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12 Nov 2020

Tales from the Bar: With the rise in Royal Commissions – no sector is immune

By Melissa J Marcus

What should businesses or government agencies consider in terms of their own preparedness should a Royal Commission or Inquiry be called in their sector?

A Royal Commission or Inquiry is called to investigate the cause or causes of perceived issues with a sector, an event, or a series of events, and to make recommendations to overcome the issue. They are essentially a fishing expedition. They operate within terms of reference and often within a tight timeframe. Documentation is demanded at short notice, often requiring production of enormous volumes of documents. Generally speaking, it is mandatory to comply with demands to produce documents. With this in mind, preparation for how to deal with a demand to attend before a Royal Commission or Inquiry is the key.

Preparation and co-ordination are required across a range of matters.

Businesses and government agencies need to think about what documents are likely to be relevant to the Royal Commission or Inquiry in the event one is called. A system needs to be implemented for managing documents to ensure they are accessible and easily produced if required, particularly if required in a short timeframe. Ensure that documents that may be privileged can be easily identified, in the event that privilege claims are permitted by a Royal Commission/Inquiry. For government agencies, consider whether any documents will be subject to claims for parliamentary privilege.

Consider and evaluate the governance and performance of the organisation. Are there checks and balances in place? Is the organisation accountable for its actions? Has it been transparent or are there skeletons in the closet? Interrogate the organisation’s actions before this occurs in the context of a Royal Commission/Inquiry.

Determine who will be the key witnesses for the organisation. Who has the relevant knowledge to answer questions asked by the Royal Commission/Inquiry and who can talk to relevant documents? Ensure internal stakeholders know who the key witnesses are if a Royal Commission/Inquiry is called so that everyone knows to whom pertinent information is to be conveyed.  

Identify the external legal team who will assist in the event the business/government agency is called. This legal team will be the external solicitors and counsel who will represent the business/agency at the hearing.

The business/agency may also consider an external media strategy and media consultant to deal with potential reputational issues.

What are your key tips for the formulation of an effective strategy?

Preparation is the key.

Involve the external legal team early to assist with preparation of witnesses who are expected to give evidence and to help set the narrative. When demands for documents come, they come quickly and having an external legal team briefed and ready to help can assist in alleviating stress and tension and can ensure deadlines are met.

Royal Commissions/Inquiries involve requests for documents across an organisation. The requests are often broad, covering many years, and require production in a short timeframe. Manual categorisation and production is simply not feasible or sensible and may not be permitted for large numbers of documents. Technology is crucial in identifying what documents have been produced, what category from the request for production the various documents relate to, who produced the documents and when they were produced. In the event certain documents are to be excluded from production, use of technology allows these documents to be readily identified and the reason for exclusion to be catalogued.  Determine at an early stage what technology will be used for document production and storage. External solicitors with experience of Royal Commissions/Inquiries will generally have access to, or will source, the document management system that is to be used.

Avoid the temptation to be defensive and never conceal matters. Royal Commissions/Inquiries are looking for answers. If there have been issues in the past, the best preparation is identifying the issue and its cause and being able to set out the steps that have been taken to fix the issue.  This is part of the narrative referred to above. Adopting an evasive or dismissive attitude is likely to be a recipe for disaster, both in the final report and before the court of public opinion. Preparing witnesses early means they are ready to admit failings when required, and that they are ready and able to tell a positive story where they can.

Develop and be familiar with key reform and regulatory issues within the sector. For example, with the Royal Commission into Institutional Responses to Child Sexual Abuse, organisations had to consider their policy in relation to reliance on limitation of actions periods, redress, re-opening of previously settled cases etc.

How important is project management when participating in a Royal Commission or Inquiry?

Project management is crucial. Project management covers managing all of the matters above in a co-ordinated and careful manner. Ensuring everyone is across the matters above is key. This means everyone from key stakeholders within the organisation to the external solicitors and counsel.

For example, identify early who is going to be in control of document management, both internally and externally. Identify leaders in relation to the matters that need to be addressed and identify their relevant teams. Good project management also requires open and frequent communication between key stakeholders.  

What role has technology played in shaping how Commissions and Inquires are run, and how does the legal team engage with that technology?

Royal Commissions/Inquiries operate in a digital environment.

The business/agency will have produced documents electronically in response to various notices issued on behalf of the Royal Commission/Inquiry. Documents are catalogued by the team working with Counsel Assisting the Royal Commission or Inquiry.

An electronic tender bundle is prepared by Counsel Assisting prior to the scheduled hearing. The legal teams for the business/agency will be given electronic access these documents. The legal team then needs to become familiar with these documents because these are the documents that witnesses will be examined upon and that will be referred to in submissions. This tender bundle will not only include documents produced by the business/agency but may include documents from third parties and not be known to the business/department. 

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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.