On 4 February 2025, the Australian Competition and Consumer Commission announced that it had conducted a review of more than two thousand Australian retail websites and that it had found ...
Commissions of inquiry have become increasingly prevalent. The advent of 24-hour news and social media commentary means that pressure can quickly mount on governments to establish a commission to inquire into matters that have captured the interest of the public.
There can be unique challenges for organisations that might be called to be involve in such proceedings. Reputational issues, the risk of referral to prosecutorial authorities, disruption to business, and the cost of responding to the requirements are all matters that may need to be considered.
An organisation’s response to the requests of an inquiry should be guided by the legal framework underpinning the relevant inquiry process. This article provides a high-level overview of some of the key aspects of that legal framework and sets out some practical observations for organisations to keep in mind.
The Governor-General is empowered to establish a royal commission by letters patent to inquire into, and report on, any matter specified in the letters patent. Royal commissions are established at the federal level. The states have their own legal framework for such inquiries.
In Queensland, such commissions are known as commissions of inquiry and are governed by the Commissions of Inquiry Act 1950 (Qld) (CIA). As expanded on below, they operate in substantially the same way as a royal commission and share similar powers.
Of course, these are not the only types of inquiries in which commercial organisations may be called to participate. Regulatory bodies have various inquisitory functions. A recent example is the Australian Competition and Consumer Commission’s price inquiry into supermarkets, where the ACCC was directed by the Treasurer to conduct a price inquiry into groceries pursuant to section 95H of the Competition and Consumer Act 2010 (Cth).
The scope of a commission is determined by its ‘terms of reference’, which are the matters the government has established the commission to inquire into and report on.
The ‘terms of reference’ can, in some instances, be cast in broad terms. For example, in the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry, the terms of reference provided the Commission with a broad remit to inquire into (among other things) ‘whether any conduct by financial services entities … might have amounted to misconduct’ and ‘the adequacy of existing laws and policies of the Commonwealth … relating to the provision of banking, superannuation and financial services’.
The terms of reference are a critical starting point that organisations, and their response teams, must carefully consider. Valuable insight can be gleaned as to the matters that will interest the commission, the level of involvement an organisation may expect to have, and what will be expected in terms of an organisation’s response.
Upon the establishment of a commission, a commissioner (or a panel of commissioners) is usually appointed to conduct the inquiry and prepare the report on the matters the subject of the commission. Often, a commissioner (who is usually a retired judge or experienced lawyer) will be supported by counsel and solicitors, whose function it is to assist the commission by, for example, cross examining witnesses called before the commission.
Each individual commission will commonly publish practice directions to direct the processes of the commission. These will need to be carefully considered in each case. However, common themes between all commissions are strict timing and a determination to resolve matters efficiently. Time is of the essence, as the commission itself is usually under very strict time limits to report its findings to the government. Organisations must act (and prepare) accordingly.
Commissions are, by their very nature, inquisitorial bodies. Broadly, their purpose is to is to inquire into, and report on, matters of public interest. However, further nuance as to the commission’s purpose can be gleaned from careful attention to the terms of reference.
In particular, identifying whether the commission’s primary focus is to investigate and report on matters of policy, compared with a focus on possible misconduct or wrongful behaviour, can be critical to an organisation’s response. In the latter example, where adverse findings could be made, the procedures to some extent resemble the proceedings of a court with witnesses being called and cross‑examined.
Organisations should consider their response and engagement with the commission having regard to the particular purpose the commission has been established to fulfill.
Royal commissions, under the Royal Commissions Act 1902 (Cth) (RCA), and commissions of inquiry, under the CIA, are each conferred broad coercive powers. In that regard, both Acts empower the respective commissions to:
These coercive powers to compel action from organisations, together with the strict timeframes within which action must be taken, mean that organisations must be prepared to meet the requirements of a commission at an early stage. This preparation will include determining the following:
Each of these questions (among others) will require careful consideration and organisations should turn their mind to these matters as soon as practicable.
A further query that sometimes arises is whether there is any basis to resist a request from a commission. The starting position is that a person who receives a request from a commission must comply, unless the person has a ‘reasonable excuse’. Reasonable excuse, in relation to a request to produce documents or information is defined in the RCA to mean, ‘an excuse which would excuse an act or omission of a similar nature by a witness before a court of law’.[5] The term ‘reasonable excuse’ is also used in the same context in the CIA and is defined in substantially similar terms.
The definition of ‘reasonable excuse’ is broad in its terms and, therefore, lends itself to different interpretations. Issues have arisen in the past in relation to whether:
amount to a ‘reasonable excuse’ within the meaning of the Acts.
These issues are, in part, addressed in the RCA and CIA. However, there are also issues that remain unclear and will require careful consideration having regard to the particular circumstances in each case.
As to legal professional privilege, the starting position in royal commissions is that legal professional privilege does not constitute a ‘reasonable excuse’, unless a court has found the document to be privileged, or a claim that the document is privileged is made to the commission with the specified time permitted by the Act.[6] If a claim of privilege is made within the specified time, the commission will decide whether to accept or reject the claim.[7] In Queensland, the position is more open as there is no specific provision in relation to legal professional privilege in the CIA. However, while the issue is not specifically addressed in the CIA, there is judicial support for the view that a valid claim for legal professional privilege will constitute a ‘reasonable excuse’, consistent with the general position that a statute should be considered as preserving a right to legal professional privilege unless the privilege is abrogated by express words to the contrary.[8]
As to the privilege against self-incrimination, the position under both the RCA and CIA is that (subject to limited exceptions) a witness cannot refuse to answer the question of a commission on the basis of privilege against self‑incrimination. However, the evidence given by a witness in a commission is not admissible as evidence against that witness in any subsequent civil or criminal proceedings (subject to limited exceptions).
Finally, confidentiality is not a ‘reasonable excuse’ to resist the production of documents or information requested by a commission. However, there may be other avenues available for an organisation to seek to protect commercially sensitive information, such as seeking a non-publication order to preserve confidentiality or to request to give evidence privately.
Of course, even where there may be an arguable legal basis to resist a requirement of a commission, the organisation will need to consider, having regard to all of the circumstances, whether it is in its best interests to attempt to resist the commission’s request.
An understanding of the legal framework underpinning royal commissions and commissions of inquiry reveals the unique challenges such inquiries can potentially pose, and can assist organisations in appropriately addressing those challenges. In particular, the following key concepts are important:
Navigating the various requirements of royal commissions and commissions of inquiry can be very challenging for commercial organisations. Accordingly, organisations who expect to have significant involvement in such proceedings should consider putting in place a ‘response team’ that understands the legal framework so that the organisational response is appropriate and seeks to mitigate adverse impacts as much as possible.
Cooper Grace Ward’s litigation team has extensive experience in advising and representing parties involved in royal commissions and commissions of inquiry. If you need assistance in this area please get in touch with one of our key contacts.
[2] RCA, section 2(3C); CIA, section 5(1)(d).
[3] RCA, section 2(1)(a); CIA, section 5(1)(a).
[4] RCA, section 4(1A) and 4(5); CIA, section 19A(1).
[5] RCA, section 1B.
[6] RCA, section 6AA(1).
[7] RCA, section 6AA(2).
[8] Criminal Justice Commission v Connolly QC [1997] 2 Qd R 586, 592 (Thomas J).
This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please let us know.
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