Currently, there are two large national Royal Commissions conducting inquiries in Australia:
• Royal Commission into Aged Care Quality and Safety
• Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability.
Over the next few months, we will publish a series of articles which provide practical guidance on interacting with a Royal Commission.
One of the tasks of a Royal Commission is to gather information and evidence. One of the main ways they do this is to issue a summons requiring a person or an organisation to produce documents.
It is important that your organisation fully complies with any summons issued to it by a Royal Commission. Under the Royal Commissions Act 1902 (Cth) (Act) and each of the relevant State acts it is either an offence or contempt to refuse or fail to produce a document or other item required to be produced in accordance with the summons.
Further, non-compliance or tardy compliance with a summons may also result in your organisation being publicly criticised by the Royal Commission. A number of organisations were criticised for this during the recently concluded Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry.
What you need to consider if required to produce documents:
Carefully review the scope of the summons
The scope of the summons will vary. Sometimes the Royal Commission is looking for very specific information and documents, for example documents relating to a specific incident or a particular policy. On other occasions, it may be looking for a broader range of information, for example information about all incidents of a certain nature during a set time period.
Identify potentially relevant documents
You will need to think carefully about the possible locations where these documents might be kept for example, hard copy files both at central office and at any local offices, electronic databases, shared drives, email boxes and archived files.
For hard copy documents, these will need to be retrieved from their locations.
For electronic documents, you will likely need to carefully formulate search terms so that a potentially relevant sub-set of electronic documents can be identified.
Review documents for relevance
Once all potentially relevant documents have been located and retrieved, you will need to review them to identify the relevant documents that will need to be produced.
Consider whether a claim for privilege is necessary
Where relevant documents have been identified, you will need to consider whether any of these documents are subject to legal professional privilege.
It is important to note that in relation to the Disability Royal Commission, whether or not you will be entitled to make a claim for legal professional privilege will depend upon the legislation under which the particular summons or notice to produce was issued. If, for example, the summons or notice to produce is issued under the NSW legislation, then the producing party cannot refuse to produce a document on the basis that it is subject to legal professional privilege (see s 17(1) of the Royal Commissions Act 1923 (NSW)). Accordingly, it is important to carefully consider the legislation under which the summons or notice to produce has been issued.
If privileged documents are located and assuming the summons is issued under the Act or under State legislation which permits claims for legal professional privilege, then you will need to follow the process for making a privilege claim which is set out in the legislation.
The Aged Care Royal Commission and the Disability Royal Commission have both separately published Practice Guidelines which sets out in detail the process that must be followed for making a claim for legal professional privilege. In both Royal Commissions, the relevant document is Practice Guideline 2.
It is important to note that you will likely need to provide evidence and submissions in support of your privilege claim. It will not be sufficient to merely assert that the documents are privileged.
The Royal Commission will inform you whether or not your claim has been accepted or rejected. If the claim is accepted, the documents do not need to be produced. If the claim is rejected, the documents will need to be produced.
In order to make this decision, the Royal Commission may inspect the documents. If the Royal Commission reviews the documents and upholds the privilege claim, the documents will be returned and will be disregarded for the purposes of any decision or report made by the Royal Commission.
Consider whether any other claims need to be made in relation to the documents
If you are a government organisation in particular, there may be other types of claims that may need to be made in respect of certain documents. This includes claims for confidentiality, parliamentary privilege, public interest immunity or as a result of secrecy provisions contained in specific pieces of legislation.
If any such claims need to be made, you will need to follow the process that has been prescribed by the Royal Commission in the relevant Practice Guideline.
Produce the documents
You will need to produce the relevant documents to the Royal Commission within the time period specified in the summons.
Each Royal Commission will usually prescribe the manner in which it requires organisations to produce documents.
The Aged Care Royal Commission has published a Document Management Protocol which sets out the manner in which documents are to be provided. The Protocol contains very specific requirements regarding the form of the documents, the requirements for the accompanying electronic index and the required coding and meta-data. It is important that documents are produced in accordance with the prescribed protocol.
Disability Royal Commission has also indicated that it will publish a Document Production Guideline which will include a Document Management Protocol.
For a deeper dive into the issues surrounding Royal Commissions, Statutory Inquiries & Investigations, download your copy of Ready & Responsive: A Guide to Royal Commissions, Statutory Inquiries & Investigations. The guide provides insights on how organisations should prepare for, and respond to, Royal Commissions and other inquiries.
|Norman Lucas | Partner
T +61 2 9291 6177
|Mark Henry | Partner and Chairman
T +61 3 9258 3535
|Erin Hourigan | Senior Associate
T +61 2 9291 6308