A review of the Royal Commissions Act 1917 (the Act) was carried out by The Honourable Ann Vanstone QC in February 2020. In her review, Ms Vanstone examined and compared legislative models from New South Wales, Victoria, the Commonwealth and New Zealand.
A summary of the key points is provided below, or you can download as a Royal Commissions Act 1917 Report Summary PDF.
Chapter 1: Comparison with Other Models
- The Victorian, New South Wales and Commonwealth Acts were used as comparative models for the purposes of the review of the Act.
- The Act is sparse; the New South Wales Act also follows a leaner drafting style, the major amendment being a provision for the conferral of ‘special powers’ (i.e. it not being a reasonable excuse to decline to answer a question or produce a document on the basis of self-incrimination etc.) on a Commissioner who is a Judge or former Judge of a superior court, or is qualified to be so.
- The Victorian and Commonwealth Acts are more prescriptive, appearing to be written in the nature of codes, but the additional provisions are the result of a drafting style rather than necessity.
Chapter 2: Children in State Care Inquiry Act
- Most of the additional provisions setting out powers and protections in the Commission of Inquiry (Children in State Care and on APY Lands) Act 2004 (SA) (the State Care Act) build on the provisions of the Act.
- None of the additional provisions in the State Care Act should be incorporated into the Act
Chapter 3: Coercive Powers
The powers of a Royal Commission be expanded by generally abrogating protections claimed by witnesses including:
- the privilege against self-incrimination; legal professional privilege; public interest immunity; and the operation of statutory secrecy.
- The power of a Royal Commission to enter upon, and inspect, land be replaced by the power to apply to a Magistrate for a search warrant.
- A Royal Commission’s power to require production of documents etc. be supplemented by the words ‘or other thing’.
- A power be created to require the production of information in a specified form.
- All levels of inquiry be given the power to refer any question of law to the Supreme Court.
Chapter 4: Prohibiting Publication and Otherwise Restricting Access
- A Royal Commission’s power to make a non-publication order be extended to include ‘information’ in any form, and it be made explicit that these orders survive the completion of the Commission.
- A Royal Commission be given the power to seal evidence, information, and materials where they are particularly sensitive.
- A right to review a non-publication order or a sealing order be provided for after a Royal Commission or second tier inquiry has delivered its report.
- A duty be imposed on a Royal Commission to deliver with its records a register containing details of all non-publication/sealing orders with a description and brief reasons.
Chapter 5: Extraterritorial Reach
- Pursuant to s 118 of the Constitution, the Service and Execution of Process Act 1992 (Cth), and the coercive powers in s 10 of the Act and in addition to leave being granted by the Supreme Court of South Australia, a person of another jurisdiction, generally, will be obliged to answer questions or produce documents if summonsed by a South Australian Royal Commission under s 10 of the Kirk v Industrial Court (NSW) (2010) 239 CLR 531.
- However, there is a reluctance within a federation to compel the officials of a government from one jurisdiction to appear before those of another – intergovernmental immunity.
- The states also do not have the power to legislate so to affect or limit the prerogatives, property or revenues of the Commonwealth Crown.
It is recommended that the Act contain a provision to the effect of the proposed s 3A of the Royal Commissions (Extraterritorial Application) Amendment Bill 2018 which reads:
- ‘This Act applies outside South Australia to the full extent of the extraterritorial legislative power of the Parliament’ – the South Australian Parliament can do no more to ensure extraterritorial reach.
Chapter 6: Alternative Forms of Inquiry
The Act should be replaced by a new Act, the Inquiries Act, providing for three tiers of inquiry as follows:
- Royal Commission, established by the Governor by letters patent (its powers expanded by the recommendations made in this Review);
- Commission of Inquiry, established by the Governor in Council (its power limited to the powers of a current Royal Commission as varied but not expanded); and
- Government Inquiry, established by the Premier (its powers based upon those of a Formal Review as provided for in the Victorian Act, the hallmarks of which are that there are no coercive powers, or the power to take evidence).
Chapter 7: Privative Clauses
- After the decisions in Kirk v Industrial Court (NSW) (2010) 239 CLR 531 and Kaldas v Barbour (2017) 326 FLR 122, and the determination in Kirk that legislation which purports to deprive a State Supreme Court of its authority to grant relief against jurisdictional error committed by an inferior court or tribunal, or the Executive, is beyond the power of a State Parliament, it is recommended that no privative clause be included in the new Act.
Chapter 8: Prosecution of Offences
- A series of offences dealing with failing to comply with a requirement of a Royal Commission or Commission of Inquiry be created akin to s 29 of the New Zealand Act.
- The power to punish for contempt of a Royal Commission be removed from the Royal Commission to the Supreme Court.
- A Commissioner be entitled to apply to the Supreme Court so that the Court may deal with a charge of contempt but a Commission be given power to expel disruptive persons.
Chapter 9: Previous Recommendations
- No recommendations suggesting the reform of the Act were located in the reports of nine previous South Australian Royal Commissions constituted under the Royal Commissions Act.
- Proceedings resulting from, or brought against, three previous South Australian Royal Commissions, which were discussed in three respective reports, highlighted the need for clarity in the legislation (particularly with respect to the powers of Royal Commissions), as do the recommendations made by the report of the 2009 Victorian Bushfires Royal Commission made prior to the enactment of the Victorian Act.
Chapter 10: Consequential Amendments
- Several additional South Australian Acts purport to confer the powers of a Royal Commission upon various investigative or arbitrative bodies by directly importing those powers.
- It is recommended that those Acts be amended so that the powers conferred are those of the second tier inquiry rather than that of a Royal Commission.