Objectives:

The aim of the course is to analyse the formal processes outside the court system that can be used to resolve  disputes. The course combines research based and practice oriented teaching. The legal role, purpose and processes of investigations, inquiries and inquisitorial processes are considered. Skills are developed in managing and conducting investigations, inquiries and inquisitorial processes. The strengths and weaknesses of each approach are analysed and the factors influencing the choice of an approach are studied.

Content:

It is expected that the following topics will be covered:

1.Introduction: Legal Context of Investigations, Inquiries and Inquisitorial Processes

The legal framework for conducting investigations, inquiries and inquisitorial processes. What terms of reference and powers should be used? In what circumstances? This section of the course includes an introduction to later sessions (collection of information, rights of witnesses and third parties, right to remain silent, evidence, privacy, confidentiality, reporting etc).  Why do such processes exist? What are the characteristics of each process? What are the factors influencing choice of approach? There will be an introduction to the legal theory and the literature.

2. Fact finding for the purpose of investigations and inquiries

An evidence based approach to decision making is fundamental to legally sound investigations, inquiries and inquisitorial processes. What are the standards and burdens of proof? What is sufficient evidence for the purpose of administrative investigations and inquiries? What facts are needed for a decision? In what circumstances can an inference be drawn? Who is responsible for providing the evidence?

3. The steps in structuring and planning an inquiry: inquisitorial processes

When are inquisitorial or adversarial processes to be used in an administrative investigation or inquiry? What are inquisitorial processes in an Australian context? Is there a duty of inquiry? If so, in what circumstances? What are the legal and practical challenges in using inquisitorial processes and how best can these be met? What practical procedures should be followed in conducting interviews, keeping records, writing interview reports and writing and distributing reports?

4. Natural justice inquiry processes

What are the main principles of natural justice? How do these principles impact on investigations and inquiries? How do the principles impact on the inquisitorial process? How can an inquirer ensure that fair process is provided?

5. Evidence of Witnesses

What kinds of evidence can be used for the purposes of an inquiry/investigation? What are common statutory forms of the power to interview witnesses? What if evidence is evenly balanced? How is expert evidence evaluated? How are witnesses protected? What are the techniques for interviewing witnesses? How to tell if someone is telling the truth?

6. Fraud Investigations

Are there any special processes for investigations of fraud and serious misconduct? A guest presenter will discuss their experiences including the pitfalls, challenges and learnings they have experienced.

7. Ombudsman investigations and inquiries

What powers does the Ombudsman have to conduct investigations? What are the legal consequences of the exercise of those powers? What responses are given? What is the effect of the special powers the Ombudsman possesses? What is the effect of the limitations on an investigator's/inquirer's powers of only making a recommendation at the conclusion of the inquiry?

8. Regulatory responses

Are there special features of an inquiry or investigation which apply in a regulatory context? How are regulatory inquiries, including reviews on the papers, conducted? What are the pitfalls? If there is a review on the papers does this achieve the investigative goal?

9. Report writing

What are the key findings in a report? What outcomes are to be achieved? How should the report be structured? Who is the audience? How to write the report when there is a conflict of evidence? How to write the report if the evidence is evenly balanced? When expert evidence is evaluated how is this best presented? How are findings of fact best explained? Do all facts have to be dealt with? What have the courts said of the minimum criteria for writing a legally effective reasons statement?

10 Following the process and achieving optimal outcomes

What steps need to be followed at the conclusion of the investigation to finalise the process? How are optimal outcomes identified? How are strategies designed and implemented to achieve optimal outcomes? What particular legal principles impinge on this aspect of the process? For example, what is the application of the Archives Act 1983 (Cth)?

At the end of the course students can expect to have:

1. Developed a deeper understanding of the legal framework and context for investigations, inquiries and inquisitorial processes.

2. An enhanced ability to assess the appropriate administrative processes that can be applied to determine facts in certain circumstances.

3. Enhanced skills in managing and conducting investigations and inquiries and using inquisitorial processes.

4. An improved ability to identify potential legal challenges in administrative processes.

Students must rely on the Approved Assessment which will be posted to the course homepage on the ANU Law website, prior to the commencement of the course.

26 Contact Hours (Intensive Delivery)

Click here for 2009 Graduate Law Timetable

LAWS8153 Introduction to Legal Reasoning & Research (non-lawyers); LAWS8568 Fundamentals of Government & Commercial Law (non-lawyers)