The Tasmania Law Reform Institute has recommended the rules on negative findings against individuals by Commissions of Inquiry be improved.
A new research paper by the Institute has examined how the rules of procedural fairness operated during the recent Commission of Inquiry into institutional child sexual abuse.
“Commissions of inquiry can make adverse findings about individuals, such as findings of misconduct,” Principal Research Fellow Dr Rebecca Bradfield said. “These may result in an inference that the individuals concerned actually committed an offence. However, since commissions of inquiry are not courts, they cannot make a determination that someone is guilty of an offence.”
Under the Act, if a commission intends to make adverse findings or findings of misconduct about a person, it must give that person an opportunity to know about and respond to those findings.
The Institute recommended that process be made more flexible for future commissions of inquiry to implement.
“The protections of a fair trial do not apply to a commission of inquiry,” Researcher Libby Saunders said. “Yet there can be potentially devastating consequences for an individual if a negative finding is made against them by a commission of inquiry.”
“In a smaller jurisdiction, like Tasmania, the potential for an adverse finding to damage an individual’s reputation (both professional and personal) is particularly acute.
“As a result, it is necessary to carefully balance the powers of an inquiry and the interests of individuals.”
The recommendations would allow for the particular circumstances – including what the commission is examining – to be taken into account. In practice, the commission would be able to match the approach to procedural fairness with the seriousness of the potential adverse finding. It could determine what, in reality, was required to give a person notice of a potential negative finding, and a fair opportunity to respond.
“Commissions of inquiry are very rare in Tasmania, and so there are very few opportunities to see how the Act works in practice,” Dr Bradfield said.
“The recent commission identified some difficulties with the rigidity of some of the provisions of the current Act. The Institute’s research suggests a different approach, which will hopefully benefit the operation of any future commissions.”
The research paper is available at utas.edu.au/law-reform