Counsel assisting is directly appointed by a commission of inquiry. In practice, this process involves the commissioner, in consultation with the government, employing certain senior practitioners with subject matter experience to assist the commissioner with the inquiry process.
Once appointed, counsel assisting is assigned a diverse role, including the appointment of the balance of the inquiry staff, facilitating the conduct of the inquiry and providing advice on the powers, duties, functions and obligations of the commission. However, in general terms, the specific functions and responsibilities of counsel assisting can be divided into four categories: the development of investigation strategies and programs, conduct of commission hearings, report writing, and management and administration of inquiry processes and procedures.
Development of investigation strategies
Counsel assisting play a vital role in the development of investigation strategies and management of associated risks. This includes determining whether to conduct hearings in public or private so as to not harm reputations unnecessarily, the process of identifying relevant witnesses and whether evidence from such witnesses ought to be adduced in private or public taking into account privacy and safety concerns, or acquiring information and documents using the commission’s compulsory powers.
Importantly, the scope of counsel assisting’s investigation role is shaped by the statute under which the inquiry operates and the terms of reference that prescribe the subject matter of the inquiry. Counsel assisting rely on the relevant statute and terms of reference to determine what matters are to be investigated and the method by which they should be investigated.
Conduct of commission hearings
During the commission of the inquiry, counsel assisting is required to present opening and closing submissions. In the opening submission, counsel assisting will identify the issue of the matter and the evidence that will be called to elucidate that issue.
It is the duty of counsel assisting to establish the facts of the matter – this duty extends to eliciting evidence that support or contradict an issue that a commissioner would consider and make a factual finding.
In relation to evidence, counsel assisting is responsible for superintending the collection, analysis, collation and presentation of evidence during the inquiry. Albeit in exceptional circumstances, counsel assisting will call witnesses before a commission of inquiry for questioning.
At the conclusion of the evidence, counsel assisting has an obligation to provide a closing submission of the issues upon which findings may be made.
Report writing phase of the inquiry and constraints
Counsel assisting play a vital role in the preparation of the final report; however, the limitations of this role are quite important as well. There is a dichotomy between the role of counsel assisting in presenting evidence during the inquiry and the commissioner assessing and making conclusions on that evidence. Consequently, any role played by counsel assisting in the writing of the report must be measured.
As Higgins CJ, Crispin and Bennett JJ summarised in Doogan - R v Doogan; ex parte Lucas-Smith (2005) 157 ACTR 1 at 165:
“While, as Mr Tracey has suggested, a coroner cannot delegate his or her responsibility to weigh the evidence and make appropriate findings, that does not mean that he or she must write the report unaided. On the contrary, a coroner is entitled to have counsel assisting or an associate undertake a range of tasks, such as providing a summary of the evidence, an outline of the relevant statutory provisions and references to authorities.”
Management and administration of inquiry processes and procedures
It is the responsibility of counsel assisting to ensure that appropriate processes and procedures are established in accordance with the relevant statutory powers available to the commission of inquiry. This is especially important in the context of safeguarding the integrity of the commission. For example, the issuing of arrest warrants, summonses, or witness testimony must be strictly performed in compliance with established processes and procedures so that any challenges against the performance of such functions can be defended.
While the role played by counsel assisting in a commission of inquiry is diverse, it is important to keep in mind that in undertaking this role, counsel assisting have a paramount duty to adopt an impartial and objective approach.
Arthur Marusevich is a lawyer based in Canberra. He uses his five-language skills to help people from disadvantaged backgrounds. Having written his first book, Arthur is an aspiring novelist and aims to publish one novel a year.