ALRC examines alternatives to a Royal Commission

By Angela Dorizas

The Australian Law Reform Commission (ALRC) today released an issues paper on the review of the Royal Commissions Act and has called for community feedback on the processes and costs of Royal Commissions.

Federal Attorney-General Robert McClelland has asked the ALRC to review the operation of the Act, which was introduced into the first parliament of Australia in 1902, and investigate whether an alternative to a Royal Commission is required to offer more flexibility, less formality and greater cost effectiveness.

The Commissioner in charge of the ALRC inquiry, Professor Les McCrimmon, said the Act was outdated and in need of serious review.

“This is the first comprehensive review of the Act that’s taken place in its 107 year history,” Professor McCrimmon told GovernmentNews.

“There are some gaps in the Act. Some of the offences, for example, don’t correspond with exactly the same offence in the Crimes Act.”

Professor McCrimmon said the scope of the Royal Commissions Act would also be reviewed, as it did not take into account the different types of inquiries that may be conducted.

The cost of conducting a Royal Commission will also be an important focus of the review.

The ALRC has estimated that in today’s dollars, the Royal Commission into the Building and Construction Industry cost over $70 million in taxpayers money. The HIH inquiry was estimated to cost more than $47 million and the Commission into Aboriginal Deaths in Custody cost more than $50 million.

Professor McCrimmon said the ALRC would also examine the powers of the Royal Commissions Act, the protection of witnesses and criminal offences.

“The Act currently gives Royal Commissions a wide range of coercive information gathering powers,” Professor McCrimmon said.

“For example, a Royal Commission can apply for a search warrant, summon witnesses to give evidence and require the production of evidence.”

He said the exercise of powers must be balanced against the rights of those being investigated or appearing before the Commission as witnesses.

“A lot of people assume Royal Commissions are really courts in another guise, but they’re not,” Professor McCrimmon added.

“The privileges, for example, witnesses have before the courts do not apply before Royal Commissions.

“In a court of law you have the ability not to answer questions that may incriminate you and in the event that you’re forced to answer them you get a certificate of immunity. In Royal Commissions that doesn’t apply.”

He said the Act also contained a number of criminal offences that can be used to punish failures to comply with the requirements of the Royal Commission or interfering with witnesses and the work of the Commission. The ALRC review will explore whether civil penalties may be more appropriate.

“These are inquiries established by the executive arm of government, often in relation to very political issues, and so are the offences actually stifling freedom of political communication is an issue that also arises,” Professor McCrimmon added.

The ALRC will also consider whether there is a need to develop special arrangements and powers for investigations involving matters of national security.

“There’s nothing in the Act now to delineate information that has a national security implication from any other type of information,” Professor McCrimmon said.

Questions over whether “royal” should be dropped from Royal Commissions are also likely to be raised through public consultations and online discussions.

“That’s an issue that’s been looked at in other countries and Commonwealths, for example New Zealand has an Inquiries Act,” Professor McCrimmon said.

Asked whether the review would reopen debate about the findings of particular Royal Commissions, Professor McCrimmon said it may well be the case, but it was not the ALRC’s intention.

“While we are not looking at the substance at any particular inquiries findings, we are looking at the process and how the Act sets it out,” he said.

“We’re not second guessing inquiries, but we are looking at the process and how it can be done better into the future.

“Our focus is on how to get the Act to be the best it can be so for future inquires, those sorts of issues which have caused problems in the past don’t reoccur.”

Over the coming months the ALRC will be touring Australia and New Zealand to consult with key stakeholders, including former Royal Commissioners and witnesses. The ALRC has also developed an online discussion forum organised around the key questions raised in the issues paper.

The closing date for written submissions on the issues paper is 19 May 2009. The final report is due to be presented to the Attorney-General by 30 October 2009.

To access the Review of Royal Commissions issues paper from the ALRC website.  

To take part in the ALRC’s online forum visit 

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