Proceedings that are not trials — and why they need defence thinking
The proceedings covered here share a structure that distinguishes them from the criminal courts. They are inquisitorial rather than adversarial: the body conducting them sets the agenda, compels the evidence and writes the findings. Most hold compulsory powers — the power to summon a person, require documents and require answers, with the ordinary privilege against self-incrimination abrogated or qualified. And while none of them convicts anyone, each can end a career, refer a brief to the DPP, or confiscate assets.
The protections that exist in these jurisdictions are real, but they are procedural — they operate only if invoked correctly, at the right moment, usually before a word of evidence is given. Use immunities depend on objection being taken. Non-publication orders must be sought. The decision to claim privilege at an inquest must be made before the answer, not after. That is why representation is engaged before an appearance, not in response to what happened at one.
The landscape: royal commissions, ICAC, the Crime Commission and the LECC
The bodies are frequently confused, and the distinction matters to anyone summoned before one.
A royal commission is an ad hoc inquiry: established by the executive — the Governor in NSW, the Governor-General federally — for a defined purpose set out in its terms of reference. It investigates, reports and is dissolved. Its powers, though extensive, exist only within those terms of reference.
The Independent Commission Against Corruption, the NSW Crime Commission and the Law Enforcement Conduct Commission are standing bodies: permanent institutions with continuing statutory jurisdictions — public-sector corruption, serious and organised crime, and the conduct of police and law enforcement respectively. They do not wait for terms of reference; they investigate within their remits continuously, in public and in private.
What all four share matters more than what separates them. Each can compel attendance and answers. Before each, refusing to answer or giving false evidence is itself a serious offence. Before each, the privilege against self-incrimination is abrogated, replaced by use immunities that protect a witness only where objection is properly taken. A person summoned before any of these bodies is a participant in compulsory proceedings with criminal consequences for missteps — and should be advised before appearing, not after.
Matters in this area
Crime Commission Examinations
Compulsory examinations under the Crime Commission Act — preparing the witness, taking objection correctly, and managing the intersection with any current or anticipated charges.
Coronial Inquests
Appearing for families, witnesses and persons whose conduct is under examination — leave to appear, the privilege decision, and referrals to the DPP.
Professional Disciplinary Proceedings
Regulator investigations and NCAT proceedings for health practitioners, lawyers and other registered professionals — including where criminal and disciplinary matters run in parallel.
Proceeds of Crime
Restraining orders, forfeiture and unexplained wealth proceedings under State and Commonwealth confiscation regimes — civil proceedings with criminal-law stakes.
Where the criminal and the non-criminal intersect
The recurring difficulty in this area is parallelism. A Crime Commission examination may concern conduct that is also the subject of charges. An inquest may examine a death that could yet produce a prosecution. A disciplinary complaint may track a criminal allegation through both systems at once, on different standards of proof. Evidence compelled in one forum, an admission made in another, a concession offered to a regulator — each can surface elsewhere.
These matters cannot be handled one proceeding at a time. The advice that protects a client is the advice that holds the whole map: what each body can compel, what each immunity actually covers, what should be said where, and in what order the proceedings are best confronted. That is criminal defence thinking applied outside the criminal courts, and it is the discipline this practice brings to the area.
For referring practitioners
Much of the work in this area arrives by referral — from commercial firms whose client has been summonsed, family lawyers whose matter has produced a coronial dimension, or colleagues seeking an Accredited Specialist for the criminal-law aspects of a regulatory matter. Referred clients are returned: the retainer is confined to the commission, inquest, disciplinary or confiscation matter, and the referring firm's relationship with its client is respected throughout. Enquiries can be directed to Dean Lenz on (02) 9223 5530.
Questions in this area
What is a royal commission, and how is it different from ICAC?
A royal commission is ad hoc — established by the executive for a defined purpose, bounded by its terms of reference, dissolved on reporting. ICAC, the Crime Commission and the LECC are standing bodies with continuing jurisdictions. All hold compulsory powers: summonses cannot be ignored, answers generally cannot be refused, and the protections that exist must be invoked correctly at the time — which is why representation before appearing matters.
Can I refuse to answer questions at a Crime Commission examination?
Generally, no — the examination power abrogates the privilege against self-incrimination. The safeguard is a use immunity, available only where objection is properly taken, and refusing to answer or answering falsely are themselves serious offences. Advice before the examination is the mechanism by which the protections operate.
Do I need a lawyer at a coronial inquest?
Representation is strongly advisable for anyone whose conduct may be examined, and for families seeking answers. An inquest cannot determine liability, but the coroner may refer matters to the DPP, and the decision whether a witness should claim privilege must be made before the evidence is given, not after.
Who can be the subject of professional disciplinary proceedings?
Anyone practising in a regulated occupation — health practitioners, lawyers and registered professionals across many fields. Proceedings apply the civil standard, are protective rather than punitive in purpose, and are not disposed of by the outcome of a criminal matter. Where the two run in parallel, they must be managed as a single strategy.