19 Oct 2009

A new model of statutory inquiries?

by Philip Harrison

The Australian Law Reform Commission is promoting a new statutory framework, proposing a form of inquiry to run parallel to Royal Commissions, with similar advantages and outcomes to Royal Commissions, but offering greater flexibility and less formality.

The Australian Law Reform Commission's (ALRC's) review of the provisions and operation of the Royal Commissions Act 1902 was overviewed in our April edition. At that time, we noted that the review presented an opportunity to develop a more modern, flexible and ideally less expensive means of inquiry.

It remains the case that Royal Commissions, particularly those carrying out investigations and not engaged in policy development, have proved too inflexible to deal quickly with matters of lesser import; and are possibly too antiquated to manage matters of greater moment, that require forensic investigation, backed by credible powers of compulsion.

The recently released Discussion Paper signals that the ALRC is ready to take up the challenge of providing a 21st century approach to statutory inquiries.

The favoured model

The ALRC is of the view that a new legislative framework is required. It would govern the establishment and operation of official inquiries of the Commonwealth, ensure that such inquiries have adequate investigatory powers, while at the same time ensuring the protection of the rights of individuals concerned.

In particular, coercive information-gathering powers are favoured, such as compelling a person to appear and provide answers to an inquiry, to ensure the efficient investigation of a particular issue or event. Secondly, legal protections are considered necessary, to ensure that the way information is collected in an inquiry reflects an appropriate balance between the need to determine the facts and protecting the rights of individuals involved with, or affected by, the inquiry.

The effect would put what are now simply ad hoc inquiries on the same solid footing as Royal Commissions, while providing more options and flexibility for the Commonwealth.

As the ALRC's President, Emeritus Professor David Weisbrot AM, said on the release of the Discussion Paper:

''At present, non-statutory inquiries may not have the necessary powers to investigate, compel people to appear before the inquiry or compel the production of evidence. They cannot guarantee adequate legal protection to inquiry members and to staff. In addition, there is insufficient legal protection for people providing information to these inquiries, especially those whose reputations may be called into question.''

The ALRC's final report and recommendations are to be delivered to the Attorney-General in October.

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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.