The New Brooms – anticipating the Royal Commissions and inquiries

Cain Sibley, Caroline Bush and Clare McNamara
26 May 2022
Time to read: 3 minutes

The incoming government will establish a raft of reviews and inquiries and has promised a Robodebt Royal Commission – how should you prepare?

Following the election result a steady stream of reviews, inquiries and Royal Commissions can be anticipated. For agencies and organisations likely to come under Royal Commission scrutiny, time is of the essence. Preparation is key and should commence now.

As well as a series of program reviews, the Labor party policy promises a Royal Commission into Robodebt and the establishment of a federal ICAC with standing Royal Commission powers by the end of 2022. Many of the independents elected to the cross bench also campaigned on a platform of greater transparency in government, while following the recommendations made in the final report of the Senate Select Committee inquiring into COVID-19 we can also expect a Royal Commission into the national COVID-19 response.

For agencies and organisations, early preparation will be critical.

Following the announcement of a Royal Commission, there is usually a short period of public consultation before the terms of reference are announced and the commissioner(s) appointed.

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Figure 1 – Elements of a typical Royal Commission workflow: depending on the terms of reference a Royal Commission is likely to follow a workflow including receiving public submissions generally and in relation to particular lines of inquiry. It may offer public sessions. It is likely to examine some issues via public hearings, for which it will obtain documents and witness statements from identified stakeholders. As well it may have a research arm, charged with investigating best practice for its areas of inquiry. All these elements will feed into the final report and recommendations of the Royal Commission.

The Royal Commission will most likely be given a duration of 1-2 years to complete its work. This may sound like a long time, however once underway, Royal Commissions generally proceed with each of their lines of inquiry via a public hearing process in a highly compressed timeframe of six to 12 weeks.

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Figure 2 – The entire process for a Royal Commission line of inquiry, starting from issuing of notices to produce documents and notices of give information (requiring preparation of a statement by a witness) through to public hearing and filing of post hearing submissions can occur in a very short, intense timeframe of only 6-12 weeks.

While every inquiry and Royal Commission is different, there are some constants in terms of the preparation and resourcing required to ensure the response of an agency or organisation is effective and as efficient as possible.

The first step will be to identify a team to take responsibility for initial preparation and co-ordination of the response. Document management and preservation, including identification of all repositories likely to contain relevant material and implementation of processes for capturing it in one place should be prioritised. It is likely that the agency or organisation will receive notices to produce documents to the Royal Commission providing very short time frames for response. Establishing an effective document management protocol is vital to ensuring document production by the agency or organisation in response to notices issued by the Royal Commission is efficient, and most importantly, complies with the Royal Commission’s deadlines.

Commonwealth agencies will need to liaise at an early stage with the Attorney-General’s Department (AGD) in relation to their individual support needs and the arrangements usually made by AGD for interaction between individual Commonwealth agencies and the Royal Commission.

Careful thought will need to be given to the terms of reference when available and a risk strategy prepared. Particular elements that are likely to be flash points for stakeholders and those that will present particular challenges for the agency or organisation if examined should be areas of early focus. Key personnel who might be called as witnesses by the inquiry in this context should also be identified.

A communications strategy will be important, as will reporting lines to the Executive and Ministerial briefing processes. As it is likely that the organisation or agency will have an ongoing role providing support in relation to the Royal Commission’s areas of investigation while the inquiry proceeds, consideration should be given to appropriate public-facing resources for stakeholders, explaining the work of the Royal Commission, the agency or organisation's role and its response to the Royal Commission. Support systems for staff will also be important.

It should not be forgotten that while it will certainly make policy and other recommendations, a Royal Commission is essentially a legal process. It is crucial for agencies and organisations to have experienced legal advisers involved from the beginning, to ensure the agency or organisation has the benefit of legal advice in relation to all aspects of its response.

In coming editions of Insights we'll be featuring articles discussing specific issues associated with the promised Royal Commissions and inquiries.

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.