Command performance: the extraordinary powers of a Royal Commission

In the aftermath of the Bondi Beach tragedy, the Australian Government has launched a Royal Commission into Antisemitism and Social Cohesion - its terms of reference are here.

The Royal Commission's terms of reference are broad and as it is expected it will call on a wide range of people, public sector entities and organisations to provide information and evidence, it is timely to examine what exactly is a Royal Commission - and what can it do?

What is a Royal Commission?

A Royal Commission is the most powerful form of public inquiry in Australia. Established pursuant to the Royal Commission Act 1902 (Cth) (RC Act), it is reserved for matters of significant public importance. Once established by the Governor-General through Letters Patent, a Royal Commission operates independently, with sweeping powers to investigate, compel the production of records and attendance of individuals, and recommend change to laws and policies.

A Royal Commission is an executive inquiry. Although it has extraordinarily broad powers to inquire, it does not exercise judicial power – it cannot determine legal guilt or rights – so its inquiries must stay within investigative (not adjudicative) bounds.

Early High Court decisions cemented that Royal Commissions can lawfully inquire into matters even if those matters concern alleged crimes or civil wrongs, so long as the commission stays within its terms of reference and does not usurp the courts’ role of deciding actual liability. Public commentary in relation to the Royal Commission has already drawn attention to the fact that the Commission will overlap with criminal proceedings. The Royal Commission will likely adopt procedures to ensure it can fully investigate the events surrounding the attack on 14 December 2025 without prejudicing the criminal process or any other inquiries or investigations.

In addition, Royal Commissions under the RC Act can only inquire into matters that relate to the Commonwealth’s responsibilities. For this reason, its inquiries may be limited in relation to matters for which the State is primarily responsible, such as the day-to-day administration of firearms regulation.

What are the powers and procedures of a Royal Commission?

The Act provides a Royal Commission with broad powers to obtain information to assist with its inquiry. A Royal Commission determines its own procedures and often publishes guidance on how it will receive information.

A hallmark of Royal Commissions is their coercive investigative powers.

Conducting proceedings in public or private

Generally, Royal Commissions will conduct proceedings in public and make the information and evidence gathered available. However, Royal Commissions may issue non-publication directions (or suppression orders) to protect sensitive information, identities, or privacy, even allowing for private sessions, with penalties for breaching these orders.

Guidance may also be published regarding making requests or applications for information to be treated confidentially or the making of non-publication orders.

Powers to Compel

A Royal Commission can summon a person to appear and give evidence on oath or affirmation.

A member of a Commission may, by written notice, require the person to produce a document, or provide information or statement, and at the time and place, specified in the notice. However, a person cannot be compelled to produce a document or thing at a private session.

A Commission, a member of a Commission or an authorised person may inspect any documents produced before, or delivered to, the Commission.

Privileges available in the courts as a basis for resisting production of documents either do not apply or are significantly curtailed:

• A person cannot refuse or fail to produce a document on the ground that the production of the document might incriminate the person or make the person liable to a penalty. To balance this, the Act grants use immunity: any answer or document a witness is compelled to give cannot be used against that witness in subsequent criminal trials (except for perjury or similar offenses). In effect, a witness can be forced to "tell all," but those compelled disclosures shouldn’t directly used against them later.
• Legal professional privilege is not a reasonable excuse for a person to refuse or fail to produce a document, unless a court has found the document to be subject to legal professional privilege or a claim that the document is subject to legal professional privilege has been made and upheld by the Commissioner. The Commissioner can inspect the document(s) for the purposes of resolving the claim for legal professional privilege. As a practical matter, parties appearing before a Royal Commission now often conduct internal "privilege reviews" and, if applicable, will prepare to argue privilege document-by-document.
• Cabinet and high-level policy documents usually shielded by PII claims can be obtained. However, parliamentary privilege is usually respected by Royal Commissions.

In practice, Royal Commissions have robustly used their coercive powers but typically adapt their procedures to avoid issues to avoid disrupting ongoing criminal trials. In Hammond v Commonwealth [1982] HCA 42, the High Court held that the Commission was restrained from compelling testimony from an accused about matters relevant to offences awaiting trial. An offer to hear the evidence in a private hearing subject to non-publication orders did not erase the risk to a fair trial.

Investigative Reach

The Commission may apply for a search warrant where it has reasonable grounds to suspect that the relevant material is, or will be within the next 24 hours, located upon any land, premises, vessel, aircraft or vehicle relevant to the inquiry, which may be concealed, lost, mutilated or destroyed if a summons for its production were issued.

Penalty and Reasonable Excuse

The penalty for failure of witnesses to attend, produce documents or give information or statements is imprisonment for two years, unless the person has a reasonable excuse.

A warrant may be issued to apprehend any person who fails to attend a Royal Commission as a witness upon being served with a summons.

If you have difficulties or concerns responding to a notice received from a Royal Commission, you should seek legal assistance and communicate with the Commission as soon as possible.

Contempt and Consequences

Any person who insults or disturbs a Royal Commission or is guilty of any intentional contempt of a Royal Commission, commits an offence. The penalty is two penalty units or imprisonment for three months. The provision has been occasionally used to punish witnesses that refuse to be sworn or answer a question directly.

Rights of Witnesses

The Act does not make it compulsory for any witness to disclose to the Commission any "secret process of manufacture". Upon the witness' request, a Commission may take evidence in private if it relates to the profits or financial position of any person, and the taking of the evidence in public would be unfairly prejudicial to the interest of that person.

Any witness appearing before a Royal Commission is entitled to a reasonable sum for the expenses of his or her attendance.

Findings, Recommendations and Reform

The information and evidence gathered by a Royal Commission are usually public and form the basis for its findings and recommendations, which are generally set out in a report. Although the recommendations are not legally binding, they often lead to substantial reform due to their authority and public scrutiny.

Referral of information to other agencies and organisations

Royal Commissions have significant powers to refer evidence, information, and documents to law enforcement and other bodies under Section 6P of the RC Act. This power allows them to share findings of potential criminal, civil, or administrative wrongs with bodies like the DPP, Police Commissioners, or other authorities, enabling further investigation, even though the Commission itself can only make recommendations, not impose penalties or implement policy changes.

Procedural fairness

Although Royal Commissions have investigatory (not judicial) functions, they are still expected to accord procedural fairness to individuals, especially when making findings or comments that could damage someone’s reputation or legal interests. This means that adverse findings should be based on logically probative evidence and, before any such findings are made, the affected person should be informed of the potential finding and the material supporting it and be given an opportunity to respond.

Modern Royal Commissions take these duties seriously. For instance, during the Royal Commission into Misconduct in Banking (Hayne Commission, 2018), the Commission sent confidential letters to various bank executives and other parties after hearings, outlining proposed adverse findings (e.g. specific instances of misconduct or possible law breaches) and seeking their written submissions in response. Those responses were considered before the final report was published. Similarly, the Royal Commission into Aged Care Quality and Safety (2019–2021) gave individuals and companies opportunities to respond to any draft adverse conclusions. This not only fulfills legal fairness obligations but also strengthens the report – any counterarguments can be addressed or reflected.

Commentary

In summary, the core principle is that Royal Commissions have extremely wide scope to inquire and gather evidence in the public interest, backed by law, and early challenges to their validity have mostly failed.

If you are called upon to produce documents or give evidence at a Royal Commission, understanding the powers of a Royal Commission is crucial. These inquiries can compel evidence, and hold individuals and institutions to account, with serious penalties for failing to comply. Knowing the scope and limits of these powers ensures transparency, protects rights, and reinforces the integrity of the process. As the Royal Commission into Antisemitism and Social Cohesion begins, a clear grasp of its authority will be essential for those subject to its scrutiny - and to ensuring its findings lead to meaningful change.

This article is intended to provide a general overview of the scope and limitations of Royal Commission's powers and procedures. In practice these issues are complex and need to be handled with care to avoid exposure to penalties and reputational damage. Obtaining early legal assistance to shape strategy and ensure you carefully comply with obligations if called to produce documents or give evidence is key.