Public inquiries have become the investigatory tool of choice for Governments across Australia. Not in the last 20 years have we seen three Commonwealth Royal Commissions on foot at one time, plus there is an ever growing number of investigatory and parliamentary inquiries occurring at state and federal level.
Governments like public inquiries. They are highly visible and they build public support for change. There is every indication the current trend toward more inquiries will continue and businesses and community organisations should expect to be increasingly called on to respond to inquiries.
A prime example of governments’ growing fondness for inquiries is the Victorian government’s new Inquiries Bill 2014 (Vic). The Bill essentially formalises a framework for public inquiries such that any new inquiry will fall into one of three categories - Formal Reviews, Boards of Inquiry and Royal Commissions.
Formal Reviews will be commissioned to review and report on any matter the government determines needs review. Formal Reviews will be a regular occurrence however they will not have any coercive powers and will tend not to involve public hearings. If the reviewer determines additional powers are needed and the topic is serious enough, then the Formal Review can be escalated to a Board of Inquiry.
Boards of Inquiry are for more complex or serious issues and will have some coercive powers, though protections for legal professional privilege and the privilege against self incrimination will remain.
Royal Commissions will continue to have the broadest powers, including coercive powers to obtain documents and/ or witness testimony without the protection of legal professional privilege, the privilege against self incrimination and, in some circumstances, without regard to obligations of statutory secrecy.
While governments have always had powers to appoint investigations, the formalisation of these powers in Victoria will surely see them being used more frequently in that state. We expect other governments will follow suit, as part of the trend to more inquiries.
Businesses involved in the government services sector and the provision of either public or private infrastructure should have a strategy in place to effectively respond to growing numbers of inquiries. Such a strategy would cover:
- disclosure of commercial and confidential documents to the inquiry (potentially at short notice);
- the coordination of a legal, corporate and media strategy to minimise reputational damage;
- briefing and communications with employees that may be witnesses in the inquiry;
- ensuring the witnesses that give evidence suffer no adverse employment outcomes (except where they are clearly the wrongdoers); and
- the creation and dissemination of documents which if publicised by the inquiry may prejudice the business’ interests.
In some circumstances, a business may wish to use an inquiry as a platform to make a case for change. In that event, it is essential to have a strategy which deals with minimising the risks inherent in such involvement, as well as how evidence will be located and brought to the attention of the inquiry.
Victoria’s new Inquiries Bill is a signal that governments are increasingly favouring inquiries as a way of responding to politically difficult issues, disasters, unforeseen legal issues and major wrongdoing within the community.