MAKING INQUIRIES REPORT A New Statutory Framework REPORT 111 October 2009 This Report reflects the law as at 9 October 2009. © Commonwealth of Australia 2009 This work is copyright. You may download, display, print and reproduce this material in whole or part, subject to acknowledgement of the source, for your personal, non- commercial use or use within your organisation. Apart from any use as permitted under the Copyright Act 1968 (Cth), all other rights are reserved. Requests for further authorisation should be directed by letter to the Commonwealth Copyright Administration, Copyright Law Branch, Attorney-General’s Department, Robert Garran Offices, National Circuit, Barton, ACT, 2600 or electronically via www.ag.gov.au/cca. ISBN 978-0-9804153-9-1 Commission Reference: ALRC Report 111 The Australian Law Reform Commission was established on 1 January 1975 by the Law Reform Commission Act 1973 (Cth) and reconstituted by the Australian Law Reform Commission Act 1996 (Cth). The office of the ALRC is at Level 25, 135 King Street, Sydney, NSW, 2000, Australia. All ALRC publications can be made available in a range of accessible formats for people with disabilities. If you require assistance, please contact the ALRC. Telephone: within Australia (02) 8238 6333 International +61 2 8238 6333 TTY: (02) 8238 6379 Facsimile: within Australia (02) 8238 6363 International +61 2 8238 6363 E-mail: [email protected] ALRC homepage: www.alrc.gov.au Printed by Ligare The Hon Robert McClelland MP Attorney-General of Australia Parliament House Canberra ACT 2600 30 October 2009 Dear Attorney-General Review of the Royal Commissions Act 1902 and related Issues On 14 January 2009, you issued terms of reference for the ALRC to undertake a comprehensive review of the Royal Commissions Act 1902 and related issues. On behalf of the Members of the Commission involved in this Inquiry—including Justice Berna Collier and Justice Susan Kenny—and in accordance with the Australian Law Reform Commission Act 1996, we are pleased to present you with the final report in this reference, Making Inquiries: A New Statutory Framework. Yours sincerely Emeritus Professor David Weisbrot AM President Professor Les McCrimmon Professor Rosalind Croucher Commissioner in charge Commissioner Contents Contents Terms of Reference 7 List of Participants 9 List of Recommendations 11 Executive Summary 29 Part A – Introduction 37 1. Introduction to the Inquiry 39 Background 39 Scope of the Inquiry 40 Terminology 42 Law reform process 44 Organisation of Report 46 Further processes 49 2. History and Role of Public Inquiries 51 Introduction 51 Historical background and trends 51 Characteristics of public inquiries 53 Functions of public inquiries 55 Policy and investigatory inquiries 57 Types of public inquiries in Australia 58 3. Overview of the Royal Commissions Act 1902 (Cth) 65 Introduction 65 Establishment 65 Jurisdiction 67 Membership 67 Coercive powers 68 Methods of taking evidence 69 Privileges and immunities 69 Offences 70 Communication of information 71 Contempt 72 Concurrent Commonwealth and state inquiries 72 Custody and use of records 73 2 Making Inquiries: A New Statutory Framework 4. Comparative Forms of Public Inquiry 75 Introduction 75 Models of inquiry in Australian states and territories 75 Other models of inquiry in Australia 81 Models of inquiry in overseas jurisdictions 83 Part B – A New Statutory Framework 89 5. A New Statutory Framework for Public Inquiries 91 Introduction 91 The current arrangements for public inquiries 92 Options for reform 97 Titles of inquiries and new inquiries legislation 105 Nature of inquiries in the recommended model 108 Selecting powers and associated privileges for each inquiry 110 Relationship between tiers of inquiry 114 Accountability mechanisms for inquiries 117 6. Establishment 119 Introduction 119 Inquiries Handbook 120 Factors for consideration before an inquiry is established 122 Establishing authority 129 An inquiry’s terms of reference 134 Appointment of inquiry members 136 Multi-member inquiries 144 Legal practitioners assisting an inquiry 146 Expert advisors 151 7. Reports and Recommendations 155 Introduction 155 Inquiry reports 156 Tabling reports in Parliament 156 Government responses to public inquiries 162 Implementation of recommendations 165 8. Administration and Records 173 Introduction 173 Administrative assistance for inquiries 174 Inquiry records 184 Part C – Funding and Cost of Inquiries 193 9. Funding and Costs 195 Introduction 195 Types of costs and expenses 195 Costs of inquiry participants 196 Contents 3 Other inquiry costs 211 Method of funding inquiries 221 10. Minimising Costs 227 Introduction 227 Sources of information about costs 227 Costs of public inquiries 233 Publication of budgets or expenses 236 Role of inquiry members 241 Jurisdiction to award costs 244 Other methods of minimising costs 246 Part D – Inquiry Powers 249 11. Powers 251 Introduction 251 Overview of powers of Royal Commissions and Official Inquiries 252 Coercive information-gathering powers 257 Other investigatory powers 277 Other issues 286 12. Protection from Legal Liability 295 Introduction 295 Current protection from legal liability 295 Need for protection from legal liability 297 Protection for inquiries 298 Electronic publications 308 Compellability 310 13. National Security 313 Introduction 313 Royal Commissions and inquiries in cases of national security 314 Overview of the use of national security information by inquiries 322 Special powers in cases of national security 325 Security clearances 338 Existing permanent bodies 343 Expert role for the Inspector-General of Intelligence and Security 345 Government policies and protocols 349 Technical assistance 350 Part E – Conduct of Inquiries 353 14. Inquiries and Courts 355 Introduction 355 Judicial review 356 Referral of questions of law 362 Related legal proceedings 366 4 Making Inquiries: A New Statutory Framework 15. Procedures: General Aspects 371 Introduction 372 Methods of inquiry 372 Procedural fairness 376 The Salmon Principles 383 Leave to appear and be represented 387 Examination and cross-examination 392 Publication of responses to adverse findings 396 16. Procedures: Specific Aspects 401 Introduction 401 Information about procedures 401 Public access to inquiries 405 Inquiries affecting Indigenous peoples 420 Correction of the public record 429 17. Privileges and Public Interest Immunity 433 Introduction 433 Privileges under the Royal Commissions Act 434 Client legal privilege 435 Privilege against self-incrimination 439 Pending charges or penalty proceedings 447 Scope of use immunity 449 Privilege against spousal incrimination 456 Parliamentary privilege 457 Public interest immunity 460 Statutory privileges 463 18. Statutory Exemptions from Disclosure 467 Introduction 467 Secret processes of manufacture 467 Secrecy provisions 469 Part F – Offences and Penalties 481 19. Offences 483 Introduction 483 Civil or administrative sanctions 484 Offences of non-compliance 490 Strict liability 491 Scope of conduct 494 Notice requirements 495 Reasonable excuse 497 Relevance 504 Continuing offence 505 Contravention of directions 508 Interference with evidence or witnesses 510 Contents 5 Offences relating to Commissioners or staff 513 Disclosures by Commissioners or staff 514 20. Contempt 517 Introduction 517 Contempt of court 518 The prohibited conduct 521 Form of sanction 527 21. Penalties, Proceedings and Costs 541 Introduction 541 Setting penalties 542 Present penalties 544 Submissions and consultations 545 Penalties for Official Inquiries 546 Penalties for non-compliance 547 Unauthorised publications 550 Offence of substantial disruption 553 Proceedings 555 Costs 558 Appendix 1. List of Submissions 563 Appendix 2. List of Agencies, Organisations and Individuals Consulted 565 Appendix 3. List of Abbreviations 571 Appendix 4. Federal Royal Commissions established since March 1983 577 Appendix 5. Non-Royal Commission Federal Public Inquiries established since 579 March 1983 Appendix 6. Table of Consequential Amendments 601 Index 609 Terms of Reference REVIEW OF THE ROYAL COMMISSIONS ACT 1902 AND RELATED ISSUES I, ROBERT McCLELLAND, Attorney-General of the Commonwealth of Australia, having regard to the need to ensure that the executive government has available to it forms of inquiry on matters of public importance which are effective and efficient in the context of contemporary requirements, refer to the Australian Law Reform Commission for inquiry and report, pursuant to subsection 20(1) of the Australian Law Reform Commission Act 1996, the operation and provisions of the Royal Commissions Act 1902 (the Act) and the question whether an alternative form or forms of Commonwealth executive inquiry should be established by statute. 1. In carrying out its review, the Commission is to consider: (a) whether there is any need to develop an alternative form or forms of Commonwealth executive inquiry, with statutory foundations, to provide more flexibility, less formality and greater cost-effectiveness than a Royal Commission (particularly whether there would be any advantage in codifying special arrangements and powers that should apply to such alternative forms of inquiry); (b) whether there is any need to develop special arrangements and powers for inquiries involving matters of national security; (c) the appropriate balances between powers for persons undertaking inquiries and protections of the rights and liberties of persons interested in, or potentially affected by, inquiries;