ALRC to consider flexibility, formality and cost of Royal Commissions

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.