SA Releases Draft of Bill Reforming Royal Commissions & Inquiries

Thursday 25 February 2021 @ 7.50 a.m. | Crime | Judiciary, Legal Profession & Procedure | Legal Research

In a media release dated 12 February 2021, SA Attorney-General Vickie Chapman announced that a draft Inquiries Bill ("the draft Bill") had been released to encourage South Australians to have their say on proposed changes to SA's Royal Commission laws. The media release reports the Attorney-General saying that the changes would ensure South Australia had a modern, robust scheme in the future for managing important investigations and inquiries:

"Royal Commissions are a vital part of our democracy - they help us identify serious, systemic issues as well as the steps we can take to fix them... However, it's clear we need more flexibility in how they operate... These proposed reforms act on the recommendations of former Supreme Court Justice and current Independent Commissioner Against Corruption, the Honourable Ann Vanstone in her review of the Royal Commissions Act 1917 - delivering a system that is more flexible and can carry out more comprehensive investigations into matters of public interest." 

The draft Bill repeals the Royal Commissions Act 1917 (SA) and replaces it with a three tiered inquiry structure:

  • Royal Commissions - established by the Governor by letters patent (with powers expanded by the recommendations made in the Vanstone Review);
  • Commissions of Inquiry - established by the Governor in Council (with its power limited to the powers of a current Royal Commission as varied but not expanded); and
  • Government Inquiries - established by the Premier (with their powers based upon those of a Formal Review, the hallmarks of which are no coercive powers, or the power to take evidence).

The proposed tiers of inquiry would allow for inquiries that would not need or require the full force of a Royal Commission, thus providing greater flexibility and simplifying the establishment of inquiries.

Overview of the Vanstone Report's Recommendations 

A review of the Royal Commissions Act 1917 (the RC Act) was carried out by the Honourable Ann Vanstone QC in February 2020. As part of that review, legislative models from NSW, Victoria, the Commonwealth and New Zealand were examined and compared.

The report found that the SA RC Act is sparse and that the New South Wales Act similarly follows a leaner drafting style, with the major difference being a provision for the conferral of "special powers" on a Commissioner who is a Judge or former Judge of a superior court, or is qualified to be so.  Special powers include making it not a reasonable excuse to decline to answer a question, or produce a document on the basis of self-incrimination.

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. 

In terms of powers, 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) were found to build on the provisions of the SA RC Act and none of the additional provisions in the State Care Act should be incorporated into the reformed Act.

Key recommendations as to "coercive powers" were that:

  • 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; and
  • all levels of inquiry be given the power to refer any question of law to the Supreme Court.

On prohibiting publication and restricting access, the recommendations were that:

  • 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.

Submissions and feedback on the draft Bill can be made at the YouSAy website by Friday, 9 April 2021 at 5:00 PM.

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