Research Paper no. 5 2001-2002
British Tribunals of Inquiry: Legislative and Judicial Control of the
Inquisitorial Process-Relevance to Australian Royal Commissions
Geoffrey Lindell
Consultant, Law and Bills Digest Group
15 April 2003
Australian Royal Commissions and British
Tribunals of Inquiry have been, and continue to be, used as accepted
tools of government. They can investigate and report on major disasters
or events that become matters of public concern as a result for example
of some alleged maladministration in the workings of government. The
current Royal Commissions on the collapse of HIH(1) and also
into the building industry(2) provide the most recent illustrations
of the uses made of such inquiries at the federal level of government.
To be fully effective these kinds of
public inquiries are often given coercive powers of summoning
witnesses and compelling the production of documents. However, their undoubted utility has to be balanced against other considerations
such as their potential to harm the reputations, and intrude on the
privacy, of individuals. This gives rise to the need to adopt
safeguards for witnesses who may be called upon to appear before them. A related issue concerns the effect of adopting such safeguards
on the costs and duration of inquiries. A further underlying issue concerns
the appropriateness of using safeguards developed in adversarial proceedings in the kind of inquisitorial proceedings that are necessarily involved in public
inquiries.
The
paper(3) from which this brief is drawn attempts to assess
the relevance of the experience generated by British Tribunals of Inquiry
for Australian federal Royal Commissions especially when analysed against
the background of judicial developments in some other jurisdictions
such as New Zealand and Ireland. The experience of those countries may
also provide insights into the law which governs the operation of Australian
federal royal commissions and changes that might be considered to that
law in the future.
Important
questions arise regarding how public inquiries are established and what
should be their composition.
The
establishment of British Tribunals of Inquiry in 1921 in preference
to parliamentary committees of inquiry was, in part, due to the inability
of such committees to examine witnesses on oath. It was also due to
the unhappy experiences which parliamentary inquiries had enjoyed in
the past, essentially as a result of political partisanship. The former
kinds of inquiries have frequently been conducted by senior judges.
The appointment of members of the judiciary attracts significant advantages
to the Executive branch of government since it bestows on those inquiries
what has been described as the 'borrowed authority' of the judiciary.
This is perceived as posing significant dangers for the independence
of the judiciary and thus gives rise to serious questions of policy which in Australia are governed by constitutional
and legal restraints founded on the separation of judicial powers.
The increased role of judges in the
judicial review of governmental action under the recently enacted British
Human Rights Act 1998 and the arrangements for the devolution of authority
to the constituent parts of the United Kingdom, may require a re-examination of the advisability of appointing existing
judges to Tribunals of Inquiry. One way of maximising the preservation
of the authority and prestige of serving judges both in the United Kingdom
and Australia is to appoint retired judges.
Significant
issues arise concerning the scope of the investigations undertaken by
public inquiries. What matters are appropriate for such investigation?
To what extent should the inquiries be carried on without the approval
of parliament?
British Tribunals of Inquiry have been
appointed to investigate over a wide range of incidents and matters
including allegations of misconduct against Ministers of the Crown,
civil servants, local authorities and police. Examples have involved
improper gifts to Ministers, the improper disclosure of budget secrets
and the official bank rate, accusations of brutality against police,
disorders in Northern Ireland ('The Bloody Sunday Affair') and mine
disasters. In recent times they have also involved the shooting of innocent
children in Dunblane Primary School, the abuse of children in North
Wales and the numerous deaths of patients treated by a private doctor.
This gives rise to the issue of which inquiries can legally be held,
and with whose approval, given the implications such inquiries have
for the potential intrusion into the privacy of individuals. A full
list of all British inquiries to date is attached in Schedule 1. Some
statistical information regarding the length of an inquiry, the number
of lawyers and witnesses involved and the volume of recorded evidence,
in relation to three of these inquiries, may be found in Schedule 2.
Australian Royal Commissions and Commissions of Inquiry under
the Royal Commissions Act 1902 (Cwlth) are listed at Schedule 3.
The suggestion put forward in the paper
is that there is considerable merit in following the British
model in two particular respects. The first is that of requiring parliamentary
approval for the appointment of Tribunals of Inquiry. The second is
to ensure that such inquiries are only permitted to inquire into 'definite
matters' of 'urgent public importance' on the assumption that the primary
judgment for forming an opinion on these matters is vested in the body
which appoints the tribunal. The existing legal prohibition against
the unauthorised delegation of the power to define the scope of a public
inquiry operates as an important brake in limiting the extent to which
Tribunals of Inquiry and Royal Commissions can be authorised to define
their own terms of reference.
A
related issue concerns the extent to which public inquiries can investigate
questions of criminal liability given the serious implications such
inquiries can pose for the holding of a fair trial since the findings
of such inquiries are not legally authoritative and binding. Despite
those implications, the analysis undertaken in this paper suggests that
Tribunals of Inquiry and Royal Commissions can probably be appointed
to inquire into whether individuals have committed criminal offences
in the United Kingdom and Australia. This is subject to some restrictions which
flow from the law of contempt once an individual is formally charged
and put on trial. Although it was different before, the position is
now probably the same in New Zealand as a result of statutory changes.
The
stages of an inquiry conducted by a Tribunal of Inquiry have been described
in the following terms and would seem to be equally applicable to inquiries
conducted by Australian Royal Commissions. These consist of:
-
a preliminary investigation of the evidence available
-
the determination by the tribunal of what it considers to be evidence
relevant to the matters into which it is obliged to inquire
-
the service of such evidence on persons likely to be affected
-
the public hearing of witnesses in regard to such evidence
-
the cross-examination of such witnesses by or on behalf of persons
affected thereby
-
the preparation of a report and the making of recommendations based
on the facts established at such a public hearing.
To
what extent should the conduct of a public inquiry be subject to legal
regulation? Tribunals of Inquiry and Royal Commissions are, for the
most part, legally free to determine their own procedures subject to
the need to comply with the legally enforceable rules of procedural
fairness developed by the courts. The extent of statutory regulation
is for the most part quite small. The rules on procedural fairness have
assumed a greater importance than might have originally been envisaged
because of their evolving and dynamic character. In the United Kingdom a further constraint on the autonomy enjoyed
by Tribunals, which has assumed a growing importance, flows from the
operation of the Human Rights Act 1998.
One
of the important issues which arises from the creation of public inquiries
relates to the rights of witnesses. What, if any, safeguards are needed
to protect the rights of witnesses appearing before such inquiries?
To what extent are the rights of parties and witnesses in ordinary legal
proceedings appropriate for adoption in public inquiries vested with
coercive powers to summon witnesses and require
the production of documents?
The
United Kingdom has seen in recent times the emergence of a debate as
to how best to safeguard the rights of witnesses called to give evidence
before public inquiries including Tribunals of Inquiry armed with coercive
powers. The debate has been characterised by a difference between those
who favour the adoption of the same kinds of safeguards enjoyed by witnesses
in adversarial proceedings, as recommended in the Salmon Royal Commission
Report in 1966(4), and those who argue that such safeguards
are not appropriate to inquisitorial proceedings, as argued in the Scott Report in 1996.(5)
The
paper from which this brief is drawn analyses in detail the way in which
both approaches diverge as regards the circumstances that justify the
involvement of witnesses, giving witnesses notice of adverse matters
raised against them, legal representation of witnesses, and the cross-examination,
examination in chief and re-examination of witnesses. The Salmon Royal
Commission recommended what were described as six cardinal principles.
-
Principle 1: Before any
person becomes involved in an inquiry, the Tribunal must be satisfied
that there are circumstances which affect her/him and which the Tribunal
proposes to investigate.
-
Principle 2: Before any
person who is involved in an inquiry is called as a witness, s/he
should be informed in advance of allegations against her/him and the
substance of the evidence in support of the allegations.
-
Principle 3:
(a)
S/he should be given an adequate opportunity of preparing
her/his case and of being assisted by legal advisers.
(b)
Her/his legal expenses should normally be met out of
public funds.
-
Principle 4: S/he (the witness)
should have the opportunity of being examined by her/his own solicitor
or counsel and of stating his case in public at the inquiry.
-
Principle 5: Any material
witnesses s/he wishes called at the inquiry should if reasonably practicable,
be heard.
-
Principle 6: S/he should
have the opportunity of testing by cross-examination conducted by
her/his own solicitor or counsel any evidence which may affect her/him.
The
approach of the Scott Report stressed the differences between the inquisitorial
function of public inquiries and the adversarial nature of litigation.
In the former:
-
There is no proceeding on an issue the subject of a proceeding between
parties in any real or substantial sense: the inquiry directs the
inquiry and the witnesses are of necessity witnesses called by or
with the authority of the inquiry.
-
There
is no plaintiff or defendant, no prosecutor or defendant.
-
There are no pleadings to define the issues to be tried, nor are there
any charges, indictments, or depositions.
-
An inquiry may take a fresh turn at any moment. It is therefore difficult
for persons involved to know in advance of the hearing what allegations
may be made against them.
Litigation,
on the other hand, involves each party having a case to be placed before
a court for its consideration and procedures. This is designed to ensure
that the defendant knows the essential nature of the other party's case.
In an inquisitorial inquiry there are only witnesses who have or may
have knowledge of some matters under investigation.
In
the view taken in the Scott Report, the Salmon principles failed to satisfy
three principal objectives of a public inquiry. These were:
-
the need to be fair and seen to be fair to those whose interests,
reputations or fortunes may be adversely affected
-
the need for proceedings to be conducted with efficiency and as much
expedition as is practicable
-
the need for the costs of the proceedings to be kept within reasonable
bounds.
A
recent report prepared by the British Council of Tribunals(6)
and endorsed by the then British Government seemed to significantly
downplay the difference between the two approaches and appeared to avoid
coming down clearly in favour of one or the other of those approaches.
The hallmark of its approach was flexibility and it believed that it
was wholly impracticable to devise a single set of model rules or guidelines
that will apply to every inquiry.
Although
originally intended as nonlegally enforceable guidelines, the extent
to which the recommendations to adopt the Salmon principles will be
followed in the future in the United Kingdom may now depend on the extent
to which courts will recognise them as forming part of the common law
rules of procedural fairness. It is true that the Salmon principles
have received legislative and constitutional recognition in other countries
apart from the United Kingdom(7). However the writer of this
paper believes that, overall, the arguments in favour of leaving the
extent of their recognition in the hands of the courts outweigh those
that favour their adoption as a statutory code.
The
Salmon Report dealt with certain other matters which also deserve consideration
for Australia. These included the importance of an inquiry
explaining at the outset how it proposed to interpret the terms of reference
of the inquiry and the procedures it proposed to adopt for the conduct
of the inquiry. They also involved the desirability of avoiding where
possible reliance on hearsay evidence and only relying on evidence that
would have been admissible in ordinary court proceedings, when reporting
on the conduct of individual witnesses. In addition Australian federal
legislation is, with some exceptions, silent on whether inquiries should
be conducted in public. The public nature of an investigation goes to
the heart of one of the advantages of holding an inquiry, namely, securing
the confidence of the public in the findings of the inquiry. The view
expressed in the paper is that it is desirable to enact provisions similar
to those enacted with respect to British Tribunals of Inquiry that would
clarify the general obligation of Australian federal Royal Commissions
to conduct their inquiries in public. The same applies to legislation
that would define the period during which the law of contempt operates
in relation to the proceedings of such Royal Commissions. The latter
law protects the authority and ability of such inquiries to perform
their appointed task.
Public
inquiries give rise to important questions concerning judicial review.
In what circumstance are, and should, the proceedings of public inquiries
be open to judicial review? What grounds are, and should, be available
to challenge the conduct and findings of such inquiries in legal proceedings?
The
essential assumption which underpins the overall desirability of leaving
the protection of witnesses to the courts is that judicial review is
available for that purpose. The historical and traditional obstacle
in the way of reviewing their findings has always been the fact that
the findings by bodies that are only appointed to inquire and report
have not been seen as affecting the rights of individuals. It is suggested
in this paper that the obstacle has now lost most of its force.
The
courts in New Zealand have in recent times led the way in subjecting
public inquiries to the operation of the normal principles of administrative
law review. This allows challenges in the courts in relation to Royal
Commissions that are based on the following grounds:
-
the establishment of the Royal Commission is beyond the legal power
or authority to establish the Commission
-
the
validity of its terms of reference
-
the procedures of the Commission are contrary to law
-
the procedures of the Commission do not comply with the rules of natural
justice
-
the Commission has made an error of law, or
-
the continuation of an inquiry conducted by a Commission constitutes
contempt.
Experience
so far suggests that judicial review in the United Kingdom is likely, and has already begun, to follow
the same course. The enactment of the British Human Rights Act has expanded
the scope of judicial review by reference to wider considerations related
to the protection of human rights. Such expansion of judicial review
has given rise to some concern. That concern can only be underlined
by the many judicial challenges launched against the procedures adopted
by the second Tribunal of Inquiry appointed to investigate the 'Bloody
Sunday' affair. The concerns can only be heightened by the fact that
the challenges were launched despite the eminent and distinguished judges
who were themselves appointed to that Tribunal; and also the lengthy
period of time which elapsed before the same Tribunal was able to commence
hearing witnesses.
Developments
in Australia in regard to the availability of judicial
review for Royal Commissions are likely to parallel, if they have not
already done so, those that have taken place in New Zealand. This is complicated by the existence of
possible jurisdictional or
procedural drawbacks which, however, are
not thought to be insuperable. Ironically, the drawbacks stem from statutory
reforms that were designed to streamline the availability of judicial
review and overcome the complexities that attended use of the traditional
means by which courts could provide a remedy for unlawful administrative
action. The federal legislation in point is the Administrative
Decisions (Judicial Review) Act 1977
(Cwlth). In the view advanced in this paper, the significance of the
potential gaps in the jurisdiction which exist under that legislation
is likely to have been reduced, if not eliminated, by the recent expansion
in the jurisdiction conferred on the Federal Court as a result of insertion
of sub-s. 39B(1A) in the Judiciary
Act 1903 (Cwlth). Under those provisions the
Court is given the jurisdiction to deal with any matter arising under
a law of the Commonwealth.
The
substantive grounds for judicial
review in Australia are likely to replicate in large measure
those that exist in New Zealand. The Australian High Court has recognised
that injury to reputation is now recognised as a sufficient interest
to attract the operation of the rules of procedural fairness. There
have been decisions of other courts in Australia that have affirmed the ability to prevent
Royal Commissions from exceeding their authority by for example going
beyond their terms of reference. Once it is accepted that courts can
intervene on those grounds it seems difficult to see at first sight
why courts should take any different view in relation to the similar
availability of the other grounds of challenge under the principles
of administrative law. One Australian judicial decision has, however,
highlighted the difficulty of relying on some of those grounds, at least
when it comes to challenging the establishment of Royal Commissions
and the scope of their inquiries. The Australian courts have recognised
that the application of the ordinary principles of administrative law
to inquisitorial bodies cannot ignore the inquisitorial character of
such bodies.
There
remains in Australia the further ground of challenge in relation
to federal Royal Commissions based on constitutional considerations. This, in theory at least, prevents
Royal Commissions from inquiring into matters that lie beyond the reach
of federal legislative powers. But given the wide reach of those powers,
and the difficulty of showing that a matter can never have any relevance
to those powers, the successful establishment of this ground is not
without its difficulties.
The
final issue concerns whether there is a right to appeal against the
findings of a public inquiry.
None
of the jurisdictions considered in this paper make provision for a right
of appeal from the findings of Tribunals of Inquiry in the United Kingdom (and Ireland) or Royal Commissions in Australia and elsewhere. This is not surprising given
the non-legally binding status of such findings. It is suggested in
this paper that the absence of a right of appeal, when combined with
the immunity enjoyed by such public inquiries from liability in defamation,
may serve as an inducement to find indirect legal means of challenging
findings which damage the reputation of individuals. This was illustrated
by the events that surrounded the Royal Commission(8) into
the crash of an Air New Zealand aircraft into Mount Erebus on 28
November 1979.
This inquiry culminated with a landmark judicial decision which established
the application of the rules of procedural fairness to Royal Commissions.
The
Salmon Commission concluded against creating a right of appeal from
the findings of a Tribunal of Inquiry. What emerges from the paper,
however, is that both for policy and legal reasons, there will be occasions
when it will be necessary to re-examine the findings of a public inquiry.
The guiding objective should be to identify those occasions with the
least possible judicial intervention. That intervention should be reserved
as an option of last resort given the implications for cost and delay
which that option necessarily involves.
With
that in mind, it is suggested in the paper that a case can be made for
improving the mechanisms for reviewing the findings of public inquiries
which, for one reason or another, subsequently come under question in
a way that will minimise the scope of judicial intervention. One such
mechanism would take the form of suspending
judicial review until governments are given the opportunity to obtain
independent advice from a retired judge or senior practising lawyer
on whether a new inquiry should be established to report on the whole
or any part of the issues canvassed in the earlier inquiry.
-
Royal
commissions and tribunals of inquiry have been and continue to be
used as an accepted tool of government.
-
Their
undoubted utility has to be balanced against other considerations
such as their potential to harm the reputations, and intrude on the
privacy, of individuals; as well as considerations of cost and duration
of such inquiries.
-
The
existence of a unitary system of government in the United Kingdom
reduces but does not eliminate the potential scope for a judicial
challenge against the establishment of a tribunal of inquiry. The
same scope may have increased as a result of the arrangements for
the devolution of authority to Scotland and Wales which could give
rise to the kind of challenges that are raised on federal grounds
in Australia.
-
The
enactment of the Tribunals of Inquiry (Evidence) Act 1921 (UK) was
seen as providing a more satisfactory form of public inquiry than
those conducted by parliamentary committees.
-
The
appointment of existing judges to Tribunals of Inquiry under the
1921 Act gives rise to serious questions of constitutional policy
which in Australia are governed by legal restraints founded on the
separation of judicial powers. The increased role of judges in the
judicial review of governmental action under the Human Rights Act
1998 (UK) and the devolution arrangements may require a re-examination
of the advisability of appointing existing judges to Tribunals of
Inquiry.
-
There
is considerable merit in following the British example of (i) requiring
parliamentary approval for the appointment of Tribunals of Inquiry
with coercive powers of inquiry; and also (ii) only permitting their
establishment to inquire into 'definite matters' of 'urgent public
importance' on the assumption that the primary judgment for forming
an opinion on these matters is vested in the body which appoints
the tribunal.
-
The
prohibition against unauthorised delegation operates to limit the
extent to which Tribunals of Inquiry and royal commissions can be
authorised to define their own terms of reference
-
It
is probable that Tribunals of Inquiry and royal commissions can
be appointed to inquire into whether named individuals have committed
criminal offences in the United Kingdom and Australia, subject to
some restrictions which flow from the law of contempt once an individual
is formally charged and put on trial. The position is now probably
the same in New Zealand as a result of statutory changes.
-
Tribunals
of Inquiry and royal commissions are for the most part legally free
to determine their own procedures subject to the need to comply
with the legally enforceable rules of procedural fairness. Those
rules have assumed a greater importance than might have originally
been envisaged because of their evolving and dynamic character.
-
It
is desirable to enact provisions similar to those enacted with respect
to British Tribunals of Inquiry that would clarify the general obligation
of Australian federal royal commissions to conduct their inquiries
in public. The same applies to legislation that would define the
period during which the law of contempt operates in relation to
the proceedings of such royal commissions.
-
The
United Kingdom has seen in recent times the emergence of a debate
as to how best to safeguard the rights of witnesses called to give
evidence before public inquiries including Tribunals of Inquiry
armed with coercive powers.
-
The
debate has been characterised by a difference between those who
favour the adoption of the same kinds of safeguards enjoyed by witnesses
in adversarial proceedings as recommended in the Salmon Royal Commission
Report in 1966 and those who argue that such safeguards are not
appropriate to inquisitorial proceedings as argued in the Scott
Report in 1996.
-
The
paper analyses in detail the way in which both approaches diverge
as regards the circumstances that justify the involvement of witnesses,
giving witnesses notice of adverse matters raised against them,
legal representation of witnesses, and the cross-examination, examination
in chief and re-examination of witnesses.
-
The
recent report prepared by the Council of Tribunals and endorsed
by the British Government seems to significantly downplay the difference
between the two approaches and appears to avoid coming down clearly
in favour of one or the other of those approaches. The hallmark
of its approach was flexibility and it believed that it was wholly
impracticable to devise a single set of model rules or guidelines
that will apply to every inquiry.
-
Although
originally intended as non-legally enforceable guidelines, the extent
to which the Salmon recommendations will be followed in the future
may now depend on the extent to which courts will recognise them
as forming part of the common law rules of procedural fairness.
-
The
Salmon recommendations have received legislative and constitutional
recognition in other countries apart from the United Kingdom
-
The
writer believes that overall the arguments in favour of leaving
the extent of their recognition in the hands of the courts outweigh
those that favour their adoption as a statutory code.
-
The
essential assumption which underpins the overall desirability of
leaving the protection of witnesses to the courts is that judicial
review is available for that purpose.
-
The
courts in New Zealand have in recent times led the way in subjecting
inquisitorial bodies to the operation of the normal principles of
administrative law review and judicial review in the United Kingdom
is likely to follow the same course.
-
Developments
in Australia in regard to the availability of judicial review for
royal commissions are likely to parallel, if they have not already
done so, those that have taken place in New Zealand, subject to
the existence of possible procedural drawbacks which however are
not thought to be insuperable.
-
In
Australia there remains an additional ground of challenge in relation
to federal royal commissions that is based on constitutional considerations
but this ground is not without its difficulties.
-
The
absence of a right of appeal against the findings of Tribunals of
Inquiry and Royal Commissions may serve as an inducement to find
indirect legal means of challenging findings which damage the reputation
of individuals.
-
A
case can be made for improving the mechanisms for reviewing the
finding of inquisitorial bodies which, for one reason or another,
subsequently come under question in a way that will minimise the
scope of judicial intervention.
-
One
such mechanism would take the form of suspending judicial review
until governments are given the opportunity to obtain independent
advice from a retired judge or senior practising lawyer on whether
a new inquiry should be established to report the whole or any part
of the issues canvassed in the earlier inquiry.
SCHEDULE 1 Inquiries
held under the Tribunals of
Inquiry (Evidence) Act 1921 (UK)
| Title |
Members of Tribunal |
Year |
Command Number |
| Destruction
of documents by Ministry of Munitions officials |
Lord Cave
Lord Inchape
Sir W. Plender |
1921 |
1340 |
| Royal Commission
on Lunacy and Mental Disorder given powers under the Act |
H. Macmillan
(Chairman) |
1924 |
2700 |
| Arrest of
R. Sheppard, R.A.O.C. Inquiry into conduct of Metropolitan Police |
J. Rawlinson
|
1925 |
2497 |
| Allegations
made against the Chief Constable of Kilmarnock in connection with
the dismissal of Constables Hill and Moore from the Burgh Police Force. |
W. Mackenzie |
1925 |
2659 |
| Conditions
with regard to mining and drainage in an area around the County
Borough of Doncaster. |
Sir H. Monro
(Chairman) |
19268 |
|
| Charges against
the Chief Constable of St Helens by the Watch Committee. |
C. Parry
T. Walker |
1928 |
3103 |
| Interrogation
of Miss Irene Savidge by Metropolitan Police at New Scotland Yard |
Sir J.E.
Banks
H. Lees-Smith
J. Withers |
1928 |
3147 |
| Allegations
of bribery and corruption in connection with the letting and allocation
of stances and other premises under the control of the Corporation
of Glasgow. |
Lord Anderson
Sir R. Boothby
J. Hunter |
1933 |
4361 |
| Unauthorised
disclosure of information relating to the Budget |
Sir J. Porter
G. Simonds
R. Oliver |
1936 |
5184 |
| The circumstances
surrounding the loss of HM Submarine 'Thetis' |
Sir J. Bucknill |
1939 |
6190 |
| The conduct
before the Hereford Juvenile Court Justices of the proceedings
against Craddock and others |
Lord Goddard< | | 
