Appearing Before a Commission

Commissions are investigative bodies created by the state with the purpose of investigating matters or issues of public concern and making findings. In Australia, there are commissions which focus on investigating crime and they have been given significant statutory powers to enable them to do this.

The NSW Crime Commission, Australian Crime Commission, Independent Commission Against Corruption (ICAC), and Law Enforcement Conduct Commission (LECC) (formerly the Police Integrity Commission)  are the primary commissions focused on investigating criminal matters. Royal Commissions can also be convened to investigate criminal matters.

One of the powers given to commissions is to compel a person to appear before the commission for a hearing to give evidence or to produce documents or things.

At the hearing, the person may be cross-examined at length about the criminal matter being investigated. The person’s answers may tend to incriminate the person, or other people, and the commission may refer people to the Office of the Director of Public Prosecutions for consideration as to whether criminal proceedings should be commenced. As such it is very important to get legal advice prior to appearing before a commission.

A person who is summonsed 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.

Can I Be Forced To Attend?

If the NSW Crime Commission, Australian Crime Commission, Independent Commission Against Corruption, a Royal Commission or the NSW Law Enforcement Conduct Commission summonses a person to give evidence, they are required to attend.

With the exception of the Australian Crime Commission, if a person who has been summonsed 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

If you fail to attend a Commission when you have been summoned to give evidence, you may be charged with an offence. The penalties vary depending on what commission you were called before. Some of these are listed below.

• Royal Commission: two years imprisonment as per Section 3.1 of the Royal Commissions Act 1902 (Cth).
• 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

If you are called before a commission of inquiry you may be required to produce documents. Failure to do so may amount to an offence for which the penalties vary depending on the commission. The penalties and provisions are outlined below:

• Royal Commission: 2 years imprisonment as per Section 3.2 of the Royal Commissions Act 1902 (Cth).
• 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

If a person is required to attend a hearing before a commission they will be asked to answer questions. It is a criminal offence to provide false or misleading evidence. In some cases, the person may be able to object to answering certain questions, or a lawyer appearing on their behalf may be able to object to questions. However, this will depend on the commission and the question asked. A person required to attend a hearing is, generally speaking, not able to exercise a right to silence and is compelled to answer questions according to Section 39 of the Crime Commission Act 2012 (NSW).

The offences and maximum penalties for giving false or misleading evidence at a commission are outlined below:

• Royal Commission: 5 years imprisonment or 200 penalty units as per Section 6H of the Royal Commissions Act 1902 (Cth).
• 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.

• Royal Commission: 12 months imprisonment and/or 20 penalty units as per Section 60H of the Royal Commissions Act 1902 (Cth).
• 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.