Special Feature: Royal Commissions and Standing Commissions – what happens if you receive a summons?

lawInstituteRoyal Commissions are the highest level of public inquiry in Australia. They are initiated by State or Commonwealth governments to inquire into a defined area of public importance such as a significant corporate collapse, a natural disaster, or serious allegations of corruption. They can also be used as a tool to provide recommendations for policy and law reform. Often they will be a mix.

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As a director or officer of your business, it can be daunting to receive a summons from a Royal or Standing Commission. So what are they and what should you do? 

Royal Commissions are the highest level of public inquiry in Australia. They are initiated by State or Commonwealth governments to inquire into a defined area of public importance such as a significant corporate collapse, a natural disaster, or serious allegations of corruption. They can also be used as a tool to provide recommendations for policy and law reform. Often they will be a mix. 

Generally, the aim of a commission is to get to the "truth" of a matter. Commissions ultimately publish findings and non-binding recommendations.

Once initiated, a commissioner is appointed to conduct enquiries and is given the same protection as a Justice of the High Court of Australia or relevant State Supreme Court. Commissioners have broad powers of investigation and are able to compel anyone to produce documents or attend as a witness. They can also obtain secret evidence (eg from a whistleblower).

Unlike a court, you do not have a "right of reply", although you may be permitted to question witnesses and you are entitled to address the commissioner if he or she is considering making a finding about you. Importantly, a witness does not generally have the protection against self-incrimination found in courts. 

While commissions cannot initiate prosecutions or award damages, this does not prevent such action being taken following a commission. Authorities like the police and the Australian Securities and Investments Commission monitor Royal Commissions with interest and a commission may be able to refer matters for appropriate investigation.

Witnesses may be entitled to claim costs

As a Commonwealth Royal Commission witness, you may be entitled to reimbursement of expenses of up to $1,174.90 per day if called because of your expert knowledge, or up to $123.90 if called for another reason. You may also be entitled to recompense for lost wages, travel expenses and meals. 

In certain circumstances, commonwealth funding for your legal expenses is available. Details are usually on the relevant Royal Commission's website and will likely be subject to the Commonwealth Guidelines for Legal Financial Assistance 2012.

Consider reputation management

Evidence you provide at a Royal Commission may be publicly broadcast or published, and sittings are generally open to the public. Further, the commission's findings are detailed and widely available, and transcripts and evidence will usually be published on the commission's website daily. There is often media interest. As a result, you should consider obtaining advice and representation to allow the effective maintenance of your reputation and character.

Standing Commissions have similarly broad powers

Many governments have established standing commissions in an attempt to deal with crime and corruption in government and the public sector. 

These bodies have been granted similarly broad powers as Royal Commissions and can compel the production of documents and the attendance of witnesses. Moreover, they may refer matters to the relevant authorities or, in some cases, initiate prosecutions based on the evidence presented to the commission. 

So what does it all mean?

If you receive a summons from any commission or are required to produce documents, it should receive the highest priority. Seek legal advice or representation prior to taking any action. This should assist you to preserve your rights throughout the process and offer protection from potentially adverse consequences, while still complying with the commission's requirements. You should check the fine print on any notice you receive from the investigator carefully.

You must attend as required unless you have a reasonable excuse. Failure to attend may result in a substantial fine and imprisonment. 

Don't tell anybody, apart from your lawyers, that you are being investigated or have received a summons, as this can itself be a serious criminal offence.

If you are summoned due to your role as a director or officer of your business, ask your insurance broker whether your policy covers the associated legal costs. Management liability insurance policies or directors' and officers' policies may offer cover for commissions and Royal Commissions, including legal advice and representation, as "Inquiries" or "Side C" cover. Some professional indemnity policies also contain similar cover. 

Toby Blyth and Julian Peake are lawyers in the insurance team at Colin Biggers & Paisley.

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