Royal Commission into Banking & Financial Services Sector – the first Practice Guideline
By Lisa-Marie McKechnie, Partner, and Ahmed Rizk, Lawyer
The Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry (“Royal Commission”) has recently released Practice Guideline 1 which sets out general guidance about the procedures the Royal Commission will follow. The full Practice Guideline is available here and contains useful introductory information on a number of procedural issues, a summary of which follows.
Initial Public Hearing
- The Royal Commission will hold an initial public hearing commencing 10am on 12 February 2018 at Level 6, 11 Exhibition Street in Melbourne. Although the hearing will be open to the public, seating will be limited and the hearing streamed live through the Royal Commission’s website.
- The program for the public hearing will be published on the Royal Commission’s website once established. It is not anticipated that any applications for leave to appear will be heard or determined at the initial public hearing.
Production of Documents
- The Practice Guideline outlines the Royal Commission’s invitation for submissions from all persons with information or documents relevant to any of the matters contained in the Terms of Reference. An online submission portal has been set up for these submissions to be lodged and is currently available for use.
- Unless otherwise specified, the Royal Commission will require that documents be produced electronically, with the following guidelines applying to electronic productions:
- persons are to contact the Royal Commission at FSRCSolicitor@royalcommission.gov.au prior to a large production of documents;
- unless a person utilises a document management database, all electronic documents are to be produced electronically in their native or original format (e.g. Microsoft Outlook emails are to be produced as .msg files);
- any hard copy documents should be scanned and rendered directly to PDF that is machine-readable and word-searchable; and
- all documents are to be produced in full, including all attachments to a produced email.
- Any person seeking to produce documents in hard copy format should communicate this in advance with the Royal Commission prior to production.
Under section 6D(3) of the Royal Commissions Act 1902 (Cth), the Royal Commission is entitled to prohibit or restrict the publication of any evidence given before it (including produced documents) or any information that might enable a person who has given evidence before the Commission to be identified (“Non-publication Order”).
For persons wishing to make an application for a Non-publication Order, the Practice Guideline requires that:
- The applicant should clearly denote the pages containing information or documents over which confidentiality is claimed, with all pages to be marked with the word ‘Confidential’. Where confidentiality is claimed over an entire document, all pages must be marked with the word ‘Confidential’. Where confidentiality is claimed over parts of a page, the relevant parts of the page in the document should be highlighted in light blue highlight, and any page containing confidential information should be marked clearly with the words ‘Contains confidential information’.
- An accompanying note must be provided which states the basis for the claim of confidentiality, the direction sought, and to whom confidentiality is said to be owed.
- The application may either be decided on the basis of the accompanying note or the Commissioner may hold a hearing to determine the application.
Whilst an application is determined by the Commissioner, confidentiality will be maintained. Applicants will be notified in writing once the Commissioner has determined the application.
What happens next?
To further assist parties involved in the Royal Commission, it is highly likely that further Practice Guidelines will be released. The Royal Commission into Trade Union Governance and Corruption issued 17 Practice Directions during the course of the Royal Commission. Given the magnitude of the Royal Commission’s task, it will not be a surprise to see it issue a similar number of Practice Guidelines.
The Royal Commission has already foreshadowed issuing a Practice Guideline in relation to a person applying for leave to appear before the Royal Commission. This Practice Guideline is likely to be issued after the completion of the Initial Public Hearing.
Watch this space for further updates as each Practice Guideline is released.
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