1. Introduction

This Commission of Inquiry was established to provide the Tasmanian Government with an opportunity to understand how to respond more effectively to allegations and incidents of child sexual abuse in institutional contexts.

In this chapter, we consider how the work of our Commission of Inquiry was shaped by the legislative context within which it operated. This legislative context is relevant to the outcomes of our Inquiry (namely this report and its findings and recommendations) and how we went about our work. We consider we should reflect on how to conduct such inquiries more effectively.

As with all human endeavours, there are aspects to the conduct of our Commission of Inquiry that we could no doubt have done better. Ultimately, this is for the judgment of others.

The Commissions of Inquiry Act 1995 (‘Commissions of Inquiry Act’) governed the way our Inquiry was established and conducted, although other legislation was also relevant. Given the experience of conducting our Inquiry, we consider it is appropriate and useful to reflect on the ways in which the Commissions of Inquiry Act (and other legislation) could be improved for the benefit of future inquiries and the entire Tasmanian community.

1. Background

Our Commission of Inquiry is the first since the Commission of Inquiry into the Death of Joseph Gilewicz (‘Gilewicz Commission of Inquiry’) reported in 2000.1 During its inquiry, the Gilewicz Commission of Inquiry identified difficulties with the Commissions of Inquiry Act.2 As a result, the Commissions of Inquiry Amendment Act 2000 was introduced. The Gilewicz Commission of Inquiry went on to note other practical problems with the amended Commissions of Inquiry Act in its final report.3

In March 2002, the then Attorney-General requested the Tasmania Law Reform Institute (‘Law Reform Institute’) examine and report on the operation of the Commissions of Inquiry Act, including considering the experience of the Gilewicz Commission of Inquiry. In August 2003, the Law Reform Institute published its final report, recommending further amendments to the Commissions of Inquiry Act.4

In 2013, the Commissions of Inquiry Act was again amended to facilitate the work of the Royal Commission into Institutional Responses to Child Sexual Abuse.5

In anticipation of establishing our Commission of Inquiry, the Tasmanian Government had preliminary conversations with the Honourable Marcia Neave AO about the Commissions of Inquiry Act. A range of possible amendments to the Act—including because of the Gilewicz Commission of Inquiry’s report, the Law Reform Institute’s report  and the experience of inquiries in other jurisdictions—were discussed ahead of our Inquiry. Ultimately, it was a matter for the Tasmanian Government and Parliament to decide the amendments that should be made to the Commissions of Inquiry Act.

On 1 March 2021, the Justice Miscellaneous (Commissions of Inquiry) Act 2021 came into force (‘Justice Miscellaneous (Commissions of Inquiry) Act’). This Act amended the Commissions of Inquiry Act, including in response to the Law Reform Institute’s report and in anticipation of establishing our Commission of Inquiry. 6 Among other changes, the amended Commissions of Inquiry Act enabled regulations to be made that disapplied other Acts (or certain provisions of those Acts) to any information collected or used by or on behalf of a commission of inquiry.7

On 15 March 2021, the Governor of Tasmania established the Commission of Inquiry into the Tasmanian Government’s Responses to Child Sexual Abuse in Institutional Settings, appointing us as Commissioners and enabling our Inquiry to begin.8

In early May 2021, our Commission of Inquiry proactively engaged with the Tasmanian Government regarding provisions we recommended should be disapplied (that is, those that would not operate) to enable our Inquiry to do its work and to make it easier for people, including State Service employees, to share information with us.

On 14 July 2021, the Commissions of Inquiry Regulations 2021, which disapplied certain Acts in relation to our Commission of Inquiry, commenced.

The amended Commissions of Inquiry Act and the regulations made up the legal framework within which our Inquiry operated.

The Law Reform Institute’s report commented that the fact the Gilewicz Commission of Inquiry identified aspects of the Commissions of Inquiry Act as being problematic was ‘a familiar chain of events’.9 Other royal commissions and inquiries have routinely identified in their reports challenges with the legislation under which they operated and opportunities for reform, with the goal of improving the conduct of future inquiries.10 Indeed, given the limited time available to royal commissions and inquiries to undertake their work and, therefore, the need for them to focus on the subject matter of their inquiry, it is impractical for them to pursue legislative reforms during their term. In this context, we consider it is appropriate for us, at the end of our Inquiry, to also reflect on opportunities for reform.

1. A commission’s conduct of its own inquiry

A commission of inquiry should be empowered to decide how it conducts its inquiry subject to the legislation and orders under which it is established, other relevant legislation and common law rules such as procedural fairness. In recognising the need for the Commissions of Inquiry Act to offer greater flexibility, the Justice Miscellaneous (Commissions of Inquiry) Act introduced provisions that gave a commission of inquiry the power to conduct its inquiry and obtain information in ‘any manner that it considers appropriate’ and to ‘determine its own procedure in conducting its inquiry’.11

Importantly, the July 2021 regulations also provided that certain confidentiality provisions and other restrictions on sharing information in other Acts did not apply to information collected or used by or on behalf of our Commission of Inquiry.12 As indicated, this removed barriers to State Service employees sharing information with us.

We recognise there is a delicate balance to be achieved between the important purposes of other Acts and whether such Acts should be disapplied in relation to a commission of inquiry to improve the conduct of its inquiry. This is a decision for the Tasmanian Government rather than any individual commission of inquiry, although the views of a commission of inquiry should be sought and carefully considered. The new regulations materially assisted our Inquiry, but we reflect below in Section 3.2 on the challenges presented by one particular provision that was not disapplied.

1. Adverse findings and misconduct findings

In Chapter 1, Section 2.3.4, we discuss the requirements imposed by the Commissions of Inquiry Act for a commission of inquiry to make findings of misconduct (section 18) and adverse findings (section 19), despite a commission of inquiry also being required by the Commissions of Inquiry Act and the common law to comply with the rules of procedural fairness. In a practical sense, these specific requirements make it more difficult to make such findings, where these requirements may be unnecessary, and indeed counterproductive, to appropriately protecting the rights and interests of those who might be affected by such findings. We do not repeat that discussion here.

In summary, we consider a commission of inquiry should be able to make any findings it wishes, subject to complying with the rules of procedural fairness. We do not consider that the legislation needs to set out any specific procedural requirements. It is not clear to us why the Commissions of Inquiry Act needs to have a specific regime for findings of misconduct, particularly when the equivalent legislation in other Australian jurisdictions does not have any such regime. This approach is inconsistent with contemporary inquiry practices. Ultimately, we are concerned that the Commissions of Inquiry Act creates legal complexities that prevent inquiries from being as effective and efficient as they might otherwise be.

We consider it appropriate and necessary for the Commissions of Inquiry Act to expressly provide that the rules of procedural fairness apply to a commission of inquiry.13 However, one of the practical challenges of the specific procedural requirements for findings of misconduct in the Commissions of Inquiry Act is that it limited the ability of our Inquiry to determine how we conducted ourselves, as explained further below.

Under the current Act, a commission of inquiry must give a person notice of any allegation of misconduct (section 18(1)) and allow that person an opportunity to respond (section 18(3)). We consider giving a person notice about potential findings concerning them and an opportunity to respond is appropriate, but note that this would be required by the rules of procedural fairness anyway. The practical challenge is that the rights in relation to responding under section 18(3) could allow that person to effectively control the commission of inquiry’s processes. Under section 18(3), the person may choose to make oral or written submissions, give evidence to a commission of inquiry, cross-examine the person who made the allegation or call witnesses. As a result, a person may compel a commission of inquiry to:

• conduct more hearings, even where the commission of inquiry’s planned hearings have concluded
• call or re-call witnesses for cross-examination, even in circumstances where there may be other important reasons why this is not appropriate (for example, this could be retraumatising for some witnesses and the nature of the cross-examination may be inconsistent with trauma-informed practice).

The scheduling of hearings is complicated, requiring a wide variety of factors to be considered—among them, the availability of a venue, Commissioners, witnesses, parties, lawyers for all relevant parties, technical operators and other relevant supports (such as counselling). Hearings are resource-intensive, expensive and time-consuming. Therefore, it is better that commissions of inquiry control the calling of any hearings. Also, given that most inquiries continue to discover information throughout their term that may be relevant to findings they wish to make, the risk is that inquiries would need to hold repeated section 18 hearings to make findings that might constitute findings of misconduct, or otherwise artificially and prematurely conclude their information-gathering phases to allow enough time if any hearings related to section 18 may be required. It is also possible information that emerges from one section 18 hearing gives rise to new potential findings of misconduct that might require more section 18 hearings, meaning there is the potential for endless hearings unless the inquiry determines not to pursue findings based on information that is already before it. In addition, under the current Commissions of Inquiry Act, there is the risk that an individual might seek to ‘run the clock’ and delay providing information until after the commission’s planned hearings conclude, and to then require a further hearing if the commission were to propose making a misconduct finding based on the information they subsequently provide.

While a commission of inquiry should certainly be required to consider a response from a person in relation to potential adverse content or findings about them, this could be achieved through written submissions and written evidence without requiring the substantial expense, delay and potential trauma of further public hearings. A person affected by a potential finding will usually only be motivated to consider their own position and possibly the position of any employer or organisation they represent. In contrast, a commission of inquiry must consider a raft of factors, including how to advance its inquiry for the benefit of the public, how to appropriately manage the public cost of its inquiry, how to sequence its work to meet its reporting deadline, how to weigh the information and position of each party and, of course, how to comply with the rules of procedural fairness. It is for these reasons that it is appropriate for a commission of inquiry to be able to control its own proceedings.

In this context, we consider section 18 does not achieve an appropriate balance between facilitating a commission of inquiry controlling its own proceedings (while complying with the rules of procedural fairness) and protecting the rights of a person subject to an allegation or potential finding of misconduct. We consider that further amendments to section 18, or the definition of ‘misconduct’, will not redress this imbalance. The Tasmanian Government should consider simply repealing section 18 and that definition.

Similarly, a commission of inquiry must give a person a notice of any adverse finding and allow the person at least 10 business days to respond (section 19).14 While less prescriptive and, therefore, less problematic than the specific procedural requirements for findings of misconduct, we do not consider it is necessary for this procedure to be specified in the legislation. Our Commission of Inquiry complied with these requirements in relation to all people subject to an adverse finding. Indeed, we provided the State with the opportunity to comment on content even where it was not an adverse finding. We also routinely provided the State and other people and entities with much more than 10 business days in which to respond, recognising that a longer period was sometimes fair and reasonable in the circumstances. Therefore, these are matters that a commission of inquiry should determine as part of its compliance with the rules of procedural fairness.

As stated above, we consider it appropriate and necessary for the Commissions of Inquiry Act to expressly provide that the rules of procedural fairness apply to a commission of inquiry.15 We do not, however, consider the relevant legislation should set out any specific procedural requirements for making findings or complying with such rules of procedural fairness. We consider section 18, in particular, imposes requirements that are unnecessary, counterproductive, onerous and not in the public interest.

1. Legislative restrictions on certain information

Given the subject matter of our Commission of Inquiry, there was a range of other legislation that applied to the sensitive information (including about child sexual abuse) that we considered. Some of this legislation appropriately imposes restrictions on dealing with such information in the interests of achieving important purposes, while other provisions limited our Inquiry’s effectiveness.

The National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (Cth) (‘National Redress Scheme Act’) limits the use and disclosure of protected information in relation to the National Redress Scheme but allows it to be used and disclosed in certain circumstances.16 As the National Redress Scheme Act is a Commonwealth Act, the Commissions of Inquiry Act and any regulations under it cannot override or disapply the National Redress Scheme Act. Our Commission of Inquiry complied with these limitations and relevant exceptions to them where appropriate.

The Evidence Act 2001 also imposes relevant restrictions. Originally, section 194K created an offence for a person, in relation to any proceeding in any court, to publish identifying information about a person in respect of whom specific crimes involving a sexual offence were alleged to be committed (that is, a victim-survivor) and any witness or intended witness in those proceedings, without a court order. In 2020, a new section 194K was introduced making it an offence for a person, in relation to any proceeding in any court, to publish identifying information in respect of certain specified crimes involving a sexual offence.17 The offence applies regardless of whether the criminal proceedings have been finally determined.18 It is a defence to this offence if the information is about a person against whom the crime is alleged to have been committed (that is, a victim-survivor) and that person consents to the disclosure
(and the information does not identify any other victim-survivor unless that person has also consented). The change flowed from a campaign led by victim-survivors who wanted to speak about their own experiences of child sexual abuse. The legislation still does not, however, allow any witness or intended witness in those proceedings (other than the defendant) to be identified without a court order (that is, even if the victim-survivor and the witness both consent to being identified).

In conducting our Commission of Inquiry, our approach was to appropriately empower and protect victim-survivors; this included respecting their preferences for how their information would be shared and used. As part of our engagement with victim-survivors, if we proposed to identify them in our hearings or our report, and section 194K might apply, we asked for their consent.

Similar provisions to section 194K apply in other Australian jurisdictions and aim to achieve the important purpose of providing victim-survivors with the ability to share their experiences and control whether they are identified. As our Commission of Inquiry worked through applying section 194K, we identified a range of challenges. These included limitations on our ability to conduct hearings and include content in this report in circumstances where such limitations were not necessary to achieve the purpose of the provision (including empowering victim-survivors with the choice to be identified and how they can share their experiences).

First, a range of terms used in section 194K are not defined and are, therefore, uncertain. Section 194K does not spell out what constitutes ‘proceedings in any court’ and continues to apply regardless of whether the proceedings have been discontinued, finally determined or otherwise disposed of. Section 194K applies to any witness or intended witness in the proceedings. These terms are also not defined. It is not always readily apparent who is, or was, a witness or intended witness in any proceeding, and there can be practical difficulties in identifying all people for whom section 194K might apply. For example, James Griffin was charged with sexual offences against young people, but following his death by suicide, these proceedings were never finally determined. Relevantly, however, section 194K continues to apply in relation to those proceedings and anyone who was an intended witness in them.

Second, there is no way for a witness or intended witness to be identified (without a court order), even in circumstances where the relevant victim-survivor has consented to being identified in line with section 194K and might wish for the relevant witness to also be identified. This could lead to the strange outcome that a victim-survivor could be identified but an immediate family member who gave (or might have given) evidence in the proceedings (and who might also wish to be identified) or a professional witness, such as a police officer, could not be identified. It would also seem possible

to identify professional witnesses without necessarily identifying a victim-survivor or other witnesses, so would not be inconsistent with the purpose of the provision, but this would also not be permitted without a court order.

Third, section 194K specifies that only a victim-survivor aged 18 years or older can provide consent. Unlike other Australian jurisdictions, there is no way younger victim-survivors with appropriate capacity can give consent.19

Finally, although an application can be made to the Supreme Court for an order to allow identifying information to be published, this process risks being expensive, time-consuming and potentially traumatic for multiple parties. In circumstances where the relevant inquiry is directly engaging with the victim-survivor and any relevant witnesses, and the purposes of the provision are being facilitated, it appears to us that it would be better to avoid applying for such an order.

Two solutions to these practical challenges could be considered. First, section 194K could be redrafted to address the issues we have identified above, taking into account the more precise drafting in other Australian jurisdictions. Second, section 194K should be disapplied by regulations relating to any relevant commission of inquiry.

Our Commission of Inquiry complied with section 194K. We adopted a cautious approach and did not identify anyone if there was a risk that section 194K might apply and it was not possible to seek their consent to identification under section 194K.

We liaised with the Director of Public Prosecutions to consider any issues with section 194K applying to our work, as well as to try to avoid, in keeping with the order establishing our Commission of Inquiry, prejudicing any current or future criminal proceedings. We are grateful to the Director and his office for their assistance with these matters.

1. Flexibility with powers and privileges

In October 2009, the Australian Law Reform Commission (‘ALRC’) conducted a review of the Royal Commissions Act 1902 (Cth) and presented its findings in its Making Inquiries: A New Statutory Framework report.20 Although the ALRC’s review focused on the Commonwealth Act, it led to legislative reform in other Australian jurisdictions.21 The review is relevant to reforms to the Commissions of Inquiry Act, including because the Justice Miscellaneous (Commissions of Inquiry) Act was said to implement the work undertaken by the Law Reform Institute and the ALRC.22 Relevantly, the Justice Miscellaneous (Commissions of Inquiry) Act did not implement all the recommendations of either.

One important recommendation of the ALRC was to establish two tiers of public inquiry—namely, royal commissions and official inquiries—within a single statute.23 It was suggested this would ‘enhance clarity, transparency and accountability, and preserve, as far as possible, the rights of individuals’.24

As the ALRC noted in its report, a royal commission is the highest form of inquiry, established to look into matters of substantial public importance, whereas an official inquiry looks into other matters of public importance.25

The ALRC noted key differences between these two tiers:

• A royal commission has a wide range of coercive powers of entry and search and seizure, whereas an official inquiry has fewer powers.
• A royal commission overrides legal professional privilege and the privilege against self-incrimination, but these continue to apply in an official inquiry.26

We agree that the purpose and nature of each inquiry is different and the powers and privileges that apply to each inquiry might also need to differ, so each inquiry can appropriately conduct its work while also appropriately balancing the rights of those involved with, or potentially affected by, its processes.27

In New South Wales, Victoria and the Australian Capital Territory, relevant legislation provides for these different tiers of inquiry.28 For example, the Inquiries Act 2014 (Vic) provides for establishing a royal commission, a board of inquiry or a formal review, with each having different powers. A royal commission overrides legal professional privilege and the privilege against self-incrimination, but a board of inquiry does not.29 A royal commission and a board of inquiry also generally override statutory secrecy provisions in other legislation.30 A formal review preserves legal professional privilege, the privilege against self-incrimination and statutory secrecy provisions. Other Australian jurisdictions also expressly override legal professional privilege and the privilege against self-incrimination in relevant inquiries.31

In Tasmania, commissions of inquiry have been far less frequent than in other Australian jurisdictions. Possibly because of this, the Commissions of Inquiry Act does not reflect the ALRC report approach of having different tiers of inquiry with flexibility in the powers and privileges that might apply to those different tiers.

While the Justice Miscellaneous (Commissions of Inquiry) Act amended the Commissions of Inquiry Act to empower a commission of inquiry to decide if a claim of privilege is valid, it does not expressly override legal professional privilege (although it does override the privilege against self-incrimination).32

Our Commission of Inquiry worked with the Tasmanian Government to manage State claims of privilege and was grateful for the approach adopted by the Tasmanian Government of seeking to confidentially share such material with us and, in some cases, waive privilege where it was possible to do so. Otherwise, we respected the State’s claims for privilege. Nonetheless, it would be appropriate to consider whether the Commissions of Inquiry Act should be amended to create greater flexibility in the powers and privileges that apply to future inquiries, including abolishing legal professional privilege in relevant inquiries.

1. Other opportunities for reform

As noted, the Commissions of Inquiry Act was amended in 2021 to empower a commission of inquiry to conduct its work and obtain information in any way it considers appropriate.33 As reflected in this report, our Commission of Inquiry informed itself in several ways, including through public hearings.

The Commissions of Inquiry Act was originally enacted when public hearings were a—possibly the—primary vehicle by which evidence was obtained. Part 3 [Conduct of Inquiries], Division 1 [General powers and procedures] reflects this historical focus on public hearings. While amendments to the Commission of Inquiry Act make it clear that commissions of inquiry can get information in other ways, the Act still has various terms including ‘information’, ‘evidence’, ‘documents’ and ‘thing’. None of these terms are defined.

In conducting our Inquiry and considering the relevant protections and offences that apply under the Commissions of Inquiry Act, we approached these terms broadly to ensure all who provided information, gave evidence or produced a document or thing—whether at a public hearing, during a session with a Commissioner, in a submission or as part of a consultation—were afforded these protections and rights.

More generally, however, the Act using different terms raises the question of whether any legal difference between them is intended. This requires careful consideration of each use of the different terms and creates the possibility of different interpretations and, therefore, greater legal complexity. Given a commission of inquiry can obtain information in any way it considers appropriate, we do not consider using different terms is necessary. The legislation could be simplified by using the same terminology consistently.

A commission of inquiry also has powers to control its proceedings, determine whether its hearings are open to the public, and prohibit or restrict the public reporting of a hearing or the publishing of any evidence it takes or receives.34 A few comments might be made about these provisions. First, by their language, they reflect the historical focus of the Commissions of Inquiries Act on hearings, as opposed to empowering a commission of inquiry to make orders (including prohibitions or restrictions) relating to any information that it might receive. Second, before a commission of inquiry decides to close its hearings, or to make a prohibition or restricted publication order, it must announce that intention or make such an order at a hearing that is open to the public.35

While our Commission of Inquiry was able to close hearings and to make orders to prohibit or restrict the publication of evidence as part of our main hearings, such processes could be disruptive and inefficient. In the context of contemporary inquiry practices, we consider there may be more efficient ways of making such decisions and orders public without needing to do so during public hearings. For example, it might be possible to require such notices to be published at any relevant commission of inquiry office or hearing venue, or on the commission of inquiry’s website, a reasonable period before they take effect.36

1. Conclusion

Our experience in conducting our Commission of Inquiry highlighted several ways in which the Commissions of Inquiry Act should be improved to enable future inquiries to achieve their objectives effectively, efficiently and in a way that is fit for purpose. We see opportunities for holistic reform of the Commissions of Inquiry Act rather than piecemeal amendments or amendments that react to circumstances surrounding establishing any given commission of inquiry. We hope our experiences and reflections might usefully inform any such reform for the benefit of future inquiries.

We encourage the Tasmanian Government to actively pursue the following potential framework for legislative reform:

1. Amend the Commissions of Inquiry Act 1995 to:
   1. establish greater flexibility in the powers and privileges applying to different inquiries, including expressly abrogating legal professional privilege in relevant inquiries
   2. repeal the definitions of ‘adverse finding’ and ‘misconduct’ (section 3) and sections 18, 19(2A) and (2B)
   3. use consistent terminology and achieve drafting coherence across the various ways in which a commission of inquiry might obtain, manage and protect those who provide information
   4. provide for more practical ways in which to make decisions about closing hearings and making prohibition or restricted publication orders.
2. Amend section 194K of the Evidence Act 2001, considering equivalent provisions in other Australian jurisdictions and the practical challenges identified in this report.