The review was commissioned in early 2009, covering the operation of that Act and questions regarding whether an alternative form/s of Commonwealth executive inquiry should be established by statute. Those questions include whether there is a need to develop special arrangements for inquiries involving matters of national security and restrictions on disclosure of information to (and use of information by) Royal Commissions and other inquiries.
In preparing the report the LRC drew on a public consultation process and contact with the commissioners in charge of the Haneef (2008), Equine Influenza (2008), Oil-For-Food Programme (2006), Cornelia Rau (2005), Intelligence Agencies (2004), Building &Construction Industry (2003), HIH collapse (2003) and Aboriginal Deaths in Custody (1991) inquiries.
The ALRC offers detailed and cogent recommendations for improving ad hoc, independent, Commonwealth public inquiries.
In particular it recommends that the Royal Commissions Act (to be renamed the Inquiries Act) should be amended to provide for two tiers of public inquiry.
Royal Commissions should be the highest form of inquiry, dealing with matters of substantial public importance and established by the Governor-General. Royal Commissions, as the highest tier, would have a wider range of coercive and investigatory powers than the second tier of inquiry ('Official Inquiries'). Those inquiries should be established by a minister, rather than by the G-G, to look into matters of public importance. The coercive powers that may be exercised by each tier of inquiry would be a key distinction between the two tiers.
In a major step forward the ALRC comments that -
The Inquiries Act should set out the powers available to each tier of inquiry, rather than the Australian Government selecting the powers that may be exercised by individual inquiries on an ad hoc basis at the time they are established. The ALRC's preferred approach ensures an appropriate level of transparency in the inquiry’s processes and procedures. It may also improve the perception of independence of the inquiry that may not be achieved if the Australian Government is able to select the powers on each occasion when an inquiry is established.The ALRC recommends that both tiers of inquiries should have the power to require the production of documents and other things, to require the attendance or appearance to answer questions (on oath or affirmation if so directed by the inquiry), and to inspect, retain and copy any documents or other things. A Royal Commission, but not an Official Inquiry, should have the power to apply to a judge for an entry, search and seizure warrant, or a warrant for the apprehension of a person who fails to appear or attend; and exercise concurrent functions and powers under Commonwealth and state and territory laws. Only a Royal Commission should have the power to abrogate client legal privilege or the privilege against self-incrimination.
The ALRC recommends development of an Inquiries Handbook "containing information for those responsible for establishing and administering inquiries, inquiry members, inquiry participants and members of the public on a range of matters relating to Royal Commissions and Official Inquiries". The Handbook would include information on the establishment and administration of inquiries, appointment of inquiry members, inquiry powers, protections and procedural aspects of inquiries, and use and protection of national security information by inquiries. The Handbook would not have statutory force.
The report discusses publication requirements, noting that the Royal Commissions Act does not require the tabling in Parliament of Royal Commission reports. The ALRC recommends that the Inquiries Act should contain a presumption that reports of Royal Commissions and Official Inquiries will be tabled by the Australian Government within 15 sitting days of receiving the inquiry’s final report, consistent with principles of government openness and accountability (and with requirements in similar federal, state and territory legislation). The Australian Government should publish an update on implementation of recommendations of an inquiry that it accepts: one year after the tabling of the final report of a Royal Commission or Official Inquiry; and periodically thereafter to reflect any ongoing implementation activity.
Given the concern about the high costs of inquiries and difficulties in accessing existing sources of information about those costs the ALRC recommends that the Inquiries Act should require the Government to publish summary information about the costs of completed Royal Commissions and Official Inquiries within a reasonable time after the inquiry has concluded. That summary information should itemise fees and allowances paid to the inquiry head and counsel assisting, financial assistance to witnesses and other participants for legal and non-legal costs, staff costs, ICT costs, office accommodation and other operational expenditure.
The ALRC discusses the statutory framework for handling national security information, noting that the Royal Commissions Act does not feature any provisions dealing specifically with protection of information that may prejudice national security during/after an inquiry. The ALRC considers that special procedures and powers regarding national security information are warranted. It argues that in determining the use or disclosure of information in the conduct of an inquiry (eg claims for public interest immunity regarding national security information or security clearance requirements for inquiry staff) inquiry members may benefit from expert advice that is independent of the provider of the information. It suggests that the Inspector-General of Intelligence & Security (IGIS) is "ideally qualified to give such advice" and that the proposed Inquiries Act should empower an inquiry member to request advice or assistance from the IGIS concerning damage or prejudice to national security in connection with use or disclosure of such information.
The report comments that -
The historical and political relationship between Indigenous peoples and the rest of the Australian community is unique. Further, public inquires have affected, and have the potential in the future to affect, the rights and interests of Indigenous peoples. In order to ensure that the special needs of Indigenous peoples participating in an inquiry are addressed adequately by an inquiry, the ALRC recommends that a Royal Commission or Official Inquiry looking into matters that may have a significant effect on Indigenous peoples should be required to consult with Indigenous groups, individuals and organisations to inform the development of procedures for an inquiry.That duty to consult would arise only where the inquiry was likely to have a significant effect on Indigenous peoples (ie would not arise merely because an Indigenous witness was called to give evidence in an inquiry which otherwise had no special bearing on Indigenous interests).
