If you have been contacted or summonsed to give evidence, or to produce documents, to a Royal Commission or similar public inquiry, you may be uncertain about what to expect and what your rights are. A Royal Commission hearing can look and feel like a courtroom, but many of the ordinary rules that apply in a criminal or civil trial do not apply in the same way.

At Angus Cameron and Partners, we advise individuals and organisations who become involved in Royal Commissions and other public inquiries, from initial advice through to attendance at hearings.

Every Royal Commission is a little different, and the rules that apply depend on the specific legislation or instrument that establishes it. Below is a general guide to how Royal Commissions work, and what to consider if you are contacted by one.

What Is a Royal Commission?

A Royal Commission is a formal, high-level public inquiry established by government into a matter of significant public importance. It is typically established by Letters Patent which sets out its terms of reference and appoints one or more Commissioners (often a former judge) to conduct the inquiry:

  • Similar inquiries are sometimes established under other names, such as a Board of Inquiry or a Commission of Inquiry, and often operate under broadly similar rules and powers, even though they are not formally called a “Royal Commission”.
  • Royal Commissions exist to investigate and report on matters of public concern, and to make findings and recommendations to government — not to determine criminal guilt or civil liability.

How Is a Royal Commission Different From a Court Case?

Royal Commissions are inquisitorial, not adversarial. Rather than two opposing parties presenting a case, the Commissioner (often assisted by Counsel Assisting the Commission) directs the inquiry and questions witnesses:

  • A Royal Commission cannot convict a person of a crime or impose a civil penalty. Its role is to make findings of fact and recommendations, which government may or may not act on.
  • If evidence given to a Royal Commission suggests criminal conduct, the Commission can, and often does, refer that evidence to police or another prosecuting authority for further investigation.
  • Royal Commissions generally have significant powers to compel witnesses to attend, give evidence, and produce documents — powers that are often broader than those available in ordinary civil litigation.

Being Summonsed to Give Evidence

If you are summonsed to appear before a Royal Commission, or asked to produce documents, it is important to read the summons carefully and understand exactly what is being asked of you, and by when:

  • Failing to comply with a summons, without a reasonable excuse, is usually a criminal offence.
  • We will review any summons or request with you, and advise you on what it requires and how best to respond.

Legal Representation

You are generally entitled to be legally represented at a Royal Commission hearing, although the extent of that representation — for example, whether your lawyer can cross-examine other witnesses — is usually a matter for the Commissioner's discretion:

  • We can advise and represent you throughout your involvement with a Royal Commission, including in preparing a witness statement, preparing for a hearing, and appearing with you at the hearing itself.

Self-Incrimination and Other Protections

Many Royal Commissions have the power to require a witness to answer questions, or produce documents, even where doing so might tend to incriminate the witness. This is different from the position in an ordinary court case, where a witness can usually refuse to answer on that basis:

  • Where this occurs, the legislation establishing the Commission will often provide a form of “use protection” — meaning an incriminating answer generally cannot be used against the witness in later criminal proceedings — although the precise scope of that protection, and its exceptions, depends on the legislation establishing the particular Commission.
  • Other privileges, such as legal professional privilege, may still be available, though this also depends on the specific inquiry.
  • Because the rules differ from one Royal Commission to the next, it is important to get advice on the specific rules that apply to the inquiry you are involved with, before you give evidence.

Confidentiality and Public Hearings

Royal Commission hearings are sometimes held in public and sometimes in private, and the Commission may make orders restricting what can be published about the evidence given, particularly where it is sensitive or confidential. We can advise you on any confidentiality or non-publication orders that may apply to your evidence.

Frequently Asked Questions

Do I have to attend if I am summonsed by a Royal Commission?

Generally, yes. If you receive a formal summons and do not have a reasonable excuse for non-compliance, failing to attend or to produce required documents is usually a criminal offence.

Can I refuse to answer a question because it might incriminate me?

Not usually, at least not in the way you can in an ordinary court case. Most Royal Commissions abrogate the privilege against self-incrimination, though a use protection — preventing your answer being used against you in later criminal proceedings — commonly applies. The precise position depends on the legislation establishing the particular Commission, so it's important to get advice before you give evidence.

Can a Royal Commission find me guilty of a crime?

No. A Royal Commission cannot convict anyone of a criminal offence or impose a civil penalty. It can make findings of fact and recommendations, and can refer evidence of possible criminal conduct to police or another prosecuting authority.

Can I have a lawyer with me at a Royal Commission hearing?

Generally, yes. You are usually entitled to legal representation, although the Commissioner has discretion over some aspects of that representation, such as whether your lawyer can cross-examine other witnesses.

Will my evidence be made public?

It depends on the Commission and the nature of the evidence. Some hearings are held in public and some in private, and the Commission may make orders restricting publication of particularly sensitive evidence.

What if I am asked to produce documents rather than give oral evidence?

The same general principles apply. You should read any request or summons carefully and get advice on what is required, particularly if the documents may be confidential, privileged, or incriminating.

I've been contacted informally, not with a summons — do I still need legal advice?

Yes, it's worthwhile. Being asked to assist a Royal Commission informally — for example, by way of a request for a witness statement — can still have serious consequences, and it helps to understand your position before you respond.

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