Chia, Joyce --- "Inquiring into inquiries: the review of the Royal Commissions Act" [2009] ALRCRefJl 42; (2009) 94 Australian Law Reform Commission Reform Journal 49

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Reform Issue 94 Summer 2009

This article appears on pages 49–50 of the original journal.

Inquiring into inquiries

The review of the Royal Commissions Act

By Joyce Chia*

Dr Mohamed Haneef’s visa was cancelled. Cornelia Rau was illegally detained. Saddam Hussein’s regime pocketed kickbacks from the Australian Wheat Board. These are the issues that prompted the most recent Australian federal public inquiries.

The Australian Law Reform Commission’s (ALRC’s) inquiry into Royal Commissions and other forms of public inquiry is the first comprehensive review of the structure and mechanisms of federal public inquiries. Much has changed since the Royal Commissions Act was enacted in 1902, and much has been learnt since then. Despite the rapid growth of other accountability mechanisms, public inquiries still play an important and high-profile role in Australian public life. The ALRC’s proposals are designed to ensure that public inquiries are more useful and effective, as well as more accountable, in the future.

A Royal Commission, or a public inquiry of some sort, is often called for when something goes badly wrong in Australian public life. Those calling for a Royal Commission are attracted by the independence and status of a Royal Commission, and its ability to get ‘at the truth’ by compelling witnesses to give evidence in its investigations. Royal Commissions, however, are often also very expensive, lengthy, and formal, and the glare of the media spotlight can ruin lives and careers forever.

Faced with a call for a Royal Commission, the Australian Government can establish a Royal Commission, or it can establish a form of public inquiry which has no statutory basis and therefore has no legal power to get anyone to answer its questions or provide information. A member of a non-statutory inquiry, unlike a Royal Commissioner, also has no automatic legal protection from being sued. Of course, a government can also choose to do nothing, or it could in some cases appoint a standing body, such as the Commonwealth Ombudsman, to inquire into the matter.

All of these options have disadvantages for a government. The length and cost of the typical Royal Commission, and the court-like procedures that tend to be followed in Royal Commissions, may be unsuitable for the particular inquiry. A non-statutory inquiry may be perceived as toothless, since a witness can simply refuse to answer its questions. Doing nothing may not be a politically feasible option. A standing body may not have the power to inquire into the matter, or may be considered insufficiently high-profile for the subject of inquiry.

An alternative would be to enable the establishment of a quicker, cheaper and more flexible form of inquiry than a Royal Commission, with the powers and protections of a Royal Commission. This is what the ALRC proposes in its recent Discussion Paper, Royal Commissions and Official Inquiries (DP 75).^[1] The ALRC proposes, however, that this form of inquiry should not have the most intrusive powers available to Royal Commissions, and should not be able to require a person to incriminate him or herself.^[2]

The Discussion Paper proposes that a two-tier structure of public inquiry should be created in a new Inquiries Act. The proposed Act is designed to give the Australian Government greater flexibility in establishing public inquiries. Some events, while not justifying the expense or status of a Royal Commission, may justify a smaller inquiry with statutory powers to compel evidence. Similar two-tier structures can be found in other jurisdictions such as Canada.^[3]

Under the ALRC’s proposals, Royal Commissions will remain the highest form of executive inquiry in Australia, and will be established by the Governor-General to inquire into matters of ‘substantial public importance’. The second tier of inquiry will be an ‘Official Inquiry’, which may be established by a Minister to inquire into a matter of ‘public importance’. An ‘Official Inquiry’ may, however, be converted into a Royal Commission, and inquiries established outside the proposed statutory framework may be converted into Official Inquiries or Royal Commissions. This gives the Australian Government flexibility to ‘upgrade’ inquiries if this appears necessary during the course of an investigation.

Both forms of inquiry will be able to: compel a person to attend or appear before the inquiry; take evidence on oath or affirmation; compel a person to answer questions; and compel a person to produce documents or other things. The ALRC proposes, however, that certain powers will be available only to Royal Commissions, to ensure appropriate protection of the rights and interests of those affected by inquiries. Powers which will be restricted to Royal Commissions include the power to apply to a judge for a warrant to arrest a person who fails to attend or appear, or for a warrant to exercise powers to enter premises and search and seize information.

The proposal for the introduction of Official Inquiries is only one aspect of the ALRC’s inquiry. Another important aspect of the review is the need to ensure the independence and accountability of Royal Commissions and Official Inquiries. As Dr Scott Prasser has argued, the primary value of public inquiries lies in the public perception of their independence.^[4] Since the independence of such inquiries is critical to their effectiveness, the ALRC proposes that the new Inquiries Act should provide that Royal Commissions and Official Inquiries are to be independent in the performance of their functions.

Public inquiries are also unusual in that, as ad hoc mechanisms, they are not generally subject to the same forms of accountability as standing bodies. The ALRC proposes a number of measures to improve the accountability of public inquiries. For example, it proposes that the Australian Government should be required by statute to table final reports of such inquiries (or a statement of reasons why part of a report is not being tabled); publish updates on implementation of any recommendations the Australian Government accepts; publish summary information on the costs of the inquiry; and consult Indigenous peoples in the development of procedures in inquiries significantly affecting Indigenous peoples.

The ALRC’s inquiry also considers ways to improve the effectiveness of Royal Commissions and other inquiries. For example, the ALRC proposes reforms to the powers of Royal Commissions and Official Inquiries to obtain, and ensure appropriate protection, of national security information. Difficulties in accessing and using national security information have arisen in previous inquiries, such as the Clarke Inquiry into the Case of Dr Mohamed Haneef.

The ALRC also proposes the publication of an Inquiries Handbook to address matters relating to the administration of inquiries, the appointment and remuneration of legal practitioners assisting an inquiry or representing witnesses, and the suitability and use of different procedures. This proposal is designed to consolidate the institutional knowledge in establishing, administering and conducting inquiries, so that there is no need to ‘reinvent the wheel’ each time a new inquiry is established, and so that lessons learned from one inquiry can be passed on.

Other proposals designed to improve the effectiveness of inquiries include providing that inquiries have the power to: appoint expert advisors; refer questions of law to the Federal Court; and apply to the Federal Court for enforcement of its notices and directions. The use of expert advisors is designed to enhance the capacity of inquiries to investigate matters requiring specialist expertise, and should also give the Australian Government greater flexibility in appointing members of public inquiries. For example, a technical expert may be able to conduct an investigation more effectively if a legal expert is able to advise on the legal issues arising in the investigation.

The power to refer questions of law to the Federal Court would enable an inquiry to resolve a dispute about the exercise of its powers, rather than waiting for a party to seek judicial review. The power to apply to the Federal Court for enforcement of notices and directions is designed to enable more timely, and therefore more effective, punishment for failing to comply with an inquiry than relying on the threat of a prosecution some time down the track.

The ALRC’s inquiry into Royal Commissions and other forms of public inquiry

The ALRC began its current inquiry in January 2009, with its Terms of Reference requiring it to review the operation and provisions of the Royal Commissions Act 1902, and to examine whether an alternative form or forms of Commonwealth executive inquiry should be established by statute.

The Discussion Paper, Royal Commissions and Official Inquiries (DP 75), was released in August 2009 following extensive consultations around the country. The ALRC’s final report was due to be delivered to the federal Attorney-General on 30 October 2009 and will be publicly available after it has been tabled in the federal Parliament. All ALRC publications are available online as soon as they are released.

* Dr Joyce Chia is a Legal Officer at the Australian Law Reform Commission and is currently assigned to the Royal Commissions Inquiry.

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[1] The final report of the Royal Commissions Inquiry was being finalised at the time of publication and is under a parliamentary embargo. This article is based on proposals made in the Australian Law Reform Commission’s Discussion Paper Royal Commissions and Official Inquiries (DP 75).

[2] The ALRC also proposes that an Official Inquiry would not have power to require information subject to client legal privilege. Presently, Royal Commissions do not have this power, although the ALRC’s 2007 report, Privilege in Perspective, recommended that Royal Commissions should have this power if it is specified in the letters patent. See Australian Law Reform Commission, Privilege in Perspective: Client Legal Privilege in Federal Investigations, ALRC 107 (2007), Rec 6–2. The Australian Government has not yet provided a formal response to the recommendations in this report.

[3] A tiered model was also recently proposed in the New Zealand Law Commission’s report, A New Inquiries Act, Report No 102 (2008). The New Zealand Parliament is presently considering the Inquiries Bill 2008 (NZ), which is based on the recommendations of the New Zealand Law Commission.

[4] S Prasser, Royal Commissions and Public Inquiries in Australia (2006).