The Nature of Inquisitorial Processes in
Administrative Regimes: Global Perspectives
Conference
University of Windsor, Canada
May 26-28 2011
Australian Royal Commissions and Public Inquiries:
Their Use and Abuse and Proposals for Reform
Professor Scott Prasser
Australian Catholic University
ABSTRACT
Australian Royal Commissions and Public Inquiries: Their Use and Abuse and
Proposals for Reform
Royal commissions have a long history in Australia both before and since federation.
Significantly, the third act passed by Australia‟s new Commonwealth Parliament was
the Royal Commissions Act 1902. Royal commissions have been appointed to
advise on a wide range of policy issues and to investigate allegations of impropriety,
corruption and maladministration. During the last 30 years most royal commissions
have concerned impropriety and corruption and in recent years other temporary
public inquiries, some statutory based but most not, have been appointed to assess
policy issues and complaints about corruption and maladministration.
Such extensive use of royal commissions and public inquiries in Australia has raised
concerns about the inquisitorial powers of royal commissions and the lack of powers
and protection for witnesses of non-statutory public inquiries.
This paper:

Analyses the trends in numbers and types of royal commissions and public
inquiries appointed in Australia;

Assesses concerns about the potential abuse of royal commissions including:
their powers of investigation, and the balance struck between their inquisitorial
style and the adversarial legal system in which they operate;

Reviews recent case studies showing how royal commissions, once thought as
being beyond normal judicial review, have come under increasing assessment by
the courts, thus questioning their hitherto largely unchallenged inquisitorial
powers, processes and style of investigations;

Examines concerns and proposed reforms about the lack of powers of nonstatutory public inquiries in conducting effective probes and in giving protection to
witnesses.
1. Introduction
Defining public inquiries
Public inquiries have a long history in Australia. Some argue that Australia‟s first
public inquiry was when Commissioner J.T. Bigge was appointed by the Secretary of
Colonies in 1819 to investigate the state of administration in the colony of New South
Wales and in particular the governorship of Lachlan Macquarie.1 Since then public
inquiries in the form of royal commissions and other statutory and non-statutory
bodies have been appointed: first by Australia‟s six colonies as they became selfgoverning in the latter half of the nineteenth century, then as States and also later by
Australia‟s national government, the Commonwealth, after federation in 1901.
This paper is about the use and abuse of royal commissions and public inquiries in
Australia. Let us be clear about what is meant by the particular institution of „public
inquiry.‟ In this paper public inquiries refer to those temporary ad hoc bodies whose
members are largely drawn from outside the immediate confines of government.
Public inquiries are established by executive government to provide advice or to
investigate some issue. Their proceedings are public, community input is sought and
their reports are publicly released. Public inquiries disband after their reports are
released and they have no role over the implementation of their recommendations.
Box 1 summarises the characteristics of public inquiries used in this paper.
1
Wettenhall, R., “A Brief History of Public Service Inquiries,” in Smith, R.F.I., and Weller, P., (eds),
Public Service Inquiries in Australia, St Lucia: University of Queensland Press, 1978, 14-32
1
Box 1: Ten characteristics of public inquiries
1. Public inquiries are non-permanent, ad hoc and temporary bodies having no
continuing life or existence except for the specific period for which they are
appointed. Inquiries are not part of the regular public bureaucracy, nor are they a
continuing advisory body attached to a department or minister.
2. Public inquiries are appointed and exist only at the discretion of executive
government – not parliament or any other institution of government and can be
terminated at any time by government. Except for royal commissions and a small
number of other bodies that are appointed by a governor-general or governor on the
advice of the prime minister or premier, most public inquiries are appointed by an
individual minister.
3. Public inquiries are funded totally by executive government and have no resort to
any special funding source from within or outside government.
4. Public inquiries are discrete organisational units, not part of any existing
government agency, department, or permanent advisory body. Public inquiries will be
attached to an existing government department for administrative purposes only and
are not part of the ongoing departmental activities.
5. Most public inquiry members are drawn from outside the public service,
government and parliament. Government ministers or backbenchers are excluded.
Although senior public servants may be appointed as members, they should only
constitute a minority of a public inquiry‟s total membership. Judges are regarded as
non-government members because of notions of separation of powers and judicial
independence. Such external membership contributes to a public inquiry‟s perceived
independence, legitimacy and public nature.
6. Public inquiries actively promote their existence to the wider community and are
not confidential bodies working inside government, although they may sometimes
undertake confidential tasks or hold hearings in camera. This openness further
underlines the „publicness‟ of public inquiries.
7. Public inquiries must have clear terms of reference that are publicly stated. A public
inquiry must be known to exist outside the confines of government and so must its
purpose.
8. Public inquiries actively seek community and interest group participation.
Inquiries use a range of mechanisms, such as calling for submissions, holding public
hearings, special forums, interviews or targeted approaches to relevant stakeholders.
9. Public inquiries are expected to produce a report that is submitted to executive
government, not to another advisory group or even to parliament in the first
instance. Moreover, this report and its evidence should ultimately be made public
within a reasonable time-span of the inquiry completing its task.
10. Public inquiries can only make recommendations to executive government; they
cannot implement their own proposals. Public inquiries are not adjudicatory or
regulatory bodies with powers to take action in the manner of the Australian
Competition and Consumer Commission (ACCC). Even royal commissions, although
appearing to make judgements on the guilt or otherwise of different individuals, can
only advise governments on possible courses of action.
2
This definition of „public inquiry‟ therefore excludes the following bodies:
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parliamentary committees
permanent (often statutory) advisory bodies
consultancies
interdepartmental committees
internal public service inquiries and project teams
policy research bureaux located in or on the fringe of governments
think tanks funded by governments at either universities or private ones
other inquiries appointed by statutory boards, permanent advisory bodies,
departments and intergovernmental agencies.
Public inquiries can be in the form of royal commissions which across Australia have
long been appointed under specific legislation (see Appendix 1 for details). This is
similar to many other Commonwealth countries such as Canada and New Zealand
where royal commissions are also appointed under specific legislation, but unlike –
until recently – their counterparts in the United Kingdom. In some States like New
South Wales, inquiries with similar powers and processes of appointment (ie by the
Governor issuing Letters Patent) to royal commissions are established under the
more recent Special Commissions of Inquiry Act (1983).2 A small number of public
inquiries may also be established under their own specific legislation 3 and some
others under other umbrella legislation that provides them with certain powers. 4 Most
public inquiries in Australia are not established under any legislation.
It is this lack of any statutory base for these inquiries that has been an area of
concern and subject to a recent review by the Australian Law Reform Commission
(ALRC).5 The ALRC‟s concerns were twofold. First, should a legislative base be
extended to those inquiries not previously covered to ensure they have adequate
powers of investigation? Second, should existing legislation covering inquiries,
particularly the Royal Commission Act 1902, be changed in view of its currency and
issues relating to powers, accountability and citizens‟ rights?
2
Ransley, J., “The Powers of Royal Commissions and Controls over them,” in Weller, P., (ed), Royal
Commissions and the Making of Public Policy, Melbourne: Macmillan, 1994, 22-31
3
The 1987 Commonwealth Inquiry into the Lemonthyme and Southern Forests was established under
the Lemonthyme and Southern Forest [Commission of Inquiry] Act 1987; The 2007 Equine Influenza
Inquiry was established under the Quarantine Amendment (Commission of Inquiry) Act 2007 (Cth).
4
The 1996 Inquiry into the Manner in which DFAT has Dealt with Allegations of Paedophile Activities
was appointed under the Public Service Act 1922; The 1975 Commission of Inquiry into Ranger
Uranium Development in the Northern Territory and the later Inquiry into the Shoalwater Bay Training
Area were established under the Environmental Protection Act (Cth).
5
Australian Law Reform Commission, (ALRC), Making Inquiries: A New Statutory Framework,
Report 111, Sydney: Australian Government, October 2009
3
Classifying public inquiries in Australia
For the purpose of this paper, public inquiries are classified in terms of being
inquisitorial/investigatory or policy advisory bodies. This classification has been
adopted by the Australian Law Reform Commission‟s (ALRC) recent review of the
Royal Commission Act 1902.6
Inquisitorial/investigatory include those inquiries into allegations, impropriety and
maladministration or some catastrophic event (eg flood, bushfire) or major accident
(eg bridge collapse). Inquisitorial inquiries are focused on finding the „truth‟ about an
allegation or incident and their recommendations are prescriptive. The ALRC saw
the functions of these sorts of inquiries as, “establishing accountability and
responsibility; allowing stakeholders to learn what happened; providing catharsis or
reconciliation; and providing and rebuilding public confidence.”7 Such inquiries,
although focusing on particular events or actions, often provide recommendations on
broader policy issues pertaining to their particular topic.8 See Appendices 2 and 3
for State and Commonwealth inquisitorial inquiries into corruption and
maladministration.
Most inquisitorial inquiries are statutory based to give them powers to conduct their
investigations (eg call and cross-examine witnesses, obtain evidence), to protect
witnesses in giving evidence and to afford protection to inquiry members. Royal
commissions are the usual form of these inquiries given their legislative base in
Australia. However, non-royal commissions can be appointed as inquisitional
inquiries. The Hawke-Keating Commonwealth governments (1983-96) appointed ten
non-royal commission inquiries to investigate allegations of impropriety. 9 Most of
these had no legislative backing. The Howard Government (1996-2007) established
three inquisitorial inquiries that were not royal commissions and either had no
legislative backing10 or were appointed under different legislation.11The Rudd
Government (2007-2010)12 appointed the 2008 Inquiry into Dr M. Haneef which had
no statutory backing (see later).
6
ALRC, Making Inquiries, op. cit., 57
Ibid.
8
For instance the 1991Commonwealth Royal Commission into Aboriginal Deaths in Custody made
recommendations across a range of social, health and economic issues as well as matters pertaining
to deaths in custody; The 2001 Royal Commission of inquiry into HIH Insurance proposed changes to
the financial system that went beyond the immediate issues of the HIH insurance company collapse.
9
See Prasser, S., Royal Commissions and Public Inquiries in Australia, Sydney: Lexis/Nexis, 2006,
25
10
Inquiry into the Circumstances of the Immigration Detention of Cornelia Rau appointed in 2005.
11
Independent inquiry into Allegations of Corruption in the Australian Federal Police and the Inquiry
into Allegations of Pedophile Activities in the Department of Foreign Affairs were established under
the Public Service Act 1922 (Cth)
12
Kevin Rudd led the Labor Party to victory at the November 2007 federal elections, but was
suddenly replaced as Prime-Minister in June 2010 by Deputy Prime-Minister, Julia Gillard. PM Gillard
called an election in August 2010 and now leads a minority government supported by the Greens and
three Independents.
7
4
Policy/advisory inquiries provide advice, information, research and options to
governments about a particular policy problem. Such inquiries are mostly informal,
ad hoc and take a wide variety of organisational forms such as task forces,
committees, reviews, working parties or independent inquiries and constitute the bulk
of public inquiries in Australia. Most have no statutory base or exercise any
investigatory powers. They rely on their status as executive appointed inquiries, their
membership and the nature of their topic to attract support. However, royal
commissions can also be policy advisory inquiries. Indeed, in the past royal
commissions were the dominant form of policy inquiry in Australia. Prior to 1972 60
per cent of all Commonwealth royal commissions were policy/advisory type inquiries.
Since then the trend has been for royal commissions to be appointed mostly for
inquisitional/investigatory roles. Of the 21 Commonwealth royal commissions
appointed since 1979, only three could be classified as policy/advisory inquiries.
Similar trends can be observed at the State level. As policy/advisory committee
reports are about issues of policy – about which there is often conflicting information,
values and views – and their recommendations less prescriptive than inquisitorial
royal commissions, they are open to more debate and criticism.
The remainder of this paper:

outlines the history of public inquiries in Australia in terms of both form, numbers
and appointments by different governments, primarily at the national level;

identifies the major concerns about the use of royal commissions and public
inquiries in terms of both their powers, investigatory processes and impact on
citizens‟ rights; and in relation to their perceived effectiveness in probing issues;
and,

analyses recent proposed changes and reforms to public inquiries in relation to
these issues.
5
2. History, trends and forms of Australian public inquiries
Royal commissions – their rise, fall and revival
The Australian colonies after gaining self-government soon appointed public
inquiries mostly in the form of royal commissions. Issues investigated prior to
federation in 1901 included: native police, charities, civil service reform (New South
Wales); defence, local government, sugar industry and mining accidents
(Queensland); education and factory regulation (Victoria).13 After federation, the
States continued to appoint royal commissions and other forms of public inquiries
with varying degrees of enthusiasm. In Victoria boards of inquiry were a favourite
form and were essentially royal commissions in all but name in terms of powers and
statutory base.
Significantly, after federation the new Commonwealth government was quick to
appoint its own public inquiry in the form of a royal commission in August 1902:
Royal Commission on Transport of Troops from Service in South Africa in the SS
Drayton Grange and the circumstances under which Trooper H. Burkitt was not
landed at Adelaide from the SS Norfolk. A couple of weeks later the government
hastily passed the Royal Commissions Act 1902. This was also one of the
Commonwealth Parliament‟s early pieces of legislation. It was deemed necessary,
as the then Attorney-General and later prime minister, Alfred Deakin explained,
because although the government could appoint a royal commission through LettersPatent issued by the Governor-General, the Commission had “no means by which
witnesses could be compelled to attend or ordinary penalties could be imposed for
perjury.”14 The Royal Commissions Act 1902 provided this and other powers. The
legislation was brief – only eight clauses. It was similar to existing State legislation,
but was to grow in subsequent decades.
This early legislation and comparable State legislation (see Appendix 1) highlights a
difference with royal commissions appointed in the United Kingdom at that time and
until quite recently. In the United Kingdom royal commissions were not established
under specific legislation. Only those small number of public inquiries15 established
under Tribunals of Inquiry Act 1921 (UK) had coercive powers similar to an
Australian royal commission. Occasionally, these inquiries have been called royal
commissions.16 These arrangements changed in 2005 with the new Inquiries Act
13
Borchhardt, D.H., Checklist of Royal Commissions, Select Committees of Parliament and Boards of
Inquiry, New South Wales, Queensland, Tasmania and South Australia, 1970-1980, Bundoora: La
Trobe University Press, 1986
14
Deakin, A., MP, Attorney-General, Commonwealth Parliamentary Debates (CPD), House of
Representatives (HR), Vol XII, 21 August 1902, 15355
15
Between 1921 to 2001 only just over 20 inquiries had been established under the Tribunals of
Inquiry Act.
16
For example, the 1924 Royal Commission into Lunacy and Mental Disorder.
6
2005 (UK) that replaced 30 separate laws and the Tribunals of Inquiry Act 1921 and
provided for the establishment of inquiries with powers of investigation.
Royal commissions were once the dominant form of public inquiry at both State and
Commonwealth levels in Australia. At the Commonwealth level royal commissions
reached their peak during 1910-1929 when 54 were established. Subsequently, royal
commission numbers declined. From 1940 until 1972 only 12 royal commissions
were appointed. From 1950-72 only seven royal commissions were appointed (see
Table 1).
The incidence of royal commissions fluctuated after the 1970s and then again from
the mid-1990s both nationally and across most States for a variety of reasons
outlined below. From 1973 to1996 34 Commonwealth royal commissions were
appointed. There was also an increase in State royal commissions during the late
1980s and early 1990s. However, since 1996 only four Commonwealth royal
commissions have been established.
Overall, since federation successive Commonwealth governments have appointed
128 royal commissions. The most recent Commonwealth royal commission was the
2005 Commission of Inquiry to inquire into possible breaches of Australian Law in
relation to the UN Oil-for-Food Programme established by the Howard Coalition
Government.
The coming of other non-statutory policy public inquiries and the revival of
royal commissions
Coalition governments 1949-1972
Since federation governments have also resorted to other non-statutory policy type
public inquiries. Table 1 indicates that such public inquiries outnumbered royal
commissions from the 1940-49 decade onwards. While, as noted, only seven royal
commissions were appointed from 1950 to1972, more than 40 of these other mostly
non-statutory public inquiries were established by the Commonwealth during this
period. Overall, during this time public inquiries were used sparingly. It was a time
that coincided with the national dominance of the non-Labor Liberal-Country Party
government that held unbroken office federally from 1949 to1972.17
Nevertheless, it would be wrong to assume some of these public inquiries, including
royal commissions, were unimportant. The great expansion of tertiary education in
Australia was preceded by several major inquiries – the 1956 Murray Committee on
Australian Universities and the 1961 Martin Committee on the Future of Tertiary
Education in Australia.18 Other public inquiries covered areas such as: public service
17
Sir Robert Menzies was Prime-Minister from 1949-1966. He was succeeded by non-Labor primeministers, Holt, Gorton and McMahon, until the non-Labor parties lost office in December 1972.
18
Davies, S., The Martin Committee and the Binary Policy of Higher Education in Australia,
Melbourne: Ashwood House, 1989
7
recruitment, decimal currency, dairy industry, taxation reform, population policy,
poverty and economic policy.19 Of the seven royal commissions appointed, several
were especially important and controversial such as the 1954 Royal Commission on
Espionage (Petrov Royal Commission) appointed by the Menzies Coalition
Government in the wake of the defection of two Soviet embassy staff (the Petrovs)
and concerns about Communist infiltration. The Petrov Royal Commission has long
been at the centre of debate as to whether it was manipulated by the Menzies
Government to maximise political damage to the Labor Party. 20 Recent evidence
suggests it was not.21
Whitlam Labor Government 1972-75
The use of public inquiries including royal commissions changed dramatically with
the election of the Whitlam Labor Government in 1972. After so long in opposition
(23 years) the Labor Government had a pent up „reformist‟ programmatic election
platform. Faced with what it perceived as possible resistance from the
Commonwealth Public Service and parts of the Australian community, the Labor
Government was eager to push ahead on all policy fronts and desired advice from
outside traditional sources.22 Within three years, the Whitlam Government had
appointed 13 royal commissions and more than 70 ad hoc public inquiries. Prime
Minister Whitlam saw such extensive use of public inquiries as the:
... most effective way of producing a high quality report in a short time which
combines the skills and insights of prominent citizens with the background
and experience of the actual working government.23
Such purpose driven inquiries were also seen in Australia 24 (and overseas)25 as a
means of governments accessing the latest social science knowledge to tackle
emerging public policy problems. Others, like the Coalition Opposition were more
critical, complaining about inquiry costs, their undermining of traditional public
service advice, the poor quality of some inquiry reports and even their particular
19
Spiegel, E.V., Study of Ad Hoc Committees of Inquiry Appointed by the Commonwealth
Government between 1957 and 1969, PhD Thesis, Department of Government, Faculty of
Economics, University of Sydney, 1973
20
See Manne, R., 1987, The Petrov Affair: Politics and Espionage, Sydney: Pergamon; Whitlam, N.,
and Stubbs, J., Nest of Traitors: The Petrov Affair, Brisbane: Jacaranda Press, 1974
21
Henderson, G., “Cold War Secrets and the Spies who came out of Canberra,” Sydney Morning
Herald, 12 April 2011; See also - Nethercote, J.R., “The Timing of the 1954 Election,” Quadrant, June,
1995, 50-52
22
Lloyd, C.J., and Reid, G.S., Out of the Wilderness: The Return of Labor, Melbourne: Cassell, 1974
23
Whitlam, E.G., MP, “Australian Public Administration Under a Labor Government,” The Sir Robert
Garran Memorial Oration, 12 November 1973, 10
24
Hawker, G., "The Use of Social Scientists and Social Science in the Inquiries of the Labor
Government 1972-75," Paper presented to the 48th ANZAAS Congress, Sociology Section,
Melbourne, 1977; Snell, W., “The Utilization of Social Science Research in Public Policy Making,”
Australian Quarterly, Vol 88, No 5, March, 1983, 458-65
25
Bulmer, M., The Uses of Social Research: Social Investigation in Public Policy Making, London:
Allen and Unwin, 1982; Weiss, C.H., (ed), Using Social Research in Public Policy Making,
Farnborough: Saxon House,1977
8
areas of their investigation26 (eg the 1974 Royal Commission into Human
Relationships was singled out especially). The Coalition promised to cut the use of
external public inquiries.27
Fraser and Hawke-Keating governments 1975-1996
However, the public inquiry genie was out of the bottle. The new Fraser Coalition
Government (1975-83) appointed a plethora of its own inquiries including eight royal
commissions and more than 90 other public inquiries. The rate of public inquiry
appointment was less than Whitlam‟s, but the Fraser Government still used public
inquiries more extensively than those administrations prior to Whitlam‟s.28 Such
extensive use of external public inquiries and royal commissions continued with the
subsequent Hawke-Keating Labor governments (1983-1996) that appointed 12 royal
commissions and 189 other public inquiries29 during 13 years in office.
Howard, Rudd and Gillard governments (1996-2011)
Under the Howard Coalition Government (1996-2007) the rate of public inquiry
appointments abated, though inquiry numbers, at more than 80 were still high
compared to the post World War Two period. Significantly, the Howard Government,
as noted, appointed only four royal commissions.30 The subsequent Rudd and now
Gillard Labor Commonwealth governments (2007- present) have not appointed any
royal commissions to date, but have established numerous public inquiries across a
wide range of policy areas.31
State trends, inquiries into corruption
During most of the 20th century the number of State royal commissions and public
inquiries fluctuated in numbers, frequency, topics investigated and varied from state
to state.32 State governments tend to appoint fewer public inquiries than their
Commonwealth counterpart. Policy development in State governments remains
more internalised within government departments with few external permanent
independent advisory bodies as occurs nationally. Nevertheless, during the 20th
Century and the last decade the States have collectively appointed more than 270
26
Anthony, D., MP, The Australian, 8 December 1975
Fraser, M., MP, “Review of Bodies Conducting Inquiries,” Press Release, 2 February 1976
28
Prasser, S., “Inquiries and the Fraser Government 1975-1980,” Australian Journal of Public
Administration, Vol XL, No 4, December, 1981, 343-349
29
Prasser, S., “Public Inquiries and the Second Hawke Government,” in Nethercote, J.R., and
Wettenhall, R., (eds), Australian Commonwealth Administration 1987: Essays in Review, Canberra:
Canberra CAE and Royal Australian Institute of Public Administration (ACT Division), 1988, 117-142
30
Equine Influenza Inquiry appointed in 2007 was vested with almost the same powers of a royal
commission.
31
A definitive list has yet to be finalised, but numbers are in excess of 60 to date.
32
Borchardt, D.H., Commissions of Inquiry in Australia, Bundoora: La Trobe University Press, 1991;
Borchardt, D.H., Checklist of Royal Commissions, Select Committees of Parliament and Boards of
Inquiry, Vol III: Victoria, 1856 – 1960, Sydney: Wentworth Books, 1970
27
9
public inquiries – New South Wales (NSW) leads followed by Victoria and
Queensland while Tasmania has appointed the fewest. However, during the 1980s,
there was a marked increase in State public inquiries, mostly royal commissions in
Victoria, New South Wales, South Australia, Queensland,33 Western Australia34 and
to a lesser extent Tasmania into corruption (police, prisons, organised crime and
elected officials), improprieties and maladministration (collapse of State banks,
misallocation of funds).35 Appendix 2 provides a detailed list of these State inquiries.
State inquiry numbers were also bolstered by a number of joint CommonwealthState public inquiries, largely initiated by the Commonwealth at this time. Some were
into areas of administrative efficiency or general areas of policy. 36 Some were into
controversial policy areas like drugs and Aboriginal deaths in custody. 37 Others
investigated corruption and were partly motivated to embarrass the then federal
Labor Opposition.38 Some were into the administration of law.39(See also Appendix
2 for full list of these inquiries).
Decline of royal commission numbers nationally and across the States
However, the political fallout of these State and Commonwealth inquisitorial royal
commissions was severe. Governments in Victoria, South Australia, Western
Australia, Queensland and Tasmania fell as direct result of what these inquiries into
maladministration and corruption exposed. The Fraser Government was wounded by
the Royal Commission into the Federated Painters’ and Dockers’ Union, the inquiry it
had appointed partly to embarrass the Labor Opposition, as it exposed corruption in
the Tax Office, ministerial laxity and tax avoidance schemes which involved leading
Liberal Party organisational members.
Consequently, governments around Australia have been reluctant to appoint
inquisitional royal commissions into corruption and maladministration unless there
was no other choice – politically and administratively. The preference has been to
appoint royal commissions only into issues less directly linked to the government,
such as those into natural disasters, accidents or major business collapses like that
of HIH Insurance. Royal commissions, with their extensive powers of investigation,
33
Prasser, S., Wear, R., and Nethercote, J.R., (eds), Corruption and Reform: The Fitzgerald Vision,
St Lucia: University of Queensland Press, 1990
34
Peachment, A., (ed), The Years of Scandal: Commissions of Inquiry in Western Australia 19912004, Perth: University of Western Australia Press, 2006
35
Tiffen, R., Scandals: Media, Politics and Corruption in Contemporary Australia, Sydney: University
of New South Wales Press, 1999
36
Commission of Inquiry into Efficiency and Administration of Hospitals (1979); Royal Commission of
Inquiry into Costs and Efficiency of Grain Storage Handling and Transport (1986);
37
Royal Commission into Drugs (1977); Royal Commission of Inquiry into Drug Trafficking (1981);
Royal Commission into Aboriginal Deaths in Custody (1987).
38
Royal Commission on the Activities of the Federated Ship Painters’ and Dockers’ Union (1980);
39
Royal Commission of Inquiry into Chamberlain Convictions (1987).
10
high profile, unpredictability and high costs, have been seen by State and
Commonwealth governments as increasingly risky ventures.40
The Howard Government appointed just four royal commissions and also resisted
calls for royal commissions into the Cornelia Rau affair,41 media ownership, the
Hilton Hotel bombing, foster care and child abuse, the goods and services tax, the
children overboard affair and Indigenous people‟s living conditions. The last
Commonwealth royal commission, the 2005 Commission of Inquiry into Possible
Breaches of Australian Law in relation to the UN Oil-for-Food Programme, was only
done so after considerable political pressure and high profile of the issue.42
Similar patterns occurred in other states. The Queensland Beattie Labor
Government sought every alternative before reluctantly appointing a royal
commission into the overseas doctors‟ scandal in 2005.43 The quick establishment of
a commission of inquiry (a royal commission) following the floods in Queensland in
2011, by the current State government reflects a different response to a different
type of issue. However, the same government has not deemed necessary to appoint
a royal commission into the death of an Aborigine held in police custody on Palm
Island, Queensland.44
The Victorian Bracks Labor Government appointment of a royal commission into the
state‟s ambulance service in 2000 was honouring an election promise. While quickly
appointing a royal commission in the wake of the January 2009 bushfires, the
Brumby Government repeatedly resisted demands for a royal commission into police
corruption as had occurred in several other states.45
So too in New South Wales there have been several special commissions of
inquiries (with equivalent royal commission powers and usually appointed by the
Governor through the issuing of Letters Patent) into rail accidents and asbestos in
relation to a major Australian company,46 but reluctance to appoint inquiries into the
more controversial issues concerning the death of an Aborigine, T.J. Hickey, in
Redfern. Only after years of complaint was a Special Commission of Inquiry into
40
Prasser, S., “Royal Commissions in Australia: When Should Governments Appoint Them?”
Australian Journal of Public Administration, Vol 65, No 3, September, 2006, 28-47
41
A permanent resident in Australia of German background who was wrongfully detained by the
Immigration Department.
42
Botterill, L., “Doing it for Growers in Iraq?: The AWB Oil-for-Food Scandal and the Cole Inquiry,”
Australian Journal of Public Administration, Vol 66, No 1, March, 2007, 4-12
43
This concerned scandals of overseas doctors not properly qualified operating in public hospitals –
see Prasser, S., “The Queensland Health Royal Commissions,” Australian Journal of Public
Administration, Vol 69, No 1, March, 2010, 79-97
44
Brennan, F., “Call for death-in-custody inquiry,” Sydney Morning Herald, 6 April 2011
45
Queensland 1989; NSW 1994; Western Australia 2002
46
Special Commission of Inquiry into Waterfall Rail Accident (2003); Special Commission of Inquiry
into the Medical Research and Compensation Foundation Established by the James Hardie Group
(2004)
11
Acute Care Services in NSW Hospitals appointed in 2008, again with royal
commission powers.
In South Australia the Rann Labor Government too has resisted having a major
inquiry into police corruption, but in the face of the seriousness of the issue
concerning child abuse, appointed the Commission of Inquiry into Children in State
Care in 2004 under its own legislation and with royal commission powers. Also,
following immense public outcry and protests about the acquittal of a prominent
lawyer of a manslaughter charge following a fatal road accident, the Rann
Government appointed the Kapunda Road Royal Commission to investigate the
case and the legal system.47
In Tasmania there have been only been two royal commissions since 1990. New
legislation (Commissions of Inquiry Act 1995) was passed following the
recommendations of the 1991 Royal Commission into the Edmund Rouse Affair.
There has been only one new royal commission since then, the 2000 Royal
Commission into the Death of Joseph Gilewicz. This inquiry spawned a review by the
Tasmanian Law Reform Institute (TLRI) into the adequacy of royal commission
powers particularly into the use listening devices and other related matters. This is
discussed below.
At the Commonwealth level the recent Rudd and now Gillard governments have
eschewed royal commissions. In Opposition the Labor Party had promised a “judicial
inquiry” into the Dr Haneef issue.48 It subsequently appointed a non-statutory inquiry
headed by a former NSW Supreme Court judge, The Hon John Clarke QC. It was
neither a royal commission nor one with statutory powers to collect evidence or
protect witnesses and was accordingly criticised at the time for this failure49 and later
by the Law Council of Australia.50
In summary, royal commissions did have a revival across Australia during the 1970s
and 1980s and despite recent trends they still remain, as one prominent
commentator observed, “the most prestigious of executive inquiries in Australia.”51
This view was confirmed with the recent review of the Commonwealth Royal
Commission Act 1902 by the Australian Law Reform Commission which
recommended the continued use of the royal commission title for major public
47
McCarthy, G., “Public Outrage, Media Spectacle and the Kapunda Road Royal Commission,”
Australian Journal of Public Administration, Vol 67, No 1, March, 2008, 30-40
48
Dr M. Haneef was wrongly detained by the Australian Federal Police on suspicion he was linked to
a terrorist attack in the United Kingdom.
49
Prasser, S., “Informal and „judicial‟ Haneef Inquiry a paper tiger,” The Courier-Mail, 2 May 2008
50
See ALRC, op. cit., para 11.12, 254
51
Sherman, T., Executive Inquiries in Australia: Some Proposals for Reform, Canberra: Centre for
International and Public Law, Faculty of Law, Australian National University, Paper No 8, 1997,6
12
inquiries, especially of an inquisitorial kind, given its perception of prestige and
independence.52
Table 1 outlines the number and type of Commonwealth public inquiries appointed
since 1901. Figure 1 provides a comparison across different governments of their
use of royal commissions and other forms of inquiries.
Table 1: Number of public inquiries established by Commonwealth
governments 1900-2005 by decadea
Decades
Royal Commissions
Other inquiries
Total
1900-09
15
2
17
1910-19
27
2
29
1920-29
27
6
33
1930-39
10
10
b
20
1940-49
5
14
1950-59
3
20
23
1960-69
3
19
22
1970-79
18
151
169
1980-89
13
151
164
1990-99
3
96
99
2000-05
4
44
48
128
515
643
Total
19
Footnotes
a.
b.
52
Sources: Based on: Borchardt 1991; Prasser 2006 and surveys of Commonwealth Parliamentary
Papers series 1901-2005.
Includes 11 inquiries appointed under National Security (Inquiries) Regulations which allowed the
Attorney-General to appoint an inquiry on “any matter in relation to public safety or defence of the
Commonwealth” (Section 1A). Such inquiries have sometimes been counted as royal commissions
(Fraser 1986), but are excluded as such in this table as they did not exercise full royal commission
powers nor were all their reports released publicly.
ALRC, op. cit.,106-8
13
No of inquires
Figure 1:Royal commissions and other public inquiries 1949-2007
100
90
80
70
60
50
40
30
20
10
0
Government
Royal Commissions
Other Inquiries
Partisanship and public inquiries
Table 2 highlights that at the Commonwealth level non-Labor governments have a
lower rate of appointing external public inquiries relative to their time in office (ie
inquiries per months in office) compared to Labor administrations. Since 1949 the
Whitlam Labor Government (1972-75) had the highest rate of appointing royal
commissions at 2.46 inquiries per month. The Fraser Coalition Government (197583) was half of Whitlam‟s and less than the Hawke-Keating Labor governments. The
Howard Government was half that again of its Labor predecessor. Labor
governments on average appoint 1.5 inquiries per month while non-Labor
governments appoint one every two months (0.49).
14
Table 2: Appointment of Commonwealth public inquiries by government 19492005
Government
Menzies
Holt, Gorton,
McMahon
Whitlam
Fraser
HawkeKeating
Howard
Average
Party
Months in
office
Inquiries
appointed
Coalition (nonLabor)
Coalition (nonLabor)
Labor
Coalition (nonLabor)
Labor
193
35
Incidence
(inquiries per
month)
0.18
82
29
0.35
35
87
86
92
2.46
1.06
156
201
1.29
Coalition (nonLabor)
Labor
Coalition
117
81
0.69
191
479
287
237
1.5
0.49
Inquiry membership issues
Table 3 outlines Commonwealth public inquiry membership, including royal
commissions from 1975-2003. Those from the legal profession (current and former
judges, senior legal counsel) are a major, but not dominant group. Membership,
socially in relation to those from the legal profession is an issue in relation to the
potential use and abuse of public inquiries and it will be explored in more detail later.
As most Commonwealth and State royal commissions appointed since the 1970s
have been mostly of the inquisitorial kind, it should not be surprising that their
membership has been dominated by those with legal backgrounds. Only six of the
38 Commonwealth royal commissions appointed since 1970 did not have
legal/professional chairs. These were inquiries into more general policy matters such
as grain handling, human relationships and efficiency of hospitals. Similar patterns
occur across the States.
Indeed, a review of all Commonwealth inquisitorial type inquiries – royal
commissions and non-royal commissions since 1950 reveals that all except one was
chaired by a senior member of the legal profession or judiciary. 53 Royal commission
or even statutory status is not necessary for the appointment of former members of
53
Mike Codd, a former Secretary of the Department of Prime Minister and Cabinet, chaired the 1994
Inquiry into the Conduct of Alan Griffiths MP; See Appendix 3 for list of Commonwealth inquiries into
corruption and maladministration.
15
the judiciary to chair inquiries of this type either in the past or recently. 54 The
implications of these appointments are explored later.
Table 3: Membership of Commonwealth public inquiries 1975-2003 (as
percentage)
Categories
Academics
Business
Public servants
(former)
Judicial and legal
Professional/expert
Partisan (eg former
party minister)
Fraser
Government
(Non-Labor)
1975-83
15.5
26.7
25.5
Hawke-Keating
(Labor)
Governments
1983-1996
28.8
15.6
14.9
Howard
Government
(Non-Labor)
1996-2003
10.6
19.5
3.5
25.3
4.2
2.8
19.8
17.6
3.3
17.7
32.7
16.0
Summary
In summary:







Public inquiries have a long history of use in Australia at both State and national
levels;
Nationally, royal commissions are used less frequently being bypassed by more
informal public inquiries such as task forces and committees of reviews;
Since 1972 successive Commonwealth governments have appointed an
increasing number of public inquiries including a revival of royal commissions;
Labor governments appoint more public inquiries (both royal commissions and
other inquiries) than non-Labor administrations;
Between 1901-1972 the majority of Commonwealth royal commissions provided
advice on a range of policy areas; since 1972 royal commissions have primarily
been of the inquisitorial type;
Non-Labor governments appoint relatively fewer inquiries than Labor
administrations;
Since the 1990s both Commonwealth and State governments have been
reluctant to appoint royal commissions unless administratively or politically
unavoidable.
54
The 1993 Inquiry into Circumstances of Leo McLeay’s Compensation was chaired by Sir Laurence
Street former Chief Justice of the NSW Supreme Court; The 2008 Commonwealth Inquiry into the Dr
Mohamed Haneef case was chaired by the Hon John Clarke QC also a former member of the NSW
Supreme Court.
16
3. Issues of use and abuse of public inquiries
Public inquiries serve a variety of purposes. Indeed, it is important to appreciate that
all public inquiries, including royal commissions, are first and foremost executive
government inquiries. They are appointed by executive government to serve
executive government purposes – political and administrative. Public inquiries
neither exist as an institution in their own right, nor in a political vacuum. Discussion
concerning the uses and abuses of public inquiries needs to recognise this.
Appointment and motivation
Fundamental to discussing the uses and abuses of public inquiries is an
understanding of why they are appointed – stated and unstated. As Cartwright
writing of public inquiries in the United Kingdom, observed, “one of the perennially
fascinating questions about royal commissions and departmental committees” is why
governments appoint public inquiries.55 Similarly in Canada, Walls observed some
time ago:
Many citizens today are speculating as to why royal commissions are
necessary – why they last so long and why they appear to be so costly to the
taxpayer. On all sides one hears such remarks as: ‘Why should government
have to appoint a commission when they themselves are elected to solve
such problems.‟ 56
Of course publicly stated reasons for an inquiry‟s appointment only reflect the
explanations a government wants to present. Such explanations are usually clothed
in terms of rational decision making such as acquiring – in the case of policy
inquiries – more information and seeking expert advice to tackle policy problems. In
relation to inquisitorial inquiries, the official explanation emphasises seeking truth,
allocating responsibility and providing independent and impartial assessment of an
issue, event or disaster. Such public explanations will not reflect what Bulmer calls
the “highly cynical and self-serving motives”57 that often drive executive
governments‟ use of public inquiries. These include: agenda management, decision
postponement, issue smothering, interest group pacification and co-option, symbolic
action, blame avoidance58 and buying time. As one observer concluded, public
explanations by executive governments “cannot necessarily be taken at their face
55
Cartwright, T.J., Royal Commissions and Departmental Committees in Britain, London: Hodder and
Stoughton, 1975, 84
56
Walls, C.S., “Royal Commissions-Their Influence on Public Policy,” Canadian Public Administration,
Vol XII, Fall, 1969, 365
57
Bulmer, M., The Uses of Social Research, op. cit., 97
58
Weaver, R.K., “The Politics of Blame Avoidance,” Journal of Public Policy, Vol 6, No 4, 1986, 37198
17
value.”59 Inquiries can be appointed to serve legitimate and politically expedient
roles.
Legitimate uses of public inquiries
For public inquiries, generally legitimate reasons for their appointment are that they
assist in the better policy development through advice based on research and
analysis.60 Walls (1969: 365) sums up this rational policy making role of public
inquiries:
The principal function ... is to place before government … a cold blooded
impartial survey followed by an equitable solution to the problem
submitted to it, a solution without concern as to its implication or on whose
toes it may figuratively step.61
The external public inquiry is seen as an “independent body whose task it is to form
an authoritative and objective judgement of the policy problem which it has been
given to tackle.”62 Their public processes are also seen as a legitimate means to
improve consultation with the community and stakeholders, garner more advice and
thus to improve the quality of policy.
Table 4 sums up how the particular features of an external public inquiry meet these
roles of rational policy development. They are particularly relevant to policy advisory
type inquiries. Indeed, the language of rational policy development pervades
executive government rhetoric in establishing such inquiries, their terms of reference,
members and even the initial government responses to inquiry reports. Hence
government stress policy inquiries‟ roles: “to seek evidence,” “have an open review,”
to “clarify the facts,” “take a long term view;” “provide independent assessment,” and
“do extensive research.” These descriptions accords with seeing public inquiries,
especially the policy type as:
... purpose driven instruments whose rationale lies in their contribution to
the decision stage of policy-making. Their role is to generate information
and expert advice which will inform and impel the policy decisions of the
authorities who have commissioned them. This conception of policy and
what is entailed has been criticised on empirical and conceptual
grounds.63
Policy public inquiries serve legitimate roles of providing expert, independent and upto-date advice on policy problems while their public processes promote public input,
increase awareness of issues and assist in promoting consensus on often new or
controversial matters. Their continued use reflects the existence of expertise outside
59
Rhodes, G., Committees of Inquiry, London: Allen and Unwin, 1975, 67
Spiegel, op. cit., 14-16
61
Walls, op. cit., 365
62
Bulmer, The Uses of Social Research, op. cit., 96
63
Degeling, P., Baume, P., and Jones, K., “Staging an Official Inquiry for Policy Change: The Case of
the Drug Evaluation Review in Australia,” Policy and Politics, Vol 21, No 4, 1993, 271
60
18
of government, perceptions of increasing politicisation of the public service and the
belief that consultation enhances both policy product and implementation.
These legitimate roles and expectations are also applicable to inquisitorial inquiries,
but given their focus into wrong-doing and their seeking to allocate responsibility
greater emphasis is on the inquiry‟s „independence,‟ the status of its members and
the inquiry‟s “powers” than for policy inquiries.
Table 4: Public inquiries and rational policy making
Features of rational policy development
How inquiries perform these activities
Independent and expert advice outside of
government
External inquiry members who are expert
and independent from government; separate
and discrete unit outside of government
Based on research, analysis and clarifying
“facts” on issues
Specialised staff and research programs
Advice based on „cold reasoning‟ and
„scientific analysis‟ and clear assumptions
Use of research, clear methodology, seeking
„fact‟ style of operations
Seeking information and knowledge
Use of research, hearings, collection of
„evidence‟
Specialised in policy area
Members and staffing
Comprehensive review
Research; adequate time
Assessment of options
Research, interim reports, public testing,
research program, consultation processes,
outline of options
Aimed at providing „solutions‟ to specified
policy problems
Specific terms of reference and reports with
detailed recommendations
Uncompromising, disinterested advice
Temporary duration, no vested interest,
professionalism and expertise of members,
apparent impartial report
Also provides testing of accuracy and veracity
of options with key stakeholders
Draft discussion papers, consultation, some
accommodation to stakeholder
representation
Provides formal advice and specific
recommendations
Inquiry report presented to government and
made public
For policy inquiries, their legitimate roles include: issue scanning; problem solving;
information gathering; research; knowledge synthesis, interpretation and integration;
options development; educators of public opinion; promoters of consultation;
vehicles for mediation and conflict management; and in some circumstance even
legitimising certain government decisions and actions.64
Of course, whether governments accept and implement inquiry recommendations is
often seen as the most important means to assess the value of public inquiries and
whether they were established for legitimate or politically expedient reasons.
Implementation, or rather non-implementation, has long been seen as the “greatest
64
Prasser, Royal Commissions and Public Inquiries, op. cit., Chapter 5
19
degree of dissatisfaction with royal commissions.”65 This has often concerned even
some members of inquiries.66 Care needs to be taken in making immediate
assessments of the use and value of an inquiry based on initial government
responses to reports. This is particularly the case with policy inquiries given the
complexity of factors affecting policy action,67 the time it takes for ideas to filter
through and the long-term impact of reports not always being appreciated. As Sheriff
warned:
The success or failure of commission work must be evaluated not mainly
on the extent to which their recommendations are implemented … but on
the basis of the extent to which their functioning has provided sufficient
and appropriate visibility for the topic under scrutiny.68
In relation to inquisitional inquiries the issue of assessing the implementation of their
recommendations is sometimes easier. Their focus is often on more narrow
particular events, persons or organisations than policy advisory inquiries and their
recommendations more direct and measurable.
Abuses of public inquiries – politically expedient roles
At the other extreme, public inquiries have been also seen as serving covert political
goals of agenda management, whitewashing problems, giving the illusion of action,
buying time, postponing decisions, smothering issues and producing outcomes that
promote partisan political gain (see Table 5). Some see public inquiries as “a device
to enable governments to do what they want to do anyway … clothing it in the
legitimacy provided by research … mobilising support … providing an aura of
objectivity and … prestige.”69 Inquiries, according to this perspective, are “not so
much for digging up the truth but for digging it in.”70 These politically expedient goals
can be achieved by constraining inquiry effectiveness by having narrow terms of
reference, tight timeframes, membership selection, and providing limited resources.
Of course, all public inquiries can just be ignored by executive government – as they
often are.
65
Bulmer, M., “Increasing the Effectiveness of Royal Commissions: A Comment,” Public
Administration (London), Vol 61, Winter, 1983, 440
66
See Moffitt, A., Quarter to Midnight: The Australian Crisis-Organised Crime and the Decline in the
Institutions of State, Sydney: Angus and Robertson, 1985, 19; Woodward, P.,“Too Hot to Handle,”
The Australian, 18 March 1989; Tony Fitzgerald, “What went wrong with Queensland,” The CourierMail, 29 July 2009
67
Weiss, C.H., “The Uneasy Partnership Endures: Social Science and Government,” in Brooks, S.,
and Gargon, A., (eds), Social Scientists, Policy and the State, New York: Praeger,1990, 97-110
68
Sheriff, P., “State Theory, Social Sciences and Governmental Commissions,” American Behavorial
Scientist, Vol 26, No 5, 1983, 672
69
Bulmer, The Uses of Social Research, op., cit., 99
70
Herbert, A.P.,, “Anything but Action: A Study of the Uses and Abuses of Committees of Inquiry,” in
Harris, R., (ed), Radical Reactions, Hutchison, London, 1961, 251-302
20
Table 5: Features of inquiries appointed for politically expedient reasons
Political expedient reasons for appointing
inquiries
How inquiries perform these activities
Showing public concern about an issue when no real
action is intended
Appointment of inquiry with prestigious members,
public announcement
Appearing to respond quickly to a crisis or issue
Urgent appointment of inquiry
Reducing pressure to initiate policy actions
Appointment of inquiry, request for information
Postponing or delaying decisions for some time
Appointment of inquiry, time for choosing
members, terms of reference; inquiry process,
hearings and final report – awaiting for inquiry
report
Delaying any substantive policy response to issues
Appointment of inquiry, awaiting for inquiry report
and reviewing inquiry report
Kite flying/market testing for new policies or ideas
Informal forums, interim reports, final report
Acting as “safety-valve” for public concern about an
issue
Appointment of inquiry, holding hearings, release
of report
Providing venues for ventilating grievances to reduce
demands on government
Public and informal hearings, seeking submissions
Promoting sense of participation in decision-making,
but without seriously wanting to accept such advice.
Public and informal hearings, calling for
submissions
Methods of interest group representation pacification,
co-option to occupy their time and interest and to
reduce criticism of government.
Inquiry membership, special reference groups,
hearings
Venues for negotiating policy solutions among
stakeholders
Appointment of key stakeholder members to
inquiries, focus group and informal discussions
Mobilising support for a government-preferred and
already decided policy options
Use of hearings and consultations, terms of
reference, appointment of key members, draft and
final reports
Legitimising preferred (and sometimes pre-decided)
policy choice
Publicity during inquiry, research, final formal
report
Policy advisory inquiries are more likely to be established primarily for politically
expedient reasons than inquisitorial inquiries. The range and nature of the issues
they investigate, the ease of their establishment, the origin of their membership
increase the opportunities for executive government manipulation.71
Of course, inquisitorial inquiries like royal commissions can by their very
establishment, be serving some politically expedient executive government goals
such as “doing something” about a particular issue. However, as one member of a
royal commission into a natural disaster suggested, “doing something” by forming an
inquiry can be a legitimate government response if it meets not just electorate
71
Prasser, Royal Commissions and Public Inquiries, op. cit., Chapter 4
21
demands, but also calms possible community outrage and later contributes to
genuine policy actions.72
Table 6 summarises and compares the use of both policy and inquisitorial public
inquiries for rational and politically expedient reasons.
Inquisitorial inquiries – legitimate roles
By contrast to most policy inquiries inquisitorial inquiries are seen to serve more
legitimate roles for government. There are several reasons for this.
First, although appointed by executive government like policy inquiries, the majority
of these inquiries are royal commissions and/or special commissions of inquiry.
These inquiries are distinguished from policy advisory public inquiries by their
appointment by the Crown rather than ministers of state. They also formally report to
the governor or governor-general, not a minister and, unlike less formal non-statutory
public inquiries, executive government is less willing to delay the public release of
the reports.73 This distinction further reinforces notions of independence, despite the
realities of Westminster democracy in relation to the role of the Crown.
Second, their very formal nomenclature such as „royal commission‟ or the lesser
„special commission‟ gives these bodies a certain prestige compared to other ad hoc
non-statutory inquiries. The ALRC noted in its recent review that “the title „royal
commission‟ is helpful in that it indicates how the highest form of public inquiry is
established.”74 The ALRC also concluded that the term “royal commission” is “wellknown” and therefore “can communicate to the public the extraordinary nature of
such an inquiry.”75
Third, inquisitorial inquiries are investigating the causes of a major disaster or the
validity of some allegation of wrong doing or corruption and thus are more factually
focused; they are required to provide clear and definable answers – answers which
can be verified and that more often involve the allocation of blame and responsibility
than do policy inquiries. Often their reports are followed by legal action and their
underlying purposes are less easily manipulated by executive government.
Fourth, there is the membership of inquisitorial inquiries. It is usually smaller than
policy advisory bodies76 and mostly drawn from the judiciary and legal profession
whose status makes them less amendable to executive manipulation. As some of
these members are also retired, they are less concerned with the next appointment
or actions that might affect their career compared to policy inquiry members many of
72
See Pascoe, S., “The 2009 Victorian Bushfire Royal Commission: Lessons for the Conduct of
Inquiries in Australia,” Australian Journal of Public Administration, Vol 69, No 4, December, 2010,
392-400. Ms Pascoe was a member of the Victorian Bushfire Royal Commission.
73
Some policy inquiry reports have been delayed being released by over 12 months.
74
ALRC, op. cit., para 5.70, 107
75
Ibid., para 5.69, 107
76
Most inquisitorial inquires have only single members.
22
whom are still active in their careers. Royal commissioners have been much more
willing to speak out during or after an inquiry than others if they believe their reports
are being hijacked, ignored or buried by governments.
Fifth and most importantly, as outlined above the majority of inquisitional inquiries
like royal commissions, have their own legislation that bestows on them real powers
of investigation – powers to call witnesses, powers to procure information, powers to
make witnesses give evidence even if self incriminating – and powers to protect
witnesses and inquiry members from legal actions.77 Inquiries without these powers
sometimes cannot do their task effectively. This applies to both policy advisory78 as
well as to inquisitorial inquiries. Complaints about the 2005 Palmer Inquiry into
Cornelia Rau and the 2008 Clarke inquiry into the Dr Haneef issue were that they
lacked both powers of investigation or the ability to protect witnesses.
Sixth, a related value of royal commission-based inquiries is not just their powers. It
is that they do not operate like courts in the way they collect evidence or crossexamine witnesses. Their ability to follow „gossip and scuttlebutt‟ information is
another distinction. The success of the Royal Commission on the Activities of the
Federated Ship Painters’ and Dockers’ Union (Costigan Royal Commission) was
partly explained in the way it pursued leads from such „gossip and scuttlebutt‟
concerning unions, tax evasion schemes and organised crime. Further, royal
commissions can probe, ask questions, cross-examine, either directly or through
counsel assisting, in ways that no court can. Their destination is to seek the „truth‟.
Royal commissions do not just have to rely on oral evidence, but can choose a range
of research and investigative processes if resources permit. As noted by the ALRC
royal commissions like all public inquiries, “have very wide powers to regulate their
own proceedings.”79
Seventh, royal commissions because of their prestige, profile and standing are able
to attract considerably more resources than other inquiries or bodies with
comparable powers, such as ombudsman. As Tiffen concluded, the Costigan Royal
Commission’s success was not just its ability to follow up on information the courts
could not, but its access to extensive resources that allowed it to develop a large
research arm that “pioneered the use of computerised data to trace connections
between personnel and transactions.”80 Royal commissions do not always get what
they want, but it is harder for governments to deny them resources and time
compared to other advisory bodies.81 This is one of the reasons why the Victorian
77
See S 7, Royal Commission Act (Cth)
The 1980 Independent Inquiry into Domestic Airfares reported it was unable to do its task because
of the unwillingness of key witnesses to participate in the inquiry and the inability of the inquiry to
compel them to do so.
79
ALRC, op. cit., 372
80
Tiffen, op. cit., 106
81
The 1984 Royal Commission into Agent Orange wanted to do a $9m survey of veterans but this
was rejected by the Hawke Government. However, the Costigan Royal Commission received several
78
23
Government‟s decision to expand the powers of the Ombudsman to investigate
allegations of police corruption rather than establish a royal commission was
criticised. The Ombudsman was not seen to have the resources to do the
investigative anti-corruption work.
In essence, the success of how Australian inquisitorial royal commissions or special
commissions operate is precisely because they are not courts of law: they operate
under different principles; wield different powers; and have different procedures. This
difference also extends to other more general, non-statutory inquiries. This explains
the success of these sorts of inquiries in exposing organised crime, tax evasion
schemes, widespread maladministration and corruption among elected officials and
police in Australia. It explains why governments keep appointing them and why the
general public demand them over other review instruments. And because their topics
are more limited and their results more verifiable, inquisitional inquiries are seen to
be more effective than general policy advisory bodies.
However, the very underlying causes of such inquisitorial inquiry success, their
powers, particular memberships and processes have also been seen as potential
areas of abuse.
extensions of time, extra powers and more resources as it progressed, although it was eventually
closed down prematurely. Most other royal commissions receive such support.
24
Table 6: Use of inquisitorial and policy advisory inquiries for rational and
politically expedient reasons
Rational
Expedient
Inquisitorial inquiries
Inquisitorial inquiries
Focus/motivation
 solve problem and show concern
 respond quickly, but effectively
Issues are:
 real/controversial/urgent
Inquiry goals:
 ascertain „facts‟ concerning cause of problem
 locate and lay blame of responsible
 provide recommendations to minimise future
occurrence of problem
 provide basis for further legal action
Membership:
 high status/small
Methods:
 adversarial, but often forensic research backed
 clear consultation strategies
Outcomes:
 comprehensive report
 government acceptance and implementation
follow up processes
 long term actions
Focus/motivation
 show concern
 respond quickly to incident
 fill space on policy agenda
Issues are:
 real, but not high priority
Inquiry goals:
 assess issue, but primarily about illusion of
action
Membership:
 high status/small, but symbolic
Methods:
 adversarial
 consultation, but ad hoc
Outcomes:
 acceptable report, but non-committal govt
response
 referral to internal processes
 limited long term action
Policy advisory inquiries
Policy advisory inquiries
Focus/motivation:
 obtain impartial analytical advice from expert
body to seek “solution” to problem
 some ideas, but need more detailed information
 review and evaluate existing/previous policies
Issues are:
 „real‟ and causing problems and gaining public
attention
 new, complex, cut across existing vertically
focused agencies, require break from present
interest group
Inquiry goals:
 clarifies boundaries of policy area
 defines policy problems
 collects more facts and information
 expert, impartial/objective advice (membership
and research) or
 has interest group input (processes/membership)
 refine government thinking
Membership:
 small, expert
Methods:
 research based
 adequate time/resources
 effective public consultation processes
Outcomes:
 provides „solutions‟ to „solve‟ policy problem
 Promote „public interest‟ solutions
 Government implementation and follow up
processes
Focus/motivation:
 to avoid/minimise adverse political impact,
and maximise partisan goals
 minimise policy action
 be seen to be doing something
Issues are:
 controversial
 interest group intense
Inquiry goals:
 agenda management:
 show concern
 illusion of action
 postpone/smother issue (no intention of
action)
 co-option of interests
Membership
 large/diverse/representative
 symbolic independent chair
Methods:
 limited research
 timeframes: too short/long
 consultation but unstructured and no
intention of action
Outcomes:
 accommodate interest groups
 limited govt response – referral to internal
processes
 no long term impacts
25
Inquisitorial inquiries – Abuses
Political expediency
First as suggested above, inquisitorial public inquiries including royal commissions
can, like other public inquiries, be established for politically expedient reasons. For
instance, they can be appointed to show concern about an issue, give an illusion of
action, show government responsiveness to a problem, be used to co-opt critics,
reduce opposition, delay decision-making and reassert control of the policy agenda,
or just to embarrass a political opponent.
As noted earlier, the 1954 Petrov Royal Commission was seen by some as “one of
the most blatant abuses of royal commissions”82 designed to inflict maximum
damage on the Labor Party in the run-up to the federal election (Whitlam and Stubbs
1974). This view has now been seriously questioned.83
The 1980 Costigan Royal Commission, though not primarily established for politically
expedient reasons by the Fraser Government, nevertheless was initially seen to be
established to meet the government‟s political agenda.84
The Hawke Labor Government‟s 1984 Royal Commission into British Nuclear Tests
in Australia between 1952to 1963 chaired by former Whitlam Labor minister Jim
McClelland, was condemned by the Coalition parties as being a flawed, biased and a
politically motivated inquiry.85
So, too, was the Howard Government‟s 2001 Royal Commission into the Building
and Construction Industry seen as a waste of public funds and as it was used as a
vehicle to attack the trade unions, justify more anti-union legislation and to take
attention off other pressing political problems.86
One recent royal commission that was especially attacked on the basis of its
politically expedient role was the Western Australian Royal Commission into Use of
Executive Powers (Marks Royal Commission). It was appointed by the Court
Coalition State Government to investigate issues relating to the former Labor
government and in particular its then premier Dr Carmen Lawrence. By the time the
royal commission was appointed Dr Lawrence had left State politics and was Health
Minister in the Keating Labor federal government (1992-1996). Following the Mark
Royal Commission’s findings, Lawrence eventually had to stand down from this role
82
Whitlam, E.G. quoted in Sydney Morning Herald, 26 September 1984
Nethercote, J.R., and Martin, D., “New Light on the Petrov Affair,” Quadrant, June, 1995, 46-50
84
Grattan, M., “Libs Caught in Crime Fight,” The Age, 28 August 1982
85
Carrick, J., Senator, Commonwealth Parliamentary Debates, The Senate, 13 March 1986, 10011002
86
Marr, J., First the Verdict: The Real Story of the Building Royal Commission, Sydney: Pluto Press,
2003
83
26
and face trial. Many commentators87 saw the inquiry as being deliberately designed
to besmirch Lawrence. Prime Minister Keating (1995) was more critical condemning
the Marks Royal Commission as:
… conceived as an act of political malevolence by the Court Government …
the basic principles of natural justice were ignored … the terms of reference
were deliberately narrow … drawn up to put Dr Carmen Lawrence and the
Labor Party on trial … the establishment of the Royal Commission was unique
and uniquely disreputable …88
The judges issue – should they be appointed?
Another area of complaint about inquisitorial inquiries concerns their heavy reliance
on members and former members of the judiciary to chair royal commissions. Does
such deployment of judges represent a constitutional problem as an intrusion into
judicial independence by the executive? Is it a breakdown in the separation of
powers.89 Does it deplete limited judicial resources? Such concerns are not new.
They provoked the Chief Justice of the Victorian Supreme Court, Sir William Irvine,
to resolve in the 1930s not to allow members of the Victorian judiciary to serve on
executive-appointed inquiries. For Irvine, the proper role of judges was:
... to hear and determine issues of fact and of law … There begins and
ends the function of the judiciary. It is mainly due to the fact that, judges in
all British communities have, except in rare cases, confined themselves to
this function, that they have attained … the confidence of the people.90
While the Irvine Doctrine has been largely adhered to in Victoria, it has not been
followed in the other States or at the Commonwealth level, although the Federal
Court is also reluctant to let its members serve on major inquiries. Nevertheless,
concern about members of the judiciary serving on royal commissions increased with
the growth in the number of inquisitorial royal commissions appointed since the
1970s, the controversial nature of some of their topics and the attacks that some
royal commissions received.
While there is no formal requirement for those with legal qualifications to chair royal
commissions particularly the inquisitorial kind, governments do so because of their
perceived independence, prestige and their supposed skills in “sifting the
evidence.”91 The most recent commission in Australia the Queensland Flood
Commission of Inquiry is chaired by a sitting member of the Queensland Supreme
Court for which the Bligh Government has received criticism from some quarters,
87
Editorial, The Australian, “Time to End Marks Commission,” 11 September 1995
Keating, P., MP, “Marks Royal Commission,” Press Release, 14 November 1995
89
Fraser, G., Judges as Royal Commissioners, Melbourne: Victorian Law Foundation, 1986; Moffitt,
Quarter to Midnight, op, cit.
90
Irvine, W., quoted in Fraser, G., op. cit.,11
91
Solomon, D., “The Lawyers, the Politicians and the Commissions,” Australian Financial Review, 4
November 1983
88
27
although most have welcomed the appointment seeing it as a clear indicator of the
inquiry‟s independence and the seriousness of the investigation. At the same time it
should be noted that Queensland‟s legislation concerning commissions of inquiry
provides for certain advantages in relation to being able to enforce orders of the
commission if a royal commission is led by a member of the State Supreme Court.92
The debate about the suitability of sitting or retired judges chairing executive
government appointed public inquiries continues, but it has largely been resolved
that this practice should continue. The exception in Australia to this remains with
Victoria. The views of former Mr Justice Athol Moffitt, who chaired several royal
commissions in New South Wales, are pertinent. Moffitt believed sitting judges
should conduct royal commissions as they provided public confidence in their
processes and brought needed skills to the issue being investigated. At the same
time, Moffitt was aware how executive governments could manipulate such
appointments to give efficacy to a royal commission and its covert political goals.
Moffitt suggested the need for some statement of practice especially concerning
what cases a judge may preside over after the inquiry. 93 Neither the ALRC nor the
Law Council of Australia, believe there should be any limits on the role of members
of the judiciary serving on public inquiries. However, the ALRC did support a
statement of independence being included in the new legislation to reinforce this
important principle.94
Powers – too intrusive?
Coercive powers
As noted one of the key attributes of royal commission type inquisitorial inquiries is
their coercive powers of investigation. They can probe, force documents to be
presented, make witnesses not only appear before them, but also give testimony
even if it is self-incriminating. Fines and even imprisonment can result if individuals
do not cooperate with a royal commission. The view is that such coercive powers
“enable Commissions to unearth hidden evidence.”95 Coercive powers, as
discussed, are a distinguishing feature of the royal commission instrument in
Australia and several other jurisdictions.
The need for coercive powers has been acknowledged in recent reviews in New
Zealand.96 The ALRC review in Australia also garnered support from the Law
Council of Australia, Liberty Australia, Department of Immigration and Citizenship
92
Campbell, E., Contempt of Royal Commission, Melbourne: Faculty of Law, Monash University,
1984, 13
93
Moffitt, A., “Judges, Royal Commissioners and the Separation of Powers,” Quadrant, May, 2000,
36-39
94
ALRC, op. cit., 144
95
Ransley,1994, op cit., 22
96
New Zealand Law Commission, A New Inquiries Act, Report No 102, 2008, para 5.4
28
and Australian Government Solicitor for the continuation of such powers.97 Overall,
the ALRC concluded:
The availability of information gathering powers is a fundamental and
characteristic feature of royal commissions. It is necessary for them to
possess the power to obtain information relevant to their terms of reference,
by requiring the production of documents and other things or by requiring a
person to attend oral examination or hearing to answer questions.98
Powers of royal commissions vary across Australia, although there is considerable
commonality with most Australian royal commissions having extensive coercive
powers. For instance, Commonwealth royal commissions have power to search,
enter and seize documents without needing a warrant, while for others it must be
issued through an independent officer of the courts. In NSW, royal commissions
cannot apply for a search warrant, but may use seconded police officers to do so. In
the Northern Territory no warrant is needed. In Queensland, a royal commissioner
can issue a search warrant without recourse to the courts. In Tasmania, a recent
inquiry preferred warrants to be applied for by a commission and recommended
against giving commissions greater powers in this area.99
Despite their considerable powers, royal commissions have often wanted and
received extra powers. The Costigan Royal Commission sought and received extra
powers to issue search warrants as outlined above. The 2004 Royal Commission
into the NSW Police Service sought additional powers of inquiry. 100 In Tasmania new
legislation (Commissions of Inquiry Act 1995) was passed following
recommendations of the 1991 Royal Commission into the Edmund Rouse Affair that
the Evidence Act 1910 limited the effective operation of that inquiry. Since then the
2000 Royal Commission into the Death of Joseph Gilewicz also requested more
powers in relation to its powers including access to listening devices – suggestions
rejected by the Tasmanian Law Reform Institute (TLRI).101 In Queensland, the 198789 Fitzgerald Commission of Inquiry into Police Misconduct sought and gained extra
powers on five separate occasions.
One problem in Australia is that non-statutory inquiries, both the policy and
inquisitorial types, lack a legislative basis for their inquiries. They are unable to call
witnesses and to extract information. This was most recently seen, as noted, in
relation to the Commonwealth inquiries into the Cornelia Rau and Dr Haneef affairs,
but is relevant to the more general policy inquiries as well. The ALRC‟s solution is to
create a new Inquiries Act that would allow for a two tier system of inquiries – royal
97
ALRC, op. cit., 253-255
Ibid., para 11.31, 259
99
Tasmanian Law Reform Institute (TLRI), Report on Commissions of Inquiry Act 1995, Final Report,
No 2, August 2003
100
Royal Commission into NSW Police Service, Final Report, Vol 1, 17
101
TLRI, op, cit., 10-14
98
29
commissions as the highest ranking inquiry and with basically the same powers and
processes of appointment as now; and a second tier of inquiries designated as
„official inquiries‟ to be appointed by a minister. These „official inquiries‟ would have
less coercive powers in relation to accepting intercepted information, issuing of
warrants for imprisonment of uncooperative witnesses or in relation to entry, search
and seizure.102 However, importantly, legal protection to witnesses and inquiry
members would also be afforded.103 Importantly, such „official inquiries‟ could be
made into royal commissions should circumstances prove that they have inadequate
powers to complete their investigations successfully. This is a worthwhile reform and
one that makes the inquiry instrument more flexible than in the past.
Procedural fairness
Of course, concerns about possible abuse of citizens‟ rights including lack of
procedural fairness and loss of reputation continue. Australian courts have strongly
applied procedural fairness principles.104 Parties should be heard, be given
reasonable notice to respond to allegations and the reputation of a person or
organisation should be relevant in assessing such cases.
One of the issues in Australia in relation to royal commissions and similar inquiries is
that the six principles of procedural fairness laid down by Lord Justice Salmon in the
United Kingdom,105 have not been formally adopted in the legislation governing
these bodies in Australia. The Commonwealth Royal Commission Act 1902 does not
refer to any of the principles of procedural fairness. Nor do any other state or territory
legislations with the exception of Tasmania which has recently incorporated these
principles into its legislation governing royal commissions. However, the Salmon
principles are not without their critics overseas106or in Australia.107 The ALRC
concluded on this matter:
The Salmon Principles provide a useful guidance on the kinds of procedural
measures that may improve the fairness of inquiry procedures ... however, the
applications of these principles may not be appropriate or practicable in every
inquiry.108
Consequently, the ALRC did not recommend their inclusion in its proposed new
legislation governing public inquiries federally in Australia. These are matters that
could be covered in guidelines for any new inquiry. The ALRC did propose that
102
ALRC, op. cit., 256
Ibid., 96
104
Kioa v West, (1985), 159, CLR 550, Mason J at 584
105
Rt Hon Lord Salmon, Royal Commission on Tribunals of Inquiry, London: HMSO, 1966, 17-18
106
Scott, R., “Procedures at Inquiries-The Duty to be Fair,” Law Quarterly Review, Vol 111, 1995,
596ff
107
Liddel, G., Tribunals of Inquiry and Royal Commissions, Canberra: Australian National University,
2002, 40-55 for discussion
108
ALRC, op. cit., para 15.64, 387
103
30
under the new Inquiries Act the inquiries in their reports “should not make any finding
that is adverse ... unless the inquiry has taken all reasonable steps to give notice of
the proposed adverse findings” to those concerned.109 However, in Tasmania there
is now statutory guarantee of procedural fairness that reflects the Salmon
Principles.110 This approach reflects the Canadian approach under S13 of the
Inquiries Act RS 1985.
Judicial review – accountable to whom and for what?
According to the Australian Administrative Review Council, judicial review is “the
function or capacity of courts to provide remedies to people adversely affected by
unlawful government action.”111 An emerging issue about public inquiries in general
and royal commissions in particular, is how much judicial review should they be
subject to in the future. In the past, royal commissions have faced limited external
review. They have tended to operate outside the system of responsible government
as they are not required to be established by parliament. Nor have they been
considered as part of the legal system with the normal checks and balances despite
their impact on future legal proceedings, prosecutions and court cases.112
As mentioned, public inquiries like royal commissions are not courts of law. Their
„decisions‟ or recommendations are not subject to appeal. Courts, and more
especially governments, have been reluctant to intervene in inquiry processes that
may be seen to curb their powers or hinder their operations.113 To do so, as several
royal commissioners have argued themselves, would undermine the very reasons
about why the royal commission instrument was employed in the first place. It would
possibly slow down investigations and potentially impose the same restrictions in
relation to evidence and processes as the legal system and crime enforcement
agencies, which had been unable to deal with the very issue now assigned to a royal
commission.114
Nevertheless, to avoid possible abuses of royal commissions it is now accepted that
they are under partial judicial review. The Administrative Decisions (Judicial Review)
Act 1977 (ADJR Act) now applies to the administrative decisions of Commonwealth
royal commissions on a number of areas, for instance, whether a commission has
issued a summons appropriately. A royal commission can also be challenged if it is
seen to be acting beyond its terms of reference, breaches the principles of
109
Ibid., 383
TLRI, op. cit., 14-15.
111
Administrative Review Council, The Scope of Judicial Review, Report No 47, Canberra; Australian
Government, 2006, 1
112
Ransley, 1994, op cit., 22-23
113
See Ross v Costigan, (No 2) 64, FLR, 55, 69
114
See Royal Commissioner, the Hon Terence Cole (Royal Commission into the Building and
Construction Industry), comments in ALRC, op. cit., para 14.12, 358)
110
31
procedural fairness and if a commissioner is perceived to be biased against certain
witnesses.115
The issue of bias by a commissioner being taken to court was most spectacularly
seen in Queensland in the first of the royal commissions into the overseas doctors‟
scandal,116 the Royal Commission into Bundaberg Hospital established in April 2005
under the chairmanship of Tony Morris QC. Dr Darren Keating, the Director of
Bundaberg Hospital and Peter Leck, the local District Health Manager, lodged an
action in the Supreme Court against the Morris Commission on the basis of an
„apprehended bias‟ in their treatment by Morris in his conduct of the inquiry. 117 The
issue, as Justice Moynihan summed up in his judgement, was “not whether the
decision maker is in fact biased, but whether a fair minded observer might
reasonably apprehend that the decision maker might not bring an impartial or
unprejudiced mind to bear on the task.”118 On a number of grounds Justice Moynihan
was “satisfied that each of the applicants (Keating and Leck) has made out a case of
ostensible bias”119 and that the actions of the Morris Commission “would give rise, in
the mind of a fair minded and informed member of the community to a reasonable
apprehension of lack of impartiality on the Commissioner‟s part in dealing with issues
relating to each of the applicants.” As one analyst said, the judgement highlighted
that royal commissions “cannot lose sight of the legal framework” within which they
have to operate and that “the process … should be fair and not some kind of
kangaroo court.”120 As a consequence the Morris Commission was disbanded.
Eventually, another royal commission was established and completed its
investigations without further legal challenge. That commission was conducted by a
former judge.121
In response to some of these concerns, the ALRC did not believe that future
inquiries including royal commissions should have to be formally established by
parliament. This would improve accountability at one level, but also introduce a level
of rigidity that again would undermine the very purpose of such bodies.
The other related issue is whether there should be any requirement for reports to be
tabled in parliament. At the Commonwealth level no such requirement exists and
requirements vary across the States. Improved reporting to parliament would
enhance the accountability of inquires – if only marginally. This is one of the
115
ALRC, op. cit., para 14.6, 356
Overseas doctors were found to be practising in Queensland public hospitals without proper
qualifications.
117
Keating v Morris & Ors [2005] Queensland Supreme Court 243; Leck v Morris & Ors [2005]
Queensland Supreme Court 243
118
Keating v Morris Ors: para 37
119
Ibid., para 158
120
Ransley, J., „Fair Play Must Rule,‟ The Courier-Mail, 5 September 2005; Hamer, D., „Keating vs
Morris; Lack vs Morris: Politics and Procedure in the Dr Death Inquiry,‟ University of Queensland Law
Journal, Vol 24, No 1, 2006, 131-143
121
See Prasser, S., “The Queensland Health Royal Commissions,” op. cit., 79-97
116
32
proposals of the ALRC with a suggestion that reports be tabled by the government
within 15 days of receiving the inquiry report.122
Review of law cases
Whether royal commissions should review actual cases that have been before the
courts is another issue. The most recent was the 2005 South Australian Kapunda
Road Royal Commission mentioned earlier. Although about a particular accident it
was in effect, a review about police procedures, court arrangements and the
operations of the Director of Public Prosecutions. As one commentator said, as a
result of this royal commission the “potential remains for a lasting public perception
of the politicisation of the judiciary.”123 Other royal commission inquiries into
decisions of the courts include the 1959 South Australian Royal Commission in
Regard to Rupert Max Stuart that reviewed the evidence concerning a convicted
murderer.124 At the national level there was the 1986 Royal Commission into the
Chamberlain Convictions125 and the Royal Commission into Aboriginal Deaths in
Custody did a case-by-case reassessment of 99 Aboriginal deaths in prisons which
involved reviewing State Coroners‟ decisions. The issue of whether executive
appointed royal commissions are an appropriate mechanism to review another arm
of government is one needing further consideration.
What about those recommendations?
As discussed above, one of the areas of greatest dissatisfaction with all public
inquiries is the often perceived lack of implementation of their recommendations and
in some cases even formal responses to their reports by executive government. After
all, in some jurisdictions there are requirements for governments to respond within
specified periods to parliamentary committee reports, although this is as much
ignored as it is honoured. At present most legislation across Australia does not
impose requirements for formal responses to inquiry reports, with a few one-off
exceptions. The ALRC suggested no immediate formal requirement for government
responses to inquiry reports.126
On the issue of implementation of inquiry recommendations the issue is whether
governments can be forced by legislation or some other administrative oversight
mechanism
to
implement
recommendations.
Decisions to
implement
recommendations said the ALRC “should be a matter for the Australian
Government.”127 However, it did suggest that new legislation should, for reasons of
122
ALRC, op. cit., 162
McCarthy, op, cit., 39
124
See Chamberlain, R., The Stuart Affair, Adelaide: Rigby, 1973
125
This reviewed the case of Lindy Chamberlain who was convicted of murdering her daughter, but
was later released in following the royal commission that found the conviction ”unsafe.”
126
Ibid., 167
127
Ibid., para 7.61, 169
123
33
transparency and accountability, ensure government publishes an update on
implementation progress of an inquiry‟s recommendations128within 12 months of a
report‟s release. This reform could have some long-term implications about a
problem, if not an abuse, that has long plagued inquiries.
Conclusions – public inquiries an ‘institution of last resort’
Royal commissions and public inquiries serve many useful functions in modern
government. Policy inquiries bring fresh ideas and outside views to bear on key
issues. Royal commissions can investigate particular events, allegations and
complaints in ways that are quicker and more effective than the usual institutions.
The uses of these bodies far outweigh their abuses. Problems of lack of legislative
covering for some inquiries have caused problems. These have been recognised by
the ALRC and its proposals for reform are moderate, but sensible, retaining the
virtues of existing laws covering and creating royal commissions and similar bodies,
while proposing a new flexible system of legislation that responds to current
inadequacies, affords protections and creates certainties.
Despite all the developments made in modern government in recent years, there is
still a place for public inquiries. Their open processes, external membership,
expertise and, in the case of royal commissions, real powers of investigation make
them „institutions of last resort.‟ Royal commissions in particular are established
when governments politically have nowhere else to go; when the issues warrant
investigation by a body with coercive powers and prestige; when the issue is seen as
so important that it requires investigation by a body of some prestige; when
government itself, or some parts of it, are seen to be lacking credibility over an issue
and when government still has some control over the policy and political agenda and
wants to retain this by being seen to take the initiative and to isolate the problem.
Once appointed, public attention focuses on the royal commission and the
government concentrates its efforts in managing the royal commission rather than
being entangled in the machinations of keeping an issue out of public scrutiny that so
often compounds a minor issue, turning it into a bigger problem.
The task for government is to know when to appoint a public inquiry and what form it
should take. By itself, appointing a royal commission will not provide an instant
solution to a government‟s problem or to any particular public policy issue. But royal
commissions can provide the means of defusing an issue, clarifying a problem and
providing recommendations that have a greater chance of being accepted than if
they emanated from a minister‟s office or a government department.
128
Ibid., 171
34
Appendix 1
Legislation in Australia governing royal commissions and
related inquiries
Commonwealth
Royal Commissions Act 1902
Queensland
Commissions of Inquiry Act 1950
New South Wales
Royal Commissions Act 1923
South Australia
Royal Commission Act 1917
Tasmania
Commissions of Inquiry Act 1995
Victoria
In Victoria royal commissions are appointed under the Constitution Act 1975 ss 88B
and 88C and Evidence Act 1958 ss14-21C
Western Australia
Royal Commission Act 1968
ACT
Royal Commissions Act 1991
Inquiries Act 1991 (ACT)
Northern Territory
Inquiries Act 1945
Other legislation pertaining to public inquiries in Australia
Special Commissions of Inquiry Act 1983 (NSW)
Commission of Inquiry (Children and State Care and Children on APY Lands) Act
2004 (SA)
Public Sector Management Act 1994 (WA)
Commission of Inquiry (Deaths in Custody) Act 1987 (C‟th)
35
APPENDIX 2
State public inquiries into corruption, improprieties and
maladministration 1960-2010
(Inquiries are listed by State in chronological order with family name of chair and year
of appointment in brackets)
NEW SOUTH WALES
Royal Commission into Organised Crime in Clubs in New South Wales (Moffitt:1973)
Royal Commission into Drug Trafficking (Woodward:1977)
Royal Commission into New South Wales Prisons (Nagle:1978)
Royal Commission into New South Wales Police Administration (Lusher:1979)
Royal Commission into Allegations Against Mr Kevin Humphreys, SM (Street:1983)
Special Commission of Inquiry into Certain Allegations by the Right Honourable Ian
McCahon Sinclair (Cross:1984)
Special Commission of Inquiry into Certain Allegations by R. Bottom (Cross:1984)
Special Commission of Inquiry into the New South Wales Early Release Scheme (Cross,
then Slattery:1984)
Special Commission of Inquiry into the Police Investigations of the Death of Donald Bruce
Mackay (Nagle: 1986)
Royal Commission into Deep Sleep Therapy (Slattery:1988)
Royal Commission into Productivity in the Building Industry in New South Wales
(Gyles:1990)
Royal Commission into NSW Police (Wood:1994)
Special Commission of Inquiry in Sydney Ferries Corporation (Walker:2007)
QUEENSLAND
Royal Commission into the National Hotel Allegations (Gibbs:1963)
Inquiry into the Southport Betting Case (O'Connell:1975)
Committee of Inquiry into Sexual Offences involving Children and Related Matters
(Sturgess:1984)
Committee of Inquiry into the Enforcement of Criminal Law in Queensland (Lucas:1976)
Committee of Inquiry into Possible Illegal Activities and Associated Police Misconduct
(Fitzgerald: 1987)
Parliamentary Judges' Commission of Inquiry (Gibbs:1989)
Commission of Inquiry into the Care and Treatment of Patients in the Psychiatric Unit of the
Townsville General Hospital between 2 March 1975 and 20 February 1988 (Carter:1990)
Royal Commission into Bundaberg Hospital (Morris:2005)
Royal Commission into Queensland Health (Davis:2005)
36
SOUTH AUSTRALIA
Special Inquiry into the Police Special Branch Security Records (White: 1977)
Royal Commission into the Dismissal of Commissioner of Police, Harold Hubert Salisbury
(Mitchell: 1978)
Royal Commission into the State Bank of South Australia and the State Bank Group of
Companies (Jacobs:1991)
Inquiry Concerning the Minister of Tourism (Worthington:1992)
Inquiry concerning Hon. Dale Baker MP (Anderson:1997)
TASMANIA
Royal Commission into the Edmund Rouse Bribery Affair (Carter:1991)
Commission of inquiry into the Death of Joseph Gilewicz (Mahoney:2000)
VICTORIA
Board of Inquiry into Allegations of Corruption in the Police Force in connection with Alleged
Abortion Practices in the State of Victoria (Kaye:1970)
Board of Inquiry into the Purchase of Land in Victoria by Alan Humphrey Croxford
(Harris:1972)
Board of Inquiry into Allegations Against Members of the Victorian Police Force
(Beach:1975)
Board of Inquiry into Certain Land Purchases by the Housing Commission and Questions
Arising Therefrom (Gowans:1977)
Royal Commission into Certain Housing Commission Land Purchases and Other Matters
(Frost:1979)
Board of Inquiry Relating to Certain Matters within the City of Richmond (Nicholson:1981)
Inquiry into the Victorian Economic Development Corporation (Ryan:1988)
Royal Commission into the Tricontinental Group (Woodward: 1990)
Royal Commission into the Metropolitan Ambulance Service (Lasry:2000)
WESTERN AUSTRALIA
Report of Inspector on a Special Investigation into Rothwells Ltd (McCusker:1989)
Royal Commission into Commercial Activities of Government and Other Matters, Western
Australia (Kennedy:1991)
Royal Commission into Use of Executive Power (Easton Petition issue) (Marks:1995)
Royal Commission into the City of Wanneroo (Davis:1996)
Royal Commission into whether there has been any corrupt or criminal conduct by Western
Australian Police Officers (Kennedy:2002)
37
APPENDIX 3
Commonwealth public inquiries into corruption,
improprieties and maladministration 1960-2011
1960-1969
Royal Commission on Alleged Improper Practices and Improper Refusal to Cooperate with the
Victoria Police Force on the part of Persons Employed in the Postmaster-General‟s Department in
Victoria in relation to Illegal Gambling (Taylor:1962)
1970-1979
Royal Commission into Alleged Payments to Australian Maritime Unions (Sweeney: 1974)
Royal Commission of Inquiry into Certain Matters relating to Electoral Redistribution of Queensland in
1977 (McGregor:1978)
1980-1989
Royal Commission into the Activities of the Federated Ship Painters‟ and Dockers‟ Union (Costigan:
1980)
Royal Commission of Inquiry into Drug Trafficking (Stewart:1981)
Royal Commission into the Activities of the Australian Building Construction Employees and Builders
Labourers Federation (Winneke: 1981)
Royal Commission into the Australian Meat Industry (Woodward:1981)
Royal Commission of Inquiry into the Activities of the Nugan Hand Group (Stewart:1983)
Inquiry into Circumstances Surrounding the Customs Declaration by the Hon. M.J. Young at Adelaide
5 July 1984 (Black:1984)
Inquiry into Allegations of S.P. Gambling Against Telecom (Vincent:1984)
Inquiry into the Financial and Administrative Arrangements of Grants made Under the Community
Housing Expansion Program (O'Donovan: 1985)
Royal Commission of Inquiry into Alleged Telephone Interceptions (Stewart:1985)
Special Parliamentary Commission of Inquiry into the Alleged Conduct of the Hon Mr Justice Murphy
(Blackburn:1986)
Review of Alleged Entry of Suspected War Criminals into Australia
(Menzies:1986)
Review of Tender Procedures for Coastwatch Contracts (Menzies:1987)
Inquiry into Allegations as to the Administration of Aboriginal Affairs (Menzies:1988)
1990-1999
Independent Review of the Civil Aviation Authority's Tender Evaluation Process for the Australian
Advanced Air Traffic System (McPhee:1992)
Inquiry into Circumstances of Leo McLeay‟s Compensation (Street:1993)
Independent Inquiry into the Circumstances surrounding the Non-Payment of a Deposit for Satellite
Pay TV Licences and related matters (Pearce:1993)
Commission of Inquiry into Relations between the CCA and Seaview Air (Staunton:1994)
38
Royal Commission of Inquiry into the Leasing by the Commonwealth of Accommodation in Centenary
House (Morling:1994)
Inquiry into the Conduct of the Hon Alan Griffiths M.P. (Codd:1995)
Independent Inquiry into Allegations of Corruption in the Australian Federal Police (Harrison:1996)
Inquiry into the manner in which DFAT (Department of Foreign Affairs and Trade) has Dealt with
Allegations of Paedophile Activities (Hunt, then O’Neill:1996)
2000-2011
Royal Commission of Inquiry into the Building and Construction Industry (Cole 2001)
Royal Commission of Inquiry into HIH (Owen:2001)
Inquiry into Centenary House lease (Hunt: 2004)
Commission of Inquiry into Possible Breaches of Australian Law in relation to the UN Oil-for-Food
Programme (Cole:2005)
Inquiry into the Circumstances of the Immigration Detention of Cornelia Rau (Palmer: 2005)
Inquiry into Dr Mohamed Haneef (Clarke: 2008)
39