Australia: The Royal Commission wants documents or information that you have - what do you do?

Key Points:

Government agencies, organisations and individuals who may have information or documents relevant to the work of the Royal Commission into Institutional Responses to Child Sexual Abuse can all be required to produce them.

The recently established Royal Commission into Institutional Responses to Child Sexual Abuse may be some way off from holding public hearings as it busily sets itself up for what will no doubt be a complex and mammoth inquiry.

Critical to the work of the Commission will be its terms of reference as set out in the Letters Patent issued by the Governor-General, and the wide-ranging and often coercive evidence gathering powers it has under the Royal Commissions Act 1902 (the Royal Commissions Amendment Bill 2013 currently before Parliament will establish some procedural aspects but won't affect the Commission's information-gathering powers).

Institutions such as religious organisations, state care providers, not-for-profit bodies, child service agencies and the police will all need to familiarise themselves with the scope of the inquiry, the Commission's information-gathering powers, and what to do in response to a summons from it.

What is an institution?

"Institution" under the terms of reference means any public or private body, agency, association, club, organisation or other group of entities of any kind (whether incorporated or unincorporated).

This includes, for example, an entity or group (whether currently existing or not) that provides, or has at any time provided, activities, facilities, programs or services of any kind through which adults have contact with children, including through their families.

What powers does the Commission have to require production of documents or summon witnesses?

The Act provides the Commission with very strong powers to compel the production of evidence to it, including the power to summon a person to appear at a hearing either to give evidence or produce documents or other things specified in the summons or to do both. Evidence taken by the Commission at a hearing may be taken on oath or affirmation, and is subject to cross-examination.

It is an offence if a person's act or omission results in the destruction, concealment or mutilation of a document or other thing when he or she knows (or is reckless as to whether) it may be required in evidence before the Commission.

In certain circumstances, the Commission can authorise a member of the Commission, or a member of the Australian Federal Police or State or Territory Police assisting the Commission, to make an application for a search warrant to a State or Territory court or to the Federal Court. If the court is satisfied that there are reasonable grounds for issuing the warrant, it can issue a search warrant authorising the entry onto land or into premises for the purposes of searching and seizing any things connected with a matter into which the Commission is inquiring.

Where a person served with a summons to attend the Commission as a witness fails to do so, it can issue a warrant for the person's apprehension so that he/she may be brought before it.

Any person who intentionally prevents another person who has been summoned from attending as a witness, or from producing anything in evidence, is guilty of an offence.

What is a reasonable excuse for not complying with a summons to give evidence or produce documents to the Commission?

Under section 3 of the Act, failing to attend to give evidence or to produce documents is an offence punishable by a fine of $1000 or imprisonment for six months, unless the person has a "reasonable excuse". Generally, this would be an excuse which would excuse an act or omission of a similar nature by a witness before a court of law, such as physical incapacity.

Some other examples of what may constitute a "reasonable excuse" under section 3 of the Act includes claims of public interest immunity and parliamentary privilege over documents or parts of documents. It will, however, be for the Commission to determine whether such claims are made out.

Where a person or organisation is the subject of a summons, they will be required to produce relevant documents in their possession, custody or control. As such, it is unlikely that the Commission would accept that it would be a reasonable excuse not to produce documents because their retrieval from storage was likely to be difficult or expensive or because its collation and retrieval would take some time and effort.

Significantly, under section 6A, self-incrimination is not a reasonable excuse for failing to produce a document or give evidence, unless the production or answer might tend to incriminate the person in relation to criminal or penalty proceedings which are ongoing.

Producing documents subject to legal professional privilege

It is not a reasonable excuse for a person to refuse or fail to produce a document on the basis that the document is subject to legal professional privilege, unless:

  • a court has found the document (or the relevant part of the document) to be subject to legal professional privilege (where a person wishes to resist a request for documents or information on the basis of a privilege claim, he/she may seek a declaration from the Federal Court that the particular privilege attaches to a document or part of a document); or
  • the Commission decides to accept the claim of legal professional privilege made over a document (or the relevant part of a document). This claim has to be made to the Commission within the time given for the production of the document, and the Commission is able to inspect the document to decide whether to accept or reject the claim.

If the Commission accepts the claim of legal professional privilege over part or all of a document, it must disregard it, for the purposes of any report or decision. If it rejects the claim, then the document can be used for the purposes of its inquiry. The person can apply to the Federal Court for review of this decision.

Key messages

The Commission has extensive powers to gather evidence under the Act and any request that it makes for evidence or documents must be considered seriously. There are some limited bases for not providing documents or information required by the Commission, and if you are considering whether you should rely on them, you should seek legal advice.

You should also be careful when dealing with documents that are likely to be of interest to the Commission as destruction, disposal or mutilation of such documents could be an offence under the Act. A real concern is the accidental destruction of documents by staff who simply might not be alive to the importance of documents. If you think you could hold relevant documents, you should act now to preserve them.

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.