The Act directly affects a range of individuals and entities. Commissioners are the primary actors: they must conduct the inquiry, may hold hearings, issue subpoenas and search warrants, and prepare a report. They are protected by the same immunity as a Supreme Court judge (s 19(1)) but are subject to a criminal penalty for unauthorised disclosure of information (s 20). Commission staff (public servants made available under s 12) must act in accordance with a commissioner’s direction and are similarly bound by confidentiality obligations (s 20). Counsel assisting the commission, appointed under s 18, have the same protection and immunity as a barrister appearing in the Supreme Court (s 19(2)). Witnesses who are subpoenaed (s 34) or who appear voluntarily are affected: they may be required to take an oath, answer questions and produce documents; they have the same protection and liabilities as a witness in Supreme Court proceedings (s 19(3)), are entitled to legal representation (s 31), and may be reimbursed expenses according to the Supreme Court scale (s 50). They cannot rely on privileges against self-incrimination or exposure to civil penalty to refuse compliance, though derivative use immunity applies (s 24). Persons with a sufficient interest in the inquiry may appear and be represented (s 31(1)(b)). Entities who may be subject to adverse comments in the report are entitled to notice and a right to make submissions (s 35A). The Executive appoints the commission and determines terms of reference (ss 5, 13). The Chief Minister receives the report, may present or publish it, and must explain non-presentation (ss 15, 16, 16A). Police officers execute search warrants (s 25) and warrants for apprehension of witnesses (s 35). Any person who interferes with a commission may be liable for contempt (s 46). Public servants and persons acting under a commissioner’s direction are protected from personal liability for honest acts done in exercising functions under the Act (s 47).

Duties of the commission: The commission must conduct its inquiry in accordance with the terms of reference (s 13(2)). It must comply with the rules of natural justice (s 23(a)). After completing the inquiry, it must prepare a report and submit it to the Chief Minister on or before any fixed date, or as soon as practicable (s 15). The commission must retain documents for safekeeping and commit them to the Chief Minister’s custody upon submitting the report, except those needed for outstanding matters (s 15(4), s 22(2)(b)). The commission must not include an adverse comment about an identifiable entity in its report unless it has given the entity a copy of the proposed comment and a notice allowing at least 14 days for a submission or written statement, which must be included in the report (s 35A). The commission has a duty to return documents or things to an entitled person when retention is no longer necessary, if requested (s 26(3)). Duties of witnesses: A person served with a subpoena must appear at the stated time and place to give evidence and/or produce documents (s 34). A witness appearing must take an oath if required, answer relevant questions, and produce stated documents or things (s 34(3)). A person who fails to appear may be apprehended under a warrant (s 35). The common law privileges against self-incrimination and exposure to civil penalty are abrogated (s 24(2)), so a witness cannot refuse to answer or produce on that ground. Rights of witnesses: A witness may be represented by a lawyer (s 31(1)(a)). A witness is entitled to reimbursement of expenses (s 50). A witness has the same protection as a Supreme Court witness (s 19(3)). Derivative use immunity applies: information, documents or things obtained as a result of compulsory production or answering are not admissible against the person in civil or criminal proceedings, except for proceedings for an offence concerning falsity or misleading nature, or an administration of justice offence (s 24(3)). Rights of persons affected by adverse comments: They have the right to receive the proposed comment and notice, the right to make a submission or give a written statement within at least 14 days, and the right to have that submission or statement (or a fair summary if it is excessively long or defamatory) included in the report (s 35A). Duty of confidentiality: Commissioners, staff, counsel assisting, and anyone else with access to information by virtue of their office or employment under the Act must not record, divulge, communicate, use, or produce documents acquired except in exercising a function under the Act (s 20). Protection: Commissioners have judicial immunity (s 19(1)). Certain officers are protected from personal liability for honest acts (s 47). Publication of reports and public proceedings is protected by defamation defences (s 49).

The Act creates several criminal offences and provides for enforcement mechanisms. Contempt of commission (s 46): A person commits an offence if they do something in the face or within the hearing of a commission that would be contempt of court if the commission were a court of record. The maximum penalty is 100 penalty units, imprisonment for 1 year, or both. At the republication date, a penalty unit for an individual is $160, so 100 penalty units equals $16,000; for a corporation it is $810 per unit, equalling $81,000. Unauthorised disclosure of information by commissioners, staff, counsel assisting, or others with access under the Act (s 20(2)): Maximum penalty 50 penalty units, imprisonment for 6 months, or both ($8,000 individual, $40,500 corporation). Offences under the Criminal Code chapter 7 (Administration of justice offences) apply to commission proceedings by virtue of s 45. That chapter includes offences such as perjury, falsifying evidence, failing to attend, refusing to be sworn, and other conduct interfering with the administration of justice. The note to s 4 explains that the Criminal Code chapter 2 (general principles of criminal responsibility) applies to offences against the Act, including burdens of proof and defences. Enforcement mechanisms: The commission can compel attendance and production through subpoenas (s 34). If a person served with a subpoena fails to appear, the chairperson may issue a warrant for apprehension of the witness (s 35). That warrant authorises apprehension, bringing the witness before the commission, and detention in custody until released by the chairperson. The warrant may be executed by a police officer, an interstate police officer, or the person to whom it is addressed, with necessary and reasonable force, including entry to premises (s 35(4)). The apprehension does not relieve the witness from any liability for non-compliance with the subpoena (s 35(5)). Search warrants: The chairperson may issue a search warrant if there are reasonable grounds to suspect a thing connected with the inquiry may be concealed, lost, mutilated, destroyed or disposed of (s 25(1)). A warrant authorises a police officer or authorised person to enter and search premises, seize things of the relevant kind, and deliver them to the commission (s 25(2)). The warrant must specify the purpose, hours of entry, a description of things, and a validity of no more than one month (s 25(3)). If during a search the executing person finds a thing believed on reasonable grounds to be connected with the inquiry (though not of the kind specified), and believes it necessary to seize to prevent concealment, loss, mutilation, destruction or disposal, they may seize it (s 25(5)). The warrant must be shown to an occupant on request (s 25(6)). No proceeding against commission: Section 48 expressly provides that a proceeding for an injunction, declaration, or prerogative order must not be brought against a commission. This limits judicial review remedies against the commission as a body, though individual decisions may be challengeable via other routes.

The Act does not operate in isolation. It expressly incorporates other Territory legislation and provides for its interaction with Commonwealth and State laws. Criminal Code 2002: Section 45 provides that a proceeding of a commission is a legal proceeding for the Criminal Code chapter 7 (administration of justice offences), which includes perjury, falsifying evidence, failing to attend, and refusing to be sworn. Section 4 notes that the Criminal Code chapter 2 applies to offences against the Act, setting out general principles of criminal responsibility. Legislation Act 2001: The dictionary is part of the Act (s 2). Various provisions rely on the Legislation Act for definitions (e.g., “month”, “Executive”, “function”), for the making of notifiable instruments (ss 5, 13), for the meaning of penalty units (s 133), and for client legal privilege (note to s 24(2) - the Legislation Act s 171 deals with client legal privilege, which is not abrogated). Evidence (Miscellaneous Provisions) Act 1991: Section 34A allows a person to appear by audiovisual or audio links if the commission has given a direction under that Act, permitting evidence to be taken from another place. Civil Law (Wrongs) Act 2002: Section 49 gives defamation protection: proceedings of a hearing are taken to be proceedings of public concern for the defence of fair report (s 139); a report made public by the Chief Minister is taken to be a public document for the defence of publication of public documents (s 138). This protection does not apply if the publication contravenes a direction restricting publication under s 28(3). Public Sector Management Act 1994: Staff are public servants made available by the head of service (s 12). Commonwealth, State and Territory laws: The commission may communicate information or give evidence to the appropriate Minister or chief police officer of a State, the Commonwealth, or another Territory if it obtains information relating to an offence against a law of that jurisdiction (s 21). Natural justice: Section 23(a) requires the commission to comply with the rules of natural justice, which is a common law requirement reinforced by statute. This interacts with the requirement for adverse comment procedure in s 35A and the right to representation in s 31.

The Act was originally enacted as A1991-1, notified 1 March 1991, with most provisions commencing 1 May 1991. It has undergone numerous amendments over 30 years. Key amendments include: 1993 - Acts Revision (Position of Crown) Act (A1993-44) made consequential changes. 1994 - Judicial Commissions (Consequential Amendments) Act (A1994-10) and Public Sector Management (Consequential and Transitional Provisions) Act (A1994-38) amended staff and procedural provisions. 1997 - Remuneration Tribunal (Consequential Amendments) Act (A1997-41) removed section 8 on remuneration. 1998 - Statute Law Revision (Penalties) Act (A1998-54) adjusted penalty provisions. 1999 - Courts and Tribunals (Audio Visual and Audio Linking) Act (A1999-22) inserted s 34A allowing appearance by audiovisual or audio links. 2001 - Legislation (Consequential Amendments) Act (A2001-44) made numerous editorial and definitional changes, substituting references and adding regulation-making power (s 52). 2003 - Royal Commissions Amendment Act (A2003-53) was a significant amendment: it substituted s 16 (presenting reports), inserted s 16A (Chief Minister to explain non-presentation), substituted s 23 (procedure to include natural justice and not bound by rules of evidence), inserted s 35A (proposed adverse comments in reports), and substituted s 49 (defamation protection). 2004 - Criminal Code (Theft, Fraud, Bribery and Related Offences) Amendment Act (A2004-15) removed s 35B (obstruction of authorised persons). 2005 - Criminal Code (Administration of Justice Offences) Amendment Act (A2005-53) was a major revision: it substituted s 24 (privileges against self-incrimination and exposure to civil penalty), substituted s 34 (powers in relation to witnesses), inserted s 45 (application of Criminal Code ch 7), inserted s 46 (contempt of commission), and removed former offence provisions (ss 36-44) which were replaced by the Criminal Code. 2006 - Statute Law Amendment Act (A2006-42) renumbered sections, inserted the dictionary (s 2 and dict), removed s 3 (old notes), substituted s 5, and made many drafting improvements. 2011 - Administrative (One ACT Public Service Miscellaneous Amendments) Act (A2011-22) updated staff references. 2016 - Public Sector Management Amendment Act (A2016-52) substituted s 12 on staff arrangements. 2018 - Courts and Other Justice Legislation Amendment Act (A2018-9) amended s 34A. 2021 - Statute Law Amendment Act (A2021-12) removed s 51 (approved forms) and made minor updates. The republication date is 23 June 2021.

The Act’s text and its endnotes do not reference any specific court cases. However, as a procedural statute governing coercive powers, it has likely been considered in litigation concerning the scope of search warrants (s 25), the validity of subpoenas (s 34), contempt proceedings (s 46), and the operation of the privilege against self-incrimination abrogation (s 24). The natural justice requirement in s 23 may have been the subject of judicial review, particularly in relation to the adverse comment procedure (s 35A) and the duty to provide a fair hearing. Section 48, which prohibits proceedings for injunction, declaration or prerogative order against the commission, may have been considered in applications for judicial review of commission decisions, although the section does not prevent review of the Chief Minister’s or Executive’s actions under the Act. The interaction between the derivative use immunity in s 24(3) and the admissibility of evidence in subsequent criminal proceedings is a potential area of litigation. Because the Act is a Territory law limited to ACT commissions (which are less frequent than Commonwealth royal commissions), the body of case law is relatively sparse. Practitioners should be aware that the Act’s provisions on contempt (s 46) and the application of the Criminal Code chapter 7 (s 45) incorporate well-established principles from the general criminal law. Any litigation will likely draw on analogous Commonwealth and State royal commission case law, but the specific ACT provisions, such as the 14-day notice period for adverse comments (s 35A) and the unique reporting obligation on the Chief Minister (s 16A), are distinctive and may generate Territory-specific judicial interpretation.

Several provisions contain traps for unwary practitioners, witnesses or government officials.

1. Abrogation of privilege with limited immunity (s 24): A witness cannot refuse to answer a question or produce a document based on the common law privilege against self-incrimination or exposure to a civil penalty. However, the derivative use immunity in s 24(3) does not apply to proceedings for an offence concerning the falsity or misleading nature of the answer, document or information, or an administration of justice offence. This means that if a witness gives false evidence under compulsion, that evidence may still be used in a perjury prosecution. The immunity does not extend to the original compelled answer either - only to evidence derived from it. The note to s 24(2) confirms that client legal privilege is preserved under the Legislation Act s 171, so legal professional privilege remains available.

2. Confidentiality obligations (s 20): Commissioners, staff, and counsel assisting commit an offence if they disclose information acquired by virtue of their office, except in exercising a function under the Act. This applies even after the commission has concluded. A person who has “had access to information by virtue of that person’s office or employment” is also covered (s 20(1)(b)). This can catch contractors, secondees, or anyone dealing with commission documents.

3. Search warrant issued by chairperson (s 25): Unlike search warrants in criminal investigations which are typically issued by a judicial officer, a commission search warrant is issued by the chairperson (or an authorised commissioner). This internal authorisation may be subject to challenge for lack of independence, but the Act expressly provides for it.

4. No proceeding against commission (s 48): A proceeding for an injunction, declaration or prerogative order must not be brought against a commission. This bars many forms of judicial review directed at the commission itself. However, proceedings against individual commissioners or the Executive may still be possible.

5. Adverse comment procedure (s 35A): The commission must not include an adverse comment about an identifiable entity unless it has given the entity at least 14 days’ notice and an opportunity to make a submission. The entity’s submission must be included in the report verbatim unless it is excessively long or contains defamatory/offensive language, in which case a fair summary may be substituted. This is a strict procedural requirement; failure to comply may invalidate that part of the report or expose the commission to judicial review.

6. Cessation of office (s 9): A commissioner ceases to hold office when the report is submitted (or when outstanding matters are finalised). This means the commission dissolves automatically upon report delivery, unless s 22 applies. Any ongoing matters after report submission require a notification to the Chief Minister to extend the commission’s life.

7. Staff direction (s 12(2)): A public servant made available to the commission must act in accordance with the direction of a commissioner, and not otherwise. This overrides the normal chain of command in the public service during the commission’s operation.

8. No right to silence at hearing: Because the common law privilege against self-incrimination is abrogated (s 24), a witness cannot remain silent and must answer questions. Failure to do so may constitute contempt or an administration of justice offence.

9. Private hearings (s 28): While hearings are presumptively public, the commission may direct a hearing be private for confidentiality or other reasons. Unauthorised presence at a private hearing is an offence by implication under s 32 (listing who may be present). Breach of a direction restricting publication may also have consequences.

10. Witness expenses (s 50): A witness is entitled to reimbursement authorised in accordance with the Supreme Court scale of costs, not at the discretion of the commission. The amount is set by the scale, not by the commission.

Compliance with the Royal Commissions Act 1991 depends on your role.

For a person who receives a subpoena (s 34): You must appear at the stated time and place. You may produce documents before the hearing date (s 34(2)) to avoid attending. If you fail to appear, the chairperson may issue a warrant for your apprehension (s 35). You are entitled to legal representation (s 31). You cannot refuse to answer questions or produce documents based on self-incrimination (s 24(2)), but you should be aware that any information derived from your compliance is inadmissible against you except for perjury or administration of justice offences (s 24(3)). You should take the oath or affirmation if required (s 34(3)(a)). You may ask the commission for a certified copy of any document you produce that is retained (s 26(2)). You should keep records of your attendance and expenses to claim reimbursement under the Supreme Court scale (s 50).

For a person or entity likely to be the subject of an adverse comment in the commission’s report (s 35A): Ensure you monitor communications from the commission. If you receive a proposed adverse comment and notice, you have at least 14 days to make a submission or give a written statement. Your submission will be included in the report unless it is excessively long or contains defamatory or offensive language, in which case a fair summary may be substituted. You should prepare a concise, relevant response that addresses the proposed comment without including unnecessary material or defamatory statements. Seek legal advice on the content.

For a person giving evidence at a hearing: Appear on time, comply with the chairperson’s directions, and answer questions truthfully. False evidence may lead to prosecution under the Criminal Code chapter 7 (s 45). You may request that the hearing be held in private if there are confidentiality concerns, but the decision is at the commission’s discretion (s 28). You may be examined or cross-examined by counsel assisting or other persons permitted by the chairperson (s 33).

For a lawyer representing a witness or person with a sufficient interest: Ensure your client understands that the common law privilege against self-incrimination is abrogated (s 24). Client legal privilege is preserved (note to s 24(2)). You have the same protection as a barrister in the Supreme Court (s 19(2)). You may make submissions on natural justice (s 23) and on the scope of questions or document requests.

For commissioners and staff: Comply with the confidentiality obligations in s 20; do not disclose information acquired except in exercising functions under the Act. Follow the terms of reference (s 13). Ensure hearings are conducted fairly and in accordance with natural justice (s 23). If issuing a search warrant, ensure reasonable grounds exist and the warrant meets the formal requirements of s 25. If the report contains adverse comments, follow the notice procedure in s 35A strictly, including the 14-day minimum period. Upon completion, commit documents to the Chief Minister (s 15(4)) and if there are outstanding matters, notify the Chief Minister (s 22).

For the Executive: Ensure the instrument appointing the commission states the matter to be inquired into (s 5(1)) and is notified. Determine terms of reference in writing and notify them (s 13). For the Chief Minister: present the report to the Legislative Assembly or make it public (s 16). If the report is not presented within the reporting period, explain why in a written statement on the next sitting day (s 16A). Arrange for the safekeeping of documents committed to custody (s 15(4), s 22(2)).