ROYAL COMMISSIONS WHETHER MAY RECEIVE OR REFUSE EVIDENCE IN CONFIDENCE : WHETHER MAY COMPEL EVIDENCE IN PUBLIC ON CONFIDENTIAL MATTERS
ROYAL COMMISSIONS ACT 1902, s.6 : COMMONWEALTH CONCILIATION AND ARBI-TRATION ACT 1904, s. 85 : EXCISE PROCEDURE ACT 1907, s. 9
The Chairman of the Royal Commission on Stripper Harvesters and Drills has asked for my opinion on the following points:
- The Commission in putting certain questions to witnesses touching the subject matter of the inquiry have met on several occasions with the answer that they will not give the desired information publicly but will do so confidentially. The Commission would be glad to be informed whether the refusal to accept the information in that way would prejudicially affect any proceedings taken under section 6 of the Royal Commissions Act No. 12 of 1902.
- Could the Commission accept evidence confidentially and use it in arriving at their recommendations to be submitted in their report to the Governor-General without the evidence on which their findings were based being publicly disclosed in the Minutes of Evidence.
As regards question (1), I am of opinion that generally speaking the refusal of the Commission to accept the information confidentially would not prejudicially affect proceedings under section 6 of the Royal Commissions Act 1902.
But in some cases the answer to the question might depend upon whether the offer to supply the information confidentially were reasonable or not.
The terms of the Commission do not, in my opinion, preclude the Commissioners from accepting evidence confidentially.
In the Commonwealth Conciliation and Arbitration Act 1904, section 85, and in the Excise Procedure Act 1907(1), section 9, the Parliament has recognised the right of a witness to have evidence given by him relating to his trade secrets or to his profits or financial position treated as confidential.
Although the Acts mentioned do not directly apply to evidence before a Royal Commission, I think they should be considered in deciding whether an offer by a witness to give information confidentially should be accepted or not.
I think therefore that the refusal of the Commission to accept evidence given confidentially on the points specified in the Acts mentioned might in some cases be held to be unreasonable, and although the refusal might not be a defence to a prosecution under section 6,1 think the Court would take the refusal into consideration in deciding upon the amount of the penalty to be imposed.
As regards question (2), I am of opinion that the answer is yes. There is nothing to preclude the Commission from taking evidence confidentially if they think the circumstances render it desirable that the evidence should be so taken.
[Vol. 7, p. 79]
(1) In 1934 the citation of this Act, as amended, became the Bounties Procedure Act 1907-1934.