09.08.2009
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.