Slevin, Tony --- "TURC and the Royal Commission referral power" [2016] PrecedentAULA 40; (2016) 135 Precedent 4

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TURC AND THE ROYAL COMMISSION REFERRAL POWER

By Tony Slevin

The Trade Union Royal Commission (TURC) referred 72 people and organisations to 22 law enforcement agencies and administrative authorities asking that consideration be given to further investigation of, or the institution of proceedings over, 147 cases of alleged criminal, civil or administrative wrongs. The referrals were made pursuant to s6P of the Royal Commissions Act 1902 (Cth) (RC Act). The referrals shared information gathered during the Commission’s inquiry. That information was gathered using powers that are wide ranging and not usually available to the agencies receiving it. The persons referred have limited immunity under the RC Act. This should give lawyers representing persons appearing before any Royal Commission pause for thought.

Commonwealth Royal Commissions, like their counterparts in the states, are investigative bodies. They are not judicial inquiries.^[1] They are established by Letters Patent issued by Governors-General at the request of the executive arm of government. Those Letters Patent include terms of reference. Royal Commissions inquire and report as required by the relevant Letters Patent. As was acknowledged in the TURC final report, the conclusions reached by a Royal Commission are expressions of opinion only. They do not have legal force. Of themselves, they do not determine the legal rights of any affected party.^[2]

Those rights will ultimately be determined by courts. In the case of rights and obligations conferred by statute, those rights may in the first instance be determined by administrative bodies. It is those bodies that will be the beneficiary of information shared by a Royal Commission.

A Royal Commission exercises powers under the RC Act. The RC Act provides Commissions with considerable coercive powers to obtain information. That information may be gained by forcing people to attend and answer questions.^[3] It may be gained by forcing them to surrender documents or other things.^[4] Sharing information gathered during investigations with authorities is permitted by s6P of the RC Act. TURC made extensive use of this power.

THE TRADE UNIONS ROYAL COMMISSION

TURC was established by Letters Patent dated 13 March 2014. The terms of reference were broad. They required the Commission to investigate trade union activity in two categories: first, to inquire into the existence and use of union slush funds; and, secondly, to inquire into any improper conduct by past or present union officials. The breadth of the latter is demonstrated by subparagraph (f) in the terms of reference, which included a request to inquire into:

‘(f) ... any conduct in relation to a relevant entity which may amount to a breach of any law, regulation or professional standard by any officer of an employee association who holds, or held, a position of responsibility in relation to the entity.’

The terms of reference asked TURC to inquire into these matters, to make recommendations based on that inquiry, and to report on the results of the inquiry. The TURC was conducted by way of a series of case studies. Overwhelmingly those case studies focused on the investigation of perceived unlawfulness by union officials.

TURC’s inquiry lasted for 21 months and received evidence from more than 505 individual witnesses. Witnesses were summoned to give evidence and were examined by counsel assisting, an affected party or both. In some cases, the evidence of witnesses was received by way of witness statement only. Over 2,000 notices to produce were issued.

The Letters Patent initially required TURC to report by 31 December 2014. The time for reporting was extended to 31 December 2015. A two-volume interim report was provided to the Governor-General on 15 December 2014 and was tabled in Parliament on 19 December 2014. A six-volume final report was provided to the Governor-General on 28 December 2015 and was tabled in Parliament the following day.

The only recommendation in the interim report was that information relevant to 28 persons be referred, pursuant to s6P, to authorities with enforcement and administrative power to further investigate or commence proceedings for contraventions of identified laws. Once the final report was released, the number of persons subject to referrals had increased to 72 and they were referred to 22 law enforcement agencies and administrative authorities. Those agencies and authorities were asked to consider either further investigation or commencement of proceedings in cases of 147 possible contraventions of identified laws. These included criminal laws and civil penalty provisions. The final report also made 79 recommendations for law reform.

Without being exhaustive, those referred under s6P included unions, past and present union officials, rank and file union members, a parliamentarian, companies, company executives, a charitable organisation and two registered clubs. Again without being exhaustive, the authorities that those persons were referred to included the Directors of Public Prosecutions (DPPs) of the Commonwealth and five of the six states (the Tasmanian DPP missing out), the Australian Federal Police, State Commissioners of Police, the Australian Securities and Investment Commission (ASIC), the Australian Crime Commission (ACC), the Fair Work Commission, the Fair Work Building Inspectorate, the Commissioner for Taxation, the ACT Gaming and Racing Commission and the Australian Charities and Not-for-Profits Commission. The potential contraventions to be considered included common assault, extortion, blackmail, fraud, the giving and receiving of corrupt commissions, breaches of prohibitions on secondary boycotts, engaging in cartel conduct, contravening a National Privacy Principle, breaching duties as union officers, failing to maintain financial statements, failing to maintain an accurate register of union members, and intentionally giving false or misleading evidence before a Royal Commission.

One referral was made to the committee of management of a union to consider disciplining an officer under the union’s rules. Another was to the New South Wales Minister for Innovation and Better Regulation for consideration of whether an inquiry should be conducted pursuant to Division 1 of Part 3 of the Charitable Fundraising Act 1991 (NSW) into all of the practices of a NSW union concerning charitable fundraising.

Thus far, there have been at least two successful prosecutions arising from TURC. Two persons who appeared under summons to give evidence were later charged in the County Court of Victoria with a total of five counts of intentionally giving false or misleading evidence before a Royal Commission, contrary to s6H of the RC Act. Guilty pleas were entered to all charges. Unusually in such cases, the Court ordered suspended sentences for both accused.^[5] The TURC reports did not include referrals in these cases and so it is unclear whether these charges arose from a referral from TURC or through independent action on the part of the Victorian DPP.

There are other ongoing criminal proceedings arising from TURC that did not result from the referrals mentioned in the report. Charges have been laid against a former union official in the ACT and against witnesses who appeared in the ACT sittings of TURC.

SHARING INFORMATION – SECTION 6P

The referral power in s6P of the RC Act is a relatively new provision. It was enacted in 1982 during the Costigan Royal Commission, after Costigan identified a need to put beyond doubt the power of his Commission to provide information and documents to prosecutors and law enforcement bodies.^[6] The original provision permitted a Royal Commission to communicate information or evidence that related or may relate to an offence against a law of the Commonwealth, a state or a territory to attorneys-general, the National Crimes Commission, a Special Prosecutor under the Special Prosecutors Act 1982 (Cth), Police Commissioners or an authority or person responsible for the administration or enforcement of that law.^[7] The section has been amended a number of times to clarify and expand the capacity of Royal Commissions to share information with other bodies.

The RC Act was amended in 1983 to allow a Royal Commission to share relevant information, evidence and documents with other Royal Commissions.^[8] It was also amended in that year to allow the sharing of information or evidence of an offence with the DPP.^[9] In 1984, it was expanded to permit the sharing of information with the National Crime Authority (NCA) if the Royal Commission was of the opinion that the information related or may relate to an investigation being conducted by the NCA.^[10] In 1994, the Director of the Australian Bureau of Criminal Intelligence was added to the list.^[11] In 2001, the Attorney-General of the ACT was added.^[12] In 2002, the provision was amended to replace the references to the National Crimes Commission (NCC) and the Australian Bureau of Criminal Intelligence with reference to the ACC. The new provision permitted the sharing of information and evidence which was relevant to the performance of the functions of the ACC.^[13] Further amendments were made in 2006 to permit the sharing of information and evidence with the Integrity Commissioner,^[14] whose role is to provide independent assurance to the government about the integrity of prescribed law enforcement agencies.

The 2001 amendments also broadened the scope of the material being shared from information and evidence concerning the ‘commission of an offence’ to information and evidence of a ‘contravention of a law’. The new formula sought to avoid a narrow reading of the word ‘offence’ in the existing provision. The new term ‘contravention’ referred to conduct that would give rise to a ‘criminal penalty’ or ‘civil or administrative penalty’.^[15]

The explanatory memorandum to the bill introducing these changes made it clear that the changes were intended to ensure that a Royal Commission could provide information to an organisation such as ASIC to assist in ongoing investigations into whether criminal or civil proceedings should be brought against a person. It was also made clear that the term ‘administrative penalty’ was intended to include the range of sanctions that an administrative, enforcement or regulatory agency might impose, including enforceable undertakings, orders disqualifying a person from managing a company, cancelling a licence and penalty notices.^[16]

Section 6P allows a Royal Commission to share widely the information that it has gathered using the coercive powers provided by the RC Act. Those powers are not constrained by the common law privilege against self-incrimination. Section 6A compels a witness before a Royal Commission to answer questions and produce material even if to do so might tend to incriminate or otherwise make the witness liable to a penalty. However, there can be no compulsion if the evidence or the production of the material is relevant to an extant criminal charge or proceeding for penalty. Section 6DD provides some immunity. A statement or disclosure made in the course of giving evidence before a Royal Commission, or the act of producing a document or other thing, is not admissible in evidence against the witness in any civil or criminal proceeding, save for proceedings for an offence against the RC Act.^[17] The immunity, however, does not extend to the use of such information in administrative action, such as making a decision to bring charges or to commence proceedings,^[18] or other action by an administrative body in giving effect to regulatory provisions under an Act.^[19]

CONCLUSION

TURC made extensive use of the power under s6P to refer information to enforcement agencies and administrative authorities. In doing so, TURC has shared a wealth of material with a wide range of agencies and authorities to assist in the exercise of investigative and other functions. The total impact that those referrals will have on the persons who were required to appear before, and produce documents to TURC, remains to be seen. Those persons have some limited immunity afforded by the RC Act. The manner in which those referrals have been made, together with their broad scope and the impact that they may have, are matters that should be of interest to legal practitioners who accept instructions to appear in future Royal Commissions.

Tony Slevin is Sydney barrister who works in employment law. He appeared before the Trade Union Royal Commission for the CFMEU and 47 individuals. PHONE [phone] EMAIL [e-mail].

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^[1] Lockwood v Commonwealth [1954] HCA 31; (1954) 90 CLR 177 at 181 (Fullagar J); see also McGuinness v Attorney-General (Vic) [1940] HCA 6; (1940) 63 CLR 73 at 84 (Latham CJ).

^[2] Royal Commission into Trade Union Governance and Corruption Final Report Vol. 1 at p44.

^[3] See Royal Commissions Act 1902 (Cth), Part 2, especially s2.

^[4] Ibid, s3.

^[5] DPP v Butera [2016] VCC 317.

^[6] Second Reading speech Royal Commissions Amendment Bill 1982 – Senate: Tuesday, 16 November 1982, p2337.

^[7] Royal Commissions Amendment Act 1982 (Cth), No. 139, 1982.

^[8] Statute Law (Miscellaneous Provisions) Act (No. 2) 1983 (Cth), No. 91, 1983.

^[9] Director of Public Prosecutions (Consequential Amendments) Act 1983 (Cth), No. 114, 1983.

^[10] National Crime Authority (Consequential Amendments) Act 1984 (Cth), No. 42, 1984.

^[11] Prime Minister and Cabinet (Miscellaneous Provisions) Act 1994 (Cth), No. 33, 1994.

^[12] Royal Commissions and Other Legislation Amendment Act 2001 (Cth),
No. 166, 2001.

^[13] Australian Crime Commission Establishment Act 2002 (Cth), No. 125, 2002.

^[14] Law Enforcement Integrity Commissioner (Consequential Amendments) Act 2006 (Cth), No. 86, 2006.

^[15] Royal Commissions And Other Legislation Amendment Act 2001 (Cth), No. 166, 2001.

^[16] Explanatory Memorandum Royal Commissions and Other Legislation Amendment Bill 2001 (Cth).

^[17] The nature of the immunity was considered by the High Court in X v Australian Prudential Regulation Authority [2007] HCA 4; (2007) 226 CLR 630 at 643.

^[18] Re Ian Mckenzie Murchison v Paul John Keating [1984] FCA 162; (1984) 54 ALR 386 at 394.

^[19] X v Australian Prudential Regulation Authority [2007] HCA 4; (2007) 226 CLR 630 at 648.