Australia: Royal Commissions and Standing Commissions – what happens if you receive a summons?

In brief - Compliance with a commission summons is expected

Royal Commissions and Standing Commissions have broad and far-reaching powers of investigation. If you receive a summons to produce documents or to be a witness at a commission, you must attend if you don't have a reasonable excuse not to, and refrain from speaking to anyone, except your lawyer, about the summons or evidence.

What is a Royal Commission?

A Royal Commission is the highest level of public inquiry in Australia. Royal Commissions can be held at either a State or Commonwealth level. They are initiated by the executive (ie the government rather than parliament) to inquire into a defined area of public importance.

Royal Commissions can operate as an investigation into a variety of matters, such as a significant corporate collapse, a natural disaster, serious allegations of impropriety or corruption. They can also be used as a tool to provide recommendations for policy and law reform. Often they will be a mix.

Once initiated, a commissioner is appointed to conduct enquiries on behalf of the commission. The commissioner is given the same protection as a Justice of the High Court of Australia or relevant State Supreme Court, and has broad and far-reaching powers of investigation, including powers to compel the production of documents or attendance by witnesses to give evidence.

Generally, the aim of a commission is to get to the "truth" of a matter. Commissions ultimately publish findings and non-binding recommendations.

Royal Commission witnesses don't usually have protection against self-incrimination

Royal Commissions have very wide powers to compel production of documents and evidence, and they can also obtain secret evidence (eg from a whistleblower).

They are not like a court as you do not have a "right of reply", although you may be permitted to question witnesses and you are entitled to address the commissioner if he or she is considering making a finding about you. Importantly, a witness does not generally have the protection against self-incrimination found in courts and seen on American crime shows.

Given commissions' very wide powers, they are not aimed at punishment and cannot initiate prosecutions or award damages. However, this does not prevent such action being taken following a commission. The authorities (eg the police and the Australian Securities and Investments Commission) will monitor a Royal Commission with interest and a commission may be able to refer matters for appropriate investigation.

If you receive a summons, you must attend a commission

Royal Commissions have broad powers of inquiry and are able to compel anyone to produce documents or attend and give evidence as a witness.

If you receive a summons to produce documents or to be a witness, you must attend as required unless you have a reasonable excuse. Failure to attend may result in a substantial fine and imprisonment. Do not ignore a summons.

Commonwealth Royal Commission witnesses may be entitled to claim costs

As a witness of a Commonwealth Royal Commission, you may be entitled to reimbursement of expenses of up to $1,174.90 per day if called because of your expert knowledge, or up to $123.90 if called for another reason. You may also be entitled to recompense for lost wages, travel expenses and meals.

Commonwealth funding for the legal expenses of individuals at Commonwealth Royal Commissions is available in certain circumstances. Details of the availability of funding are usually available from the relevant Royal Commission's website and will likely be subject to the Commonwealth Guidelines for Legal Financial Assistance 2012.

Consider reputation management given public nature of commissions

As Royal Commissions are a public process of inquiry, evidence provided by you may be publicly broadcast or published, and sittings of the commission are generally open to the public. Further, findings of the commission are detailed and widely available, and transcripts and evidence will usually be published on the commission's website daily. There is often media interest.

You should consider obtaining advice and representation to allow the effective maintenance of your reputation and character, while protecting your rights and still complying with the requirements of the commission.

Standing Commissions refer matters and may initiate prosecutions

Many governments have established standing commissions against crime or corruption in an attempt to deal with crime and corruption in government and the public sector.

Although not Royal Commissions, these bodies have been granted similarly broad powers to compel the production of documents and the attendance of witnesses. Moreover, these bodies are encouraged to refer matters to the relevant authorities or, in some cases, initiate prosecution of individuals based on the evidence presented to the commission.

If you receive a summons, it is highly recommended that legal advice be sought. Telling anybody apart from your lawyers that you are being investigated or have received a summons can itself be a serious criminal offence. You should check the fine print on any notice you receive from the investigator carefully.

Some of those commissions are:

Level  Commission Powers
    Commonwealth      Australian Crime Commission (ACC)
  • Compel the production of documents
  • Attend for compulsory examination
  • Search premises and seize property
  • Refer matters to the relevant public body or authority and recommend action
  • Make special determinations and publish findings on investigations

NSW

Independent Commission

Against Corruption (ICAC)

  • Compel the production of documents
  • Attend for compulsory examination
  • Search premises and seize property
  • Refer matters to the relevant public body or authority and recommend action
  • Make findings and publish reports on findings

WA

Corruption and Crime Commission (ICC)

  • Compel the production of documents
  • Attend for compulsory examination
  • Search premises, seize property and use surveillance or police controlled operations
  • Power to prosecute individuals or refer matters to the relevant authority
  • Make findings and publish reports on findings

VIC

   Independent Board-Based 

Anti-Corruption Commission (IBAC)   

  • Compel the production of documents
  • Attend for compulsory examination
  • Search premises, seize property and use surveillance
  • Power to refer matters to the relevant authority and recommend action to be taken
  • Make findings and publish reports on findings

QLD

Crime and Corruption Commission (CCC)

  • Compel the production of documents
  • Attend for compulsory examination
  • Search premises, seize property and use surveillance
  • Power to prosecute individuals or refer matters to the relevant authority
  • Make findings and publish reports on findings

SA

Independent Commissioner

Against Corruption

  • Compel the production of documents
  • Attend for compulsory examination
  • Search premises, seize property and use surveillance
  • Power to refer matters to the relevant authority and recommend action to be taken
  • Make findings and publish reports on findings

TAS

Integrity Commission

  • Compel the production of documents
  • Attend for compulsory examination
  • Search premises, seize property and use surveillance
  • Power to refer matters to the relevant authority and recommend action to be taken
  • Convene an Integrity Tribunal to make findings on alleged conduct
  • Make findings and publish reports on findings

So what does it all mean?

If you receive a summons from any commission or are required to produce documents, it will not go away. It should receive the highest priority.

It is important to seek legal advice or representation prior to taking any action. Such advice should assist you to preserve your rights throughout the process and offer protection from potentially adverse consequences, while still complying with the requirements of the commission.

Take care in discussing the summons or evidence with parties who are not your lawyers.

Some insurance policies may provide cover for inquiry expenses

If you are summoned due to your role as a director or officer of an organisation, you may be entitled to insurance cover for legal costs associated with the commission. Management liability (or directors and officers) insurance policies may offer cover for commissions and Royal Commissions (including legal advice and representation) as "Inquiries" or "Side C" cover. Some professional indemnity policies also contain similar cover.

It may be worth asking your insurance broker whether your policy has such cover.

Toby Blyth
Insurance and reinsurance
Colin Biggers & Paisley

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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