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This Act may be cited as the Royal Commissions Act 1902.
Without in any way prejudicing, limiting, or derogating from the power of the Sovereign, or of the Governor‑General, to make or authorise any inquiry, or to issue any commission to make any inquiry, it is hereby enacted and declared that the Governor‑General may, by Letters Patent in the name of the Sovereign, issue such commissions, directed to such person or persons, as he or she thinks fit, requiring or authorising him or her or them or any of them to make inquiry into and report upon any matter specified in the Letters Patent, and which relates to or is connected with the peace, order, and good government of the Commonwealth, or any public purpose or any power of the Commonwealth.
In this Act, unless the contrary intention appears:
authorised member hearing means a hearing of a Commission that is held as referred to in subsection 2(1A).
Commission and Royal Commission means any Commission of inquiry issued by the Governor‑General by Letters Patent under this Act or any other power, and includes the following persons sitting for the purposes of the inquiry:
in relation to an authorised member hearing—the member or members of the Commission holding the hearing;
in relation to a Commission that is constituted by 2 or more members (except if paragraph (a) applies)—the members of the Commission, or a quorum of those members;
in relation to a sole Commissioner—the Commissioner.
document includes any book, register or other record of information, however compiled, recorded or stored.
Finance Minister means the Minister administering the Public Governance, Performance and Accountability Act 2013.
Foreign Affairs Minister means the Minister administering the Diplomatic Privileges and Immunities Act 1967.
legal practitioner means a barrister, a solicitor, a barrister and solicitor, or a legal practitioner, of the High Court or of the Supreme Court of a State or Territory.
member, in relation to a Commission, means:
in the case of a Commission constituted by one person—that person; or
in the case of a Commission constituted by 2 or more persons—each of those persons.
member of the staff, of a Royal Commission, means any of the following:
an APS employee who performs functions or duties relating to, or for the purposes of, the Commission;
a person engaged by, or on behalf of, the Commonwealth as a contractor to perform functions or duties relating to, or for the purposes of, the Commission;
a person who:
is engaged, or employed, by a person to whom paragraph (b) or this paragraph applies; and
performs functions or duties for the Commission in connection with that engagement or employment;
a person who:
is a legal practitioner appointed by the Attorney‑General to assist the Commission; or
is appointed or otherwise engaged by, or on behalf of, the Commonwealth to assist the Commission as counsel.
reasonable excuse means:
in relation to any act or omission by a witness before a Commission—an excuse which would excuse an act or omission of a similar nature by a witness before a court of law; or
in relation to any act or omission by a person summoned as a witness before a Commission—an excuse which would excuse an act or omission of a similar nature by a person summoned as a witness before a court of law; or
in relation to any act or omission by a person served with a notice under subsection 2(3A) or (3C) or 6AA(3)—an excuse which would excuse an act or omission of a similar nature by a person served with a subpoena in connection with a proceeding before a court of law.
relevant Commission means a Commission established by Letters Patent that declare that the Commission is a relevant Commission for the purposes of the provision in which the expression appears.
In this Act, unless the contrary intention appears:
a reference to a requirement to produce a document includes a reference to a requirement to produce a part of the document; and
a reference to refusal or failure to produce a document includes:
if production of the whole of the document is required—a reference to refusal or failure to produce a part of the document; and
if production of a part of the document is required—a reference to refusal or failure to produce a part of that part of the document.
A reference in any other Act to a Royal Commission (being a Royal Commission established by the Governor‑General by Letters Patent under this Act or any other power) includes a reference to one or more members of a Commission holding an authorised member hearing.
Chapter 2 of the Criminal Code applies to all offences against this Act.
Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
A member of a Commission may summon a person to appear before the Commission at a hearing to do either or both of the following:
to give evidence;
to produce the documents, or other things, specified in the summons.
If a Commission is constituted by 2 or more members, a hearing of the Commission may be held by one or more members of the Commission if each of the members holding the hearing is either:
the President or Chair of the Commission; or
authorised in writing by the President or Chair of the Commission to hold authorised member hearings in relation to the Commission.
The following person presides at an authorised member hearing:
the President or Chair of the Commission;
if the President or Chair is not one of the members holding an authorised member hearing—the member of the Commission who is authorised in writing by the President or Chair to preside at the hearing.
The member of a Commission presiding at a hearing of the Commission may require a person appearing at the hearing to produce a document or other thing.
A Commission may, at a hearing, take evidence on oath or affirmation and for that purpose:
a member of the Commission may require a person appearing at the hearing to give evidence either to take an oath or to make an affirmation in a form approved by the member of the Commission presiding at the hearing; and
a member of the Commission, or a person who is an authorised person in relation to the Commission, may administer an oath or affirmation to a person so appearing at the hearing.
A member of a Commission may, by written notice served (as prescribed) on a person, require the person to produce a document or thing specified in the notice to a person, and at the time and place, specified in the notice.
A member of a Commission must not require, under subsection (3A), a person to produce a document or thing at a private session (within the meaning of Part 4).
A member of a Commission may, by written notice served (as prescribed) on a person, require the person to give information, or a statement, in writing to a person by the time, and at the place or in the manner, specified in the notice.
In this section, a reference to a person who is an authorised person in relation to a Commission is a reference to a person authorised in writing, or a person included in a class of persons authorised in writing, for the purposes of this section by:
in relation to an authorised member hearing—the member of the Commission presiding at the hearing; and
in relation to a Commission that is constituted by 2 or more members (except if paragraph (a) applies)—the President or Chair of the Commission; and
in relation to a sole Commissioner—the Commissioner.
For the purposes of sections 3, 6AA and 6AB, the power of a member of a Commission under this section to require or summon a person to produce a document includes the power to require or summon the person to produce a document that is subject to legal professional privilege.
Under section 6AA, legal professional privilege might still be a reasonable excuse for refusing or failing to produce the document.
Failure to attend
A person served, as prescribed, with a summons to appear as a witness at a hearing before a Commission shall not:
fail to attend as required by the summons; or
fail to attend from day to day unless excused, or released from further attendance, by a member of the Commission.
Penalty: Imprisonment for 2 years.
Subsection (1) does not apply if the person has a reasonable excuse.
Failure of witness to produce document or thing
A person appearing as a witness at a hearing before a Commission shall not fail to produce a document or other thing that the person was required to produce by a summons under this Act served on him or her as prescribed or that the person was required to produce by the member of the Commission presiding at the hearing.
Penalty: Imprisonment for 2 years.
Subsection (2) does not apply if the person has a reasonable excuse.
It is a defence to a prosecution for an offence against subsection (2) constituted by a failure to produce a document or other thing to a Commission if the document or other thing was not relevant to the matters into which the Commission was inquiring.
A defendant bears an evidential burden in relation to the matters in subsections (1B), (2B) and (3) (see subsection 13.3(3) of the Criminal Code).
Failure to produce document or thing as required by notice
A person served with a notice under subsection 2(3A) must not refuse or fail to produce a document or other thing that the person was required to produce in accordance with the notice.
Penalty: Imprisonment for 2 years.
Subsection (4) does not apply if the person has a reasonable excuse.
It is a defence to a prosecution for an offence against subsection (4) constituted by a refusal or failure to produce a document or other thing if the document or other thing was not relevant to the matters into which the Commission was inquiring.
A defendant bears an evidential burden in relation to the matters in subsections (5) and (6) (see subsection 13.3(3) of the Criminal Code).
Failure to give information or statement as required by notice
A person served with a notice under subsection 2(3C) must not refuse or fail to give information or a statement that the person was required to give in accordance with the notice.
Penalty: Imprisonment for 2 years.
Subsection (6A) does not apply if the person has a reasonable excuse.
It is a defence to a prosecution for an offence against subsection (6A) constituted by a refusal or failure to give information or a statement if the information or statement was not relevant to the matters into which the Commission was inquiring.
A defendant bears an evidential burden in relation to the matters in subsections (6B) and (6C) (see subsection 13.3(3) of the Criminal Code).
Matters into which Commission was inquiring
The references in subsections (3) and (6) to the matters into which the Commission was inquiring are, for a Commission that holds an authorised member hearing, references to the matters into which the Commission as a whole was inquiring.
A relevant Commission may authorise:
a member of the relevant Commission; or
a member of the Australian Federal Police, or of the Police Force of a State or Territory, who is assisting the relevant Commission;
to apply for search warrants under subsection (3) in relation to matters into which the relevant Commission is inquiring. The authorisation must be in writing.
Where:
a relevant Commission, or a person authorised by a relevant Commission under subsection (1A), has reasonable grounds for suspecting that there may be, at that time or within the next following 24 hours, upon any land or upon or in any premises, vessel, aircraft or vehicle, a thing or things of a particular kind connected with a matter into which the relevant Commission is inquiring (in this section referred to as things of the relevant kind); and
the relevant Commission, or the person, believes on reasonable grounds that, if a summons were issued for the production of the thing or things, the thing or things might be concealed, lost, mutilated or destroyed;
the relevant Commission, or the person, may apply to a Judge of a prescribed court for the issue of a search warrant under subsection (3).
Where an application under subsection (1) is made to a Judge of a prescribed court, the Judge may, if he or she is satisfied that there are reasonable grounds for issuing the warrant, issue a search warrant authorising a member of the Australian Federal Police or of the Police Force of a State or of the Northern Territory, or any other person, named in the warrant, with such assistance as the member or person thinks necessary and if necessary by force:
to enter upon the land or upon or into the premises, vessel, aircraft or vehicle;
to search the land, premises, vessel, aircraft or vehicle for things of the relevant kind; and
to seize any things of the relevant kind found upon the land or upon or in the premises, vessel, aircraft or vehicle and deliver things so seized to the relevant Commission.
There shall be stated in a warrant issued under this section:
a statement of the purpose for which the warrant is issued, which shall include a reference to the matter into which the relevant Commission is inquiring and with which the things of the relevant kind are connected;
whether entry is authorised to be made at any time of the day or night or during specified hours of the day or night;
a description of the kind of things authorised to be seized; and
a date, not being later than one month after the date of issue of the warrant, upon which the warrant ceases to have effect.
If, in the course of searching, in accordance with a warrant issued under this section, for things of a particular kind connected with a matter into which a relevant Commission is inquiring, the person executing the warrant finds:
any thing of another kind that he or she believes on reasonable grounds to be connected with that matter; or
any thing that he or she believes on reasonable grounds to be connected with another matter into which the relevant Commission is inquiring;
and he or she believes on reasonable grounds that it is necessary to seize that thing in order to prevent its concealment, loss, mutilation or destruction, the warrant shall be deemed to authorise the person to seize that thing.
The references in this section to a relevant Commission do not include references to one or more members of a Commission holding an authorised member hearing.
A reference in this section to a Judge of a prescribed court shall be construed as a reference to:
a Judge of the Federal Court of Australia; or
a Judge of a court of a State or Territory (other than a Judge, or an acting Judge, of the Local Court of New South Wales or of the Local Court of the Northern Territory).
In this section, thing includes a document.
An application for a search warrant under subsection 4(1) may be made by telephone if the applicant for the warrant considers it necessary to do so because of circumstances of urgency.
Where a Judge issues a search warrant upon an application made by telephone, the Judge shall:
complete and sign that warrant;
inform the applicant of the terms of the warrant and the date on which and the time at which it was signed; and
forward a copy of the warrant to the applicant.
Where a search warrant is issued upon an application made by telephone, a member of the relevant Commission, a member of the staff of the relevant Commission mentioned in paragraph (d) of the definition of member of the staff in subsection 1B(1) or a member of the Australian Federal Police or of the Police Force of a State may complete a form of warrant in the terms indicated by a Judge under subsection (2).
A form of warrant duly completed in accordance with subsection (3) shall be deemed to be a warrant issued under section 4.
If any person appearing as a witness before the Commission refuses to be sworn or to make an affirmation or to answer any question relevant to the inquiry put to him or her by any of the Commissioners, the person commits an offence.
Penalty: Imprisonment for 2 years.
It is not a reasonable excuse for the purposes of subsection 3(2B) or (5) for a person to refuse or fail to produce a document that the document is subject to legal professional privilege, unless:
a court has found the document (or the relevant part of the document) to be subject to legal professional privilege; or
a claim that the document (or the relevant part of the document) is subject to legal professional privilege has been made, to the member of the Commission who required production of the document:
within the time that the member of the Commission, in requiring production of the document, allowed for its production; or
within such further time as the member of the Commission allows for production of the document.
If such a claim is made, the member of the Commission who required production of the document may decide whether to accept or reject the claim.
The member of the Commission may, by written notice served (as prescribed) on a person, require the person to produce the document for inspection (by the member of the Commission or a person authorised by the member of the Commission) for the purpose of deciding whether to accept or reject the claim.
If the document has been produced for inspection and the member of the Commission decides to accept the claim, the Commission must:
return the document to the person; and
disregard, for the purposes of any report or decision that the Commission makes:
if the claim is accepted in relation to the whole document—the whole document; or
if the claim is accepted in relation to a part of the document—that part of the document.
If the document has been produced for inspection and the member of the Commission decides to reject the claim, the Commission may use the document for the purposes of the inquiry.
Without limiting subsections (3) and (5), the powers of a member of a Commission, or a Commission, under section 2 apply, by force of this subsection, in relation to deciding whether to accept or reject the claim.
A person commits an offence if:
the person had refused or failed to produce a document as required by a member of a Commission under section 2; and
the member of the Commission has decided under subsection 6AA(2) to reject a claim that the document (or the relevant part of the document) is subject to legal professional privilege; and
the person refuses or fails to produce the document as the member of the Commission requires, after that decision, under section 2.
Penalty: Imprisonment for 2 years.
A person commits an offence if the person refuses or fails to produce a document that the person was required under subsection 6AA(3) to produce for inspection.
Penalty: Imprisonment for 2 years.
Subsections (1) and (2) do not apply if the person has a reasonable excuse.
It is not a reasonable excuse for the purposes of subsection (4) for a person to refuse or fail to produce a document that the document is subject to legal professional privilege, unless a court has found the document to be subject to legal professional privilege.
It is a defence to a prosecution for an offence against this section constituted by a refusal or failure to produce a document if the document was not relevant to the matters into which the Commission was inquiring.
A defendant bears an evidential burden in relation to the matters in subsections (4) and (6) (see subsection 13.3(3) of the Criminal Code).
The reference in subsection (6) to the matters into which the Commission was inquiring is, for a Commission that holds an authorised member hearing, a reference to the matters into which the Commission as a whole was inquiring.
It is not a reasonable excuse for the purposes of subsection 3(2B) or (5), or section 6AB, for a natural person to refuse or fail to produce a document or other thing on the ground that the production of the document or other thing might tend to:
incriminate the person; or
make the person liable to a penalty.
It is not a reasonable excuse for the purposes of subsection 3(6B) for a natural person to refuse or fail to give information or a statement that the person is required to give under subsection 2(3C) on the ground that giving the information or statement might tend to:
incriminate the person; or
make the person liable to a penalty.
A natural person is not excused from answering a question that the person is required to answer by a member of a Commission on the ground that answering the question might tend to:
incriminate the person; or
make the person liable to a penalty.
Subsections (1), (1A) and (2) do not apply to the production of a document or other thing, the answer to a question or the giving of information or a statement if:
the production, answer, information or statement might tend to incriminate the person in relation to an offence; and
the person has been charged with that offence; and
the charge has not been finally dealt with by a court or otherwise disposed of.
Subsections (1), (1A) and (2) do not apply to the production of a document or other thing, the answer to a question or the giving of information or a statement if:
the production, answer, information or statement might tend to make the person liable to a penalty; and
proceedings in respect of the penalty have commenced; and
those proceedings have not been finally dealt with by a court or otherwise disposed of.