A correspondent from Victoria asks:

What is the differences between a Parliamentary Inquiry, Board of Inquiry, Royal Commission and the various jurisdictions (Criminal, Civil, Coroner) in Victorian Courts?  In particular it would be interesting to understand how each is established, how they treat evidence/witnesses/expert witnesses and the powers that each body has in relation to prosecutions/compelling witness testimony/making recommendations etc.

From a Victorian context this would be particularly interesting given the recent history of the 2009 Victorian Bushfires Royal Commission, Hazelwood Mine Fire Inquiry, the class action into the 2009 Victorian Bushfires and the Parliamentary Inquiry into the CFA Training College at Fiskville, Parliamentary inquiry into flood mitigation infrastructure in Victoria and the Review of the 2010-11 Flood Warnings and Response.

Each of these processes has or is providing much fevered speculation (and gossip) within the emergency management sector in Victoria, however I feel that my colleagues and I actually have no idea about what these bodies actually do.

Inquiries

In our paper, ‘Learning Lessons from Disasters: Alternatives to Royal Commissions and Other Quasi-Judicial Inquiries’ ((2015) Australian Journal of Public Administration (Online) DOI: 10.1111/1467-8500.12115) Professor Stephen Dovers and I wrote (footnotes omitted):

Governments have a number of options for inquiring into and learning lessons from events. Departmental inquiries, inquiries under existing legislation, Ministerial, and Parliamentary inquiries may all be used to investigate and report on matters of interest to the Government. The most significant, prestigious, and independent option open to government is a Royal Commission. A Royal Commission is an ad hoc inquiry established by the Government to inquire into specified matters. In all Australian states, other than Victoria, legislation governs the establishment, power, and authority of a Royal Commission. The defining features of a Royal Commission are as follows:

  • the Commission, although established by the Government, is commissioned by the Governor General (Commonwealth) or the Governor (States) and is therefore independent of Government;
  • except in Victoria, Royal Commissions enjoy special coercive powers; they can require people to attend to give evidence and produce documents even where the evidence they produce might incriminate them, that is suggest that they are guilty of a crime; and
  • hearings tend to be in public and witness may be examined and cross-examined by counsel assisting the commission as well as counsel who have been granted leave to appear to represent the interests of parties who may be affected by the outcome of the inquiry.

The use of Royal Commissions to inform policy development has decreased and they are now, primarily, used to investigate ‘allegations of impropriety, maladministration and major accidents’.

A parliamentary inquiry is established by the Parliament when it wants to inform itself on matters of interest to the Parliament.    In Clough v Leahy (1904) 2 CLR 139, when considering the power of a government to appoint a Royal Commission, Griffith CJ said

The power of inquiry, of asking questions, is a power which every individual citizen possesses, and, provided that in asking these questions he does not violate any law, what Court can prohibit him from asking them? He cannot compel an answer; and, if he asks a question and gets an answer which is defamatory of anybody else, and the circumstances are such that the occasion is not privileged, the person who utters the words is liable to the consequences of an unlawful publication of defamatory matter… every person is free to make any inquiry he chooses; and that which is lawful to an individual can surely not be denied to the Crown, when the advisers of the Crown think it desirable in the public interest to get information on any topic.

Applying that to the Parliament, provided the Parliament is acting within the scope of its authority it can set up an inquiry into any matter it likes.  The website of the Australian Parliament (http://www.aph.gov.au/About_Parliament/Work_of_the_Parliament/Parliament_at_Work/Parliamentary_Privilege) says:

Each house has the power to require the attendance of persons and the production of documents and to take evidence under oath. This power supports one of the major functions of the houses: that of inquiring into matters of concern as a necessary preliminary to debating those matters and legislating in respect of them. The power is dependent upon the power to punish contempts, by which the houses may enforce the attendance of witnesses, the answering of questions and the production of documents.

A ‘Board of Inquiry’ may be established under existing legislation, eg the Defence (Inquiry) Regulations 1985 (Cth) makes provision for the appointment of Boards of Inquiry.  They are appointed by the Chief of the ADF or the Chief of one of the services so their terms of reference are set by the appointing authority.  The inquiry into the Hazelwood Mine fire was also established as a Board of Inquiry.  At the time Victoria did not have ‘inquiry’ legislation but relied on s 88C of the Constitution which said

The Governor in Council has, and is to be taken always to have had, the power to appoint a board for the purpose of inquiring into such matters as are specified by the Governor in Council.

That, rather unhelpfully, did not explain what powers a Board of Inquiry had or how it differed from a Royal Commission.  Today there is the Inquires Act 2014 (Vic) which provides for both Royal Commissions and Boards of Inquiry.  Fundamental differences are:

  1. A Royal Commission can issue search warrants and seize documents and things (Part 2; Division 6), and
  2. The right to refuse to answer questions on the basis that to do so would reveal confidential legal communication or would incriminate the witness in a criminal offence do not apply before a Royal Commission Part 2; Division 7).

Coroners hold inquiries (into fires) and inquests (into deaths).   The office of the Coroner is one of the oldest in English law dating back to the 12th century. Today Australian coroners investigate deaths and, except in Queensland and Western Australia, fires and other accidents or disasters. The decision to hold an inquest or inquiry and to determine the scope of that investigation is a matter for the coroner, not the government.

What is fundamental about all of these process is that they are fact finding inquiries; they have no capacity to find anyone guilty of an offence, to order the payment of compensation or to adjust the legal rights of anyone involved in proceedings.

Because none of these bodies are courts, they are not bound by the rules of evidence (see in particular Inquires Act 2014 (Vic) s 14 (Royal Commissions) and s 61 (Boards of Inquiry) and Coroners Act 2008 (Vic) s 62).  Because they are not bound by the rules of evidence and because people may be compelled to answer questions that would incriminate them, it is the case that answers given in these proceedings are not admissible in any subsequent court proceedings (Inquires Act 2014 (Vic) ss 40 and 80; Coroners Act 2008 (Vic) s 57; see also Matthws v SPI Electricity (No. 3) [2011] VSC 399 discussed in my post ‘More from the Black Saturday litigation’ (September 6, 2011)).

These bodies may make recommendations based on their inquiries but they are not binding; that is no one is obliged by law to implement them.  Of course most institutions do and governments may well commit themselves to implement the recommendations of high powered and high profile inquiries, but they are not legally required to do so.  Agencies may also look at recommendations and decide they are not helpful, or affordable, or still relevant in which case they may be ignored.

Courts

Courts are different.   Courts are standing bodies (that is they do not have to be established on a case by case basis) and they are open to allow parties to bring disputes for resolution.  That means governments can be taken to court like anyone else rather than being in control of the proceedings.  Courts are adversarial.  Although we hope they will determine ‘the facts’ they are required to adjudicate on issue put before them by the parties.  They do not conduct their own investigation and have to rule on the allegations made and evidence presented.   In that situation the truth may not be the winner as it may not be the issue; for example in a criminal trial the court’s job is to decide whether the Crown has proved, beyond reasonable doubt, that the accused committed the offence with which he or she has been charged.  If there is some doubt it is not the Court’s job to determine who in fact committed the offence or whether the accused is guilty of some other offence (subject to some specific statutory rules that do allow a court to substitute a lesser offence if satisfied of the accused’s guilt of that offence but not of the more serious offence charged.  That means a person charged with assault causing actual bodily injury could be acquitted of that offence but convicted of the less serious offence of ‘assault’).

The essential rule in a criminal trial was set out in 1935 in the case of Woolmington v DPP [1935] AC 462 where Lord Sankey said:

Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt … If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner … the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.

Unfortunately attempts to whittle down that rule are made but, subject to any specific statutory rules, a person is presumed to be innocent of the offence charged unless and until the Crown satisfies the judge or jury (if there is one) of the accused’s guilt.  The court must be satisfied of the accused’s guilt ‘beyond reasonable doubt’.

In criminal cases the matter is between the State or the Crown and the individual accused.  In civil courts the matter is between two parties though one of those parties may still be the government.  If a person is convicted of a crime they are punished, by orders to pay fines or orders that restrict their freedom.  If a person is found to have committed a civil wrong they may be ordered to pay compensation to make good the harm they have done, or they may be ordered to stop doing whatever they are doing that is wrong or a nuisance.   In a civil case the plaintiff must prove the case ‘on the balance of probabilities’ that is they must convince the court that it is more likely than not that things happened the way they allege.

What sets the courts apart from inquiries is:

  1. They are adversarial, the court sits as a referee of the contest between the parties; it is not inquisitorial, that is making its own investigations.
  2. A court can adjust rights – a court can order a person to pay compensation, a fine or go to gaol;
  3. Because courts can affect the rights of the parties they are bound by the rules of evidence. The rules of evidence may exclude evidence that some people may think is relevant to the issue at hand but for reasons of policy have been held to be inadmissible, eg a confession obtained by torture cannot be used even if it does tend to suggest the accused’s guilt because the price paid to obtain that evidence is too high.
  4. Because a court is bound by the rules of evidence a court cannot require a person to answer a question that would suggest their own guilt, nor can it require a person to disclose confidential communication between lawyer and client (Evidence Act 2008 (Vic) s 118 and 128. There are other privileges too such as Professional confidential relationship privilege; Sexual assault communications privilege; Journalist privilege; privilege in Religious Confessions and public interest exceptions).

A court does not make recommendations though, hopefully, if a judge rules on issues such as whether a hospital was negligent, there will be some learning from his or her conclusions, but given most cases settle, most of the time the court will make no relevant findings on what happened or how to prevent a future occurrence.

Conclusion

The answer to my correspondent’s questions can be given in the table attached <Inquiries table>.  It should be noted of course that this discussion (as all on this blog) and the attached table are speaking generally and there are variations across the legislation and the jurisdictions.  For example even in a court a person can be compelled to answer questions that may incriminate them but they are given a certificate that means the answers cannot be used in subsequent proceedings (Evidence Act 2008 (Vic) s 128).   Accordingly the information given here is a ‘broad brush’ overview and does not delve into the precise details but does draw out the key distinctions between the various institutions.