Inquiries Act 2014

The Act centres on three core concepts: (1) the hierarchy of inquiry types, (2) coercive versus non-coercive powers, and (3) protection and immunity for participants. The three types share structural similarities but differ significantly in the extent of their statutory powers.

A Royal Commission is established by letters patent under the Public Seal of the State (s 5). It has the broadest powers: it can compel the production of documents and the attendance of witnesses (s 17), take evidence on oath or affirmation (s 21), and apply to the Magistrates’ Court for a search warrant in relation to premises or vehicles (s 28). The chairperson may authorise officers for search and seizure (s 27). Notably, legal professional privilege is not a reasonable excuse for failing to comply with a requirement to give information or produce documents to a Royal Commission (s 32(1)), although the information or document does not lose privilege merely by being produced (s 32(2)). Similarly, the privilege against self-incrimination is overridden except where criminal or penalty proceedings have already been commenced against the person and are not finally disposed of (s 33). A Royal Commission may also refer questions of law to the Supreme Court (s 41).

A Board of Inquiry is established by Order in Council (s 53). It can compel production and attendance (s 64) and take evidence on oath (s 68), but it cannot obtain search warrants. Its compulsion powers are subject to the usual common law privileges: legal professional privilege is a reasonable excuse (s 65(2)(c)), and self-incrimination for a natural person is a reasonable excuse (s 65(2)(a)). Statutory secrecy provisions can be overridden only if the Board specifies that section 74(1) applies (s 74). A Board of Inquiry may also refer questions of law to the Supreme Court (s 81).

A Formal Review is established by instrument of the Premier or another Minister (s 93). It has no power to compel production or attendance, cannot administer oaths, and has no search powers. It may allow persons to appear or be represented (s 102) and may issue practice directions, but its only control mechanisms are exclusion orders (s 104) and restriction on publication orders (s 106). It cannot refer questions of law to the Supreme Court (the provision for referral applies only to Royal Commissions and Boards of Inquiry: ss 41, 81, 113). Formal Reviews also have no specific provision for overriding statutory secrecy (no equivalent of ss 34 or 74).

The Act provides robust protection for commissioners, members, staff, counsel, and witnesses. A commissioner (or member) has the same protection and immunity as a Supreme Court judge (ss 39(1), 79(1), 111(1)). Staff have the same protection (ss 39(2), 79(2), 111(2)). Legal representatives have the same protection as an Australian legal practitioner in the Supreme Court (ss 39(3), 79(3), 111(3)). Witnesses giving information or producing documents have the same protection as a witness in Supreme Court proceedings (ss 39(4), 79(4), 111(4)). These provisions are designed to encourage full participation without fear of civil suit.

Confidentiality is imposed on inquiry officers. A Royal Commission officer, Board of Inquiry officer, or Formal Review officer must not knowingly disclose information acquired by reason of their role except for performing functions, for criminal proceedings (certain offences), if the information is already public, or as otherwise authorised (ss 43, 83, 115). Penalties: 120 penalty units or 12 months imprisonment. There is also a prohibition on taking advantage of information given during the inquiry (ss 45, 85, 117), with a defence if the information is in the public domain.

The Act affects a broad range of individuals and entities. Those directly subject to its provisions include commissioners, members, staff, legal counsel engaged by inquiries, witnesses, persons required to produce documents or attend hearings, and persons who control businesses or other undertakings whose workers may give information.

Any person served with a notice to produce or a notice to attend a Royal Commission or Board of Inquiry is compelled to comply, subject to specified reasonable excuses (ss 17, 23, 46, 64, 70, 86). Failure to comply is an offence punishable by up to 240 penalty units or 2 years imprisonment (ss 46, 86). For Royal Commissions, the override of legal professional privilege and self-incrimination (ss 32, 33) means that lawyers and their clients can be compelled to disclose privileged communications, and individuals cannot refuse to answer on the ground that the answer might incriminate them (except for pending proceedings against them). For Boards of Inquiry, legal professional privilege and self-incrimination remain valid reasonable excuses, so lawyers and individuals retain those protections.

Workers and their employers are particularly affected by the detrimental action offences. Sections 51, 91, and 121 make it an offence for a person who conducts a business or other undertaking to take or threaten detrimental action against a worker because the worker has given or is believed to have given information to an inquiry. The penalty is 120 penalty units or 12 months imprisonment. A defence exists if the reason was not a substantial reason for the action (subsection (2)). The offence does not apply if the worker gave information unlawfully or contravened the false statements offence (subsection (3)). The definition of “worker” includes employees and contract workers (s 3, inserted by 2021 amendment). This protects whistleblowers who participate in public inquiries.

Commissioners and members themselves are protected from detrimental action. Sections 52, 92, 122 make it an offence to take detrimental action against a person because they are or were a commissioner or member of an inquiry. Penalty: 240 penalty units or 2 years imprisonment for Royal Commissions and Boards of Inquiry (ss 52(1), 92(1)); 240 penalty units or 2 years imprisonment for Formal Reviews (s 122(1)). Again, a defence applies if the reason was not substantial.

Officers of bodies corporate face accessorial liability. Section 128 provides that if a body corporate commits an offence against a provision specified in Schedule 1, an officer who authorised or permitted the offence, or was knowingly concerned in it, also commits the offence. Schedule 1 includes the confidentiality offences (ss 43, 83, 115), the taking advantage offences (ss 45(2), 85(2), 117(2)), the failure to comply offences (ss 46, 86), the contravention of exclusion orders (ss 48(1), 88(1), 118(1)), and the detrimental action offences (ss 51(1), 52(1), 91(1), 92(1), 121(1), 122(1)). This provision imposes a duty on directors and senior managers to ensure their organisations comply with inquiry notices and do not take reprisals against workers.

Public bodies and the Crown are not immune. The Act binds the Crown (s 4). Section 131 provides for proceedings against the Crown, with the responsible agency specified in the initiating document. Section 132 allows proceedings against successors of dissolved public bodies.

The Yoorrook Justice Commission record orders affect authors of specified records (who are Aboriginal persons giving evidence, s 52A) and the Keeper of Public Records, the Secretary to the Department of Premier and Cabinet, and staff who may need to access those records for limited purposes (s 52I). The public is also affected because records subject to a closure order are not available for public inspection for 99 years (s 52B, s 125(1A)).

The Act imposes duties on persons subject to inquiry processes and confers rights on participants. For Royal Commissions and Boards of Inquiry, the central duty is compliance with a notice to produce or a notice to attend (ss 17, 64). A person served with such a notice must produce documents or attend as required, unless they have a reasonable excuse. The notice must include a statement outlining the provisions on failure to comply and examples of what may constitute a reasonable excuse (ss 17(2)(b), 64(2)(b)). The person may make a claim to the inquiry that they have a reasonable excuse or that the document is not relevant (ss 18, 65). The inquiry may then vary or revoke the notice. Service must be at least 7 days before compliance unless immediate attendance is justified (ss 19, 66). A person attending an inquiry must take an oath or affirmation if required and answer questions, subject to the same reasonable excuse provisions (ss 21, 68, 47, 87).

A key difference in duties between Royal Commissions and Boards of Inquiry lies in the availability of privileges. For Royal Commissions, legal professional privilege is specifically overridden (s 32), so a lawyer or client cannot refuse to answer on that ground. The privilege against self-incrimination is also overridden except where charges are pending (s 33). For Boards of Inquiry, both legal professional privilege and self-incrimination are preserved as reasonable excuses (s 65(2)(a) and (c)). Statutory secrecy provisions are overridden for both Royal Commissions (s 34) and Boards of Inquiry (s 74), but for Boards of Inquiry the override only applies if the Board specifies that section 74(1) applies to its requirement. Formal Reviews have no compulsion powers, so no duty to produce or attend arises under the Act.

Rights of participants include the right to appear or be legally represented at the discretion of the inquiry (ss 15, 62, 102). The inquiry may have regard to direct or special interest, likelihood of an adverse finding, ability to assist, age, and any other relevant matter. A person who attends in compliance with a notice or at the request of the inquiry is entitled to expenses and allowances in accordance with the prescribed scale, subject to exceptions for concurrent inquiries or where the establishing instrument does not authorise expenses (ss 42, 82, 114). For Formal Reviews, entitlement depends on the establishing instrument providing for it (s 114). Witnesses have the same protection and immunity as a witness in the Supreme Court (ss 39(4), 79(4), 111(4)). Legal representatives have the same immunity as an Australian legal practitioner in Supreme Court proceedings (ss 39(3), 79(3), 111(3)). Commissioners and members have the same protection as a Supreme Court judge (ss 39(1), 79(1), 111(1)). They are also not compellable to give evidence about the inquiry in other proceedings, though they may give evidence voluntarily (ss 38, 78, 110).

The right to procedural fairness is fundamental. Before making an adverse finding, the inquiry must ensure the person is aware of the matters and has had an opportunity to respond (ss 36, 76, 108). The response must be fairly set out in the report. This imposes a duty on the inquiry to follow a fair process. Additionally, a person may apply to the Supreme Court for an order to compel compliance or may refer a question of law (ss 23, 41, 70, 81, 113). For Royal Commissions and Boards of Inquiry, the chairperson may apply to the Supreme Court for an order if satisfied a person has without reasonable excuse failed to comply with a notice (ss 23, 70). The court may order compliance.

Confidentiality and use of information duties apply to inquiry officers and to persons who receive information from an inquiry. Inquiry officers must not disclose information except for permitted purposes (ss 43, 83, 115). Persons who receive information from the inquiry must not take advantage of it to benefit themselves or others, unless the information is already public (ss 45, 85, 117). These are offence provisions.

The Act prescribes a range of criminal penalties for non-compliance and misconduct. The penalty regime is set out in Divisions 13 and 12 of Parts 2 and 3 respectively, and Division 10 of Part 4, with ancillary provisions in Part 5 Division 2.

For Royal Commissions, failure to comply with a notice to produce or attend carries a maximum penalty of 240 penalty units or 2 years imprisonment (s 46). Failure to take an oath or answer a question when required carries the same penalty, but only if the Royal Commission first informs the person that such a failure is an offence (s 47). Contravening an exclusion or restriction order made under s 24 or s 26 is an indictable offence carrying 600 penalty units or 5 years imprisonment (s 48). Hindering, obstructing, or causing serious disruption to a proceeding with intent or recklessness carries 120 penalty units or 12 months imprisonment (s 49). Making a false or misleading statement or producing a false or misleading document to a Royal Commission carries 120 penalty units or 12 months imprisonment (s 50); note that perjury under the Crimes Act 1958 also applies (s 314). Detrimental action against a worker because of giving information to a Royal Commission carries 120 penalty units or 12 months imprisonment (s 51). Detrimental action against a commissioner carries 240 penalty units or 2 years imprisonment (s 52). A defence of “not a substantial reason” is available for the detrimental action offences (ss 51(2), 52(2)).

For Boards of Inquiry, the penalties are identical for corresponding offences: failure to comply with notice (s 86 - 240 penalty units or 2 years), failure to take oath/answer (s 87 - 240 penalty units or 2 years, with warning requirement), contravention of exclusion/restriction order (s 88 - 600 penalty units or 5 years, indictable), hindering/disruption (s 89 - 120 penalty units or 12 months), false statements (s 90 - 120 penalty units or 12 months), detrimental action against worker (s 91 - 120 penalty units or 12 months), and detrimental action against member (s 92 - 240 penalty units or 2 years). For Formal Reviews, the penalty for contravening an exclusion or restriction order is the same (s 118 - 600 penalty units or 5 years, indictable). Hindering/disruption (s 119 - 120 penalty units or 12 months) and false statements (s 120 - 120 penalty units or 12 months) also apply. Detrimental action against a worker (s 121) and against a member (s 122) carry penalties of 120 penalty units or 12 months and 240 penalty units or 2 years respectively. Notably, Formal Reviews have no offence for failure to comply with a notice or to take an oath because they lack the power to compel attendance.

Confidentiality breaches by inquiry officers are penalised at 120 penalty units or 12 months imprisonment for each tier (ss 43, 83, 115). Taking advantage of information (profit from insider knowledge) carries up to 120 penalty units or 12 months imprisonment or both (ss 45, 85, 117), with a defence if the information was already public.

Enforcement mechanisms include court orders. The chairperson of a Royal Commission or Board of Inquiry may apply to the Supreme Court for an order compelling compliance with a notice (ss 23, 70). The court may order the person to comply within a specified period. This is in addition to the criminal offence. The Act also provides for imprisonment following conviction under the offences. For bodies corporate, the maximum fine is five times the maximum fine for a natural person (s 130). Accessorial liability extends to officers who authorised or permitted the offence or were knowingly concerned (s 128, Schedule 1). An officer may be prosecuted whether or not the body corporate has been convicted (s 128(3)). Proceedings against the Crown may specify the responsible agency (s 131). Successor public bodies may be proceeded against (s 132).

The Act expressly addresses its relationship with several other legal regimes. Section 8 preserves the Crown prerogative to issue commissions for inquiries outside the Act; thus, the Act does not codify the entire field of public inquiries. Section 1(3) states that the Act does not apply to inquiries established otherwise than under this Act, and s 53(3) gives the example of a board of inquiry under the Parliamentary Administration Act 2005.

The Act overrides legal professional privilege for Royal Commissions but not for Boards of Inquiry (s 32 vs s 65(2)(c)). This means that for Royal Commissions, the common law privilege is abrogated, and no reasonable excuse arises from privilege. However, s 32(2) preserves the privileged status of the information or document for other purposes, so privilege is not lost by disclosure to the Royal Commission itself (though it may be waived). For Boards of Inquiry, legal professional privilege remains a valid reasonable excuse, consistent with the common law.

Privilege against self-incrimination is similarly overridden for Royal Commissions (s 33) but retained for Boards of Inquiry (s 65(2)(a)). For Royal Commissions, only pending charges provide an excuse. The Act also provides a use immunity: answers, information, documents given to a Royal Commission (s 40), Board of Inquiry (s 80), or Formal Review (s 112) are not admissible in other proceedings against the person, except for offences under the Act or perjury-related offences under the Crimes Act 1958. This protects persons who are compelled to give evidence from having that evidence used against them in subsequent criminal or civil proceedings. The protection does not apply to documents that could have been obtained independently (ss 40(2), 80(2), 112(2)).

Statutory secrecy and confidentiality provisions are overridden for Royal Commissions (s 34) and for Boards of Inquiry (s 74), subject to exceptions for provisions that specifically apply to those inquiries or are prescribed by regulations. For Royal Commissions, the override is automatic; for Boards of Inquiry, the Board must specify that s 74(1) applies. This means that a person cannot refuse to provide information to a Royal Commission because a state secrecy law prohibits disclosure, and the person is immune from proceedings for complying. The same applies for Boards of Inquiry when they activate the provision.

The Freedom of Information Act 1982 does not apply to documents in the possession of a Royal Commission, Board of Inquiry, or Formal Review, or to documents of an inquiry in the possession of an agency while the inquiry exists (s 125). Additionally, documents subject to a Yoorrook Justice Commission record order are exempt from FOI for the 99-year period (s 125(1A)). This ensures that inquiry records are not disclosed prematurely under FOI.

The Public Records Act 1973 applies to the transfer and custody of records. Section 124 provides that when an inquiry ceases to exist, its records are transferred to the Department of Premier and Cabinet (or another public office as determined by the Premier), and then to the Public Record Office. Section 124(4) provides that section 8A of the Public Records Act 1973 does not apply to these records (section 8A deals with public access to records). This means that the normal public access regime does not automatically apply to inquiry records; instead, they are held on the same basis as they were held by the inquiry (s 124(3)). This provision is key for ensuring that restrictions on access (e.g., closure orders) continue after the inquiry ends.

The Act interacts with the Constitution Act 1975. Section 150 (inserted by the 2015 amendment) provides transitional continuity for inquiries that began under Part IVA of the Constitution Act 1975 before its repeal. Former commissions and boards have the power to continue current inquiries, and the Governor in Council may amend letters patent or instruments as if that Part had not been repealed. Section 123(2) confirms that the Act does not alter or vary sections 94B, 94E, or 94F of the Constitution Act 1975 (which relate to courts and judicial independence).

The Act also references the Crimes Act 1958 for perjury (s 314) and destruction of evidence (s 254). These offences are not in the Inquiries Act but are incorporated by reference in the notes to ss 50, 90, 120, and in the admissibility provisions. The accessorial liability provision (s 128) expressly does not affect the operation of Division 1 of Part II of the Crimes Act 1958 (s 128(4)).

The Sentencing Act 1991 is overridden by s 130(2) for the purpose of increasing fines for bodies corporate: the maximum fine for a body corporate is five times that for a natural person, despite anything in the Sentencing Act.

The Inquiries Act 2014 (No. 67 of 2014) received assent on 23 September 2014 and, for most provisions, came into operation on 15 October 2014 (Special Gazette No. 364). Section 148 (which repealed the definition of Australian legal practitioner) came into operation on 1 July 2015. Section 149 repealed Part 6 (ss 134-149) and Schedule 2 on 1 July 2016. The Act has been amended five times to date.

The Parliamentary Committees and Inquiries Acts Amendment Act 2015 (No. 10 of 2015), effective 22 April 2015, made several amendments. It substituted the definition of “judicial officer” to include reserve judges, associate judges, reserve associate judges, magistrates, reserve coroners, and judicial registrars. It amended the definition of “member” to refer to members of VCAT. It also inserted Part 7 (section 150) to provide for transitional provisions for inquiries under the former Part IVA of the Constitution Act 1975. Additionally, it substituted s 93(3)(b)(v) to allow a Formal Review’s establishing instrument to provide for expenses and allowances for attendees, and s 114 to restrict the entitlement to expenses to cases where the establishing instrument so provides. Section 128(4) was also substituted to clarify that accessorial liability does not affect the Crimes Act 1958.

The Oaths and Affirmations Act 2018 (No. 6 of 2018) made a minor amendment to s 28(2) via Schedule 2 item 71, effective 1 March 2019. The amendment inserted reference to affirmation alongside oath in the provision for search warrant applications to the Magistrates’ Court, aligning with the Oaths and Affirmations Act.

The Industrial Relations Legislation Amendment Act 2021 (No. 14 of 2021), effective 1 July 2021, made significant changes to the detrimental action offences. It inserted the definition of “contract worker” into s 3 and amended the definition of “worker” to include contract workers. It also substituted s 51, s 91, and s 121 to expand the offence of taking detrimental action against workers to include threatening to take action, to add a defence if the reason was not substantial, and to carve out unlawful disclosure or false statements. It also inserted the definition of “detrimental action” into s 3. The amendment also repealed the definition of Victorian Inspectorate (which had been amended by No. 14/2021) - later fully repealed by the 2024 amendment.

The Justice Legislation Amendment (Integrity, Defamation and Other Matters) Act 2024 (No. 31 of 2024), effective 10 February 2025, amended the Act to insert a definition of “Integrity Oversight Victoria” in s 3, replacing references to the Victorian Inspectorate in s 123(1)(e). It also repealed the definition of Victorian Inspectorate in s 3.

The most recent amendment is the Inquiries Amendment (Yoorrook Justice Commission Records and Other Matters) Act 2025 (No. 4 of 2025), effective 26 February 2025. This amendment inserted Division 14 into Part 2, containing sections 52A to 52I, which empower the Yoorrook Justice Commission to make record closure orders (99 years) and record restriction orders over specified records containing evidence from an Aboriginal natural person. It also inserted definitions for “Keeper of Public Records”, “Public Record Office”, “record”, “Secretary”, “Yoorrook Justice Commission”, and related terms into s 3. It amended s 124 to require the Premier to specify a responsible person for transfer of records, and substituted s 124(4) to exclude the application of s 8A of the Public Records Act 1973. It amended s 125 to add an exemption from FOI for documents subject to a Yoorrook Justice Commission record order for the 99-year period. It also inserted a definition of “worker” amendment (s 3(b)).

The Act itself does not name any specific litigation or court decisions. However, the Act provides mechanisms for judicial involvement. The chairperson of a Royal Commission or Board of Inquiry may refer any question of law arising in an inquiry to the Supreme Court for decision (ss 41, 81). Formal Reviews cannot make such referrals (s 113 applies only to Royal Commissions and Boards of Inquiry, but the heading “Formal Reviews and courts” includes s 113, which actually says “The chairperson of a Formal Review may refer any question of law arising in an inquiry to the Supreme Court for decision” - wait, check: Section 113 is in Part 4 Division 7 “Formal Reviews and courts”. It states: “(1) The chairperson of a Formal Review may refer any question of law arising in an inquiry to the Supreme Court for decision.” So Formal Reviews can also refer questions of law. This is a key point. So all three tiers can refer questions of law. The Supreme Court’s decision on such a referral would be binding on the inquiry. No specific cases are mentioned in the source text.

Additionally, the Act allows the chairperson to apply to the Supreme Court for an order to compel compliance with a notice (ss 23, 70). This provides a route for enforcement that may result in judicial proceedings. Cases under these provisions would involve determining whether a person had a reasonable excuse for non-compliance. The Act sets out what constitutes a reasonable excuse in ss 18 and 65, so the court’s interpretation of those provisions would be key.

The admissibility of compulsion and use immunity provisions (ss 40, 80, 112) could also be litigated in subsequent proceedings where a party seeks to tender evidence that was originally given to an inquiry. The court would need to decide whether the evidence falls within the immunity or was independently obtained.

The detrimental action offences (ss 51, 52, 91, 92, 121, 122) may give rise to criminal prosecutions in the Magistrates’ Court or County Court, and defences of “not a substantial reason” would be tested.

Because the source text does not cite any cases, it is not possible to describe specific litigation history. The Act’s relatively recent commencement (2014) and the confidential nature of many inquiry proceedings may mean that reported decisions are infrequent. Practitioners should search case law databases for decisions under the Inquiries Act 2014 and under the former Part IVA of the Constitution Act 1975.

Several provisions in the Act contain traps for the unwary. The most significant is the difference in privilege regimes between Royal Commissions and Boards of Inquiry. A person who appears before a Royal Commission cannot rely on legal professional privilege or the privilege against self-incrimination (except for pending charges) as a reason to refuse to answer a question or produce a document (ss 32, 33). The same person before a Board of Inquiry can invoke both privileges (s 65(2)(a) and (c)). Lawyers advising clients who are summoned need to know which type of inquiry they face, because the consequences of refusal differ dramatically. The Act does not make this distinction obvious in the offences provisions; the offence of failing to comply with a notice (ss 46, 86) applies to both, but the reasonable excuse defence is defined differently in the respective sections.

Another trap: for Boards of Inquiry, the override of statutory secrecy provisions is not automatic. Section 74(1) allows a Board of Inquiry to require information despite a secrecy provision, but only if the Board specifies that subsection (1) applies. If the Board does not so specify, the person may have a reasonable excuse based on the secrecy provision (s 65(2)(f) and (g)). This is a subtle point that could catch witnesses who rely on professional secrecy obligations; they should ask whether the Board has activated s 74.

The Yoorrook Justice Commission record orders are a recent addition (2025) and impose a 99-year closure period (s 52B). The definition of “specified record” is broad: it includes not only transcripts and witness statements but also audio and audio visual recordings (s 52A). The order must specify at least one author (who must be an Aboriginal person) and that author is not prevented from accessing or sharing the record (s 52E(2)). However, the order applies to the record itself, so if the author shares it, that is allowed, but the record in the custody of the Public Record Office remains closed. Also note that the order cannot be made over evidence given on behalf of any body or association, including an unincorporated body (s 52D). This may create boundary issues when a witness gives evidence that is partly personal and partly on behalf of an organisation.

Accessorial liability for officers of bodies corporate (s 128, Schedule 1) is another trap. An officer who “authorised or permitted” or was “knowingly concerned” in a body corporate’s offence under the listed provisions (including failure to comply with a notice, detrimental action, confidentiality breaches) can be personally prosecuted. This means directors and senior managers cannot rely on the body corporate’s liability to shield them. The officer may rely on defences available to the body corporate (s 128(2)). The list in Schedule 1 includes all the key offences for Royal Commissions, Boards of Inquiry, and Formal Reviews.

The use immunity in ss 40, 80, and 112 applies only to “other proceedings” which are defined as criminal, civil, administrative, or disciplinary proceedings. It does not apply to the inquiry itself, nor does it apply to documents that could have been obtained independently. So a prosecutor can still use a document obtained via a search warrant or from a third party, even if it was also produced to the inquiry. The immunity also does not extend to the use of the information against any person other than the person who gave it. A co-accused cannot claim the immunity.

Finally, note that the Act does not provide a general right to legal representation. The inquiry may allow it, having regard to factors such as interest in the subject matter and likelihood of adverse findings (ss 15, 62, 102). If a person is denied legal representation, they may still be compelled to attend and answer questions. The procedural fairness requirement (ss 12, 59, 99) applies, but the Act does not define what that requires in terms of representation. The Supreme Court may review the fairness of the inquiry’s process on a referral of a question of law.

For persons and organisations who may be involved in an inquiry under the Act, compliance requires careful preparation and awareness of the specific powers of the inquiry type. The first step is to identify which tier of inquiry has been established by examining the letters patent (Royal Commission), the Order in Council (Board of Inquiry), or the instrument (Formal Review). Only Royal Commissions and Boards of Inquiry have compulsory process powers; Formal Reviews do not. If you receive a notice to produce or a notice to attend, you must comply within the time specified, unless you have a reasonable excuse. The notice must include information on how to object (ss 17(2), 64(2)). You should immediately seek legal advice, especially on whether the override of privileges applies.

For a Royal Commission, legal professional privilege and self-incrimination are not reasonable excuses, but you can still claim them if you have pending criminal or penalty proceedings (s 33(2)). For a Board of Inquiry, you can refuse on grounds of legal professional privilege, self-incrimination, parliamentary privilege, or public interest immunity (s 65(2)). If you believe the document is not relevant, you must raise that promptly. The inquiry may vary or revoke the notice (ss 18, 65). If the inquiry refuses your objection and you still refuse, the chairperson may apply to the Supreme Court for an order (ss 23, 70). You should consider making a referral of a question of law to the court if there is a genuine dispute about the validity of the notice or the scope of your duty (ss 41, 81, 113).

When appearing at an inquiry, you may be required to give evidence on oath or affirmation. You must answer questions unless you have a reasonable excuse. For Royal Commissions, the only limited excuse is pending proceedings. For Boards of Inquiry, you can refuse on grounds of privilege as above. The inquiry must inform you that refusal is an offence before you can be prosecuted (ss 47(2), 87(2)). If you make a statement, ensure it is true and not misleading in a material particular; the false statement offence (ss 50, 90, 120) applies regardless of whether you are under oath. Producing a false document is also an offence unless you indicate the falsity and provide correct information.

Workers who give information to an inquiry are protected from detrimental action by the person conducting the business or undertaking (ss 51, 91, 121). If you are an employer or manager, you must not take or threaten action such as dismissal because a worker has given or you believe they will give information. The defence that the reason was not substantial is available, but you should document any performance management or disciplinary decisions carefully to demonstrate they were unrelated to the inquiry participation. If the worker gave information unlawfully or made a false statement, protection does not apply (subsection (3) of those sections). Officers of bodies corporate should ensure that the organisation has policies to prevent retaliation and that all staff are aware of the whistleblower protections.

Confidentiality obligations apply to anyone who becomes an inquiry officer (commissioner, member, staff). The duty is not to disclose information acquired in that role except for performing functions, for certain criminal proceedings, or if the information is already public (ss 43, 83, 115). If you receive information from an inquiry during the course of your duties (e.g., as a recipient of a disclosure under s 44, 84, or 116), you must not take advantage of it for personal benefit (ss 45, 85, 117). This prohibition continues even after the inquiry ends, unless the information enters the public domain lawfully.

For records management, when an inquiry ceases to exist, its records must be transferred to the Department of Premier and Cabinet (or another public office as determined) and then to the Public Record Office (s 124). The records are to be held and dealt with on the same basis as the inquiry held them. If a Yoorrook Justice Commission record order has been made, the Secretary and the Keeper of Public Records must comply (s 52H), and access is limited to specified purposes (s 52I). The FOI exemption under s 125(1A) means that requests for access during the 99-year period will be refused. If you are an author of a record subject to an order, you may still access and share the record (s 52E(2)). If you are not an author, you cannot access the record except through the limited purposes in s 52I(3) (e.g., court order, request from oversight bodies). Practitioners should be aware that the Yoorrook Justice Commission record orders apply only to that specific commission; other Royal Commissions do not have equivalent powers.