Loading...
Menu
Ebooks   ➡  Nonfiction  ➡  Law  ➡  Criminal

Appearing Before a Royal Commission

Appearing Before a Royal Commission

What Is A Royal Commission? | Preparation | What Do I Need To Know?

 

 

 

Written By:

Conor O’Brien

Doogue O’Brien George Defence Lawyers

Index

 

Introduction

What is a Royal Commission?

How Long are Royal Commissions?

Setting Up a Royal Commission

Law Governing Royal Commissions

Terms of Reference

Terms of Reference for the Royal Commission into Institutional Responses to Child Sexual Abuse (2013)

Terms of Reference for the Royal Commission into Trade Union Governance and Corruption (2014)

Appearing Before a Royal Commission

Obligation to Answer Questions

What Should I Do When I Receive a Letter from the Royal Commission?

Should I Have a Lawyer Represent Me?

Is There Funding for Legal Representation Before a Royal Commission?

How Many Times Might I Have To Appear?

Can I Tell My Side of What Happened?

Preparing for a Royal Commission

Offences

Defences to Non-Production of Documents

Private Sessions

Can I Request a Private Session?

Findings by a Royal Commission

What is an Adverse Finding?

Royal Commissions Past and Present

Legal Support

Introduction

This brochure is intended to provide a broad overview and does not constitute legal advice. Anyone appearing before a Royal Commission should seek immediate legal advice, in person, from a lawyer.

 

Every case is distinct to each individual’s circumstances. What is common, is that it is a stressful time for everyone involved and it is imperative to seek advice from legal professionals who understand how the law applies to a situation.

 

The information contained within this document is designed to give an individual specific knowledge about the law regarding appearing before a Royal Commission.

 

Please note that the content of this document is not intended as light reading but may contain information that could change the course of events for an individual.

 

 

 

What is a Royal Commission?

Royal Commissions are executive bodies with quasi-judicial functions and have many coercive powers beyond those that a judge might normally have. They are generally established to investigate and deliver a report on matters that are of public importance and that have attracted a degree of controversy. The decision to establish a Royal Commission is made by the Government of the day.

 

Commissions generally conduct a public inquiry, receiving many submissions and might have weeks or months of open hearings with a large number of witnesses.

 

 

 

How Long Are Royal Commissions?

The duration of a Royal Commission depends on its terms of reference but will generally be more than a year. The Institutional Response to Sexual Abuse Royal Commission is likely to go for a number of years. The similar enquiry in Ireland ended up going for many years longer than first envisaged.

 

It is not uncommon for Commissions to have their terms of reference revised. They enjoy a degree of independence from the Executive Government, but remain dependent on it for its powers and resources and are therefore subject to a degree of Executive control.

 

 

 

Setting Up a Royal Commission

A Royal Commission is formally established by the Governor-in-Council (for Victoria) or the Governor-General (for Commonwealth Commissions) by letters patent on behalf of the Queen. They are usually headed by a former judge. Sometimes there may be a range of Commissioners some of whom are not lawyers or ex-Judges.

 

Law Governing Royal Commissions

Royal Commissions are governed by the following legislation:

 

At Commonwealth level and in other States:

*
p<>{color:#000;}. Royal Commissions Act 1902 (Cth);

*
p<>{color:#000;}. Royal Commissions Act 1923 (NSW);

*
p<>{color:#000;}. Commissions of Inquiry Act 1950 (QLD);

*
p<>{color:#000;}. Royal Commissions Act 1917 (SA);

*
p<>{color:#000;}. Royal Commissions Act 1968 (WA);

*
p<>{color:#000;}. Commission of Inquiry Act 1995 (Tas);

*
p<>{color:#000;}. The Inquiries Act 1945 (NT); Royal Commissions Act 1991 (ACT).

 

In Victoria, the Governor-in-Council is given the power to issue a commission by s 88B of the Constitution Act 1975 (Vic) and the powers of Commissions are governed by the Evidence (Miscellaneous Provisions) Act 1958 (Vic).

 

 

 

Terms of Reference

The scope of an inquiry is determined by a terms of reference issued by the Executive Government, which will be published on the Commission’s website.

 

Terms of Reference for the Royal Commission into Institutional Responses to Child Sexual Abuse (2013)

Following is an abridged version of what the Commission is authorised to inquire into:

#
p<>{color:#000;}. what institutions and governments should do to better protect children against child sexual abuse and related matters in institutional contexts in the future;

#
p<>{color:#000;}. what institutions and governments should do to achieve best practice in encouraging the reporting of, and responding to reports or information about, allegations, incidents or risks of child sexual abuse and related matters in institutional contexts;

#
p<>{color:#000;}. what should be done to eliminate or reduce impediments that currently exist for responding appropriately to child sexual abuse and related matters in institutional contexts, including addressing failures in, and impediments to, reporting, investigating and responding to allegations and incidents of abuse;

#
p<>{color:#000;}. what institutions and governments should do to address, or alleviate the impact of, past and future child sexual abuse and related matters in institutional contexts, including, in particular, in ensuring justice for victims through the provision of redress by institutions, processes for referral for investigation and prosecution and support services.

 

For the purposes of the Commission’s inquiry and recommendations, it is to have regard to the following matters:

#
p<>{color:#000;}. the experience of people directly or indirectly affected by child sexual abuse and related matters in institutional contexts, and the provision of opportunities for them to share their experiences in appropriate ways while recognising that many of them will be severely traumatised or will have special support needs;

#
p<>{color:#000;}. the need to focus your inquiry and recommendations on systemic issues, recognising nevertheless that you will be informed by individual cases and may need to make referrals to appropriate authorities in individual cases;

#
p<>{color:#000;}. the adequacy and appropriateness of the responses by institutions, and their officials, to reports and information about allegations, incidents or risks of child sexual abuse and related matters in institutional contexts;

#
p<>{color:#000;}. changes to laws, policies, practices and systems that have improved over time the ability of institutions and governments to better protect against and respond to child sexual abuse and related matters in institutional contexts.

 

Terms of Reference for the Royal Commission into Trade Union Governance and Corruption (2014)

The Royal Commissioner will inquire into and report on:

#
p<>{color:#000;}. The governance arrangements of any separate entities established by registered employee associations or their officers, purportedly for industrial purposes or for the welfare of their members, with particular regard to:

#
p<>{color:#000;}. the financial management of such entities;

#
p<>{color:#000;}. the adequacy of existing laws as they relate to such entities with respect to:

#
p<>{color:#000;}. the integrity of financial management; and

#
p<>{color:#000;}. the accountability of officers of registered employee associations to their members in respect of the use of funds and other assets in relation to such entities;

#
p<>{color:#000;}. whether such entities are used, or have been used for any form of unlawful purpose;

#
p<>{color:#000;}. the use of funds solicited in the name of any such entities, for the purpose of furthering the interests of:

#
p<>{color:#000;}. a registered employee association;

#
p<>{color:#000;}. officers of a registered employee association;

#
p<>{color:#000;}. members of a registered employee association; or

#
p<>{color:#000;}. any other person, association or organisation.

#
p<>{color:#000;}. Without limiting the matters in paragraph 1, alleged activities relating to the establishment or operation of any such entities as they relate to the various registered branches of the following employee associations:

#
p<>{color:#000;}. the Australian Workers Union;

#
p<>{color:#000;}. the Construction Forestry Mining and Energy Union;

#
p<>{color:#000;}. the Electrical Trades Union;

#
p<>{color:#000;}. the Health Services Union;

#
p<>{color:#000;}. the Transport Workers Union; and

#
p<>{color:#000;}. any other person, association or organisation in which in respect of which credible allegations of involvement in such activities are made.

#
p<>{color:#000;}. The circumstances in which funds are sought from any third parties and paid to such entities.

#
p<>{color:#000;}. Where such entities and activities related thereto exist, the extent to which persons represented by registered employee association:

#
p<>{color:#000;}. are protected from any adverse effects or negative consequences arising from their existence; or

#
p<>{color:#000;}. are informed of their existence; or

#
p<>{color:#000;}. are able to have influence or control of their operation; or

#
p<>{color:#000;}. have the opportunity to hold officers of such associations accountable for any alleged wrongdoing.

#
p<>{color:#000;}. Any conduct which may amount to a breach of any applicable law, regulation or professional standard by any officer of a registered employee association in order to:

#
p<>{color:#000;}. procure an advantage for themselves or another person, association or organisation; or

#
p<>{color:#000;}. cause a detriment to a person, association or organisation.

#
p<>{color:#000;}. Any conduct in relation to such entities which may amount to a breach of any applicable law, regulation or professional standard by officers of registered industrial employee associations who hold, by virtue of their position, a position of responsibility in relation to any such entities.

#
p<>{color:#000;}. Any bribes, secret commissions or other unlawful payments or benefits arising from contracts, arrangements or understandings between registered employee associations or their officers and any other party.

#
p<>{color:#000;}. The participation of any persons, associations or organisations other than registered employee associations or their officers in conduct of the type described in paragraphs 1, 2, 3, 4, 5, 6 or 7.

#
p<>{color:#000;}. The adequacy and effectiveness of existing systems of regulation and law enforcement in dealing with any conduct of the type described in paragraphs 1, 2, 3, 4, 5 6, 7 or 8, and in particular, the means of redress available to registered employee associations and their members who have suffered a detriment as a result of such conduct.

#
p<>{color:#000;}. Any issue or matter reasonably incidental to the above.

 

 

 

Appearing Before a Royal Commission

Coercive Powers

Royal Commissions have a number of coercive powers which ordinary Courts do not have. Coercive powers mean the ability to force someone to do something.

 

Those powers include:

*
p<>{color:#000;}. the power to summon any person whose evidence is material to the inquiry and penalise for non-attendance or refusal

*
p<>{color:#000;}. to give evidence;

*
p<>{color:#000;}. the power to examine a person under oath;

*
p<>{color:#000;}. the power to exclude the public from hearings in certain circumstances;

*
p<>{color:#000;}. the power to issue search warrants.

 

 

If you receive a summons to appear before a Royal Commission and you do not attend, a warrant may issue for your *arrest*.

 

 

Obligation to Answer Questions

This is the major power of a Royal Commission. A Royal Commission can compel you to give evidence even when that evidence tends to implicate you in a crime. You can be asked questions and you must answer them even though you know they will disclose that you have been involved in arguably criminal or poor behaviour of some other sort.

 

The privilege against self-incrimination has been abrogated by s 19C of the Evidence (Miscellaneous Provisions) Act 1958 (Vic) and by s 6A of the Royal Commissions Act 1902 (Cth) and in most other jurisdictions, and does not apply in Royal Commissions.

 

However, there are some exceptions and your testimony can generally not be used against you in subsequent proceedings.

 

At a Commonwealth level, under s 6A of the Royal Commissions Act 1902 (Cth), it is not a reasonable excuse for a person to refuse or fail to produce a document or other thing or to refuse to answer a question that it might tend to incriminate the person or make the person liable to a penalty.

 

However, that does not apply if:

*
p<>{color:#000;}. the production or answer might tend to incriminate the person in relation to an offence; and

*
p<>{color:#000;}. the person has been charged with that offence; and

*
p<>{color:#000;}. the charge has not been finally dealt with by a court or otherwise disposed of.

 

Further, under s 6DD of that Act, evidence given before the Royal Commission or documents or things produced to the Royal Commission is not admissible in any court, except for offences against the Royal Commission.

 

Likewise, in Victoria, under s 19C of the Evidence (Miscellaneous Provisions) Act 1958 (Vic), you are not excused from providing the information, or producing a document or thing, or giving evidence, on the ground that the information, or document or thing, or evidence, may tend to incriminate you. However, any information provided in examination before a Royal Commission may not be admissible against you in future criminal or civil proceedings. This provides a safe-guard against self-incrimination, but does not prevent the authorities from using information provided by you to investigate further matters to use against you in future proceedings.

 

What Should I Do When I Receive a Letter from the Royal Commission?

Contact your lawyer immediately and discuss what this will mean for you and the practicalities of giving evidence. It is very important that before you speak to anyone else you have a discussion with your lawyer.

 

Should I Have a Lawyer Represent Me?

There is no question that you should be represented when appearing at a Royal Commission. A lawyer can help you to work out how to express your version of events clearly and will be able to provide practical assistance when at the Royal Commission.

 

Is There Funding for Legal Representation Before a Royal Commission?

Normally the Commonwealth Attorney-General administers legal assistance for the Royal Commission by way of grant to cover the reasonable costs of legal representation and disbursements relating to the provision of evidence to a Royal Commission.

 

This is necessary and a matter of basic fairness given that the full weight of the Government’s resources are being applied against people who are being summonsed before a Royal Commission.

 

How Many Times Might I Have To Appear?

As with any Commission there is no limit to the number of times that a person can be brought before a Royal Commission. Often the first appearance at a Royal Commission is to tie someone into a lie by asking them questions about an event. They are not challenged on that first occasion and then are sent away.

 

They are then brought back on a different occasion and confronted by the lies and punished by the Royal Commission. Often the penalties for contempt or lying to a Commission are more severe than a person would have got by answering all questions truthfully at the start.

 

Obviously if there is a new witness who comes forward or there is evidence that contradicts what you have told the Royal Commission they might ask you to come back and give further evidence.

 

Can I Tell My Side of What Happened?

Often appearing at a Royal Commission is about answering questions truthfully and providing your own narrative of events. Your lawyer will discuss with you whether you should provide any further documentation to the Royal Commission.

 

It may well be that you want to, and do, explain the circumstances of what you have been questioned about.

 

 

 

Preparing for a Royal Commission

The main preparation for a Royal Commission is through discussion with your lawyer. You then can decide on whether you may want to bring forward your own evidence before the Royal Commission.

 

A Royal Commission may not understand the context in which events happened or the true significance of those events. This sort of discussion is best dealt with when not under pressure from a pending Royal Commission appearance.

 

Get legal advice from lawyers who have appeared at coercive hearings and other Royal Commissions.

 

 

 

Offences

Witnesses before Royal Commissions established by the Commonwealth are liable to the following

offences under s 3 and Pt 3 of the Royal Commissions Act 1902 (Cth):

 

Offences and Maximum Penalties

Obstructing the Commission

*
p<>{color:#000;}. Failing to attend a hearing if you are required as a witness – $1,000 or 6 months imprisonment

*
p<>{color:#000;}. Failing to produce documents that you are required to produce – $1,000 or 6 months imprisonment

*
p<>{color:#000;}. Refusing to be sworn or make an affirmation, or to answer any question relevant to the inquiry put to you by any of the Commissioners – $1,000 or 6 months imprisonment

*
p<>{color:#000;}. Giving false or misleading evidence – $20,000 or 5 years imprisonment

*
p<>{color:#000;}. Doing anything that results in the destruction, concealment or mutilation of a document or thing that is or may be required in evidence before the Commission – $10,000 or 2 years imprisonment

 

Offences relating to Witnesses

*
p<>{color:#000;}. Bribing a witness to give false testimony or withhold true testimony – 5 years imprisonment

*
p<>{color:#000;}. Practicing fraud on a witness (e.g. by making false representations to him/her with the intention of affecting his/her testimony) – 2 years imprisonment

*
p<>{color:#000;}. Preventing a witness from attending before a Royal Commission – 1 year imprisonment

*
p<>{color:#000;}. Causing injury (by violence, punishment, damage, loss or disadvantage) to a person for appearing as a witness, giving evidence or producing documents before a Royal Commission – $1,000 or 1 year imprisonment

*
p<>{color:#000;}. Dismissing an employee for appearing as a witness before a Royal Commission – $1,000 or 1 year imprisonment

 

Contempt

*
p<>{color:#000;}. Intentionally insulting or disturbing a Royal Commission – $200 or 3 months imprisonment

*
p<>{color:#000;}. Interrupting the proceedings of a Royal Commission – $200 or 3 months imprisonment

*
p<>{color:#000;}. Using any insulting language towards a Royal Commission – $200 or 3 months imprisonment

*
p<>{color:#000;}. Writing or saying anything that is false and defamatory of a Royal Commission – $200 or 3 months imprisonment

 

In the case of Victorian Royal Commissions, a more limited range of offences apply under ss 16, 19 and 20 of the Evidence (Miscellaneous Provisions) Act 1958 (Vic) and s 314 of the Crimes Act 1958 (Vic):

*
p<>{color:#000;}. Failing without reasonable excuse to attend as required or to produce any documents as required by the summons – 15 penalty units ($2,165.40 in FY13-14) or 3 months imprisonment

*
p<>{color:#000;}. Once before the Commission, refusing to be sworn or without lawful excuse refuses or fails to answer any question touching the subject-matter of inquiry or to produce any document – 15 penalty units ($2,165.40 in FY13-14) or 3 months imprisonment

*
p<>{color:#000;}. Giving false evidence under oath before a Commission (perjury) – 15 years imprisonment

 

 

In a Commonwealth Royal Commission, contempt is punishable by the head of the Commission who has all of the powers of a High Court Judge in that respect.

 

Before a Victorian Royal Commission, the question of contempt is referred to the Supreme Court.

 

 

Defences to Non-Production of Documents

It is a defence if you can show that a document you are required to produce is not relevant to the inquiry.

 

If you are not a witness, but have been served with a notice to produce the document, it is also a defence if you can show that you had a reasonable excuse for not producing the document in question.

 

 

 

Private Sessions

As mentioned above, most hearings of a Royal Commission will be in public. However, in some instances there may be private sessions held to protect sensitive information or vulnerable witnesses. For example, at the Royal Commission into Institutional Responses to Child Sexual Abuse, only persons who are authorised by a Commissioner of the Royal Commission into Institutional Responses to Child Sexual Abuse holding the private session may be present during the private session.

 

It is an offence to disclose information given at a private session except for certain administrative purposes, punishable by 12 months imprisonment.

 

Can I Request a Private Session?

The Royal Commission will not give you a private session to spare your feelings or to spare your reputation from damage by appearing in front of them at a public session. The essence of the Royal Commission is the public hearing of allegations and evidence. However, at the Royal Commission into Institutional Responses to Child Sexual Abuse, private sessions are readily available.

 

 

 

Findings by a Royal Commission

A Commission might make a range of recommendations, including for legislative and policy reform. This would be based on their assessment of the evidence and reflect back on what their terms of reference are.

 

What is an Adverse Finding?

The Royal Commission may also refer matters to the Director of Public Prosecutions and its findings may be followed by criminal prosecutions. This is the main issue for people appearing before a Royal Commission. Ultimately charges might not be laid by the Director of Public Prosecutions but it is a stressful and difficult time for people.

 

 

 

Royal Commissions Past and Present

There have been 159 Royal Commissions in Victoria since 1854. These have been primarily policy

commissions, although inquisitorial commissions have become more common in recent times.

 

Notable commissions at a Commonwealth level include:

*
p<>{color:#000;}. Royal Commission on the activities of the Federated Ship Painters and Dockers Union (1980–1984) investigating organised crime influences and drug trafficking in a large trade union

*
p<>{color:#000;}. Royal Commission into British nuclear tests in Australia (1984–1985)

*
p<>{color:#000;}. Royal Commission into Aboriginal Deaths in Custody (1987–1991) investigated the disproportionate number of deaths of Australian Aboriginals while in custody

*
p<>{color:#000;}. Royal Commission into HIH Insurance (2001–2003) investigated the collapse of HIH Insurance, then Australia’s second largest insurance company

*
p<>{color:#000;}. Inquiry into certain Australian companies in relation to the UN Oil-For-Food Programme (2005–2006) investigating the alleged participation of the Australian Wheat Board into the

*
p<>{color:#000;}. Oil for Food program

*
p<>{color:#000;}. Royal Commission into Institutional Responses to Child Sexual Abuse (2013–ongoing)

*
p<>{color:#000;}. Royal Commission into Trade Union Governance and Corruption (2014–ongoing)

 

In Victoria, notable inquiries in recent years include:

*
p<>{color:#000;}. Royal Commission into the King Street Bridge failure (1962–1963)

*
p<>{color:#000;}. Royal Commission into the West Gate Bridge collapse (1970–1971)

*
p<>{color:#000;}. Royal Commission into the Longford gas plant accident (1998–1999)

*
p<>{color:#000;}. Victorian Bushfires Royal Commission (“Black Saturday Royal Commission”)

*
p<>{color:#000;}. (2009–2010) investigating the events and conditions surrounding the 2009 Victorian bushfires

 

 

 

Legal Support

If you are summonsed to appear at a Royal Commission, you must attend to give evidence or to produce documents or things, depending on the terms of the summons.

 

You have a right to be legally represented. If you are appearing before a Royal Commission,

you should seek proper legal advice from experts who understand the process and procedure

 

Doogue O’Brien George is a leading Victorian defence law firm. Our lawyers have extensive experience with Royal Commissions.

Visit www.criminal-lawyers.com.au or call 03 9670 5111 for more information.

 

For further information, visit knowmore.org.au. knowmore is a free independent legal service, offering advice and information to people attending or providing information to a Royal Commission.

 

 

You will need proper advice and support if you are appearing before a Royal Commission.

 

Doogue O’Brien George Defence Lawyers

www.criminal-lawyers.com.au

 

Melbourne

Level 5, 221 Queen Street

9670 5111

 

Broadmeadows

24A Railway Crescent

9351 1455

 

Sunshine

7/254 Hampshire Road

9311 8442

Heidelberg

1/94 Burgundy Street

9458 3700

 

Moorabbin

1/441 South Road

9556 5476


Appearing Before a Royal Commission

Know more about the laws surrounding Royal Commissions in Victoria, Australia. As executive bodies with powers independent from those of a judge, Royal Commissions entail legal procedures that are unique from the usual criminal court processes. They are formed to investigate on matters of high public importance including controversial cases on a variety of issues. If you have been summonsed to appear before a Royal Commission, you need expert legal representation to help you understand the rules of Royal Commission hearings. This ebook is a great resource of information on the nature and functions of Royal Commissions. Learn what to do when appearing before hearings. How do you prepare? What offences can you be charged with related to Royal Commission appearances? What are the maximum penalties for each of these offences? Written by accredited criminal law specialist Conor O'Brien, this ebook was designed to help readers gain an understanding of how Royal Commissions function in Victoria, Australia.

  • ISBN: 9781310324710
  • Author: Conor O'Brien
  • Published: 2016-01-05 06:05:12
  • Words: 3668
Appearing Before a Royal Commission Appearing Before a Royal Commission