COMMISSIONS, TRIBUNALS & INQUESTS IN THE ACT
We provide advice and representation to persons who are being investigated by, or are required to appear before, various Commissions and Inquiries, including the ACT Integrity Commission and other relevant oversight bodies.
We can also assist you with reviews of decisions by government departments or organisations to the ACT Civil and Administrative Tribunal (ACAT). Decision makers, such as ACT Policing (AFP), ACT Health, or other regulatory bodies, often have broad powers. Reviewing and challenging a decision can be complex and requires careful strategic planning and preparation.
Below are some of the types of reviews that we can assist you with in the ACT:
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- The revocation of your firearms licence
- The making of a firearms or weapons prohibition order
- Your reporting obligations under the Child Protection Register
- The suspension or cancellation of your Working with Vulnerable People (WWVP) clearance
CORONIAL INQUESTS
Coronial inquests following the death of a loved one can be a long and challenging process. If you have a sufficient interest in the subject matter of the coronial inquiry, you may be entitled to legal representation at the hearing. Whether seeking answers, determining responsibility, or addressing broader reputational issues, we will guide you through the process and ensure you have the opportunity to be heard.
- A coronial inquest is a legal proceeding investigating the death or suspected death of a person.
- Coronial inquests differ from other court proceedings. They are investigative in nature as opposed to adversarial and are aimed at uncovering the truth rather than proving an allegation.
- The investigatory nature of the proceedings means that the rules of evidence do not apply to coronial inquests.
- Coronial inquests in the ACT are governed by the Coroners Act 1997 (ACT).
- Under s40 of the Coroners Act 1997, coronial hearings must be public unless the coroner determines that the publication or disclosure of certain evidence should remain private if it is in the public interest or the interests of justice.
Coronial inquests in the ACT are held to determine questions such as:
- Whether a person has died
- The identity of the deceased
- The time and date of death
- The manner and cause of death
A Coroner may also make recommendations for further investigations or reviews by individuals, government departments, or organisations. Recommendations are aimed at preventing similar future deaths rather than attributing blame. Coroners may identify matters related to the death that relate to public safety and are empowered to make recommendations about those issues.
Circumstances in Which an Inquest May Be Held
The jurisdiction of Coroners in the ACT is governed by Part 3 of the Coroners Act 1997.
A coronial inquest must be held by the ACT Coroner for matters where the death occurred in the ACT or the deceased person originally resided in the ACT, and:
- A person died a violent, unnatural, suspicious or sudden death
- A person died under unknown or unusual circumstances
- The death was caused by an accident
- The death was attributable, wholly or in part, to a medical operation or procedure
- The death occurred when the person was in custody or care
- A medical practitioner has not provided a certificate certifying the cause of death
Coroners may also hold an inquest into the cause and origin of a fire that occurred in the ACT. If requested by the Attorney-General, the Coroner’s Court may hold an inquest into the cause and origin of a disaster.
An inquest is generally not required if an official inquiry has already taken place or will occur in another jurisdiction.
The Process of an Inquest
Once a matter is referred to the Coroners Court, the court will obtain and review relevant records. These records will generally include a post-mortem report, a report from the investigating police officer (which may be updated throughout the proceedings) and can also include witness statements and expert reports.
Often this material is sufficient for the coroner to make findings as to the circumstance of death. If the material is insufficient or inadequate, or if the death is a death in custody or care, a formal hearing will be conducted. The majority of deaths reported to the Coroners Court do not proceed to a hearing, with fewer than 5% requiring one.
Who Will Be in the Courtroom
- The Coroner
- Counsel assisting the Coroner
- Legal representatives of those granted leave to appear
- Witnesses and persons of interest
- Family of the deceased or missing person
- Members of the public and media (unless restricted by the Coroner)
Will Someone Be Found Guilty?
A Coroner cannot determine criminal guilt. If evidence suggests that a criminal offence has occurred in relation to the death and a person is likely to be charged with that offence, the Coroner must suspend the inquest and refer the matter to the ACT Director of Public Prosecutions (DPP). The coroner will generally not proceed with the inquest until the matter is finalised by the DPP, whether that is the conclusion of criminal proceedings or if the DPP advises that no criminal charges will be laid.
What is a Coroner?
A Coroner in the ACT is a judicial officer who conducts an inquest into the manner and cause of deaths. In the ACT, all magistrates are Coroners, and the Chief Magistrate also functions as the Chief Coroner. In recent years, the ACT has appointed a full-time Coroner who also occasionally appears as a magistrate.
Who is ‘Counsel Assisting’?
Counsel assisting is a lawyer appointed by the coroner, who helps the Court by gathering evidence, presenting evidence, examining witnesses, and providing legal guidance during the inquest. A coroner does not need to appoint counsel assisting but may do so if they believe it is in the interests of justice.
What does death in care mean?
Governed by s3BB of the Coroners Act 1997, a death in care refers to a death occurring when a person is under a mental health order or is being detained under an emergency detention order. Notably, death in care does not include the death of a person in an aged care or disability care facility.
Is There a Jury in a Coronial Inquest?
There are no juries in coronial inquests. They are held by judge alone as an investigatory procedure to uncover circumstances around certain deaths rather than a deliberation of guilt.
Can I Request That an Inquest Be Held?
Yes. Any person can request in writing that an inquest be held for a death or suspected death. The request must explain why an inquest should occur. A request does not mean an inquest will occur as the Court may only conduct inquests into deaths they have jurisdiction over. Certain deaths are legally required to be reported to the Coroner by health professionals or police, so the case may already be under investigation.
Who Can Appear in a Coronial Inquest?
The Coroner may allow anyone with a sufficient interest in the proceedings to appear in person or be represented by a lawyer. Relatives of the deceased, including spouses, parents, or siblings, are generally permitted to appear unless exceptional circumstances apply.
Can the Family Give a Personal Statement?
Yes. Before final submissions, family members may provide a statement, either read aloud by themselves or by a lawyer acting on their behalf.
SENTENCE ADMINISTRATION BOARD
- The ACT Sentence Administration Board is an independent statutory authority that makes decisions on parole, breaches of parole and intensive corrections orders (ICO)
- It is governed by the Crimes (Sentence Administration Act) 2005, working in accordance with the Correction Management Act 2007 to ensure that sentences and parole are appropriately followed.
- The Sentence Administrative Board makes decisions about parole and intensive corrections orders, makes recommendations to the Attorney-General about the release of offenders and supports community safety and offender rehabilitation
- As an ACT statutory authority, they only make decisions relating to ACT offences. If a person is serving sentences for Commonwealth offences, the Commonwealth Parole Office will make decisions regarding parole.
The ACT Sentence Administration Board (SAB) is an independent body that makes decisions about breaches of ICOs and determines whether an offender can be released on parole and under what conditions.
Parole
If an offender is sentenced to more than 12 months imprisonment, they will usually be given a non-parole period. The non-parole period must be spent in custody. Once the non-parole period has passed, an offender may be eligible for parole. Parole is not granted automatically but rather determined on written application. An offender is eligible to apply for parole 6 months before the end of their non-parole period.
The SAB has power to determine
- Whether to release an offender on parole
- The conditions under which the offender should be released
- cancellation of parole if alerted to any breaches of parole by ACT Corrective Services
What the SAB Considers in Granting Parole
Before granting parole, the APB must be satisfied that the order is appropriate. They consider a range of factors including
- Community interests and safety
- The rights and interests of the victim
- Risk of further offending
- Rehabilitation of the offender
In considering an offenders’ specific application for parole the Crimes (Sentencing Administration Act) 2005 requires consideration of other matters such as:
- Judicial remarks on sentencing
- Criminal history
- Submissions made by the victim and likely effect of offender being paroled on any victim of the offender
- ACT Corrective Services reports or any other report prepared in relation for granting parole
- Likelihood of recidivism and likelihood that parole conditions may be breached
- Behaviour in custody; including participation in activities and programs
- Any special circumstances such as health issues
The board will also consider the ACT Human Rights Act and anything else they consider relevant. Offenders must have accommodation approved by ACT Corrective Services for parole to be granted.
Parole Inquiry and Parole Hearings
When an eligible parole application is received by the SAB, they will hold an inquiry to review the information they have and determine whether it is appropriate to release you on parole or if a Notice of Hearing needs to be issued as more information is required to make the decision.
If parole is granted at the inquiry stage, a written parole order will be provided detailing the conditions of parole and the start date.
If the SAB determines a parole hearing is required a Notice of Hearing will be issued, which outlines the areas the board needs more information on and when the hearing will be held. The purpose of a parole hearing is to understand the offender’s circumstances and their ability to comply with a parole order.
The offender may attend the hearing or write a submission or both. The offender does not have to attend the hearing however if they do not attend the hearing and they do not send in written submissions, parole will be denied.
A parole hearing will conclude when the board has enough information at which stage they will determine if they approve or refuse the offenders parole order. If refused, the board will provide reasons, and the offender will remain in custody. If granted parole, a written parole order will be given outlining parole conditions and release date.
Breach of Parole
Individuals on parole must report to their community corrections office and comply with all parole conditions.
If parole has been breached reach of parole:
- ACT Corrective Services issues a written report for any alleged breach.
- Police officers may arrest a person suspected of breaching parole.
- Judges or magistrates may issue arrest warrants if they believe a breach has occurred or may occur.
Breach Hearings
- The person receives written notice and a copy of the breach report.
- If breaches are proven, possible outcomes include:
- No further action
- A formal warning
- Directions to the community corrections officer
- Amendments or additions to parole conditions
- Cancellation of the parole order
Parole will automatically be cancelled if the offender commits an offence that carries a custodial sentence.
An offender may reapply for parole if their parole has been cancelled, but applications must address the reasons for the previous cancellation.
ROYAL COMMISSIONS AND COMMISSIONS OF INQUIRY
Royal Commissions are the highest form of public inquiry in Australia. They are temporary, independent bodies established to investigate matters of significant public interest and can be appointed by the Federal or ACT Government.
Royal Commissions have coercive powers to obtain evidence, such as summoning witnesses, requiring the production of documents, and authorising searches or other investigative measures. They do not have prosecutorial powers, but if criminal misconduct is uncovered during the inquiry, the matter can be referred to the relevant law enforcement agency.
Federal Royal Commissions are governed by the Royal Commissions Act 1902 (Cth), while ACT Royal Commissions are established under the Royal Commissions Act 1991 (ACT). Royal Commissions are not courts, and their findings and recommendations are not legally binding.
How Are Royal Commissions Established?
In the ACT, the ACT Executive may appoint 1 or more persons as a Royal Commission to inquire into a specified matter. The government issues terms of reference, which set out the purpose of the inquiry, the powers of the Commissioners, and the rules under which it will operate. Commissioners are either past or present judges or a senior legal practitioner.
What Matters Can a Royal Commission Investigate?
Royal Commissions investigate issues of significant public importance and are only established in rare or exceptional circumstances. There is no jurisdictional limit on what subject matter a royal commission can investigate so long as the commission is into a matter of significant public importance Royal commissions typically operate to:
- Find out why specific events happened
- Work out who is accountable
- Make findings and recommendations about laws and policies
Examples from across Australia include:
- Institutional responses to child abuse
- Misconduct in banking or financial services
- Aboriginal deaths in custody
- Public health and safety issues
- Corruption or maladministration in government
Coercive Powers
Royal Commissions in the ACT have broad powers to:
- Compel witnesses to give evidence
- Require production of documents
- Authorise search warrants and inspections
- Authorise telephone intercepts or other communications monitoring relevant to the inquiry
Failure to comply with directions of a Royal Commission may be considered an offence under Part 5 of the Royal Commissions Act 1991 (ACT).
What happens if I’m called to give evidence at a Royal Commission?
If you receive a summons to give evidence at a Royal Commission in the ACT, you are legally required to attend unless you have a reasonable excuse. Failing to comply with a summons may breach s36 of the Royal Commissions Act 1991 (ACT) and could result in a substantial fine or imprisonment. A witness appearing before a commission is entitled to be paid by the ACT with respect to the expenses of attendance.
Will I be able to give evidence in private?
Royal Commission hearings Royal Commission hearings are primarily conducted publicly; however, the Commission may hold some proceedings in private to protect sensitive information or vulnerable witnesses if the protection of the witness outweighs public interest
Can I be prosecuted by a Royal Commission?
No. Royal Commissions do not have prosecutorial powers, although evidence of criminal conduct can be referred to relevant authorities. Importantly, the evidence given at a Royal Commission generally cannot be used against you in other civil or criminal proceedings.
Should I seek legal advice if I receive a summons?
Yes. If you are summoned to give evidence or produce documents, it is strongly recommended that you speak with a lawyer. They can advise you on your rights, explain the hearing process, and ensure you comply with legal obligations safely.
Can I refuse to produce a document on the basis of legal professional privilege?
Legal professional privilege protects certain communications between you and your lawyer. If you are summoned to produce a document, you must comply unless you have a reasonable excuse. Claiming legal professional privilege may be a valid reason to refuse, but the Commission will consider your claim carefully. If unsure, seek advice from your lawyer.
ACT CIVIL AND ADMINISTRATIVE TRIBUNAL (ACAT)
The ACT Civil and Administrative Tribunal (ACAT) is an independent body that hears and determines a range of civil and administrative matters in the ACT. The ACAT is primarily governed by the ACT Civil and Administrative Tribunal Act 2008 and other authorising legislation. The Tribunal exists to provide an efficient, inexpensive and informal form of dispute resolution as an alternative to the typically lengthy and costly court process. They may resolve disputes through mediation, arbitration or facilitate negotiation conferences, following principles of natural justice and procedural fairness. Applications to ACAT to determine a matter can be lodged by individuals, companies, government agencies etc.
What Types of Matters Does ACAT Deal With?
ACAT deals with a broad range of disputes, with jurisdiction to deal with issues such as
- Administrative review
- Civil disputes (up to $25,000)
- Guardianship
- Mental Health
- Professional and Occupational Disciplines
- Residential issues including unit titles and retirement villages
- Discrimination
- Energy and water issues
Administrative Decisions
The ACAT has the power to review some decision made by the ACT government. Not all decisions made by the ACT government are reviewable. Reviewable decisions relate to:
- Planning, development
- Licences and permits including firearm licences and Working with Vulnerable People checks
- Freedom of Information
- Heritage protection and tree protection
In reviewing a decision, ACAT has the powers of the original decision maker and can either confirm, vary or set aside the decision. If the decision is set aside, it will either be remitted back to the original decision maker or the ACAT will make a substitute decision.
Civil and Commercial Disputes
ACAT also has power to consider and resole a range of civil disputes about contracts, damages, debt, goods, nuisance, trespass or other matters. The tribunal can hear civil claims up to $25,000.
They can also resolve issues relating to residency or commercial disputes such as:
- Tenancy disputes and rental bonds
- Building and construction disputes
- Consumer claims and guarantees
- Retirement villages and residential communities
- Strata and community title issues
Mental Health
Under the Mental Health Act 2015, the ACAT can make a range of orders about a person’s mental health treatment, care or support. Mental health cases can include
- Referrals from the ACT Supreme or Magistrates Court
- Applications for emergency detention and review of emergency detention
- Mental health orders including psychiatric treatment order, community care order or a restriction order
- Mental health assessment orders
- Mental health hearings
How Does ACAT Work?
ACAT encourages parties to resolve disputes without a hearing, but many applications result in a hearing. Alternative dispute resolution methods may be used, including preliminary discussions, conciliation, or mediation.
Preliminary Sessions
A Tribunal Member may hold a session with the parties to explore ways to resolve the dispute before a formal hearing.
Conciliation and Mediation
These informal processes are facilitated by a neutral third-party to help parties reach an agreement. Agreements reached here are not legally enforceable unless formalised by the Tribunal.
Hearing
If no agreement is reached, the matter proceeds to a hearing. There are multiple types of hearings including directions hearing, interim hearing, urgent hearing, final hearing and appeal hearings.
At a final hearing, parties present their evidence, answer questions, and may cross-examine each other. The Tribunal Member then makes a decision based on the evidence and applicable law. This decision may be made on the day or on a later date.
Decisions made by ACAT are legally enforceable.
Is there a time limit to make an application to ACAT?
Yes. Applications to ACAT must be made within a specific timeframe. Different matter types have different time limits.
It is important that a lawyer assists you to ensure you have used the appropriate form and lodged the application within the specified time period.
How do I make an application?
For most matters, you can lodge your application online via the ACAT website.
There are different application forms for different matter types.
Can a lawyer represent me at the hearing?
Many people represent themselves throughout the ACAT process, however, as it is a legal proceeding it can be helpful and important to obtain legal advice and representation. Obtaining a lawyer will assist in the preparation of the matter and potentially early resolution. If you are legally represented, ACAT must be informed.
What happens if I miss the hearing?
It is important that you attend the hearing date, as the Tribunal can make legally enforceable orders that affect you, even if you are absent.
If you are the applicant (i.e., you lodged the original ACAT application) and you miss the hearing date, the Tribunal may dismiss your application or make adverse orders in your absence.
Are ACAT proceedings open to the public?
Similar to other tribunals, all ACAT hearings are open to the public, unless there is a specific order prohibiting this, such as a non-publication or suppression order. Mental health and guardianship hearings are generally held privately.
Can I appeal a decision of ACAT?
Not all ACAT decisions are appealable. If you wish to appeal against a decision by ACAT, it is important that you seek legal advice first.
If you are able to appeal an ACAT decision, you will need to lodge a Notice of Appeal within 28 days of receiving notice of the decision. Appeals within ACAT are heard by an Appeal Tribunal and typically proceed as a review of all or part of the appealed decision.
To appeal a decision of the ACAT Appeal Tribunal, the matter needs to be taken to the ACT Supreme Court. Appeals of the Appeal Tribunal can only be on questions of law.
Can I apply for costs?
Parties involved in ACAT proceedings generally pay their own legal costs, including the costs of legal representation. Sometimes ACAT may require one party to pay the costs or expenses of another party. Following an application seeking costs, the ACAT will determine firstly if the costs order should be granted and if an order is made, the amount of costs to award.
INTEGRITY COMMISSION
The ACT Integrity Commission is an agency established to prevent, investigate and expose corruption within the ACT public sector. They address allegations of serious and systemic corrupt conduct, maladministration and conduct that poses a substantial or specific danger to public health, safety or the environment. The Commission is established and governed by the Integrity Commission Act 2018 (ACT).
The ACT Integrity Commission is overseen by the Inspector of the Integrity Commission and the ACT Legislative Assembly Standing Committee on the Integrity Commission and Statutory Office Holders.
The Commission functions to investigate corrupt conduct, refer suspected instances of criminality to appropriate authorities, prevent corruption, publish information about investigations and provide education programs on the harms of corruption.
The ACT Integrity Commission does not have prosecutorial powers. If they determine that a public officer engaged in corrupt conduct, they will refer the matter to the ACT Director of Public Prosecutions (DPP), who may then commence criminal proceedings.
Who Can the ACT Integrity Commission Investigate?
The ACT Integrity Commission can investigate allegations of corruption involving the ACT public service, Legislative Assembly or other public service entities. Public service entities include emergency services, public health services, public education, public transport and public housing.
The Integrity Commission generally does not investigate members of \ACT Policing or the Australian Federal Police, unless the matter also involves other ACT public officials. They also cannot investigate matters relating to Commonwealth public sector entities, unless there is a relevant connection to the ACT.
What Can the ACT Integrity Commission Do After Receiving a Complaint?
Once the Integrity Commission has received an allegation, they assess the details in the report to determine whether it is within their jurisdiction and if it raises a reasonable suspicion of corrupt conduction. If it does, the Commission considers whether the conduct meets the level of serious or systemic corrupt conduct.
The Commission will then either dismiss, refer or investigate and produce a corruption report or a mandatory corruption notification. A corruption investigation report may contain findings, opinions and recommendations and reasons why they have reached certain conclusions. If criminal conduct is suspected on the facts, the matter will be referred to a prosecutorial body.
The ACIC investigate and gather intelligence on matters relating to serious and organised crime. They do this by:
- Investigating serious and organised crime referred to them by the ACIC Board
- Confiscating and seizing assets suspected to be the proceeds of crime
- Sharing intelligence information with other agencies
If I am called as a witness by the Integrity Commission, am I under investigation?
Not necessarily. There are a number of reasons why you may have been called to attend an investigation and give evidence including you may be in some way involved in a matter under investigation or you may have specific subject matter expertise.
Being called as a witness does not mean an adverse finding will be made against you.
I’m being investigated by ACT Integrity Commission, should I get a lawyer?
If you are under investigation by the ACT Integrity Commission, a lawyer can assist you by providing legal advice, liaising with the Commission on your behalf and representing you at the examination.
Representation can help ensure your rights are protected and that you respond appropriately to questions and document requests. Most witnesses have the right have legal fees paid by the ACT Government so it is usually in your interests to engage a lawyer.
How do I know whether I am being investigated?
Generally, the Integrity Commission will not alert you to being investigated, however if they wish to conduct an examination of you as a witness, they must issue you a summons. The summons must outline the time and place that you are required to give evidence at an examination before the commission and whether you are required to produce any document/s or other items to the commission. Failure to comply with a summons may be an offence under the Integrity Commission Act and penalties may apply
Will the ACT Integrity Commission question me privately?
Examinations can be held either in public or in private according to s143 of the Integrity Commission Act. The commission will consider whether it is the public interest to hold a public examination and whether an examination can be held publicly without unreasonably infringing a person’s human rights.
Further advice:
This blog is intended to provide general information about matters that often come before the court and is not legal advice. For legal advice about this offence or any other criminal offence, please reach out to us and speak to one of our lawyers on (02) 9696 1361 (Sydney), (02) 5104 9640 (Canberra) or (08) 6255 6909 (Perth) or by email at [email protected]
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