Australia: Royal Commissions – a brief background

Last Updated: 29 November 2015
Article by Mathisha Panagoda

Former Prime Minister Gough Whitlam famously described Royal Commissions as a channel of communication between Parliament and the people. We currently have two ongoing Royal Commissions at the federal level: the Royal Commission into Institutional Responses to Child Sexual Abuse and the Royal Commission into Trade Union Governance and Corruption. Both these Royal Commissions have tackled controversial and complex issues, had political implications and provided forums for members of the public to tell their story.

This article will provide a brief summary of some of the key features that give Royal Commissions their unique and important place in contemporary Australian society.

What is a Royal Commission?

Royal Commissions are independent public inquiries created as instruments of the executive government.

The "Royal" part of it is more a historical reference that we have retained today to reflect the prestige and seriousness associated with this form of inquiry. Technically speaking, a "Royal Commission" is actually the document signed by the Queen or her representative appointing a person to a position, in this case, the position of a Royal Commissioner. A judge, for example, is also appointed by way of a "Royal Commission". Nonetheless we use the term Royal Commission to identify this form of public inquiry that is created for a specific purpose, with a limited life span and that aims to investigate and report on pre-determined issues.

History

The Royal Commission's origins can be found in the United Kingdom as early as the 11th century when William the Conqueror appointed Royal Commissioners to investigate land titles for publication in the Domesday Book. Since Federation in Australia there have been over 130 federal Royal Commissions (the full list can be found here) into an extraordinarily vast range of issues including crime (Royal Commission of Inquiry into Drug Trafficking, 1983), indigenous affairs (Royal Commission into Aboriginal Deaths in Custody, 1991), employment (Royal Commission into the building and Construction Industry, 2003) and even technology (Royal Commission on Television, 1954).

While the States and Territories each possess legislation to establish their own various forms of public inquiries, the statutory mechanism for a federal Royal Commission is the Royal Commissions Act 1902 (Cth). The process of establishment usually involves the Prime Minister recommending to the Governor-General (as the Queen's representative) that a Royal Commission be established. Letters Patent are then issued by the Governor General that formally appoint the Royal Commissioner and outline the terms of reference for the inquiry. Those terms of reference outline the scope and specific issues to be addressed. You can find the terms of reference for the two current Royal Commissions here and here.

At the conclusion of the inquiry, a report is prepared and presented to the Governor General. While the Royal Commission has no ability to implement its own recommendations, its report is usually tabled in Parliament and made public (see for example the Report of the Royal Commission into the Home Insulation Program which was provided to the Governor-General on 31 August 2014 and tabled in Parliament on 1 September 2014). Matters may then be referred to relevant agencies and departments such as the Department of Public Prosecutions or the Federal Police for further investigation or charges.

Royal Commissions have been described as the most prestigious and dignified of executive inquiries in Australia and are often classified into two forms, those that are investigatory in nature and those that deal with policy. Since the 1970s however, the majority of Royal Commissions have been investigatory in nature and tend to inquire into controversial issues. Statistically, coalition governments have been less likely to establish Royal Commissions than Labor governments (see the 2009 ALRC Report for an interesting analysis of trends).

Features

Independence

Royal Commissions as a form of inquiry have survived for almost a thousand years since the Domesday Book in the 1080s thanks to their flexibility to be adapted to a wide range of issues. In Australia in particular, they are an extremely powerful form of inquiry and have been described as being intrinsically political in nature.

This is hardly surprising considering a minister or government has supreme influence over the selection of commissioners and their terms of reference. They may even be terminated at the discretion of a government or be placed under financial restrictions, limiting the resources available to complete the inquiry. Former QLD senator Michael Macklin observed "A government never holds an inquiry unless it knows what it is going to find". Nonetheless, it is often hard to predict the political consequences of a Royal Commission. One only has to look at the recent media storm around the apprehension of bias by Royal Commissioner Dyson Heydon who accepted an invitation to speak at a political fundraiser, to see the unexpected controversy and political damage that can be done.

Nonetheless by appointing Commissioners who are external to Government, a Royal Commission aims to be perceived as independent, legitimate and public in nature. This is an important factor in ensuring the public's perception of the commission remains positive and in the ability of its findings to be taken seriously.

Power to compel

A unique feature of Royal Commissions that attracts much attention from parties involved is that they are endowed with coercive information-gathering powers. That is, a Royal Commission is able to compel people to provide documents and give evidence.

The power to summon witnesses and take evidence is contained early in the Royal Commissions Act (section 2) and penalties including a fine or imprisonment are available to be issued against a witness who fails to attend or produce documents as requested (section 3). As was seen in the Child Abuse Royal Commission earlier this year, a warrant may be applied for through the Police to assist in compelling witnesses and evidence.

Unlike in our Courts, the rules of evidence do not necessarily apply and frequently, hearings are conducted in public. Today, the internet is highly utilised with public hearings being streamed live around the world and reports being made readily available in easy-to-understand formats for the general public's viewing. The downside of this may be the immense pressure that witnesses may face when giving evidence and the ease with which that evidence can be interpreted incorrectly and widely disseminated through the media without there being the usual safeguards that we have in the adversarial system.

While rights such as legal professional privilege may not be specifically abrogated, due to the public nature of the inquiry, there is often a careful balancing act to be played between exercising this right, maintaining public relations and acting in the public interest. The practical process for claiming legal professional privilege will usually be made clear for interested parties. See for example Practice Guideline 4 of the Child Abuse Royal Commission.

Protections

In the interests of encouraging open disclosure, witnesses are accorded protections under the Royal Commissions Act that wouldn't otherwise be available in court proceedings. For example, section 6M imposes penalties for anyone who inflicts violence or punishment against a person on account of them having given evidence at the Royal Commission. The statements a witness gives in the Royal Commission are also not admissible in evidence in the context of Court proceedings against the witness (section 6DD).

Although the Royal Commissions Act remains largely in its original form since 1902, it was amended recently with the insertion of Part 4 prior to the Child Abuse Royal Commission. Part 4 allows for private sessions to take place and accords various protections to those who choose to appear (for example section 6OH ensures that information obtained in the course of a private hearing is not recorded or disclosed).

Findings

A Royal Commission is not a judicial body and cannot prosecute. Findings made by a Royal Commissioner are not binding on any other body and have no authoritative legal vale. Regardless, a Royal Commission has the ability to have a profound impact on society by encouraging momentum for policy change and law reform, allowing members of the public to tell their stories, thoroughly investigate and report on issues and events, and not least to change the way society perceives a particularly complex issue.

In summary, Royal Commissions:

  • Investigate complex issues;
  • Encourage public participation;
  • Have extensive powers to gather information;
  • Are non-permanent in nature;
  • Are intended to be perceived as independent from Government; and
  • Provide recommendations but are unable to prosecute or make binding decisions.

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.

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Authors
Mathisha Panagoda
 
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