Speaking at a recent press update with members of the media, the Premier said: “It is always wise when something is being enquired about, [that you] say less, that’s not only law, that’s common sense. Because you need to understand what it is you’re fighting. Because this place is long on rumours and short on facts.”

“The COI may even be listening to you now. And you want to make sure that whatever you say, that you can make sure that you can back it up so if it is already in there, you don’t know what they have, you don’t know what persons give them, you don’t know what chatter they give them,” the Premier further said.

The subject matter was raised against the backdrop of a recent occurrence in the House of Assembly where a government minister declined to speak on an issue related to stimulus grants given to farmers and fisherfolk in the territory.

The minister declined to speak because the matter was before the COI.

What the law says

According to Section 2 of the territory’s Commission of Inquiry Act of 1880, whenever an official direction is given for an inquiry to not be held in public, “it shall not be lawful for any person, without the authority of the Governor, to write, print, publish, circulate, or make public, or to procure for the purpose of writing, printing, publishing, circulating, or making public, or to cause to be written, printed, published, circulated, or made public, or to be in any way concerned in the writing, printing, publication, circulation, or making public of, the evidence, or any part thereof, taken on such inquiry, or the proceedings, or any part thereof, on such inquiry.”

The Act further says that any person found in offence, shall be guilty of a misdemeanour, and shall be liable to pay a fine not exceeding $480 or to be imprisoned for any period not exceeding one year, or both.

No explicit direction for ministers not to discuss COI matters

While much of the inquiry has been conducted through public hearings, it has not been explicitly stated that any of the matters before the COI should not be discussed by government officials.

This should particularly be taken in the context that many of the documents placed before the COI have been made publicly available for everyone to access.

While some documents have been redacted to protect confidential or national security details, others have not seen any sort of redaction.

What the COI’s rules say

According to the COI’s website, the Commission of Inquiry Act (the legal basis for a Commission) states that any evidence given to the Commissioner cannot be used in subsequent proceedings.

This means that any evidence submitted cannot be used in court or in a criminal investigation at a later date.

Further, information that is submitted to the Sir Gary Hickinbottom-led Commission should be submitted in a person’s own name. However, if they wish their information to remain confidential or wish to maintain anonymity, they should make that clear.

The COI noted that in these circumstances, submissions will remain confidential or anonymous unless persons specifically agree to the information being opened up or de-anonymised.

Recently published COI protocols

Protocols recently published by the COI said Commissioner Hickinbottom has made clear that he will ensure that all persons are treated with procedural fairness.

“In accordance with his duty to ensure procedural fairness, the Commissioner will not include any explicit or significant criticism of a person in his report unless that person has been given reasonable opportunity to respond to that criticism,” the document stated.

The COI was set up to establish whether there is evidence that corruption, abuse of office or other serious dishonesty has taken place in public office in recent years.