Deej Eszenyi: Investigators with wide-ranging powers 15may06

DOWN at West Lakes recently, I found myself gazing up the lights of the football arena, thinking about Royal Commissions. Many South Australians will remember that we held a Royal Commission into the Football Park lights back in 1979.

More recently, in South Australia, we have had the Kapunda Road Royal Commission, and, at Commonwealth level, the Australian Wheat Board inquiry. What are Royal Commissions? Why do we have them instead of other sorts of inquiries? In what circumstances should Royal Commissions be established?

In SA, the Royal Commissions Act of 1917 covers the powers and conduct of such inquiries. A Royal Commission is issued by the Governor and sealed with the public seal of the state. The terms of the inquiry, that is, the questions which the Royal Commission must address, are framed by the Executive Council of the State Government. The inquiry is limited by its terms of reference. The Royal Commissioner cannot inquire into, or report on, any interesting matters which may become apparent in the course of the inquiry if they fall outside these parameters. For this reason, the wording of the terms of reference is always of critical importance. Governments are very careful when framing these terms for Royal Commissions, to make sure that the inquiry will not continue endlessly pursuing matters which arise during the commission.

Royal Commissions can be used for all sorts of purposes. They may be called when questions of general public interest arise which cannot adequately be answered in private litigation. So, back to Footy Park, when serious questions were raised about the effect of the West Lakes Stadium development on the comfort and amenity of people living and working on the surrounding land.

The residents of West Lakes had no right to appeal or litigate in respect of decisions made by the local council and the SANFL about the use of the stadium. The Royal Commission covered this gap. The Commissioner was specifically charged with making recommendations as to what effects change of use of the stadium may have on people residing in the vicinity of the stadium, and what steps should be taken to reduce or minimise such effects.

Royal Commissions have a reputation for being powerful inquisitors. The powers given to commissioners by the SA Royal Commissions Act are indeed extensive. The commissioner is given the same protection and immunities as a judge of the Supreme Court. In addition, Royal Commissions have extensive powers of inquiry and inspection. They may enter and inspect land, buildings and vessels.

They may summons witnesses and require documents and papers to be produced to them for inspection. They may jail witnesses who misbehave, refuse to produce documents or answer lawful questions.

Royal Commissioners may make orders forbidding the publication of witness names or their evidence, and they may close or partly close the hearing. Most importantly, nothing that the commissioner does or does not do is subject to review or restraint by any court.

With these strong powers and immunities, we all expect the recommendations of Royal Commissions will reflect intense scrutiny of the matters set out in their terms of reference.

We also expect that the hearings of Royal Commissions will be widely published and commented on in the media. We have a lot to learn from the information elicited by their inquiries. The 1979 Football Park Lights Royal Commission taught us to think through the effects of developments on the people nearby.

* Deej Eszenyi is president of the Law Society of SA.

president@lssa.asn.au