The Board of Inquiry wishes to make some observations about its powers to conduct the Inquiry.

The Board was appointed pursuant to s. 88C of the Constitution Act 1975 (Vic). Its powers are set out in the Order in Council dated 21 March 2014, and in Part 1, Division 5 of the Evidence (Miscellaneous Provisions) Act 1958 (Vic) (Evidence Act). The Board could summon any person to give evidence or produce documents to the Board, and could take evidence on oath. Pursuant to s. 21A of the Evidence Act, the Board, the legal practitioners appearing with leave before the Board, and witnesses, are entitled to the same privileges and immunities as if the Inquiry were an action in the Supreme Court of Victoria.

In the course of conducting the Inquiry, the Board became conscious of a number of limits on its powers to obtain evidence and regulate its own procedure.

First, the Board had no power to prohibit publication of evidence received by it during its public hearings. While the Evidence Act was amended in 2010 to enable a Royal Commission to make such an order, the Board had no power to restrict publication of its proceedings.2 This limits the ability of a Board of Inquiry to receive sensitive evidence, for example evidence that has security implications, is commercially sensitive, or deals with matters of an intensely personal nature.

Second, a Board of Inquiry does not have the capacity to deal with contempt of its processes. The chairperson of a board can report a refusal to attend in response to a summons or to refuse to answer a question to the Attorney-General, who may then apply to the Supreme Court of Victoria for an order dealing with the person concerned.3 It would enhance the independence of Boards of Inquiry if they were not dependent on a Minister of the Crown to enforce their processes.

Third, while fairness obliged the Board to give the parties access to witness statements and other documents to be tendered in evidence during its public hearings, the Board had no power to ensure that the parties used that evidence only for the purposes of the Inquiry.4 This is another aspect of the inability of a Board of Inquiry to deal with contempt of its processes.

Finally, there is no protection from adverse consequences available to persons who provide information or give evidence to an Inquiry. An Inquiry is not able to receive protected disclosures under the Protected Disclosure Act 2012 (Vic). In the course of the Inquiry, staff of the Board were approached by people who had relevant information to provide, but who were not prepared to give evidence in a public hearing for fear of reprisals, for example in their employment or in their commercial dealings. ‘Firefighter L’ was one example. There were a number of others. This was a significant limitation on the Board’s ability to inquire into the matters set out in its Terms of Reference.

The Board notes that the 2009 Victorian Bushfires Royal Commission and before it, the Royal Commission into the Metropolitan Ambulance Service, recommended the development of specific legislation for the conduct of inquiries in Victoria (Teague, McLeod & Pascoe, 2010, Vol III, p. 54; Lasry, 2001). These recommendations have not yet been implemented, despite the valuable groundwork laid by the Australian Law Reform Commission in its 2010 report ‘Making Inquiries: a New Statutory Framework’. The Board joins these Royal Commissions in urging the Victorian Government to develop and implement legislation for the conduct of Commissions and Boards of Inquiry in Victoria.

On the eve of publication of this report, the State Government introduced the Inquiries Bill 2014 (Vic) into the Victorian Parliament.