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Administrative Review Council - Admin Review |
Wayne Martin QC[∗]
This is an edited version of a paper presented at the 2003 National Administrative Law Forum, held by the Australian Institute of Administrative Law in Canberra on 3–4 July 2003.
This paper provides an overview of some of the questions that commonly arise in the conduct of an inquiry and discusses some ways in which they might be resolved. Its focus is practical and procedural, rather than legalistic. Any attempt to analyse the legal principles governing all aspects of the conduct of an inquiry would require a book rather than a paper, and there are a number of good legal texts on the subject.[1]
The paper pays particular attention to the role of counsel assisting an inquiry, partly because of the egocentricity of the author (who recently spent 18 months as Counsel Assisting the HIH Royal Commission) but also because it is the author’s view that there is considerable scope for greater use of that role in a wide variety of tribunals and administrative proceedings.
Inquiries come in a wide variety of shapes and sizes. The term ‘inquiry’ is broad enough to cover virtually all procedures that include the ascertainment or determination of facts or issues. There is no limit to the subjects on which inquiries can be and are conducted—including such diverse topics as criminal conduct, professional misconduct, administrative entitlement (from refugee status to broadcasting licence to welfare benefit) and high-level government policy. In procedural terms they occupy every point on the spectrum between something closely resembling a curial proceeding and an informal administrative investigation. They can be and are conducted for a wide variety of purposes, such as the making of a report or an administrative determination or the imposition of a disciplinary penalty (such as loss of livelihood). They exist in forms too numerous to list, but among them are royal commissions, the permanent corruption and crime commissions that are now found in most jurisdictions, parliamentary committees, disciplinary tribunals, and the plethora of administrative tribunals that exist in each jurisdiction and multiply like wire coathangers—inexplicably and geometrically.
Even within some categories of inquiry there are wide variations. For example, the matters inquired into by royal commissions vary greatly in subject and significance. In the United Kingdom in 1857 there was a royal commission into drawing. In 1903 in Western Australia there was a royal commission into the question of whether the Supreme Court building should be constructed of Donnybrook stone or brick. At the other end of the spectrum, some royal commissions in Australia have had a profound effect on the political history of this country; the Petrov and Costigan Royal Commissions are examples.
The adjectives ‘adversarial’ and ‘inquisitorial’ are often used to describe the procedure of an inquiry, as if the terms are mutually exclusive and clearly delineated. I think the distinctions are more semantic than substantive, and the difference between the two terms is often blurred and indistinct. For example, an inquiry into professional discipline has many of the facets of an adversarial proceeding, in the sense that the subject of the inquiry will be presented with particulars of the alleged misconduct before the inquiry begins (much in the manner of a criminal charge), a person will usually be appointed whose task is to attempt to prove the alleged misconduct, and a spectator sitting in the back of the hearing room will find the proceedings almost indistinguishable from proceedings in a court. But at a more substantive level it will often be the case that a tribunal appointed to conduct an inquiry is obliged to ascertain for itself whether or not the subject of the inquiry is a fit and proper person to carry on his or her profession. The tribunal is therefore required to direct and control the conduct of the investigation into that fact—a requirement that in my view goes beyond merely adjudicating on evidence presented by protagonists and extends to the taking of all steps necessary to gather the information needed to form the requisite view. Thus, despite an adversarial appearance, the proceedings could be characterised as substantively inquisitorial.
This is not to say that the terms lack utility. On the contrary, they are a convenient, if imprecise, way of differentiating between a proceeding in which the inquiring body itself takes a direct and active role in the investigative process—that is, the gathering of information and evidence—and a procedure in which that role is performed by someone else.
This brings me immediately to the role of counsel assisting because such a person can, of course, perform the important role of differentiating the function of the person or entity that must make the determination or findings of fact from the function of the person who is gathering the information or evidence. Such a differentiation of function has obvious benefits in terms of reducing the risk of partisanship or at least the appearance of partisanship that can often accompany the role of investigator—which is why we distinguish between, for example, the policing function and the magisterial function, although there are other models in which those roles are less distinct, such as in Europe. But even where there is a clear distinction between the determining person or body and the investigative agent of that body it may nevertheless be appropriate to describe the process as inquisitorial, because its fundamental function is to inquire into and establish facts.
I am optimistic that much greater light will be shed on these questions and a clearer understanding of the distinction between adversarial and inquisitorial proceedings will emerge after my colleague on the Administrative Review Council, Professor Robin Creyke, has completed a project sponsored by the Australian Institute of Judicial Administration, which will deal with the following:
• an analysis of what it means for a tribunal to operate in an inquisitorial and not an adversarial fashion • an empirical study of the legislation, practices and procedures of tribunals described as inquisitorial.
In my opinion the primary question to be dealt with when embarking on an inquiry concerns precisely what it is that will be inquired into. Obviously, the terms of reference, commission or jurisdiction will be a convenient starting point, but I refer to a much more specific agenda of facts, events or topics to be examined.
In advancing this proposition I do not overlook the fact that one of the things that distinguishes an inquiry from, say, judicial proceedings is that the former is an iterative process, the course of which might be influenced by facts or evidence uncovered as the process takes place, whereas the latter is generally defined by the pleadings, or the charge, established at the outset. An inquiry must therefore retain the flexibility to adapt and respond to evidence or issues that emerge in the course of its conduct.
Nevertheless, in my opinion there are at least three sound reasons for trying to identify, with as much specificity as possible and as early as possible, the particular facts, events or topics that are to be examined. Three particular advantages flow from this course:
• greater efficiency in being better equipped to plan the course of the inquiry • improved procedural fairness, by enabling people who might be adversely affected by the inquiry to be advised of the matters to be examined at an early stage • providing the ability to assess whether the course to be followed will in fact achieve the objectives of the inquiry and to audit the matters to be examined against those objectives, so that unnecessary or irrelevant material can be eliminated.
This is another function conveniently and appropriately performed by counsel assisting or someone with an equivalent role. That person can effectively set the agenda to be followed by the inquiry at an early stage, on the basis of the preliminary information available. Thereafter they can supervise and/or conduct the investigation in accordance with the agenda that has been identified, planning and programming those investigations with greater efficiency by reason of knowing the overall course to be followed.
That person is also best equipped to promote the procedural fairness advantages I refer to. Those advantages can be achieved in a number of different ways, among them:
• preparation and presentation of a substantial opening address, discussion paper or issues paper giving all interested parties notice of the matters to be examined and the course to be followed by the inquiry • specifically identifying the possible adverse findings that are to be investigated.
The gathering of evidence is conveniently segregated into what occurs before any formal process of hearing and what occurs during the hearing process.
Dealing first with evidence gathering that occurs outside the hearing, evidence and information can in turn be conveniently classified according to their sources—that is, data and prospective witnesses. By ‘data’ I refer to documents and, increasingly today, information recorded in electronic form. Generally, inquiries are given the power to compel the production of data and require the attendance of witnesses to give evidence, but those powers are usually restricted to the formal hearing process. In many instances this can cause inefficiency by impeding the process of gathering information before the hearing begins. As a result, it is becoming increasingly common, and in my view appropriate, for the power to compel the production of data to a formal hearing to be accompanied by the power to compel the production of data administratively to an official outside the formal hearing process.
In relation to witnesses, if they are not prepared to cooperate and provide information voluntarily there is usually little alternative but to compel them to attend the formal hearing process. Even when witnesses are cooperative, however, there is often a concern that the provision of information otherwise than under compulsion could amount to an abandonment of the privilege that might otherwise attach to the provision of the information under compulsion—such as the privilege that attends the giving of evidence in a royal commission. One device that can be used to overcome this concern is to invite the prospective witness to record the information they would provide in writing and then compel the production of the document, which, being provided under compulsion, would have all the privileges that attach to compulsory production. It must be said, though, that this is something of an artifice, and I think it desirable to regularise this process by extending any privilege that attends compulsory provision of information to all information voluntarily provided.
Turning now to the provision of data and the calling of witnesses in the course of a formal hearing, the practices and procedures pertaining to this process are fairly well known and need not be detailed here. Perhaps the most common difficulty encountered is the sheer amount of time the process takes, which is leading to increasing use of devices such as the provision of evidence in the form of witness statements or declarations.
It is common for statutes to provide that inquiries are not bound by the rules of evidence, and this facilitates the use of less formal techniques with a view to expediting the process, at least in relatively non‑contentious areas. Care must, however, be taken to ensure that any determination or report is based on material that is logically probative of the facts found or determinations made; otherwise the process is likely to be vulnerable to collateral legal attack. Thus, although the rules of evidence are not applicable, they often provide a reliable guide to a logical process for the establishment of disputed or contentious facts.
The form of the evidence received can also have implications for procedural fairness. For example, while hearsay evidence is commonly and properly received, if it is the sole source of evidence on a controversial and critical fact it could be argued with some force that any party against whom an adverse finding has been made based on the basis of that evidence has been denied procedural fairness. This is because they have been deprived of the opportunity to test the critical evidentiary source, since that person has not been presented before the tribunal.
Reverting to the subject of the role of counsel assisting, the evidence-gathering process is another area in which such a person can play a vital role, both outside and inside the hearing. Outside the hearing, as noted, the presence of such a person enables the evidence-gathering and investigative process to be differentiated from the process of fact or issue determination—with obvious advantages. Within the hearing, there are increasing numbers of tribunals and inquiries in which the adducing of data or questioning of witnesses is undertaken by the tribunal itself. There are potential dangers in this course. One of the most obvious is the perception that the manner in which the questions are posed, or the data are produced, might suggest a preconceived view or attitude toward the matters in hand, thereby potentially infringing another aspect of procedural fairness.
People who are the subject of an inquiry have a number of rights that can constrain the scope or conduct of the inquiry itself. Probably the most significant of those rights are the right to procedural fairness and the various privileges that can preclude the compulsory provision of evidence or limit its use.
Books have been written on the subject of procedural fairness, and identification of all the aspects of the rights grouped together under that heading is well beyond the scope of this paper. The rights are generally grouped into two classes: the right to a hearing free of bias or the apprehension of bias; and the right to know and meet the case.
In the case of the bias rule, the courts are, in my opinion, demonstrating a rather more robust view of bias or the apprehension of it in the context of administrative inquiries. This might be in recognition of the desirability of those conducting such an inquiry taking an active part in its processes, including the questioning of witnesses and the expression of preliminary views.
In relation to the right to know and meet the case, it is important to note that this right will be infringed only if the person concerned has not had the opportunity to meet the case at the conclusion of the entire process. As a result, infringement of the right cannot be meaningfully assessed until the process is complete, and it has to be ascertained on the basis of the inquiry as a whole.[2] Thus, provided that a party is given notice of adverse findings and given an opportunity to put submissions in relation to those findings before they are made, the right will not be infringed merely because the risk of those adverse findings was not made clear at the outset of the inquiry. Equally, a witness called to give evidence has no right to advance notice of the topics that are to be pursued in evidence—save to the extent necessary to enable the witness to assess whether the compulsory process served on him or her is valid.
Further, the better view in Australia seems to be that the right to meet the case does not include the right to call additional evidence and is therefore limited to the right to make submissions.[3] The same line of authority establishes that procedural fairness does not, of itself, confer a right to cross-examine, although the refusal of cross-examination may in a particular case, when combined with other circumstances, lead to the conclusion that a person has been denied a meaningful opportunity to meet the case against them.
Similarly, although the right to know the case to be met will generally confer a right of access to all the evidence to be relied on in support of a possible adverse finding, it will not extend to a right of access to other material, not adduced in evidence, that might be used by the person to advance their case. A party potentially adversely affected by an inquiry thus has no right to discovery or disclosure of materials in the possession of the inquiry, unless and until those materials are relied on for the purposes of a possible adverse finding.
Statutes authorising the conduct of inquiries often, but not invariably, stipulate whether legal representation is an entitlement or is prohibited or discretionary. In the absence of such a provision, it is debatable whether there is a right at common law to legal representation. However, like cross-examination, absent express statutory authority, refusal of legal representation is a factor that might be combined with other factors to lead to the conclusion that a person was substantively denied the opportunity to meet the case against them.
Four areas of privilege are commonly encountered in the conduct of an inquiry:
• privilege against self‑incrimination • legal professional privilege • public interest immunity • parliamentary privilege.
It is clear that privilege against self-incrimination will ordinarily be implied in favour of natural persons (not corporations or other artificial entities) unless expressly abrogated by statute.[4] It is increasingly common for statutes to provide that self‑incrimination shall not be an excuse for refusing to provide data or evidence but at the same time limit the extent to which the data or evidence provided can be used against the person providing it—sometimes on conditions such as a requirement that the privilege be claimed at the time of production, thus leading to the farcical process in a number of proceedings in which a witness precedes every answer with the word ‘privilege’. Such statutory provisions generally do not preclude derivative use of the information provided; that is, its use for the purpose of gathering other evidence that can be used against the subject and that is not subject to the immunity deriving from compulsory production.
The scope and availability of legal professional privilege has of course been widened by the decision of the High Court adopting the ‘dominant purpose’ test in lieu of the ‘sole purpose’ test.[5] Further, a relatively recent decision of the High Court establishes that statutes will seldom be construed as impliedly overriding legal professional privilege, which should therefore be presumed unless expressly abrogated.[6]
Public interest immunity is essentially that class of privilege that precludes compulsory production of data or the provision of evidence that will be contrary to the public interest in the confidentiality of aspects of the workings of government. It commonly protects data relating to the workings of the highest levels of government (Cabinet and the Executive Council) and such things as criminal law enforcement and various other areas of government activity.
Parliamentary privilege has its origins in Article 9 of the English Bill of Rights, which has in turn been incorporated in Commonwealth law by s. 49 of the Australian Constitution and by the Parliamentary Privileges Act 1987. It prohibits any act ‘impeaching or questioning’ any words that are spoken or written in parliament. The Parliamentary Privileges Act provides that the privilege extends to all words spoken and acts done in the course of, or for the purposes of or incidental to, the transacting of the business of a House or of a committee of a House. Thus, communications between members of parliament that occur outside parliament, or between members of parliament and their staff, may well be protected if they are related to some matter pending in parliament; for example, a briefing provided in respect of a possible parliamentary question would almost certainly be covered by the privilege. Care should therefore be taken before attempting to compel the production of any material of this class or before receiving in evidence any Hansard relating to the proceedings of parliament.
One of the practical problems arising from a claim of any of these privileges in the course of an administrative proceeding is the usual inability to authoritatively and definitively determine the claim within the scope of the proceeding itself. The difficulty generally arises when a person claims the privilege in answer to the exercise of a power to compel the production of data or to attend to answer questions. Tribunals or inquiries are rarely, if ever, given the power to impose punishment for failure to answer compulsory process and could not be validly given such a power in the Commonwealth sphere because of the implied separation of powers found in the Constitution.[7] The usual consequence of the failure to answer compulsory processes relating to the provision of data or evidence is vulnerability to criminal prosecution for the commission of an offence created by the statute authorising the compulsory process. Thus, the scope of the privilege and its availability will generally have to be determined in criminal proceedings and will often determine the outcome of those proceedings. This seems somewhat unsatisfactory, but at least in the Commonwealth sphere, given the limitations imposed by Brandy, there do not seem to be many satisfactory alternative procedures available.
It is not uncommon for an inquiry to be conducted into matters that are the subject of pending criminal or civil proceedings. In this circumstance those conducting the inquiry need to take care to avoid conduct that might constitute a contempt of the court in which those proceedings are pending. The danger is greatest in the case of criminal proceedings and, although much reduced, should not be considered negligible in relation to civil proceedings.
Possible contempt usually arises in two areas. The first involves the use of process to compel the provision of data or information that could be used to the disadvantage of a person awaiting criminal trial at a time when that person has the so-called right to silence.[8] The second area of possible contempt lies in the making of a determination on precisely the same point or issue to be determined by the court. In such a circumstance it can be argued that it is a contempt to pre‑empt the decision of the court because it might be seen as conduct intimidatory of the judicial process. The risk of such a conclusion is much greater when the process involves trial by jury rather than trial by judge alone.
The provision of submissions to an inquiry is a fundamental and vital part of the process. Those submissions have two important functions:
• informing the inquiry • affording procedural fairness to people who might be adversely affected by the inquiry.
It is impossible to provide a universal prescription or recommendation on the most effective way of dealing with the process of submissions. The order in which they are to be presented and the form they are to take (that is, whether written or oral) depends very much on the circumstances and context.
Reverting again to the role of counsel assisting or some person with an analogous task, such a person is ideally placed to provide submissions to an inquiry. The availability and use of such a person to provide those submissions facilitates the achievement of procedural fairness and precludes the perception or apprehension of bias that would flow from the tribunal itself putting parties who might be adversely affected on notice of the findings that might be made against them. The submissions also give the tribunal a helpful and, it is hoped, objective view as to the findings that might be made. In this respect the submissions from counsel assisting should be different in kind from those presented by parties in an adversarial proceeding, in the sense that they should not seek to advance a particular cause or case but instead seek to fairly and objectively analyse the material that has been produced before the tribunal. Submissions of this kind provide for a tribunal a resource that will not ordinarily be available in adversarial proceedings, in which all submissions are put by parties with a particular axe to grind or case to promote.
At a number of points in this paper the useful role that might be performed by either counsel assisting or somebody with an analogous task is noted. Although such people are often part of particular forms of inquiry, such as royal commissions, it seems to me there is considerable potential for extending their use to less formal or contentious areas of inquiry, such as the inquiries commonly conducted by a wide variety of administrative tribunals. In those cases, it might be more efficient, in arriving at the right and preferable decision, for public resources to be expended on providing a form of assistance to the inquiry, as opposed to expending those resources on the partisan representation of a government respondent to such an inquiry. Efficiency would be promoted in such a case because counsel assisting would have the advantage of adopting an impartial and objective approach, rather than the partisan approach of attempting to uphold the government decision or advance the government position. Of course, this advantage will be lost if there is an inappropriate relationship between the tribunal and the person assisting: liaison and consultation are obviously desirable, and probably essential, but they must occur on terms that preserve each party’s independence of thought and action.
[∗] President of the Administrative Review Council.
[1] For example, Steven Donaghue’s excellent Royal Commissions and Permanent Commissions of Inquiry (2001, Butterworths, Sydney).
[2] Bond v Australian Broadcasting Tribunal (No. 2) (1988) 84 ALR 646.
[3] NCSC v News Corporation Ltd [1984] HCA 29; (1984) 156 CLR 296 at 324.
[4] As to corporations, see EPA v Caltex Refining Co Pty Ltd [1993] HCA 74; (1993) 178 CLR 477.
[5] Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67; (1999) 168 ALR 123, overruling Grant v Downs [1976] HCA 63; (1976) 135 CLR 674.
[6] Daniels Corporation International Pty Ltd v ACCC [2002] HCA 49.
[7] Brandy v Human Rights Commission [1995] HCA 10; (1995) 183 CLR 245.
[8] It is my view that the expression ‘right to silence’ is something of a misnomer since it is really an expression that covers a bundle of immunities, including immunity from the provision of data or evidence that might be used to incriminate the provider.
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URL: http://www.austlii.edu.au/au/journals/AdminRw/2004/3.html