You would be forgiven for becoming confused by the different references to ‘commissions’ given the range of different contexts in which they occur.
Permanent Commissions and Royal Commissions perform similar yet distinct functions. A Commission is a statutory body created by legislation for a particular purpose. Its function is ongoing. IBAC and the Office of the Chief Examiner are examples of statutory Commissions in Victoria whose functions are ongoing.
Royal Commissions on the other hand are established by the Crown to publicly inquire in relation to a particular issues, in accordance with the terms of reference set out by the Crown (which in reality is the Attorney-General of the State, Territory or Federation). At the conclusion of the Royal Commission, the Commissioner delivers a report in relation to its findings and recommendations.
Currently, in Victoria, we have the permanent Independent Broad-based Anti-Corruption Commission (IBAC), which investigates allegations of corruption by people in public office and the Office of the Chief Examiner, which investigates crime. . At the federal level, there is the Australian Crime and Intelligence Commission which investigates federal crime or crimes alleged to have been committed across state borders. This includes, drug importation and interstate trafficking, firearms trafficking and money laundering through banks.
In addition to the permanent Commissions, several Royal Commissions have been held in recent years to investigate and deliver findings in relation to issues of public importance. These include Royal Commission into Institutional Responses to Child Abuse, the Royal Commission in to Union Corruption, the Royal Commission into Aged Care and the Royal Commission in to the Management of Police Informants. Royal Commissions can be held at both the State and Federal level.
Independent broad-based anti-corruption commission
IBAC was established by the Independent Broad-based Anti-Corruption Commission Act (2011), to investigate corrupt conduct by people in public office, such as police officers, judges, public sector employees and people in Government. It is overseen by a Joint Committee of the Victorian Parliament. IBAC receives complaints about corrupt conduct, assesses these complaints and then, if satisfied that there is serious corrupt conduct, may conduct an investigation. On 29 November 2015, the Victorian State Government announced that it will put before Parliament legislation designed to increase the powers available to IBAC to ‘probe politicians, judges and public servants’ in relation to allegations of misconduct in public office. The Auditor-General will also be empowered to examine public-private partnerships, whilst people complaining to the Ombudsman will be provided with more avenues to make these complaints. This means that the number of public officials subjected to scrutiny will be increased and, undoubtedly, the number of IBAC investigations will also.
IBAC has significant investigatory powers to enter, search and seize property, require police members to provide documentation and, to examine individuals in order to gather evidence. The rules of evidence do not apply to the examination and it can be conducted in any way that IBAC considers appropriate. These examinations are usually held in private unless IBAC opens the examinations to the public. A witness summons will be served upon a person who is to be examined by IBAC. You cannot refuse, as this is an offence. You have no right to silence or privilege against self-incrimination, as failure to answer a question for any reason is an offence. It is also an offence to disclose the existence of the summons to anyone, with some exceptions, one being your legal practitioner.
You are, however, entitled to be legally represented at the examination. Receiving a witness summons to attend IBAC for an examination can be very daunting, particularly if you are aware that the conduct alleged also involves criminality.
It is essential that you immediately contact a legal practitioner to seek advice, upon receipt of a summons.
A Royal Commission is an inquiry ordered by the Government, either state or federal, to investigate a particular issue and return recommendations. A Royal Commission can summons a witness to attend and consider submissions made by interested parties.
This firm has been involved in several Royal Commissions since 1976, most notably the Royal Commissions into the Painters and Dockers Union, The Wood Royal Commission into the NSW Police Force, The Cole Royal Commission into the Activities of the Australian Wheat Board and the Royal Commission into Trade Union Governance. Recently we have been very involved in the Royal Commission into the Management of Police Informants investigating the use of Nicola Gobbo, a former criminal defence lawyer, as a human source for the Victoria Police. During the conduct of the Royal Commission, our client of 10 years, Faruk Orman, became the first person to have his conviction overturned as a result of the substantial miscarriage of justice committed by Nicola Gobbo and the Victoria Police.
Each Royal Commission is governed by its terms of reference, practice guidelines and of course the legislation which created it. Which piece of legislation governs the Commission depends on whether it is a federal Royal Commission or a state one and, if it is a state one, which state. In Victoria, the conduct of a Royal Commission is governed by the Inquiries Act 2014.
The Australian Crime and Intelligence Commission (formerly the Australian Crime Commission) and Office of the Chief Examiner are independent statutory agencies, whose roles involve intelligence gathering and investigation into alleged organised crime. Both agencies have coercive powers, which can be used compel witnesses summonsed before them (upon threat of criminal prosecution punishable by a term of imprisonment) to provide evidence in relation to alleged organised crime activities.
Of particular concern to civil libertarians and criminal defence lawyers alike is the fact that a witness cannot claim a privilege against self-incrimination and, therefore, remain mute when questioned by either body. It can be used as a ‘star chamber’ to extract information out of individuals, against their own interests and in disregard for their safety.
Evidence gathered during witness examinations is shared with law enforcement and, ultimately, utilised in criminal prosecutions. ACC and OCE examinations are conducted in complete secrecy. Witnesses summonsed before either body are bound by a non-disclosure order, which prohibits them from discussing the proceedings or the fact that they were even summonsed, with anyone except their legal representatives. Legal representatives are similarly bound by the non-disclosure orders made by the Examiners.The ACC and OCE also have the powers to conduct surveillance and obtain telephone intercept warrants.
If you have been summonsed before IBAC, or any Crime Commission, please remember that it is not a criminal offence to seek legal advice and share the summons with an experienced criminal defence lawyer. Our office is very experienced in these matters and we invite you to contact us as soon as possible.