Royal commissions, anti-corruption commissions and statutory inquiries now form a large part of the Australian legal and corporate landscape. Investigations and the public hearings associated with them can present significant legal, commercial and reputational challenges for businesses and individuals. Commissions and inquiries often expose those involved to reputational damage, class action or other litigation risk and serious penalties. That can be so even where no specific adverse findings are ultimately made against a party.
The mere fact of a company’s name being tied to a particular investigation, or having its commercial operations laid bare in a highly public forum, can be sufficient to give rise to reputational damage and ongoing litigation risk.
Commissions and inquiries often have substantial and wide-reaching powers of compulsion, which are usually exercised with very short and demanding timeframes for compliance. They can compel companies and individuals to produce privileged and commercially sensitive information and documents, and provide witness statements and evidence at private and public hearings.
The newly established National Anti-Corruption Commission is just one additional agency, amongst a range of others, with extensive powers of compulsion. Other Australian agencies include Royal Commissions, the various State-based Independent Commissions Against Corruption and statutory inquiry bodies established to investigate specified matters under applicable legislation (such as the recent statutory reviews of the Crown and Star casinos).
PREPARING FOR AN INVESTIGATION
To mitigate the risks associated with commissions and inquiries, it is critical that appropriate steps are taken at the first sign of a potential investigation, rather than waiting for the commission or inquiry and its terms of reference to be formally constituted. Following the announcement of a commission or inquiry, there is usually only a short period before the specific terms of reference are announced and notices to produce documents and to give statements are issued. Individuals may be required to attend private compulsory examinations or interviews by the investigating body on very short notice.
The following steps should be taken, or at the least be considered from the point that there is an indication that you or your company may be involved in a formal investigation. They serve to mitigate the impact of the investigation on your organisation generally, and the risks associated with it.
1. Establish a core team
Commissions and inquiries often proceed very rapidly, with notices to produce documents and to give evidence having sharp turnaround times, and they often require wide-ranging searches to be conducted throughout an organisation’s records and its people.
Identify a core team of individuals who will be responsible for managing resources and timeframes, and generally preparing for and responding to any notice issued by a commission or inquiry.
2. Anticipate risk areas
Careful thought should be given to the key drivers of the commission or inquiry, and your risks if your affairs are examined by a commission of inquiry. These risk areas should be anticipated and identified at the earliest opportunity so that appropriate preparatory steps can be taken to understand the key facts, issues and individuals involved, and mitigate the risks accordingly. Your organisation will be at a significant disadvantage if it only commences its own investigations when responding to the strict timelines of the commission of inquiry.
3. Consider your people
Consider the welfare and employment issues for all potentially impacted employees (and others). Planning for this aspect and adopting appropriate responsive processes is critical in managing any response.
4. Check your insurance policy
Check the terms of any relevant insurance policies and whether coverage might be available. Many policies cover the costs of responding to a commission or inquiry. It is also important to check whether the investigation gives rise to a notifiable event under the relevant policy, particularly having regard to claims that might later arise as a result of the commission or inquiry’s work, and to notify your insurer accordingly.
5. Claims for legal professional privilege
Take steps at an early stage to ensure that confidential and legally privileged materials are properly protected. In particular, while legal professional privilege may exist over some legal advice (primarily in relation to you responding to the commission or inquiry), commissions and inquiries often have express powers to override privilege.
6. Implement a communications protocol, including for stakeholder relations
A communications protocol should be prepared with your lawyers and your PR/Communications team at an early stage. This can serve to reduce the risk of potentially adverse communications being made public, particularly those “reactive” internal communications that are often made shortly after an investigation is announced. It also serves to clearly identify communications that should be the subject of claims for legal privilege, if applicable.
Engaging an external PR firm and establishing stakeholder engagement plans can assist in managing the public narrative as it concerns your organisation once the commission or inquiry is formally constituted.
7. Conflict and stakeholder management
At times, the disclosure of information and documents may lead to conflicts within different groups within an organisation, require consents from third parties, or create issues for those third parties with respect to the investigation. Consider the potential for any conflicts to arise, and whether any notifications or approvals need to be given, and how to manage third party stakeholders generally. Many contracts with third parties, for example, require consultation with the third party before disclosure of the contract and contract dealings can be made, even where disclosure is pursuant to the compulsive powers of a commission.
8. Identify potential witnesses and document repositories
Identify the potential witnesses who may be summoned to appear and give evidence, and consider who is best placed to provide evidence on behalf of your organisation having regard to the likely terms of reference. Consider whether your lawyers can, or should, represent all present and former employees or whether they may require independent representation.
Document management and preservation should also be attended to early, including identifying likely document repositories. Document hold notices should be considered to ensure no potentially relevant documents are destroyed. Timelines for production are tight, and it may be that key responsive documents are offsite or need to be retrieved from back-up tapes, or are spread across various divisions of the organisation.
9. Early engagement with the commission / authority
It can be useful to engage with the relevant commission or authority at an early stage to build a constructive relationship. That may assist in keeping apprised of next steps and potential focus areas, as well as limiting document requests and negotiating reasonable timelines for production.
10. Allegations of criminal conduct
Commissions and inquiries can often give rise to allegations of illegal or criminal conduct. The Commonwealth and the States have powerful Crime Commission agencies that have extensive secrecy and inquisitorial powers. It is important to seek legal advice in managing a potential criminal investigation.
How we can help?
JWS has been involved in many of the recent high profile investigations and as a result offer clients deep experience, specialist knowledge and the independence required to manage and protect your organisation and its people throughout these processes. Our team can guide you through each step to ensure you are prepared should you or your organisation be involved in an inquiry or commission.
If there is any suggestion of criminality, we have experienced lawyers (and former Commonwealth prosecutors) who can readily assist you.