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Precedent (Australian Lawyers Alliance) |
By James Glissan ESM QC
In a year in which Royal Commissions and Commissions of Inquiry (Commissions) have proliferated and their terms of reference and report have regularly been extended, it is legitimate to consider how and where, if at all, advocacy before such tribunals differs from that conducted before proper courts, or even administrative tribunals.
My experience of these commissions extends now over many years, including appearances in the:
• Greek Conspiracy (Commission of Inquiry);
• Drug Trafficking (Woodward);
• Organised Crime (Moffat);
• Wran (Street);
• Ananda Marga (Wood);
• Aboriginal Deaths in Custody (Wyvill, Wootten, Fitzgerald, etc);
• Police (Wood);
• ACT Bushfires (Commission of Inquiry/Higgins); and, most recently
• the Trade Union Royal Commission (Heydon).
One thing these commissions have in common is that all have claimed some innocent victims, but good preparation was able to save others.
Another thing these commissions had in common was that all had an agenda or an intended outcome – but not all of them got there. The biggest lesson for an advocate in approaching a Commission is this: if you are properly prepared and ready, you can avoid the pitfalls. And, I should also add, know when to lie down and when to fight.
You can also pick the battleground – what you can win and what to bail on. But how does an advocate decide this?
In order to answer that question, it is first necessary to consider the nature of the beast. Although commonly conducted by former or sitting judges, or more infrequently, Senior Counsel soon to be judges, commissions bear only a superficial resemblance to courts. They are creatures of the political rather than the judicial arm of government and exercise wide-ranging powers not ordinarily available in the courts. These are found in the several Royal Commission Acts, largely providing similar powers to both federal and state commissioners. I have used the Commonwealth Act as an exemplar throughout this article.
THE ROYAL COMMISSIONS ACT 1902 – KEY PROVISIONS
The Royal Commissions Act 1902 (Cth) (the Act) provides guidance as to key issues for advocates to consider in royal commissions, outlined below. Under the Act, the commissioner has the same protection and immunity as a justice of the High Court.
Offences
Chapter 2 of the Criminal Code applies to all offences against the Act.[1]
Elements
(1) An offence consists of physical elements and fault elements.
(2) However, the law that creates the offence may provide that there is no fault element for one or more physical elements.
(3) The law that creates the offence may provide different fault elements for different physical elements.[2]
Establishing guilt in respect of offences
In order for a person to be found guilty of committing an offence the following must be proved:
(a) The existence of such physical elements as are, under the law creating the offence, relevant to establishing guilt;
(b) In respect of each such physical element for which a fault element is required, one of the fault elements for the physical element.[3]
Fault elements
(1) A fault element for a particular physical element may be intention, knowledge, recklessness or negligence.[4]
Penalty for refusing to be sworn or to give evidence
(1) If any person appearing as a witness before the Commission refuses to be sworn or to make an affirmation or to answer any question relevant to the inquiry put to him or her by any of the Commissioners, the person shall be guilty of an offence.[5]
Failure of witnesses to attend or produce documents
(1) A person served, as prescribed, with a summons to appear as a witness at a hearing before a Commission shall not:
(a) fail to attend as required by the summons; or
(b) fail to attend from day to day unless excused, or released from further attendance, by a member of the Commission.
Penalty: $1,000 or imprisonment for six months.
(1A) Subsection (1) is an offence of strict liability.
(1B) Subsection (1) does not apply if the person has a reasonable excuse.[6]
‘Reasonable excuse’ means:
(a) in relation to any act or omission by a witness before a Commission – an excuse which would excuse an act or omission of a similar nature by a witness before a court of law; or
(b) in relation to any act or omission by a person summoned as a witness before a Commission – an excuse which would excuse an act or omission of a similar nature by a person summoned as a witness before a court of law.[7]
Arrest of witness failing to appear
(1) If any person served with a summons to attend a Royal Commission as a witness fails to attend the Commission in answer to the summons, the President or Chair, or the sole Commissioner, may, on proof by statutory declaration of the service of the summons, issue a warrant for the person's apprehension.[8]
Where any person has on any day done or omitted to do something, and the person's act or omission amounts to an offence against s3 or 6, and does or omits to do the same thing at any hearing of the Commission held on some other day, each such act or omission shall be a separate offence.[9]
Self-incrimination
(1) It is not a reasonable excuse for the purposes of subsection 3(2B) or (5), or section 6AB, for a natural person to refuse or fail to produce a document or other thing that the production of the document or other thing might tend to:
(a) incriminate the person; or
(b) make the person liable to a penalty.[10]
Search warrants
(1A) A relevant Commission may authorise:
(a) a member of the relevant Commission; or
(b) a member of the Australian Federal Police, or of the Police Force of a State or Territory, who is assisting the relevant Commission;
to apply for search warrants under subsection (3) in relation to matters into which the relevant Commission is inquiring. The authorisation must be in writing.[11]
Legal professional privilege (LPP)
(1) It is not a reasonable excuse for the purposes of subsection 3(2B) or (5) for a person to refuse or fail to produce a document that the document is subject to legal professional privilege, unless:
(a) a court has found the document (or the relevant part of the document) to be subject to legal professional privilege; or
(b) a claim that the document (or the relevant part of the document) is subject to legal professional privilege has been made, to the member of the Commission who required production of the document:
(i) within the time that the member of the Commission, in requiring production of the document, allowed for its production; or
(ii) within such further time as the member of the Commission allows for production of the document.
(2) If such a claim is made, the member of the Commission who required production of the document may decide whether to accept or reject the claim.[12] [Author’s emphasis.]
Offences relating to claims for legal professional privilege
A number of offences are created for false or rejected claims for LPP.[13]
Statements made by witness not admissible in evidence against the witness
(1) The following are not admissible in evidence against a natural person in any civil or criminal proceedings in any court of the Commonwealth, of a State or of a Territory:
(a) a statement or disclosure made by the person in the course of giving evidence before a Commission;
(b) the production of a document or other thing by the person pursuant to a summons, requirement or notice under s2 or subsection 6AA(3).
(2) Subsection (1) does not apply to the admissibility of evidence in proceedings for an offence against this Act.
False or misleading evidence
(1) A person shall not, at a hearing before a Commission, intentionally give evidence that the person knows to be false or misleading with respect to any matter, being a matter that is material to the inquiry being made by the Commission.
(2) An offence against subsection (1) is an indictable offence and, subject to this section, is punishable on conviction by imprisonment for a period not exceeding 5 years or by a fine not exceeding $20,000.
Destroying documents or other things
(1) A person commits an offence if:
(a) the person acts or omits to act; and
(b) the act or omission results in a document or other thing being:
(i) concealed, mutilated or destroyed; or
(ii) rendered incapable of identification; or
(iii) in the case of a document, rendered illegible or indecipherable; and
(c) the person knows, or is reckless as to whether, the document or thing is one that:
(i) is or may be required in evidence before a Commission; or
(ii) a person has been, or is likely to be, required to produce pursuant to a summons, requirement or notice under s2.[14]
This is an indictable offence and, subject to this section, is punishable on conviction by imprisonment for a period not exceeding two years or by a fine not exceeding $10,000.
Preventing witness from attending/threatening witness
(1) Any person who intentionally prevents any person who has been summoned to attend as a witness before any Royal Commission from attending as a witness or from producing anything in evidence pursuant to the summons to attend shall be guilty of an indictable offence.
Penalty: Imprisonment for one year (that is, no option of a fine).[15]
Commission may communicate information
(1) Where, in the course of inquiring into a matter, a Commission obtains information that relates, or that may relate, to a contravention of a law, or evidence of a contravention of a law, of the Commonwealth, of a State or of a Territory, the Commission may, if in the opinion of the Commission it is appropriate so to do, communicate the information or furnish the evidence, as the case may be, to:
(a) the Attorney-General of the Commonwealth, of a State, of the Australian Capital Territory or of the Northern Territory, or
(b) the Director of Public Prosecutions, or a Special Prosecutor appointed under the Special Prosecutors Act 1982...[16]
Costs
In any proceedings for an offence against the Act (other than proceedings for the commitment for trial of a person charged with an indictable offence) the Court may award costs against any party.[17]
WIDE TERMS USED IN THE TRADE UNIONS COMMISSION
My most recent experience has been in the Trades Unions Royal Commission (TURC).[18] The terms of reference of that commission are, on their face, very wide – they encompass all unions, not only those directly named, and their staff:
(1) registered employee associations – or their officers;
(2) any such entities; and
(3) any third parties.
The continual use throughout the terms of reference of the term ‘any’ – a word of the widest import:
(5) any conduct, any law, any officer;
(6) any conduct, any law, any entities;
(7) any bribes...payments to any other party; and
(8) which is breathtakingly broad and applies to any persons, etc, ‘other than registered employee associations in conduct of the type referred to in terms 1-7 inclusive. (This covers virtually everyone).
Term 9 refers to the adequacy of laws to deal with any conduct of the type identified and term 10 refers to any issue or matter which is reasonably incidental to the other terms of reference.
The breadth of the terms of reference is made even more generally inclusive by the definitions of terms used in the reference.
Further, the terms appear unlimited as to time.
Such very widely delimited terms of reference are not infrequent in Royal Commissions, which are designed to permit the Commissioner a broad discretion. This has consequences for those who may seek to limit or overturn the terms of reference.
POWER TO ISSUE ROYAL COMMISSION
Under the Act, commissions may be issued in relation to a broad range of areas:
‘...the Governor-General may, by Letters Patent, issue such commissions, requiring or authorising [a person] to make inquiry into and report upon any matter specified in the Letters Patent, and which relates to or is connected with the peace, order, and good government of the Commonwealth, or any public purpose or any power of the Commonwealth’.[19] [Author’s emphasis.]
For the advocate who seeks to challenge the commission or its remit, the questions to be addressed are, therefore:
• What power of the Commonwealth is engaged?
• Are the terms too wide, too broad?
• Is it possible to challenge the terms of reference?
• Is a challenge a sound use of the party’s funds?
For example, in the TURC, there is a real question as to whether an inquiry into entities established by, but independent of unions, could be justified under the Commonwealth Constitution by the engagement of the conciliation and arbitration power and the incidental power combined. There is no other clear head that would be engaged. There is no industrial dispute to which they can be tied – the legitimacy of that part of the terms of reference is a matter of real doubt.
The incredibly wide terms may well make them the subject of challenge. I have done this once (with Gareth Williams QC S-G) in the Aboriginal Deaths in Custody Commission. There is scope for attacking the breadth of the remit.
However, the expense to be managed may not make the challenge worthwhile in all but the rarest case, as a constitutional High Court case is expensive and requires a lot of effort and preparation to be undertaken in a very short time frame. The Commission will not defer its hearings while the challenge is brought.
Even if a challenge partly succeeds, the Commission will not fail entirely – the terms will merely be read down, so there will still be the need to take the steps to prepare for the hearings, get statements and copy documents in order to retain control of the respondent’s part in the proceedings.
PREPARATION
Early, detailed preparation is the secret of managing a royal commission.
Where, as in the TURC, certain parties have been nominated as ‘respondents’ or the subjects of the commission and you have been brought into such a commission to act for a named party, that preparation must be treated as damage control.
Most commissions, despite preserving an appearance of procedural fairness, have been brought into existence with a pre-determined outcome, or at least a significant element of pre-judgement. The very fact that the terms of reference are articulated in the way they are, whether ‘into organised crime’ or ‘into union corruption’ or ‘into drug trafficking’ assumes the existence of the subject matter. Some royal commissioners are very astute to afford procedural fairness to those appearing, others less so. All are however, constrained by the underlying assumptions in their terms.
These will need to be attacked head on wherever possible.
The first step in the preparation is, frankly, to put together the legal team that will be involved. If you are representing a major party to a commission, you should obtain early advice from [senior] counsel experienced in commissions, and retain [junior] counsel expert in the substantive area under investigation.
A detailed advice on evidence in relation to the scope and limits of the terms of reference and the likely course the commission will take needs to be obtained. The more detailed the better, as being forewarned of likely issues enables the preparation of a campaign of defence or of explanation. It will also enable you to determine whether you are preparing it as an exercise in damage control or that there no case to meet.
Obvious witnesses should be identified, and conferences and statements/proofs should be obtained from them, well in advance of the scheduling of any hearing in the commission. It is essential that these statements be as detailed as possible. The same process should then be followed in relation to less obvious and more vulnerable witnesses.
Remembering the limitations imposed on LPP in relation to royal commissions, it is important to ensure that strict compliance with LPP principles be maintained.
Critical to preparation is to locate and copy all documents and electronic records as quickly as possible. LPP does operate for these documents, but only when they are in the hands of the lawyers.
Commissions have extensive search warrant powers. Once Letters Patent have been issued, a party should expect the early issue of warrants.
Remember – nothing is to be destroyed, but if documents are seized under a warrant, the party will be left without copies unless they have been prepared in advance and provided to the solicitors – and they will be needed to prepare both witnesses and responsive material for the matter. Copy everything, including electronic documents and hard drives, servers and other e-storage devices.
A royal commission does not function in the same way as the Independent Commission Against Corruption (ICAC) – there will almost certainly be no foretaste of the case to be met other than in the most general of openings. There will be no private hearings – rather, there will be dirty washing in public wherever that is possible.
Real, detailed preparation is vital and a respondent at risk cannot afford to count cost unless it is prepared to accept the final result.
Also, look at the terms of reference to decide what outcome you are seeking and what is achievable.
APPEARING AS AN ADVOCATE
As an advocate appearing, you will learn a lot from who is acting as counsel assisting: how the commission will be run, how unfair it will be, how the evidence will be put together, in what order and whether the terms will be enlarged or what will be asked for.
Usually a commission with wide-ranging terms of reference will be conducted either on a topic-by-topic basis or section by section, according to the terms of reference. This enables sectional preparation for hearings and for the cross-examination of witnesses. No witness, however, can expect to be given any warning or preparation. Each witness needs counsel there to protect them – taking points, objections and often to prevent contempt or unfair allegations of offences being made.
An advocate before a commission needs to be more than usually robust in the defence of his/her client, and ready to anticipate attack, not only from counsel assisting or other parties’ representatives, but even from the commissioner, who has a much more active and intrusive role than does a judge.
Leave to appear is required. This can be narrow or plenary. It should be sought in advance and obtained in writing if possible. If one is appearing only in the interests of a particular witness or witnesses, leave to appear may be obtained at appearance but, even there, notice in advance to counsel assisting or the commission’s solicitor is a wise step.
Where possible, once you are to appear you should seek a conference with counsel assisting, to ensure that your role is understood, to confirm that your leave to appear will not be opposed and, if possible, to understand and set the limits of the matters to be dealt with. Establishing a good working relationship with counsel assisting is fundamental to good advocacy in a royal commission.
ADVOCACY TECHNIQUES APPLICABLE TO SUCH COMMISSIONS
Different rules apply, depending on whether you are appearing for a party or an individual.
Parties or party witnesses
On receipt of a Notice to Produce or of a Summons, arrange an early conference: you will need a full ‘warts and all’ understanding of all relevant or contingently relevant issues.
Careful drafting of witness statements, ensuring accuracy and truthfulness, is essential, but make sure that the served statement is limited to a precise response to the content of the notice and does not volunteer any material going beyond it.
The statement thus obtained should be served on the commission within time, with a covering letter from the solicitor detailing the response and indicating any omitted matters and the reason.
Such a response will give you two advantages – it will enable you to control the detail and content of the material put forward in the first instance, ensuring its completeness and accuracy and excluding any irrelevant matter; and it will ensure the relationship with the commission is maintained. This can only assist your client.
On appearance, all witnesses will be called and ‘examined’ by counsel assisting. If the statement has been well executed with sufficient detail and clarity, it is likely to limit that examination.
You will be permitted to ‘cross-examine’ your witness. Only do so if you must, or if you know you can achieve a positive outcome.
Here the ordinary rules of cross-examination apply: limit your question as much as possible; only aim for goals that are achievable; manage the witness wherever possible by leading and the remorseless use of documents. When you need to cross-examine, pick one topic at a time. Ideally, you will have prepared the witness for the questions you may need to ask. Stick to a chronological exposition of the topic, and obey the primary rule: know the answer before you ask the question.
Individual witnesses
When appearing in the interest of an individual who has been called to give evidence, you need to identify the reason for the call, the areas of risk and the area of contest. Your role may be limited to protecting the witness from attack, or to a detailed cross-examination of the explanatory type. This is very much akin to re-examination in a trial and requires great care. The important thing is to limit damage to the witness and ensure either no adverse finding or at least no finding that the witness was not frank with the commission. That may be all you can achieve.
Other cross-examination
The cross-examination of other witnesses will be determined by the nature of the evidence given: field the issues by reference to your interests, and limit cross-examination as far as possible – even more than in trials. The primary rule – do not ask any question unless the answer will assist your case – must be the determinant of whether you cross-examine at all.
Where it is necessary to ask questions of a witness, take advantage of relaxed rules of evidence and of the ready availability of documents. More than anywhere other than in a criminal trial, the primacy of the need to form all your questions in cross-examination in leading form and to ask no open-ended questions applies in commissions.
WRITTEN ADVOCACY
Two areas of written advocacy are important in royal commissions.
Correspondence to the commission or its staff needs to be very precise, controlled and directive. Where requests or notices have been served, a short, precise, responsive reply not going beyond the matter requested and not ambiguous is essential. Above all, do not volunteer any information in such a reply, even if it might be thought to be helpful.
Final submissions, however, fall into a quite different category. This is your opportunity to fully argue your position. Many commissions with a political imperative need not be limited to the evidence, but may extend to argument as to the inadequacy of evidence and the failure of the commission to engage with areas and materials relevant to the matters into which it was to enquire. This is not to say that it is not necessary to provide properly argued and reasoned responses to the evidence called, merely that the submissions may be wider and more expansive than in a curial contest.
CONCLUSION
It is important to recognise the very real differences between advocacy in courts and the unique style of advocacy required in royal commissions.
The advocate’s task of appearing in a royal commission requires a detailed knowledge of more than the case theory and the evidence; it requires a working knowledge of the purpose and scope of the powers of the commission and constant vigilance in ensuring that those whom one represents are protected as much as possible from any excesses in the exercise of such power.
James Glissan ESM QC practises at HB Higgins Chambers, Sydney. PHONE (02) 9223 3633 EMAIL glissan@glissan.com.
[1] Royal Commissions Act 1902 (Cth), s1C.
[2] Criminal Code Act 1995 (Cth), Part 2.2 Div 3, cl 3.1.
[3] Ibid, cl 3.2.
[4] Ibid, Div 5, cl 5.1.
[5] Royal Commissions Act 1902 (Cth), s6.
[9] Ibid, c6C.
[10] Ibid, a6A.
[18] At the time of writing, the TURC remains in session in NSW.
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URL: http://www.austlii.edu.au/au/journals/PrecedentAULA/2015/2.html