This Issues Paper reflects the law as at 27 March 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-978-0-9804153-5-3 Commission Reference: IP 35 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 Making a submission Any public contribution to an inquiry is called a submission and these are actively sought by the ALRC from a broad cross-section of the community, as well as those with a special interest in the particular inquiry. Submissions are usually written, but there is no set format and they need not be formal documents. Where possible, submissions in electronic format are preferred. It would be helpful if comments addressed specific proposals and questions or numbered paragraphs in this paper. Open inquiry policy In the interests of informed public debate, the ALRC is committed to open access to information. As submissions provide important evidence to each inquiry, it is common for the ALRC to draw upon the contents of submissions and quote from them or refer to them in publications. As part of ALRC policy, non-confidential submissions are made available to any person or organisation upon request after completion of an inquiry, and also may be published on the ALRC website. For the purposes of this policy, an inquiry is considered to have been completed when the final Report has been tabled in Parliament. However, the ALRC also accepts submissions made in confidence. Confidential submissions may include personal experiences where there is a wish to retain privacy, or other sensitive information (such as commercial-in-confidence material). Any request for access to a confidential submission is determined in accordance with the Freedom of Information Act 1982 (Cth), which has provisions designed to protect sensitive information given in confidence. In the absence of a clear indication that a submission is intended to be confidential, the ALRC will treat the submission as non-confidential. Submissions should be sent to: The Executive Director Australian Law Reform Commission GPO Box 3708 SYDNEY NSW 2001 Email: [email protected] Submissions may also be made using the online form on the ALRC’s homepage: <www.alrc.gov.au> The closing date for submissions in response to IP 35 is 19 May 2009. Contents Contents Terms of Reference 5 List of Participants 7 List of Questions 9 1. Introduction to the Inquiry 17 Background 17 Scope of the Inquiry 18 Terminology 20 Law Reform Process 20 Organisation of this Issues Paper 22 Timeframe for the Inquiry 23 2. Role of Public Inquiries 25 Introduction 25 Historical background and trends 25 Characteristics of public inquiries 27 Functions of public inquiries 29 Policy and investigatory inquiries 30 Types of public inquiries in Australia 31 3. The Royal Commissions Act 1902 (Cth) 37 Introduction 37 Establishment 37 Jurisdiction 39 Membership 41 Coercive powers 43 Methods of taking evidence 44 Privileges and immunities 45 Offences 45 Communication of information 46 Contempt 47 Concurrent Commonwealth and state Commissions 48 Custody and use of records of Royal Commissions 48 Drafting and structure of the Royal Commissions Act 49 Judicial review of inquiry decisions 49 2 Review of the Royal Commissions Act 4. Comparative Forms of Public Inquiry 53 Introduction 53 Existing types of federal public inquiries 53 Existing models of inquiry in Australian states and territories 58 Existing models of inquiry in overseas jurisdictions 64 5. Potential New Models of Commonwealth Public Inquiry 69 Introduction 69 Key considerations for developing a model of inquiry 69 Potential models for executive inquiry 71 Name of legislation establishing public inquiries 74 Government responses to public inquiries 74 6. Funding and Administration 81 Introduction` 81 Costs of public inquiries 82 Types and funding of costs and expenses 84 Inquiry administration and support 92 Minimising costs 94 7. Powers 99 Introduction 99 Other forms of inquiry: powers to obtain information 99 General powers to obtain information 101 Search and seizure powers 107 Need for special powers in cases of national security 111 Other issues 114 8. Witnesses 119 Introduction 119 Examination and cross-examination of witnesses 120 Exemptions from requirement to give evidence 123 Privileges and immunities 128 Protection of Commissioners, witnesses and legal practitioners 138 Public access to hearings and documents 139 Procedural fairness 142 9. Offences and Penalties 147 Introduction 147 Offences 148 Special context of Royal Commissions 148 Alternative sanctions 150 General principles of criminal liability 152 Contents 3 Offences of non-compliance 153 Unauthorised publications 156 Interference with evidence 158 Interference with witnesses 159 Offences relating to Commissioners or staff 161 Range of offences 161 Interference with a Royal Commission’s work or authority 162 Penalties 172 Proceedings 176 Costs 177 Appendix 1. List of Abbreviations 179 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; (d) the appropriateness of restrictions on the disclosure of information to, and use of information by, Royal Commissions and other inquiries, including restrictions contained in other legislation (but not including those arising from the operation of client legal privilege); and (e) suggestions for changes to the Act proposed or raised by Royal Commissions. 2. In carrying out its review, the Commission will identify and consult with key stakeholders, including relevant Commonwealth, State and Territory agencies. 6 Review of the Royal Commissions Act 1902 3. The Commission will provide its final report to me by 30 October 2009. Dated: 14 January 2009 [signed] Robert McClelland Attorney-General List of Participants Australian Law Reform Commission Division The Division of the ALRC constituted under the Australian Law Reform Commission Act 1996 (Cth) for the purposes of this Inquiry comprises the following: Professor David Weisbrot AM (President) Professor Les McCrimmon (Commissioner in charge) Professor Rosalind Croucher (Commissioner) Justice Berna Collier (part-time Commissioner) Justice Susan Kenny (part-time Commissioner) Senior Legal Officers Kate Connors Isabella Cosenza Legal Officers Joyce Chia (from March 2009) Althea Gibson (until February 2009) Erin Mackay Research Manager Jonathan Dobinson Librarian Carolyn Kearney Project Assistants Alayne Harland Legal Interns Christopher Beshara Marissa Chorn Erin Pynor Aileen Tse 8 Review of the Royal Commissions Act Advisory Committee Members Ms Sheila Butler, former Secretary to several recent Commonwealth public inquiries Emeritus Professor Enid Campbell AC OBE, former Dean, Monash University, Faculty of Law and Sir Isaac Isaacs Professor of Law The Hon Stephen Charles QC, former judge of the Victorian Court of Appeal The Hon Terence Cole AO RDF QC, former judge of the New South Wales Court of Appeal Mr Simon Daley, Australian Government Solicitor Ms Megan Davis, Director, Indigenous Law Centre, University of New South Wales