Australia: Counting the costs of a Royal Commission

Last Updated: 16 May 2013
Article by Ben Allen

The 2013-14 Federal Budget has allocated $434.1 million over four years (including $66.8 million in 2012-13 and the already announced $43.2 million of capital funding for counseling and support) to fund the Royal Commission into Institutional Responses to Child Sexual Abuse (the Royal Commission). The Australian Government has identified the inquiry by the Royal Commission as a key priority for this year's Federal Budget. In delivering the Budget, Federal Treasurer, the Hon Wayne Swan MP, explained that the Australian Government has provided the Royal Commission "with the resources required to go about its important work and ensure survivors have the support they need." Commitment of resources of this size, making up close to two-thirds of the Attorney-General's portfolio, raises questions about why royal commissions are frequently considered appropriate in Australia as independent bodies of inquiry and the effect such continued implementation could have on the legitimacy of such an inquiry.

The Royal Commission into Institutional Responses to Child Sexual Abuse

On 12 November 2012, the Prime Minister announced that a Commonwealth royal commission would be established to investigate allegations of child sexual abuse in institutions in Australia. Yesterday, the Prime Minister indicated that the Royal Commission "is perhaps the most significant and far-reaching Royal Commission in Australia's history". The six member Royal Commission chaired by Justice Peter McClellan was formally established on 11 January 2013 by the Governor-General and is dedicated to investigating cases where institutions and organisations have failed to protect children, and to make recommendations on how institutions and governments can improve laws, policies and practices to prevent and better respond to such child sexual abuse. The Commissioners have been appointed for three years and are to prepare an interim report by 30 June 2014, with a final reporting date initially set for no later than 31 December 2015.

The Royal Commission is the first investigation at the Commonwealth level into child sexual abuse in institutions in Australia. The terms of reference, as set out in the Letters Patent issued by the Governor-General, direct the Commission to investigate the experiences of people directly or indirectly affected by child sexual abuse in an institutional context. The reference to institutions is wide ranging to cover any public or private body, agency, association, club or organisation, whether incorporated or not, and may include religious organisations including associated schools and parishes, child care centres, state government child protection agencies, juvenile justice centres, and refugee detention centres. As suggested by Defence Minister Stephen Smith in media reports late last year, the terms of reference may even be broad enough to include investigation of the sexual abuse of cadets in the Australian Defence Force. The first public sitting of the Royal Commission was held on 3 April 2013 and confirmed that the Australian Defence Force would be included in the investigations.

The unique features of royal commssions

Since Federation there have been 128 Commonwealth royal commissions. On the one hand, royal commissions can be investigatory in nature, convened to investigate allegations of impropriety or specific catastrophic events (such as floods or bushfires). Such royal commissions tend to focus on identifying the "truth" and the commission's powers of investigation are most useful in such instances. On the other hand, royal commissions can provide advice and options to governments of a policy nature. The majority, however, since the late 1970s, have been of the investigatory nature.

Investigatory royal commissions are often referred to as an 'institution of last resort' for governments. This is particularly so for handling issues of high political importance. The present Royal Commission clearly falls into such a category.

It is important to recognise the unique features of a royal commission that need to be taken into account when determining what a royal commission can achieve compared to other forms of inquiry or investigation. At its heart, a royal commission is a formal public inquiry into an issue defined as a matter of public importance. The issue to be investigated by a royal commission must have a level of seriousness and controversy to justify the use of a royal commission instead of some other form of public inquiry, such as a task force, committee or review. Royal commissions are temporary, ad hoc inquiries that investigate an issue and publicly report the findings. Royal commissions are not passive inquiries. A fundamental outcome of a royal commission is to make recommendations of a non-binding nature relating to the issue under inquiry. Ultimately, it does not provide a means for compensation or prosecution, even though the creation of a royal commission does not prevent such future action proceeding, as is evident in any number of recent class actions arising from catastrophic events.

The powers under the Royal Commissions Act

Royal commissions can be distinguished from other forms of public inquiry in that they are formally appointed by the Executive, rather than Parliament, and are established under specific legislation, the Royal Commissions Act 1902 (Cth) (the Act). The statutory foundation of a royal commission confers unique and coercive powers of investigation. Section 2 of the Act enables a royal commission to compel the production of evidence, including the power to summon witnesses to give evidence under oath or produce documents. It is an offence under Section 6L of the Act to prevent another person from giving evidence or producing documents that may be required. Section 4 of the Act empowers a royal commission to obtain search warrants in relation to the inquiry. It is an offence under Section 6K of the Act if, in the course of the investigation, it is discovered a person destroys or conceals a document that may be required in evidence.

Although many powers under the Act extend beyond those available to courts, the Act provides that the giving of evidence or provision of documents may not be imposed on those with a 'reasonable excuse'. It is yet to be determined whether religious confession will be deemed a reasonable excuse to not provide evidence.

The Act was amended in March this year in support of the Royal Commission to include measures to facilitate the provision of information by persons affected by child sexual abuse in institutional contexts in a setting less formal than a hearing, referred to as a 'private session', as detailed in Part 4 of the Act. Such a setting recognises the trauma and difficulty many participants will encounter when providing information to the Royal Commission.

When is it appropriate to establish a royal commission?

Although established by the Executive, a fundamental characteristic of a royal commission is the independence of the inquiry from the government. This is important to ensure public confidence in such investigations, particularly when the inquiry involves maladministration of the government.

However, given the continuing popularity of royal commissions as a response to a variety of issues in Australia, it is a matter of concern that the legitimacy of such inquiries may diminish if royal commissions are established too frequently. To maintain the legitimacy and authority of royal commissions, there must be a clear distinction between cases where royal commissions will be preferable and those where other forms of official inquiry might be more suitable. Royal commissions are always expensive, as is demonstrated by the commitment to the Royal Commission in this year's Budget. It is clear that royal commissions should only be convened to address issues of extremely substantial public importance, where no lesser form of public inquiry would be appropriate. The extensive powers under the Act exist to enable the investigation of particularly serious issues that cannot suitably be investigated by another mechanism and these need to be recognised to justify the high costs involved.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Ben Allen
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions