ALEXANDER BIRD
JD I
In North East Queensland, sprawled out over roughly 1,200 square kilometres, is the ancient Daintree Rainforest. At 180 million years old, the Daintree is the world’s oldest surviving rainforest, home to some of the planet’s oldest species of plant life. With so much mileage under its belt, the Daintree is a bit of an evolutionary time capsule – a veritable roadmap of life’s slow progress from primitive, monolithic flora into the diverse biological tapestry we’re familiar with today.
I’m hard pressed to find a better metaphor for the organism that is the royal commission than the Daintree. Like that ancient rainforest, the royal commission’s respective roots can be traced back into the primordial stew of the common law – it’s been an inquisitive tool in government’s arsenal for close to a millennia. And much like the millions of ancient trees that form the Daintree’s canopy, counting the rings of the royal commission reveals a tremendous amount about not only how the royal commission has evolved as both a fact-finding and administrative tool over the last thousand years, but how the common law in both Australia and around the world has evolved as well.
As Dr. George Gillian notes, “In Britain and some of its former colonies such as Australia, Canada and New Zealand, royal commissions remain essentially an ad hoc, flexible, adaptive and adaptable mode of inquiry established by centralised authority to investigate nominated issues.”[1] This essential characterisation captures the elements of the royal inquiry that have slowly developed from the medieval era to the Victorian period – and that continue to evolve today.
As its name suggests, the royal commissions were, in their earliest days, an executive function of the Crown – they could be created according to the whim of England’s medieval sovereigns. There is a clear evidence of this inquisitional prerogative springing into action shortly after the Battle of Hastings. Following a brisk victory over the Anglo-Saxon King Harold Godwinson in 1066 C.E., William the Conqueror set about the monumental task of sizing up his newly acquired kingdom across the channel. In 1080 C.E., William vested a few select barons with investigative powers and sent them across the English countryside to assess the nation’s estates and their potential value for taxation.
Today, we would describe their powers as coercive, an early echo of the sweeping inquisitorial nature of the Royal Commission in modern-day Australia. The final product of their efforts was the famous Domesday book, a manuscript recording the size and wealth of every major estate in England and Wales.[2] Sitting in the National Archives in London today, the Domesday book’s tattered pages and Latin script looks like a fossilised remnant of England’s early administrative system. Yet despite its underwhelming appearance, the Domesday book is the earliest embodiment of what we would today define as a royal commission – it contains the requisite elements present in the modern-day incarnation utilised in many common law nations today.
As with other elements of the Crown’s authority, the sovereign’s ability to create inquisitorial bodies with far-reaching powers out of thin air eventually ran into fierce opposition from England’s baronial class. Evidence of this opposition is manifest in the Magna Carta, medieval England’s first significant attempt to reign in the power of the Crown. In their book Royal Commissions of Inquiry: Their Significance in British Politics, Hugh Clokie and Joseph Robinson note that England’s baronial class had “a great fear of the authority of new royal appointees, and in numerous articles (of the Magna Carta) there is insistence that local juries should accompany royal inquisition.”[3] For the next 600 years, the evolution of the royal commissions was “closely interwoven with the constitutional struggles which have centred about the royal prerogative… royal commissions have prospered or declined with the fluctuations of the supremacy of the Crown.”[4]
Over time, the insistence on a check to royal inquisitorial authority shifted from the baronial class to England’s first primitive parliaments. By the early 14th century, parliament asserted strong control over the Crown’s rights to establish royal commissions, going as far as to restrict its use to “cases sanctioned by the House of Commons.”[5] These checks, while they provide early glimpses of how parliament would eventually wield control over royal commissions, were of little consequence as the Crown’s authority expanded during the reign of the Tudor sovereigns (1485 – 1603). Under the early Tudor kings, the independent power of parliament was slowly reigned in – the body became more of a rubber stamp for Crown policy than an active legislative council. In this environment, the royal commission became a tool through which the Crown could assert its superiority over parliament.
Despite the re-emergence of a strong royal prerogative, this era provides what is widely regarded as the first “modern” royal commission. The brainchild of Henry VIII’s Lord Chancellor Thomas Wolsey, the Commission of Enclosures was appointed in 1517 to investigate unlawful opposition against the government’s efforts to consolidate small landholdings to larger agricultural estates.[6] The final report, sometimes referred to as the “Domesday Book of Enclosures,” sparked a wave of ministry reforms that sought to address the report’s findings and led to additional state sanctioned inquires.[7]
While still embryonic, the Commission of Enclosures introduced a key element that continues to define the creation and execution of royal commissions in both the United Kingdom and Australia today. Rather than stemming directly from the Crown, the Commission of Enclosures arose out of petitioning from high level ministers in Henry VIII’s cabinet – Henry subsequently granted the commission the requisite authority to exercise broad investigatory powers. As a result, the Commission of Enclosures is the first notable example of a royal commission originating from the state’s administrative body as opposed from the Crown.
The ability to direct policy by way of royal assent proved incredibly attractive to England’s ministers. English economic historian Sir William Ashley notes that “from this time, the idea of a royal commission was never absent from the mind of politicians.”[8] Over the course of the 17th century, parliamentarians attempted to exert greater control over the application of royal commissions and used them to inform and shape the nation’s legislative agenda. We see during this time the emergence of a conception of the royal commission that would be right at home in Canberra today. Famed 17th century legal scholar Sir Edward Coke described royal commissions as “a delegation by warrant of an Act of Parliament or of the Common Law whereby jurisdiction power and authority is conferred on others.”[9]
By the beginning of the Hanoverian period in the early 18th century, the right of “others” to develop and carry out fact-finding missions with the ceremonial assent of the Crown was widely accepted as a legitimate method of creating an investigatory commission under the Westminster system. From this time on, rather than responding to shifts in the balance of power between parliaments and the Crown, royal commissions became a kind of barometer for the vast social and economic changes transforming Great Britain at the beginning of the industrial era. Booming population growth, rapidly increasing urbanisation and the emergence of new industries drove a surge in royal commissions at the beginning of the 19th century.
Lacking an alternative tool with the same sweeping inquisitorial powers historically available to royal commissions, Great Britain’s Hanoverian and Victorian governments frequently turned to the commission in an effort to make sense of the nation’s rapidly evolving socio-economic landscape. Gilligan notes that royal commissions allowed the United Kingdom’s ministers “greater autonomy…to inquire upon an issue and avoid the parliamentary select committee, a forum that might provide a platform for opposition.”[10] Furthermore, the widening scope of the suffrage and public accountability made it increasingly apparent to parliament that the investigative nature of the commission was a beneficial “prelude to public legislative determination of policy.”[11] Between 1800 and 1831, over 60 commissions were appointed, dwarfing the amount created over the last century. Over roughly the same period, over 500 committees presented full reports to Westminster, an average of 16 each year.[12]
It was in this state of booming popularity that the royal commission first arrived on the shores of Australia. Inquisitorial commissions were popular from the outset in New South Wales – the colony’s early militaristic governance made natural use of their sweeping investigative powers. In the decades following Sydney’s settlement, New South Wales’ early Governors created boards of inquiry that “resembled a grand jury in function.”[13] Over time, as the colony’s state apparatus expanded, so too did the scope of the power held by these boards – they gradually accrued the coercive powers that accompany Australia’s royal commissions today.
“Gilligan suggests the development of a uniquely Australian approach to royal commissions emerged due in part to the “peculiarly penal character of the Australian colonies.”[14]”
Gilligan suggests the development of a uniquely Australian approach to royal commissions emerged due in part to the “peculiarly penal character of the Australian colonies.”[14] Over the course of the 19th century, the military apparatus that was responsible for much of the Australian colonies’ early governance exerted considerable influence on Australia’s emerging civil institutions. The eventual adoption of royal commissions of inquiry was no exception. In 1854, Victoria’s burgeoning legislature passed the Commission of Inquiry Statute 1854 which granted broad coercive powers to any form of inquiry established by the state. In addition to officially authorising the use of royal commissions of inquiry in Victoria, the 1854 statute granted “inquisitorial powers” to appoint commissioners without the need for any parliamentary oversight.[15] This kind of broad investigative power with minimal oversight is reminiscent of the early colonies’ original military tribunals and signalled the beginning of a significant evolution in the royal commission’s application in Australia. The nation’s penal origins – and the militaristic form of governments they necessitated – left an endearing mark on the development of royal commissions in Australia.
Over the next half century, Australia’s other colonies adopted similar measures that gave colonial royal commissions broad “inquisitorial powers,” the likes of which were not familiar to Crown ministers in the United Kingdom. These broad powers were subsequently adopted by the nation’s first federal government in the Royal Commissions Act 1902.[16] In granting such wide inquisitorial powers to royal commissions, Australia’s early governments gave Australian royal commissions a far more coercive reach than their British counterparts. As Gilligan notes, “in Britain, a royal commission may only attain such coercive powers following approval by both houses of parliament.” Comparatively, Australian royal commissions became “an extremely powerful mode of inquiry available to all Commonwealth and state governments.”[17]
And they remain that way today. Over the last century, both state and federal governments have repeatedly utilised royal commissions in an effort to address some of the nation’s most pressing issues. Since 1901, there have been over 130 royal commissions established at the federal level. At the time of writing, there are currently three federal royal commissions exploring a wide range of challenges facing modern Australia. These include the regulatory challenges posed by the rapidly evolving global financial industry, the social ramifications of how the nation cares for an increasingly elderly population and an investigation into the abuse of people with a disability. The commission’s unique development over the last millennia reflects its dynamism as it is constantly required to adapt to suit the political needs of the time.
[1] George Gillian, ‘Royal Commissions of Inquiry’ (2002) 35(3) Australian and New Zealand Journal of Criminology 289, 290.
[2] Thomas Lockwood, ‘A History of Royal Commissions’ (1967) 5(2) Osgoode Hall Law Journal 172, 179.
[3] Hugh Clokie, Joseph Robinson, Royal Commission of Inquiry: The Significance of Investigations in British Politics (Stanford University Press, 1st ed, 1937) 32.
[4] Ibid 25.
[5] Ibid 34.
[6] Lockwod (n 2) 179.
[7] Clokie, Robinson (n 3) 38.
[8] Ibid 39.
[9] Lockwod (n 2) 174.
[10] Gillian (n 1) 290.
[11] See ibid.
[12] Clokie, Robinson (n 3) 57.
[13] Gillian (n 1) 291.
[14] See ibid.
[15] See ibid.
[16] Ibid 292
[17] See ibid.