Author: Nyman Gibson Miralis
Subject: Royal Commissions
Keywords: Royal Commissioner, terms of reference, coercive powers
A Royal Commission is a formal public inquiry into an issue of considerable importance and public concern, and the commission has vast investigative powers to carry out its work. Some of the key factors that afford a Royal Commission this level of power include the terms of reference of the commission, as well as the Royal Commissioner/s heading the Commission.
Terms of Reference
The terms of reference is a document prepared by the Government that formally defines the powers of the Royal Commission. It also specifies a date by which the commission must complete its inquiry, as well as the due dates for delivering reports of findings.
Royal Commissioners are often notable retired or serving judges, with a significant level of power and influence. Some of the activities they typically engage in as part of a Royal Commission include:
- Researching the particular issue being investigated
- Consultations with various experts (both government and non-government)
- Public consultations
- Summoning witnesses and gathering information
How does a Royal Commission conduct a Hearing?
A Royal Commission can take evidence in a number of ways for different purposes, including conducting formal hearings. Hearings may either be open or closed, or restricted to a certain class of persons. Evidence given in a closed hearing will not be made publically available and will be used in a way that protects an individual’s identity.
Royal Commissions can refer information about suspected or alleged crimes to relevant law enforcement authorities or share relevant information with other ongoing inquiries.
What Coercive powers does a Royal Commission have?
The Royal Commission has broad powers to gather information and assist with its investigations and inquiries. These are sometimes called coercive powers because they can compel an individual to participate in the inquiry.
The Royal Commission has the power to:
- summons witnesses to appear before it and require them to answer questions under oath or affirmation, and
- summons witnesses to produce a document or other material piece of evidence.
If summoned, there are very few grounds on which a person can refuse to give evidence to a Royal Commission. Failure to comply with a summons issued by a Royal Commission may result in an individual receiving a fine or in some circumstances imprisonment.
In some circumstances a search warrant and/or arrest warrant might be issued if a person fails to comply with a summons.
It is an offence to intentionally provide false or misleading evidence to a Royal Commission or by intentionally insulting or disturbing it.
What is the distinction between a Court and a Royal Commission?
It is important to note that whilst Royal Commissions have some of the appearances of courts, they are not courts and do not exercise judicial power. Royal Commissions can refer information about suspected or alleged crimes to relevant law enforcement authorities or share relevant information with other ongoing inquiries.
A Royal Commission and the appointed Royal Commissioner/s have considerable powers, generally greater even than those of a judge but restricted to the terms of reference of the Commission. In practice, once a Commission has started the government cannot stop it. Therefore, governments are usually very careful about drafting the terms of reference and including in them a date by which the commission must conclude.
Nyman Gibson Miralis specialise in all aspects of Royal Commission-related investigations. If you require assistance, contact one of our expert criminal defence lawyers