Appearing Before a Commission

One of the powers that a number of Commissions have is to compel a person to appear before them for a hearing. At the hearing, the person is compelled to give evidence or produce documents or things. This is often called a ‘compulsory examination’. 

At the hearing, the person may be cross-examined at length about the subject of the Commission’s investigation. By the time the Commission is conducting compulsory examinations, they have typically already done an extensive investigation which may have included obtaining documents, evidence, statements from other witnesses, surveillance device and telephone intercept operations or examining other persons. 

Different commissions have difference rules, however generally speaking, either:

1. A person cannot object to answering certain questions on the basis that the answers may incriminate themselves. However, the evidence given or documents produced by a witness will not be admissible in evidence against the person in criminal or other proceedings (except if they give false or misleading evidence); or
2. Where a person can object to giving the answer on the basis the answer may incriminate them, the objection: 
   1. must taken before answering the question;
   2. a certificate may be granted which, generally speaking, means the person’s answer cannot be used to incriminate them in other proceedings (unless they have lied in their answer). 

In practice, this means that the person is still required to answer the questions asked at the commission and/or produce documents, but the transcript or record of their answers cannot be used to prosecute them or in civil proceedings against them. This does not mean that they can’t be prosecuted for the alleged crime, just that the evidence at the Commission can’t be used to prosecute them.

The Commission may refer the matter to the Office of the Director of Public Prosecution for consideration as to whether criminal proceedings should be commenced where:

1. The Commission’s investigation concludes or considers likely that there has been criminal offending by a person or persons;
2. A person does not object to giving evidence on the basis of self-incrimination, but their answers incriminate them in a crime; 
3. A person has given false or misleading evidence at the Commission; or
4. Failing to attend a compulsory examination. 

A person who is summoned to appear before a commission is usually prohibited from discussing their required attendance, appearance at the commission or the content of the hearing with anyone except a lawyer. A person can also be prosecuted if they breach this requirement.

Can I Be Forced To Attend?

Generally speaking, yes. If the NSW Crime Commission, Australian Criminal Intelligence Commission, Independent Commission Against Corruption, Australian Securities Investments Commission, a Royal Commission or the NSW Law Enforcement Conduct Commission summons a person to give evidence, they are required to attend.

In relation to most (but not all) Commissions, if a person who has been summoned does not attend, the Commissioner (or in the case of a Royal Commission the President, Chair or Commissioner) may issue a warrant for that person’s arrest.  The person may be arrested and detained for the purpose of being brought before the Commission. A person who is arrested may be released conditionally by the Commissioner (similar to being released on bail), or may be detained until the hearing. A person who is not released pending the hearing may apply to the Supreme Court for the review of that decision. The Supreme Court may affirm the decision to refuse release or may set aside the decision allowing the person to be released.

The Supreme Court can also review any conditions imposed by the commission upon releasing a person under the warrant.

Failing To Attend

Where a person fails to attend a Commission when summoned to give evidence, they may be charged with an offence. The penalties vary depending on the Commission. Some of these are listed below.

• Australian Criminal Intelligence Commission (previously Australian Crime Commission): 200 penalty units or five years imprisonment as per Section 30 of the Australian Crime Commission Act 2002 (Cth).
• NSW Crime Commission: 20 penalty units and/or 2 years imprisonment as per Section 25 of the Crime Commission Act 2012 (NSW).
• Independent Commission Against Corruption (ICAC): 20 penalty units and/or two years imprisonment as per Section 86 of the Independent Commission Against Corruption Act 1988 (NSW).
• Law Enforcement Conduct Commission: 20 penalty units and/or two years imprisonment as per Section 150 of the Law Enforcement Conduct Commissions Act 2016(NSW).

Providing Documents

Persons may also be required to produce documents to a Commission (either before or at the same time as a compulsory examination). Failure to do so may amount to an offence. The penalties and provisions are outlined below:

• Australian Criminal Intelligence Commission (previously Australian Crime Commission): 5 years imprisonment and/or 200 penalty units as per Section 21A of the Australian Crime Commission Act 2002 (Cth).
• NSW Crime Commission: 2 years imprisonment and/or 20 penalty units as per Section 25 of the Crime Commission Act 2012 (NSW).
• Independent Commission Against Corruption: 6 months imprisonment and/or 20 penalty units as per Section 83 of the Independent Commission Against Corruption Act 1988 (NSW).
• Law Enforcement Conduct Commission: 2 years imprisonment and/or 100 penalty units as per Section 152.1 of the Law Enforcement Conduct Commission Act 2016 (NSW).

Answering Questions

Where a person is required to attend a compulsory examination they will be asked to give evidence. A Commission is set up similarly to a court room and the person will be required to stand or be seated in a witness box. A Commissioner will preside over the hearing, and Counsel Assisting the Commissioner or an Examiner will typically do the questioning. The person being examined can have a lawyer appearing on their behalf, however they will still need to answer questions themselves. 

In some cases, the person (or a lawyer appearing on their behalf) can object to answering certain questions. However, this will depend on the Commission and the question asked. Objections may include objections on the basis of self-incrimination (however only in relation to some Commissions), questions beyond the scope or not relevant to the investigation, oppressive or confusing questioning, questions about something not in the knowledge of the person being examined or unfair questions. 

It is a criminal offence to provide false or misleading evidence to a Commission. The offences and maximum penalties for giving false or misleading evidence at a commission are outlined below:

• Australian Criminal Intelligence Commission (previously Australian Crime Commission): 5 years imprisonment or 200 penalty units as per Section 33.2 of the Australian Crime Commission Act 2002 (Cth).
• NSW Crime Commission: 5 years imprisonment and/or 500 penalty units as per Section 27.2 of the Crime Commission Act 2012 (NSW).
• Independent Commission Against Corruption (ICAC): 5 years imprisonment and/or 200 penalty units as per Section 87.1 of the Independent Commission Against Corruption Act 1988 (NSW).
• Law Enforcement Conduct Commission: 5 years imprisonment and/or 200 penalty units.

Non-Disclosure Of Evidence

When a person is required to appear before a commission they must not disclose any information about it to any other person, except their lawyer. They cannot tell anyone they are required to appear before the Commission, let alone what the hearing is about or what questions they are asked at the hearing.

The penalties for releasing answers, documents or any other information related to the commission hearing are serious and are outlined below.

• Australian Criminal Intelligence Commission (previously Australian Crime Commission): 2 years imprisonment and/or 120 penalty units as per Section 21C of the Australian Crime Commission Act 2002 (Cth).
• NSW Crime Commission: 2 years imprisonment and/or 100 penalty units as per Section 45 of the Crime Commission Act 2012 (NSW).
• Independent Commission Against Corruption (ICAC): 12 months imprisonment and/or 50 penalty units as per Section 114 of the Independent Commission Against Corruption Act 1988 (NSW).
• Law Enforcement Conduct Commission: 12 months imprisonment and/or 50 penalty units as per Section 176 of the Law Enforcement Conduct Commission Act 2016 (NSW).

If you require any information on appearing before a commission or any other legal matter, please contact Armstrong Legal.