Page 267 - Week 01 - Thursday, 14 February 1991
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note that the Australian Capital Territory is established as a body politic under the Crown pursuant to the self-government Act. The advice concludes:
The Territory is a body politic under the Crown and it is quite appropriate for the Legislative Assembly to enact legislation empowering the Executive to, in the name of the Crown, appoint a Royal Commission.
I have no doubt that that legal advice is correct. We can do that, but I suggest that we ought not to do that. I think the use of the term "royal commission" to describe a commission of inquiry established by this Territory is an anachronism, and the distinction between a royal commission and a commission of inquiry is unnecessary.
Before going back to this point of royal commission or commission of inquiry, I would just like to look again at the difference between the royal commission and the commission of inquiry. The Attorney noted in his introductory speech that a royal commission would be used for a serious matter, and an inquiry for a less serious matter. When we look at the powers and the structures of the two proposed forms of inquiry, the royal commission and the inquiry, the simple inquiry, we find that they are almost identical.
Both commissions are appointed by the Executive, so we have no semblance of appointment directly by the Sovereign or the Sovereign's representative. Both are creatures of the executive government. The royal commission has terms of reference separately prescribed under the Act. The Inquiries Bill does not provide for terms of reference, but it does say that the inquiry will inquire into a matter specified in the instrument of appointment.
For all practical purposes, in one Bill we have an instrument of appointment and separate terms of reference, and in the other we have an instrument of appointment which specifies the matters to be inquired into - in effect, terms of reference, by any other name. The royal commission, under clause 34, has a separate power to arrest a person who fails to come forward to put his evidence, when summonsed. The Inquiries Bill does not provide that separate power to arrest; but I note that the penalties for failure to attend on a summons are identical, in practical terms, in clause 36 of the Royal Commissions Bill and clause 27 of the Inquiries Bill. The difference is that a person who fails to attend before an inquiry will be proceeded against under the criminal offence there created, whereas a person who fails to attend a royal commission can be directly proceeded against by the royal commission.
There is a slightly broader protection of officers of a royal commission, as opposed to officers of an inquiry. The actual person conducting, counsel assisting, and witnesses all have identical immunities in proceedings.
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