How royal commissions can both help and hinder

Scott Prasser

21 January 2020 | Financial Review
With the Morrison government proposing a royal commission into the current bushfires it is important to understand how this inquiry mechanism could help resolve some of issues surrounding the crisis.

Handled properly, it could take the heat out of the politics, end the blame game, clarify the facts and develop recommendations on how in the future such natural disasters could be better managed, federal-state co-ordination improved and victims helped more effectively and quickly. Handled poorly, it could simply become an expensive and futile endeavour.

Drawing on the experiences and lessons of past royal commissions, there are some things the Morrison government should do to avoid undermining the process from the start. This means the terms of reference of any royal commission must not avoid the underlying and growing public concern about the relationship between climate change and bushfires. Otherwise it will be doomed to failure, and add to the Morrison government’s present woes.

Royal commissions are a type of public inquiry – a temporary, ad hoc body appointed by executive government to provide advice. Their members are drawn from outside government, have open processes, seek community input and publicly release their reports and recommendations.

What distinguishes royal commissions from most other forms of public inquiries — and, until recently, their UK counterparts — is that they are established under specific legislation, the Royal Commissions Act 1902. This gives them wide-ranging coercive powers of investigation to call and cross-examine witnesses, obtain evidence, rights of entry — and, more recently, even phone-tapping — while also providing protection to witnesses and inquiry members from legal action such as defamation.

Importantly, royal commissions are not judicial inquiries. There is no such thing. They are executive government-appointed bodies, not part of the judiciary. They have attracted this title because in recent times most, but not all, royal commissions tend to be chaired by current or past members of judiciary or senior legal counsel.

The ‘royal’ label lends both prestige and power that sends a signal to the public.

The “royal” connotes the issuing of letters patent from the Crown or the Crown’s representative. The 2009 Australian Law Reform Commission review of the Royal Commissions Act noted that for reasons of both status and perceptions of independence, the “royal” should continue to be used. This explains why those seeking a public inquiry into any issue almost always call for a royal commission and why governments, including the current one, so respond — though mainly only on major issues. The “royal” label lends both prestige and power that sends a signal to the public.

There are two types of royal commissions. The inquisitorial type is appointed to investigate allegations of impropriety and maladministration, or some natural catastrophic event or major accident. These days most Commonwealth and state royal commissions are of the inquisitorial type by nature and process, which focus on finding the “truth” about an allegation or incident, as well as allocating responsibility. This is where their coercive powers of investigation are most used.

The second type can be a policy advisory body providing information, research and options to governments about a particular policy problem.

Significantly, royal commission are bespoke instruments, each one appointed only at the discretion of executive government, and individually structured in terms of membership, terms of reference, timeframes and resources to meet the needs of the issue being investigated, and also a government’s policy and political agenda. They can be established just by the Commonwealth or jointly with one or all of the states and territories, depending on the issue.

Royal commissions were once regarded as the institution of last resort, appointed when all other processes and institutions had been exhausted or were deemed inappropriate. The recent increase in their numbers and the current government’s too-easy deployment of them indicate they have become an institution of first response, reflecting — as recent surveys highlight — a decline in public trust in our political institutions, elected officials and public service.

Labor governments tend to appoint more royal commissions than their non-Labor counterparts. From 1949 to 1972, the Coalition appointed only seven. Subsequently, the Whitlam Labor government appointed 13, the Fraser Coalition appointed eight, the Hawke-Keating Labor governments 12 and the Howard Coalition just four. The Rudd-Gillard governments appointed many public inquiries, but only one royal commission: the Royal Commission into Institutional Responses to Child Sexual Abuse. To date the Abbott-Turnbull-Morrison governments since 2013 have appointed six. Scott Morrison was responsible for two of these: the royal commissions into aged care, appointed in 2018 just after he became Prime Minister, and then on the eve of the May election last year, into disability (perhaps showing he was learning from the opprobrium his predecessor received for only reluctantly establishing in December 2017 the financial services royal commission).

All these factors highlight the challenges and dilemmas of appointing royal commissions. There are many calls for them, but responding too quickly and appointing too many can make a government look like it does not know what it wants to do, or is kicking the problem down the road — especially if, like the disability royal commission, it is done at a critical time in the political cycle.

At the same time, a reluctance to appoint a royal commission looks like a government is involved in some form of cover-up.

There are also risks. Some royal commissions may interpret their term of reference more broadly than expected, unearthing unforeseen problems, poor policy, and even government corruption. Some may propose radical recommendations that cannot be implemented. Others take too long or cost too much. Some have poor processes and produce poor-quality reports, often resulting in the need to appoint yet another royal commission.

Whatever the Morrison government does in relation to the current bushfire crisis concerning appointing a royal commission, it should be clear in its own mind about both its policy and political objectives. But it should also heed John Howard’s 2014 advice to avoid using royal commissions for “narrow targeted political purposes”.

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