The ALRC could recommend recognition of an additional, hybrid
approach to inquiries.
Looking beyond the irony in a review of Royal Commissions -
themselves the most significant means of inquiry into matters of
public importance - the Australian Law Reform Commission's
review of Royal Commissions presents an opportunity to develop more
modern, flexible and ideally less expensive means of inquiry.
While the catch-cry "This matter demands a Royal
Commission", may be heard just a little too often, a Royal
Commission remains the highest form of inquiry into matters of
public importance. When the parliamentary or judicial process
cannot accommodate an issue of particular controversy, a Royal
Commission may be established - so long as the politics of the
matter will allow it.
However, Royal Commissions, particularly those carrying out
investigations and not engaged in policy development, have proved
too inflexible to deal quickly with matters of lesser import; and,
are possibly too antiquated to manage matters of greater moment,
that require forensic investigation, backed by credible powers of
As the Attorney-General remarked, in introducing the Clarke
Inquiry into the case of Dr Mohamed Haneef to the media, and in
explaining why that Inquiry was not constituted as a Royal
"The reality is that Royal
Commissions are incredibly expensive; they are inflexible, they are
extremely cumbersome, they take a considerable length of
In large part, this sentiment has seen a steady fall in the
number of Royal Commissions since the mid-1970s.
Basis for inquiry
In January 2009, the Commonwealth Attorney-General issued terms of reference for the Australian Law
Reform Commission's review of the provisions and operation of
the Royal Commissions Act 1902 (Cth).
In introducing its review, the ALRC identified the problems with
recent inquiries - such as the Oil-for-Food Inquiry and the Royal
Commission into the Building and Construction Industry - as
including difficulties with:
the power to compel the provision of information
a lack of power to investigate breaches of the Royal
an inadequacy in penalties for a failure to comply with that
the lack of capacity of Royal Commissions to communicate
information about unlawful behaviour to law enforcement
In answer to such problems, the ALRC is to consider whether
there is any need to develop an alternative form, or even forms, of
Commonwealth executive inquiry; with statutory functions; in order
to provide more flexibility, less formality and greater
cost-effectiveness. In particular, the ALRC will consider whether
there would be any advantage in codifying special arrangements and
powers that could apply to alternative forms of inquiry.
The ALRC expects to release an overview document in the next few
months, seeking feedback on a number of questions, presumably to be
framed to meet the difficulties identified with the current,
antiquated approach to Royal Commissions. This will be followed by
a discussion paper, in the middle of this year, in which the ALRC
will set out its preliminary proposals for reform, for broader
It may well be that the ALRC will recommend recognition of an
additional, hybrid approach to inquiries, adopting some of the
aspects of a Royal Commission, to ensure it can delve into the
truth of a matter; while jettisoning some of their formal,
For example, a relatively streamlined approach, such as that
taken in the Inquiry into the case of Dr Mohamed Haneef, may be
assisted by the ability to compel the attendance of witnesses and
the production of documents. The Royal Commission process may
become less expensive if, in some instances, evidence could be
taken by Commission staff, on the Royal Commissioner's
In any case, an antipodean precedent has recently been set, by
the New Zealand Law Commission's 2008 report into the
Commissions of Inquiry Act 1908 (NZ). It favoured new inquiries
legislation and proposed reforms aimed at providing a two-level,
flexible, fair and efficient model for inquiries. That report has
found form in the Inquiries Bill 2008 (NZ), introduced into the New
Zealand Parliament late last year.
The ALRC is due to provide its report and recommendations to the
Attorney-General by 30 October 2009. Any response will then be for
the Government; and, any legislative change then for the
Consequently, it may be unlikely that there will be any
substantive change to the way Royal Commissions are conducted,
until sometime after the next Federal election. Hopefully, however,
any change will bring Royal Commissions well into the twenty-first
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