Royal Commissions Act 1923

The legislation affects four principal classes of person and entity.

First, the commissioners themselves. Every commissioner obtains the protection and immunity of a Supreme Court judge while performing duties under the Act (s 6). Where the commissioner is a qualified judicial officer, additional powers under Division 2 become available. The chairperson (or sole commissioner) is the repository of most procedural discretions: authorising appearance (s 7(2)), issuing summonses (s 8), administering oaths (s 9), releasing witnesses (s 10), issuing non-publication directions (s 12B), and certifying contempt (s 18B).

Second, witnesses and persons summoned as witnesses. The Act imposes onerous obligations. A summoned person must attend from day to day (s 10), be sworn or affirmed (s 9), answer relevant questions (s 11(1)), and produce required documents unless a reasonable excuse exists (s 11(2)). Where s 17 has been expressly activated, the privilege against self-incrimination, claims of privilege, duties of secrecy and other restrictions are removed (s 17(1)). Witnesses receive the same protection as witnesses in Supreme Court proceedings and, if they provide information voluntarily, are treated as though they appeared under compulsion (s 11(3)–(4)). They are also exposed to the suite of Part 3 offences and to contempt proceedings.

Third, persons “substantially and directly interested” in the subject-matter of the inquiry or whose conduct has been challenged to their detriment. Such persons may be authorised by the chairperson to appear, to be represented by counsel, and to examine or cross-examine witnesses (s 7(2)–(3)). This right is not automatic; it requires an application and a favourable exercise of discretion.

Fourth, a broad range of downstream recipients. Section 12A authorises a commission to pass information to other Commissions of Inquiry (including Commonwealth royal commissions) and to an extensive list of law enforcement agencies. Those agencies are therefore indirectly affected because they may receive material that would otherwise be confidential. The Minister, the Clerks of both Houses of Parliament and the public at large are affected by the report-release mechanism in s 14B, which deems a report presented to the Clerks to have been laid before the Houses and to attract parliamentary privilege.

Finally, the Crown, through counsel appointed to assist the commission (s 7(1)), and any person or body to whom the provisions of the Act are applied by other legislation, are brought within the statutory scheme.

The Act constructs a carefully calibrated set of duties and correlative rights.

Witnesses owe duties to attend (s 8, s 10), to take an oath or affirmation (s 9), to answer relevant questions (s 11(1)(b)), and to produce required documents (s 11(1)(c)). These duties are subject to the carve-out for “reasonable excuse” (s 11(2)(a)) and the protection for secret manufacturing processes (s 11(2)(b)). Where Division 2 applies and the Governor has declared s 17 to operate, the duty to answer becomes near-absolute; the common-law privileges are abrogated (s 17(1)) and the provision prevails over any inconsistent law unless that law expressly states otherwise (s 17(1A)).

The commission itself holds rights to inspect, retain, copy and extract from documents (s 12(1)), to authorise staff to examine accounts and other materials (s 12(2)), and to communicate information to other inquiries or law enforcement (s 12A). It may also direct that evidence not be published or that parts of the inquiry be held in private (s 12B).

Interested persons possess a conditional right to appear and to participate through counsel (s 7). Counsel assisting the commission has an unqualified right to appear (s 7(1)).

Commissioners enjoy the rights and privileges of the Supreme Court when Division 2 is engaged (s 18(1)) and the personal immunity of a Supreme Court judge (s 6). They may issue warrants for non-attendance (s 16) and certify contempt to the Supreme Court (s 18B).

The Act also confers rights upon those whose documents are retained. Once retention is no longer reasonably necessary the commission must return the document on request unless it is to be furnished to another body or dealt with according to law (s 12(3)–(4)).

A witness who voluntarily provides information obtains the same protections as a compelled witness (s 11(4)), an important safeguard for whistle-blowers who come forward without summons.

Part 3 sets out a graduated enforcement regime. Summary offences under ss 19 and 20 (failure to attend or produce, refusal to be sworn or answer) each carry a maximum of 4 penalty units. Contravention of a non-publication direction is also a summary offence with a 10 penalty unit ceiling (s 23B). The more serious indictable offences attract custodial sentences: 5 years for false or misleading testimony (s 21) and for subornation (s 22), 5 years for delaying or obstructing by destruction or removal of documents or property (s 23A), and 2 years for wilful destruction of evidence intended to prevent its use (s 23).

Contempt is dealt with separately. Section 18A defines contempt by reference to Supreme Court contempt or disobedience of orders. The commissioner does not punish contempt directly (s 18B(6)) but instead certifies the matter to the Supreme Court. The Court conducts its own inquiry, hears evidence and may impose punishment “in like manner and to the like extent” as for its own contempt (s 18B(3)(b)). The certificate is prima facie evidence of the matters certified (s 18B(4)). Arrest warrants, custody pending hearing, and release on conditions are all regulated by s 18C. Double jeopardy is avoided by s 18D: an act cannot be punished both as contempt and as an offence.

Enforcement of attendance can occur by warrant under s 16 even after a contempt prosecution. Costs may be awarded in summary proceedings (s 24).

The Act expressly preserves the commission’s ability to deal with documents otherwise according to law (s 12(4)), thereby permitting referral for prosecution where appropriate.

The Royal Commissions Act 1923 is not a code. It operates alongside, and frequently by reference to, other statutes.

Section 11(1) expressly defers to s 127 of the Evidence Act 1995 (religious confessions). The protection and liabilities extended to witnesses mirror those applicable in Supreme Court proceedings (s 11(3)). Where Division 2 applies, the powers conferred replicate those of the Supreme Court (s 18(1)) and contempt is assimilated to Supreme Court contempt (s 18B(3)(b)), importing the Supreme Court Act 1970 and its rules with necessary adaptations.

Section 17(1A) is a supremacy clause: it prevails over any inconsistent provision of any other Act or law (whenever enacted) unless that other law specifically states that it is to have effect despite s 17. This is a strong ouster of later inconsistent legislation unless the later Act uses express override language.

The false testimony offence in s 21 cross-references ss 331 and 332 of the Crimes Act 1900, applying them to royal commission proceedings in the same way as they apply to perjury under s 330.

Section 12A expressly contemplates interaction with Commonwealth and interstate royal commissions and law enforcement bodies, including the Australian Securities Commission (now ASIC) and the Australian Crime Commission (now Australian Criminal Intelligence Commission). The definition of “Commission of Inquiry” in s 12A(3) captures bodies operating under the Commonwealth Royal Commissions Act 1902 or analogous State or Territory legislation.

The report-release mechanism in s 14B interacts with the parliamentary privileges contained in the Parliamentary Evidence Act 1901 and the Constitution Act 1902 by deeming presentation to the Clerks to constitute laying before the Houses.

Schedule 1 makes the 2013 amendments apply to the Child Sexual Abuse Royal Commission and the related Special Commission of Inquiry, illustrating the statute’s capacity to be tailored by regulation and transitional clauses to specific inquiries established under parallel legislation such as the Special Commissions of Inquiry Act 1983.

Finally, s 14 permits the Governor, in the letters patent, to disapply any or all of the Act’s provisions, allowing bespoke tailoring of each commission.

The most significant recent amendments occurred in 2013. The Royal Commissions Amendment Act 2013 inserted s 5A (authorisation of commissioners to sit for parts of an inquiry and to exercise chairperson powers), amended the definition of “reasonable excuse” and the self-incrimination provisions, and added the transitional provisions in Schedule 1 that extended the new rules to the Child Sexual Abuse Royal Commission. These changes were driven by the practical need to enable a large national inquiry with multiple commissioners to conduct concurrent hearings without procedural challenge.

Later in 2013 the Royal Commissions and Ombudsman Legislation Amendment Act 2013 inserted s 12B (non-publication and private hearing powers) and s 23B (offence for contravening such directions), and made further adjustments to s 17 to strengthen the abrogation of privileges. The amendments were a direct response to the Child Sexual Abuse Royal Commission’s need for robust powers to protect the identity of vulnerable witnesses, particularly survivors of institutional abuse, while ensuring evidence could still be shared with law enforcement.

The 1990 amendments that introduced the contempt regime (ss 18A–18D) and the information-sharing powers (s 12A, inserted 1991) were themselves reactions to earlier inquiries that encountered obstruction and to the growing realisation that royal commissions needed to be able to feed information efficiently into the criminal justice system without procedural friction.

Each wave of amendment has therefore been prompted by operational experience: the desire for efficiency in multi-member commissions, the protection of vulnerable witnesses, and the need for seamless information flows to prosecutorial agencies.

Because the legislation grounds every power in the letters patent and in explicit statutory language, many potential controversies are resolved at the threshold by the terms of the particular commission. The text itself does not record specific judicial decisions, but the architecture reveals points of perennial tension.

The interaction between s 17 and the privilege against self-incrimination has been a recurring flashpoint. The requirement for an express declaration in the letters patent (s 17(4)–(5)) and the supremacy provision in s 17(1A) were inserted to remove doubt after earlier challenges in which witnesses argued that later statutes had impliedly restored privileges. The 2013 amendments that deemed prior answers given to the Child Sexual Abuse Royal Commission to have been compelled under the amended section (Schedule 1 cl 3) illustrate the legislature’s determination to insulate inquiries from collateral attacks on the validity of evidence already received.

Contempt certification under s 18B has the potential to generate disputes about the standard of proof before the Supreme Court, the content of the certificate, and the procedural fairness afforded to the alleged contemnor. The requirement that the Supreme Court “inquire into the alleged contempt” and hear witnesses and defences (s 18B(3)(b)) is designed to ensure that the commissioner does not act as both prosecutor and judge.

Non-publication directions under s 12B raise obvious tensions with open justice and free speech principles. The power is vested in the chairperson or sole commissioner and is not expressly constrained by a public interest test in the section itself, although the common-law principles that would apply to a superior court would presumably inform any judicial review.

The breadth of the law-enforcement-agency definition in s 12A, which includes task forces and bodies “similar to a task force, however described”, has been crafted to avoid technical arguments about nomenclature. Nevertheless, the potential for leakage of sensitive material between multiple overlapping inquiries remains a live policy concern.

The transitional provisions in Schedule 1 that operate retrospectively for the Child Sexual Abuse Royal Commission (cll 2 and 3) represent a legislative choice to validate past acts and to extend the strengthened privilege-abrogation rules to evidence already given. Such provisions can themselves generate controversy about retrospectivity and fairness.

Most practitioners assume that the privilege against self-incrimination is always available; yet once the Governor has declared that s 17 applies, that privilege, claims of legal professional privilege, duties of secrecy and “any other ground” are removed (s 17(1)). The only statutory exception is the secret-process-of-manufacture carve-out that appears in the more general s 11(2)(b), which does not apply to Division 2 inquiries.

Another common misconception is that a royal commission can punish contempt itself. Section 18B(6) expressly forbids a commissioner from punishing contempt under s 18; the matter must be certified to the Supreme Court. Many lawyers have wasted time arguing before the commission when the correct forum is the Supreme Court on a certificate.

The “reasonable excuse” defence in ss 19 and 20 is narrower than it appears. The definition in s 4 ties it strictly to what a court would accept. In practice this excludes policy objections, inconvenience, or generalised fears about reputational harm.

Section 12A permits a commission to furnish material to a law enforcement agency even before the inquiry has concluded. There is no statutory requirement for the commission to notify the provider of the information, creating a risk that material given under compulsion may be used in parallel criminal investigations without the witness’s knowledge.

The power to authorise a member to sit for part of an inquiry and to exercise the chairperson’s powers (s 5A(3)) is wider than many realise. Multiple members may be authorised, one designated to preside, and they may sit concurrently with the full commission. This can produce a situation in which different panels hear different evidence on the same day, with different non-publication regimes potentially applying.

Finally, the obligation under s 10 to “appear and report from day to day” continues until the chairperson expressly releases the witness. Many witnesses assume that once they have given their evidence they are free to leave; they are not.

Compliance for witnesses begins with the summons. Treat the summons as non-negotiable. Seek legal advice immediately upon receipt. If a claim of privilege or reasonable excuse is to be advanced, it must be grounded in the limited exceptions preserved by ss 11 and 17. Where s 17 applies there will be almost no available excuses; preparation should focus on ensuring that any answer given is accurate so as to avoid the s 21 false testimony offence.

Organisations that may be the subject of inquiry should ensure that document-retention policies are suspended as soon as it becomes apparent that a commission may be established. Destruction of any document that “is or may be required” after knowledge of the inquiry triggers the s 23 and s 23A offences, and the onus of proof shifts to the defendant under s 23A(2).

Counsel assisting or appearing should obtain clear rulings on the scope of examination before cross-examining, given that s 7(3) limits examination to matters the commissioner deems relevant. Applications for leave to appear under s 7(2) should be made as early as possible and should be supported by evidence demonstrating substantial and direct interest or detriment.

Commission staff must be alive to the return-of-documents obligation in s 12(3). A register of all produced material should be maintained and periodic reviews conducted so that documents are not retained longer than “reasonably necessary”.

For those establishing or staffing a commission, the letters patent are the single most important compliance document. If the full suite of Division 2 powers, including the s 17 abrogation of privileges, is desired, the Governor must be advised to include the necessary declarations. Conversely, if the inquiry wishes to avoid the contempt regime or the information-sharing powers, the letters patent should expressly disapply those sections under s 14.

When a commission intends to communicate material under s 12A it should document the decision, record the recipient agency, and consider whether any protective conditions (for example, undertakings as to use) should be sought even though the statute does not require them.

Non-publication applications under s 12B should be prepared with the same rigour as a suppression order application in the Supreme Court. The commissioner must be satisfied that the direction is necessary; a mere request will rarely suffice.

Finally, all participants should remember that the Act’s transitional provisions can cause 2013 amendments to apply to inquiries established earlier. Always check the specific letters patent and any Schedule 1 declarations before assuming that the law as it stood at the date of the commission’s establishment continues to govern.