Responding to a notice issued by a royal commission

About notices

If a royal commission thinks your evidence will help its inquiry, it will issue a notice to give information or a statement (called a “notice to give”) or to produce documents or things (called a “notice to produce”). It is a criminal offence not to comply with a notice unless you have a reasonable excuse.

The notice will outline what is being requested and include details about when, where and how the information is to be given or the documents or things are to be produced. For example, the notice may include details of how to provide a statement or documents electronically. The notice may also include a copy of the Letters Patent, which is the document establishing the royal commission and providing its terms of reference.

If you receive a notice from a royal commission you should do a thorough search for relevant information or documents as soon as possible. You may also want to get legal advice or have a lawyer assist with the response.

In some cases, you may have information that you want to share with a royal commission. If so, you can ask the royal commission to issue you with a notice. This will mean you can receive some legal protections under the notice.

Non-publication directions

A royal commission can direct that certain evidence is not published.

If you do not want your evidence published you must tell the royal commission as soon as possible so it can decide whether to make a non-publication direction. In making this decision, the royal commission may consider whether the public interest in making the matter public is outweighed by the interest in protecting your privacy.

Legal protections

If you receive a notice from a royal commission, you have legal protections under the Royal Commissions Act 1902.

Generally, information you give to a royal commission cannot be used against you in any civil or criminal proceedings in an Australian court. However, if a royal commission receives information that relates to a law being broken, it can pass that information on to the relevant authorities. This may lead to a different investigation about whether a law has been broken.

It is against the law for someone to stop you from responding to a notice issued by a royal commission or to injure, punish or disadvantage you from doing so.

Your employer cannot dismiss you for responding to a notice. If this happens to you, you can report it for investigation.

Offences

If you receive a notice from a royal commission, you must comply with it. Failing to comply with a notice without a reasonable excuse is an offence. It is also an offence to:

• knowingly give false or misleading information to the royal commission. This can lead to imprisonment of up to 5 years or a fine
• hide, damage or destroy documents or things that may be required by the royal commission. This can lead to imprisonment of up to 2 years or a fine.

Legal professional privilege

A communication between you and your lawyer is privileged if it is confidential and made for the main purpose of your lawyer giving you legal advice or assistance or if the communication is for use in actual or expected legal proceedings. This allows you to communicate freely and frankly with your lawyer without being concerned that your communications will be revealed. If you do not treat the communications confidential, or decide to disclose them, this is called ‘waiving’ the privilege.

Royal commissions can look at any communications you claim are privileged to decide whether they agree that they are privileged. They usually issue their own practice guidelines which will set out the process to follow if you want to claim legal professional privilege over certain communications or documents. You may need to provide evidence and submissions to support your claim. If the commissioner/s agree that the document is privileged, they will return it to you and not use it in the inquiry. If they do not agree, the royal commission may press for production.

Tendering documents

Tendering a document is the process a royal commission uses to accept a document as evidence. If it is accepted as evidence, a royal commission can refer to it and rely on it when making findings and recommendations in its final report.

Lawyers assisting the royal commission (called ‘counsel assisting’) will determine whether or not to seek to tender a document. The commissioner/s will make the final decision as to whether a document is then accepted as evidence (‘tendered’). Tendered documents will usually be published on the royal commission’s website.