Public inquiries have become the investigatory tool of
choice for Governments across Australia. Not in the last 20 years
have we seen three Commonwealth Royal Commissions on foot at one
time, plus there is an ever growing number of investigatory and
parliamentary inquiries occurring at state and federal
Governments like public inquiries. They are highly
visible and they build public support for change. There is every
indication the current trend toward more inquiries will continue
and businesses and community organisations should expect to be
increasingly called on to respond to inquiries.
A prime example of governments' growing fondness for
inquiries is the Victorian government's new Inquiries Bill
2014 (Vic). The Bill essentially formalises a framework for
public inquiries such that any new inquiry will fall into one of
three categories - Formal Reviews, Boards of Inquiry and Royal
Formal Reviews will be commissioned to review and
report on any matter the government determines needs review. Formal
Reviews will be a regular occurrence however they will not have any
coercive powers and will tend not to involve public hearings. If
the reviewer determines additional powers are needed and the topic
is serious enough, then the Formal Review can be escalated to a
Board of Inquiry.
Boards of Inquiry are for more complex or serious
issues and will have some coercive powers, though protections for
legal professional privilege and the privilege against self
incrimination will remain.
Royal Commissions will continue to have the broadest
powers, including coercive powers to obtain documents and/ or
witness testimony without the protection of legal professional
privilege, the privilege against self incrimination and, in some
circumstances, without regard to obligations of statutory
While governments have always had powers to appoint
investigations, the formalisation of these powers in Victoria will
surely see them being used more frequently in that state. We expect
other governments will follow suit, as part of the trend to more
Businesses involved in the government services sector and the
provision of either public or private infrastructure should have a
strategy in place to effectively respond to growing numbers of
inquiries. Such a strategy would cover:
disclosure of commercial and confidential documents to the
inquiry (potentially at short notice);
the coordination of a legal, corporate and media strategy to
minimise reputational damage;
briefing and communications with employees that may be
witnesses in the inquiry;
ensuring the witnesses that give evidence suffer no adverse
employment outcomes (except where they are clearly the wrongdoers);
the creation and dissemination of documents which if publicised
by the inquiry may prejudice the business' interests.
In some circumstances, a business may wish to use an inquiry as
a platform to make a case for change. In that event, it is
essential to have a strategy which deals with minimising the risks
inherent in such involvement, as well as how evidence will be
located and brought to the attention of the inquiry.
Victoria's new Inquiries Bill is a signal that governments
are increasingly favouring inquiries as a way of responding to
politically difficult issues, disasters, unforeseen legal issues
and major wrongdoing within the community.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Because of the high costs, royal commissions should only be convened to address issues of substantial public importance.
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