important practical consideration in Commissions is that parties may receive informal requests for documents or may be invited to informal meetings with Commission staff, commonly referred to as “fireside chats”.
Out of an abundance of caution, and to ensure that the client’s rights are protected under the governing legislation, solicitors should request that a formal notice to produce or attend be issued before their clients comply with any request for information. Failure to do so will likely result in the loss of the protections provided under the legislation. In certain circumstances, it may be possible to seek a non-publication order or for evidence to be given in a closed hearing where the Commissioner considers it appropriate. If the client is a large organisation, at the outset of the Commission, all staff should be instructed to contact the organisation’s legal representatives before responding to any direct requests for information from Commission staff.
Royal Commissions and Commissions of Inquiry are often given short timeframes for reporting and tight budgets. For this reason, it is important to be ready to hit the ground running and adapt quickly to the fast-paced nature of Commission work. One of the key aspects we focus upon when acting in Commissions is the ability to holistically project manage the entire lifecycle of the Commission from the initial investigation, hearings, submissions and, ultimately, the final report.
Integral to the success of any Commission or Inquiry is having a good team of lawyers, paralegals, technology and administrative support staff, as well as a leadership team with investigatory experience and a strategic focus.
You can find out more about Holding Redlich’s Royal Commission expertise here. If you have any questions, please speak to us or contact us here.
Authors: Howard Rapke, Alexandra Tighe & Tess Simpson
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this publication is accurate at the date it is received or that it will continue to be accurate in the future.