ALRC recommends ‘two-tier’ plan for flexible, cost-effective public inquiries

Costs associated with expensive Royal Commissions could be reduced by establishing an alternative, second tier of public inquiry with proper investigatory powers and appropriate levels of transparency and protections for those involved, Australia’s leading law reform agency said today.The review of Royal Commissions and other federal inquiries by the Australian Law Reform Commission (ALRC) has culminated in the release of its final report, Making Inquiries: A New Statutory Framework (ALRC Report 111), tabled today in federal Parliament.

The report—the product of a nine-month inquiry—makes 82 recommendations for reform.

ALRC President Professor Rosalind Croucher said the former ALRC Commissioner in charge of the Inquiry, Professor Les McCrimmon, former ALRC President, Emeritus Professor David Weisbrot, and the inquiry team should be commended for developing a suite of recommendations that balanced the competing interests expressed in the ALRC’s extensive community consultation.

Prof Croucher said the report recommends the Royal Commissions Act 1902 (Cth) be amended—and renamed the Inquiries Act—to provide for the establishment of two tiers of public inquiry—Royal Commissions and Official Inquiries—each with defined coercive and investigatory powers.

“Whenever there are controversial issues that cannot be satisfactorily dealt with by the courts or the political process, there are inevitably calls for a Royal Commission, although not all such issues warrant such an elaborate inquiry. Royal Commissions should be reserved for the highest form of inquiry dealing with matters of substantial public importance, which may warrant the abrogation of certain privileges and protections, such as the right against self-incrimination. Official Inquiries would provide a more streamlined, cost-effective and flexible alternative to resolve matters of public importance, but which do not require extraordinary powers, such as those abrogating fundamental protections available to inquiry participants.”

Professor Croucher said other ALRC recommendations were directed at openness and accountability, including the publication of inquiry reports and monitoring the resulting activity.

“While accepting or rejecting recommendations made by an inquiry will always be a matter for the Australian Government, it should be required to publish an update on the implementation of recommendations of an inquiry that it accepts. This should happen one year after the tabling of a final report of a Royal Commission or Official Inquiry, and periodically thereafter, to reflect any ongoing implementation activity.”

The ALRC also recommends that the new legislation include requirements for:

  • the prompt tabling of Royal Commission and Official Inquiry reports in Parliament
  • publishing a summary of the cost of each Royal Commission and Official Inquiry; and
  • a framework for the protection of protected national security information utilised in the proceedings of Royal Commissions or Official Inquiries.

A legislative framework is required to govern the establishment and operation of official inquiries at the federal level, to ensure that such inquiries have adequate investigatory powers while at the same time ensuring the protection of the rights of individuals concerned, the nation’s peak law reform agency said today.This would put what are now simply ‘ad hoc inquiries’ on the same solid footing as Royal Commissions, and provide more options and flexibility for Governments.

The 75 draft proposals for reform are outlined in an ALRC Discussion Paper, Royal Commissions and Official Inquiries (DP 75), released online today. The ALRC is seeking public feedback ahead of its final report and recommendations—due to be delivered to the Australian Government in October.

The ALRC is reviewing the operation of the Royal Commissions Act 1902 (Cth) and related issues, and also has been asked to consider whether less formal and more flexible statutory alternatives to Royal Commissions may be appropriate in some circumstances.

ALRC President, Emeritus Professor David Weisbrot AM, said that the Royal Commissions Act needs some fine-tuning, but is otherwise operating well.

”There is a need, however, for the Royal Commissions Act to be amended—and renamed the Inquiries Act—to provide a new statutory framework for other official inquiries established by the federal government.

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 result is that non-statutory inquiries may not have all the information necessary to make the best possible findings and recommendations”

Commissioner in charge of the Inquiry, Prof Les McCrimmon, said that “the proposed new statutory framework would introduce another form of inquiry—called Official Inquiries—with similar advantages and outcomes to Royal Commissions, but offering more flexibility and less formality.

“‘In keeping with principles of government openness, transparency and accountability, the ALRC is also proposing requirements for government follow-up in response to inquiry reports and recommendations. For example, the government would be required to make inquiry reports public by tabling them in Parliament and to publish updates on the implementation of inquiry recommendations.”

Prof McCrimmon said that the ALRC has also proposed a number of measures for the use and protection of national security information by Royal Commissions and Official Inquiries.

“This has been an issue for a number of recent inquiries, including the Clarke Inquiry into the case of Dr Mohamed Haneef; and the AWB Food-for-Oil Inquiry. While previous inquiries have been able to prevent inadvertent disclosure of national security information, some have encountered practical difficulties accessing and using such material. The proposed new Inquiries Act would overcome many of these difficulties with special procedures and powers for national security information.”

The closing date for submissions addressing proposals regarding the Inquiry is 22 September 2009, with the final report due to be completed by 30 October 2009.

The Australian Law Reform Commission today released an Issues Paper, Review of the Royal Commissions Act (IP35) seeking feedback from the community on 49 questions posed as part of its current review of the Royal Commissions Act 1902 (Cth).

The ALRC has been asked by the Attorney-General, the Hon Robert McClelland MP, to review the operation of the Act—which has been in force since 1902—and in particular to consider whether less formal alternatives to a Royal Commission may be appropriate in some circumstances.

ALRC President Professor David Weisbrot noted that “Royal Commissions look at issues of great public importance and play a very important role in ensuring that systemic failures are addressed. When there are controversial issues that cannot be handled satisfactorily by the courts or the political process, there are invariably calls for the establishment of a Royal Commission—and there are often expressions of disappointment when other ‘lesser’ forms of inquiry are established, such as the inquiries into the treatment of Dr Mohamed Haneef and Cornelia Rau.

“Royal Commissions usually prove to be very expensive. Precise figures are surprisingly difficult to pin down, but we estimate that, in today’s dollars, the Royal Commission into the Building and Construction Industry cost taxpayers over $70M, the one into the collapse of insurer HIH cost over $47M, and the Royal Commission into Aboriginal Deaths in Custody cost over $50M.

Professor Weisbrot stated “A key concern for the ALRC is whether an alternative model of executive inquiry might provide similar advantages and outcomes to Royal Commissions, in terms of respect, independence, protection of witnesses and so on, while offering more flexibility, less formality and greater cost-effectiveness.”

Royal Commission powers are another issue under the spotlight. Commissioner in charge of the ALRC Inquiry, Professor Les McCrimmon, noted that, “The Act currently gives Royal Commissions a wide range of coercive information gathering powers. For example, a Royal Commission can apply for a search warrant, summon witnesses to give evidence and require the production of evidence. The exercise of such powers must be balanced carefully against the rights of those being investigated.”

“The Royal Commissions Act also contains a number of criminal offences that can be used to punish failures to comply with the requirements of a Royal Commission, interfering with witnesses, or interfering with the work or authority of a Commission. We will be exploring whether civil penalties may be more appropriate in some of these contexts,” Professor McCrimmon said.

Along with the release of the Issues Paper, the ALRC has also developed an Online Discussion Forum organised around the key questions being considered in this inquiry, making it easy for people to share their ideas and experiences at <http://talk.www.alrc.gov.au>.

The Review of Royal Commissions Issues Paper and further information about this Inquiry are available from the ALRC website.  The closing date for written submissions in response to the Issues Paper is 19 May 2009.

The final report and recommendations are due to be presented by 30 October 2009. 

The Australian Law Reform Commission (ALRC) welcomed the announcement today by the Commonwealth Attorney-General, the Hon Robert McClelland MP, of new Terms of Reference for the ALRC to review the Royal Commissions Act 1902 (Cth) and related issues. 

The Terms of Reference ask the ALRC to focus on a number of matters, including:

  • whether there is any need to develop an alternative form or forms of Commonwealth executive inquiry, with statutory foundations;
  • whether there is any need to develop special arrangements and powers for inquiries involving matters of national security;
  • 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; and
  • the appropriateness of restrictions on the disclosure of information to, and use of information by, Royal Commissions and other inquiries. 

ALRC President Professor David Weisbrot stated:

“Royal Commissions occupy a unique place in the Australian system of government, being the highest form of inquiry on matters of public importance. When there are controversial issues that cannot be handled satisfactorily by the courts or the political process, there are invariably calls for the establishment of a Royal Commission.

However, in recent years, some inquiries—such as the Oil-for-Food Inquiry and the Royal Commission into the Building and Construction Industry—have experienced difficulties because provisions of the Royal Commissions Act are antiquated or inappropriate. Royal Commissions are also often ferociously expensive, running into the tens of millions of dollars.

A major priority for the ALRC will be to consider whether alternative forms of executive inquiry might provide similar advantages to Royal Commissions, in terms of independence, protection of witnesses, and so on, while offering more flexibility, less formality and greater cost-effectiveness.”

Professor Les McCrimmon, Commissioner in charge of the new inquiry, stated that “there are good lessons to be learnt from the problems thrown up by some recent inquiries. These difficulties have included the power to compel the provision of information, a lack of power to investigate breaches of the Act, the adequacy of penalties for a failure to comply with the Act, and the ability of Royal Commissions to communicate information about unlawful behaviour to law enforcement bodies.”

Professor McCrimmon noted that many of the same issues cut across other recent ALRC inquiries.

“For example, last year the ALRC made recommendations about the application of client legal privilege to Royal Commissions, and similarly we’ve looked at the handling of classified and security sensitive information, as well as matters of evidence, practice and procedure in the federal courts and tribunals.”

The ALRC will release one or more discussion documents for widespread community consultation, before providing its final report and recommendations to the Attorney-General by 30 October 2009.