On 10 February 2014, the Prime Minister announced a Royal Commission into Trade Union Governance and Corruption.
We understand that the Royal Commission will soon be approaching people and businesses in the ACT and asking them to assist with the Commission’s inquiries.
What is a Royal Commission?
A Royal Commission is instituted by the Governor General under the Royal Commission Act 1902 (Cth). It is the highest form of inquiry into a matter of public importance.
In this case, the matter of public importance is alleged irregularities with the financial affairs of unions, specifically, “slush funds” as well as “allegations of corrupt behaviour, unlawful kickbacks and standover tactics in the construction industry”.
The Prime Minister claims the inquiry “will be able to go wherever the evidence leads it” but the terms of reference set the scope of the Commission’s information gathering powers. The terms set a particular focus on the following issues:
- bribes, secret commissions or other unlawful payments or benefits arising from contracts, arrangements or understandings between a union and any other party;
- any conduct by an officer of a union which may amount to a breach of a law, regulation or professional standard in order to procure an advantage for themselves or causes detriment to another person;
- the establishment by trade unions of separate entities purportedly for an industrial purpose or for the welfare of their members;
- the corporate governance of such entities established by unions, including their financial management;
- the fund-raising activities of these separate entities established by trade unions;
- whether these entities conform to their objectives and the extent to which union members receive a benefit from or have control of these entities;
- any issue or matter reasonably incidental to these matters
The terms also specify particular unions on which the Inquiry will focus: the AWU, the CFMEU, the TWU, the HSU and ETU.
Union funded training organisations and payments made to them are some of the things that are likely to fall within the scope of the inquiry. We anticipate that the inquiry will also venture into industrial negotiations and agreement making.
How does this affect you?
If you are called to assist and produce documents, the request is likely to be given in broad terms. For example, ‘produce all documents concerned with the Terms of Reference’. Failure to comply with a request to produce documents is an offence that carries a fine of up to $1,000 or imprisonment of up to 6 months.
We expect the timeframes to produce documents to be short, so you need to be in a position to quickly identify what documents you might need to produce. For these purposes, ‘documents’ has a broad definition and includes things you might not automatically think of like audio recordings, photographs and text messages as well as emails.
Remember that not all documents need to be produced. There are exceptions that apply if a document is covered by legal professional privilege or if a document is not relevant to the terms of reference. It is also possible to request that documents be produced under confidentiality, in order to prevent them being released to the public. We are not aware of any ability to produce evidence to the Commission anonymously at this stage.
It is important you understand your obligations and rights in the context of a request to produce documents to the Royal Commission. It is also important to understand the cost associated with a request to produce as it is unlikely that people or organisations will be provided with financial assistance to meet a request for production of documents. It is, however, possible to apply to the Commission for expenses associated with giving oral evidence if you are summonsed to do so.
What should you do?
If you receive a request to assist or produce documents there will be an onus on you to be able to comply with the timeframes and document search requirements swiftly. Planning a practical process to manage this document review and production process upfront will save you a lot of time and cost down the track.
Meyer Vandenberg is well placed to assist you with the document production process. In particular, we can provide advice on whether documents are relevant to the terms of reference or covered by privilege and we have experience representing clients at hearing and making submissions.
For further information please contact: