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.