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12 Apr 2010

Australian Law Reform Commission report on Royal Commissions

by Philip Harrison

The ALRC has recommended a two-tier system of public inquiries, and some procedural changes.

The Australian Law Reform Commission (ALRC) has reported on its review of the Royal Commissions Act 1902 (Cth) - Making Inquiries: A New Statutory Framework.

The ALRC’s key recommendation involves the establishment of two tiers of public inquiry. Royal Commissions would continue as the highest form of inquiry, to look into matters of substantial public importance. In addition, there would be introduced a second tier of inquiry, to be called "Official Inquiries", established by Ministers to look into matters of lesser public importance. The amended Royal Commissions Act would be renamed the InquiriesAct, to reflect the (new) multi-layered nature of statutory inquiries.

Specific recommendations were made to distinguish between the two tiers of inquiry, while ensuring that each tier has the necessary means to conduct investigations, without unnecessarily infringing on the rights of a person affected by the inquiry processes.

For example, Royal Commissions, as the highest form of inquiry, would still be able to abrogate the privilege against self-incrimination and would be able to apply for a warrant for search and seizure. Official Inquiries - which the ALRC envisages will need less intrusive investigative powers - may not. Royal Commissions would also be able to abrogate client legal privilege if stipulated in the Letters Patent. Official Inquiries could not.

Currently, there is no statutory requirement for the tabling in the Parliament of Royal Commission reports. The ALRC recommends that the current practice of Governments tabling reports be formalised by a statutory requirement in the Inquiries Act. That requirement would apply to both forms of inquiry. If for any reason a report was not to be tabled, the Government would have to publish a statement of reasons as to why that was the case.

Another key recommendation is the development of an Inquiries Handbook, aimed at preserving institutional knowledge gained from previous inquiries. That Handbook would contain information on a range of topics, including the establishment and administration of inquiries, records management, and the use and protection of national security information by inquiries.

An underlying focus of the ALRC’s review was the escalating costs of Royal Commissions and inquiries in recent years, and the difficulty in accessing accurate information about those costs. The ALRC consequently recommends that the Inquiries Act require the Government to publish summary information about the costs of individual inquiries, within a reasonable time of their conclusion.

The ALRC’s report and recommendations also address a range of other matters, including the use and protection of national security information by inquiries, and inquiries affecting indigenous peoples.

The Government is now considering the issues raised in the ALRC's report.

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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.