Commissions of inquiry

Royal Commissions

38.2 A federal Royal Commission is a government inquiry established by the Governor-General pursuant to the Royal Commissions Act 1902 (Cth). The Royal Commissions Act allows the Governor-General, by Letters Patent, to

issue such commissions, directed to such person or persons, as he thinks fit, requiring or authorizing [those persons] to make inquiry into and report upon any matter specified in the Letters Patent, and which relates to or is connected with the peace, order and good government of the Commonwealth, or any public purpose or any power of the Commonwealth.^[1]

38.3 Royal Commissions are established on an ad hoc basis to inquire into matters of public interest. Their purpose is usually to ascertain factual circumstances and make recommendations.^[2] There have been a number of high profile federal Royal Commissions, including those into the Australian Wheat Board, HIH Insurance, the building and construction industry, and Aboriginal deaths in custody.^[3]

38.4 A federal Royal Commission has coercive information-gathering powers. For example, it has the power to summon a witness to give evidence or produce documents.^[4] Further, the Royal Commissions Act creates a number of statutory offences for certain types of conduct. For example, it is an offence to fail to attend or produce documents to a Royal Commission; or to conceal, mutilate or destroy any document or thing that is likely to be required in evidence before a Royal Commission.^[5]

38.5 A federal Royal Commission may order that evidence be taken in private. It may also limit or prohibit the publication of certain material, such as the evidence given before it or information that might enable a witness to be identified.^[6] In addition, regulations may be made for the custody, use or disclosure of records of a Royal Commission that are no longer required for its purposes.^[7]

38.6 A federal Royal Commission exercises powers that usually are exercised by courts. Nevertheless,

the function which is primarily distinctive of judicial power—the power to decide or determine—is absent. The commission can neither decide nor determine anything and nothing that it does can in any way affect the legal position of any person. Its powers and functions are not judicial.^[8]

38.7 A federal Royal Commission is an ‘agency’ for the purposes of the Privacy Act. Its acts and practices, however, are not acts and practices to which the Act applies.^[9] Accordingly, federal Royal Commissions are not regulated by the Privacy Act.

38.8 It has been argued that Royal Commissions have greater powers than courts to force revelations and even confessions, because they do not presume either innocence or guilt and do not make determinations. Accordingly, there is a risk that individuals appearing before Royal Commissions may be forced to make embarrassing revelations and face exposure, humiliation and adverse publicity without regard for the appropriate balance between privacy and open justice.^[10]

The commission of inquiry into the equine influenza outbreak

38.9 On 2 September 2007, the then Prime Minister and the then Minister for Agriculture, Fisheries and Forestry announced the establishment of an inquiry into the outbreak of equine influenza in Australia in August 2007.^[11] The Quarantine Amendment (Commission of Inquiry) Act 2007 (Cth) amended the Quarantine Act 1908 (Cth) to provide for the appointment of a person to conduct a commission of inquiry into the equine influenza outbreak and related quarantine requirements and practices.^[12]

38.10 The Commission was vested with most of the powers of a Royal Commission.^[13] In addition, people engaged to assist the Commission were entitled to exercise powers under the Quarantine Act in certain circumstances.^[14]

38.11 The Quarantine Amendment (Commission of Inquiry) Act also amended the Privacy Act to provide that the acts and practices of the Commission were not acts and practices to which the Privacy Act applied.^[15] Thus, the Commission was exempt from the operation of the Act. The amendment was made to ensure that the records of the commission of inquiry were ‘managed in accordance with existing procedures for royal commissions’.^[16] The Commission has concluded its inquiry and presented its report to the Hon Tony Bourke MP, Minister for Agriculture, Fisheries and Forestry.^[17]

38.12 In New Zealand, Royal Commissions and other commissions of inquiry are completely exempt from the operation of the Privacy Act 1993 (NZ).^[18]

Submissions and consultations

38.13 In the Issues Paper, Review of Privacy (IP 31), the ALRC asked whether federal Royal Commissions should be wholly or partially exempt from the operation of the Privacy Act.^[19] The Office of the Privacy Commissioner (OPC) submitted that, although the Privacy Act may not be the appropriate instrument to deal with concerns regarding the operation of Royal Commissions, ‘attention should be given to developing information handling standards for Royal Commissions that promote respect for privacy’. The OPC suggested that the matter be referred to the Attorney-General of Australia.^[20]

38.14 In the Discussion Paper, Review of Australian Privacy Law (DP 72), the ALRC proposed that the Attorney-General’s Department, in consultation with the OPC, should develop and publish information-handling guidelines for Royal Commissions to assist in ensuring that the personal information they handle is protected adequately.^[21] There was some support for this proposal.^[22] The Cyberspace Law and Policy Centre, however, submitted that no agency should be completely exempt from the need to comply with fundamental human rights and administrative law principles. It argued that agencies such as Royal Commissions should be required to justify any exemption from the operation of the Privacy Act and related provisions in the FOI Act. It submitted that, where an exemption is justified, information-handling guidelines should be developed and published in consultation with the OPC.^[23]

38.15 The National Archives of Australia (National Archives) submitted that it should be included in any discussions about the development of information-handling guidelines for Royal Commissions.^[24]

ALRC’s view

38.16 Royal Commissions serve the important function of inquiring into matters of public interest. Central to the performance of this function is the ability of Royal Commissions to obtain information that may be unavailable by other means of investigation or inquiry. Although they do not exercise judicial power, they are given powers that usually are exercised by courts.

38.17 The exemption of Royal Commissions from the Privacy Act is warranted. To ensure that Royal Commissions handle personal information appropriately, information-handling guidelines that apply to Royal Commissions should be developed by the Department of the Prime Minister and Cabinet, which now has responsibility for administering the Privacy Act. The guidelines should be developed in consultation with the OPC, which should, in turn, consult with all relevant stakeholders, such as the National Archives, about the content of the guidelines.

38.18 The Commission of Inquiry into the equine influenza outbreak was established after the publication of DP 72 and has now concluded. The ALRC notes, however, that the same rationale for exempting Royal Commissions from the Privacy Act is likely to apply to commissions of inquiry that are not established under the Royal Commissions Act. Where such commissions of inquiry are exempt from the operation of the Privacy Act, they should adhere to the information-handling guidelines that are to be developed for Royal Commissions.