ANNA FITZGERALD
JD II
Royal Commissions compel both the Australian public and political leadership to confront the realities of institutional abuse occurring in our own backyards. Importantly, they also provide a platform for victims of abuse to share their experiences. However, the capacity for Royal Commissions to enact lasting change is limited. A Royal Commission is a costly and prolonged process, yet the government can choose to ignore the recommendations made by the Commissioner. Complex and sensitive issues can therefore be publicly dissected, scrutinised by the media and then cast aside without meaningful justice afforded to witnesses who share their stories with the Commission. Through a victim-centric lens, this article will focus on Royal Commissions that investigate the abuse of vulnerable individuals, such as Indigenous people, children, the elderly, the disabled and those in police custody. It will be contended that while Royal Commissions can empower victims of institutional abuse, they can also enable polarisation and disenfranchisement. While participating in public consultation and submitting evidence can have a therapeutic effect for victims, the rejection of final recommendations can cause additional hurt to those who bravely testified about their abuse to the Commission. This article will suggest that greater certainty for victims participating in the process can be achieved by amending the Royal Commissions Act 1902 (Cth) to include a section that requires the Government to provide reasons for rejecting any recommendation made in a Royal Commission Final Report.
The ‘search for truth’
“...the benefit of some Royal Commissions is short-lived at best.[7]”
Royal Commissions perform an important ‘truth-telling’ function, allowing victims to communicate their stories through an influential public platform. The Royal Commission into Institutional Responses to Child Sexual Abuse is one such example, with 1302 witnesses providing testimony over 444 hearing days.[1] The Royal Commission into Aboriginal Deaths in Custody shared similar aims, with the final report concluding that ‘no effort was spared to get to the truth’.[2] The ‘truth’, that there was a poor standard of care for Indigenous Australians in custody, was ultimately uncovered and laid bare in the Final Report. However, the Commissioner held that for some deaths it was “open to debate” as to whether they were caused by failures of custodial authorities.[3] For many grieving families, this was perceived as a deflection of responsibility by the Commission and was ultimately unsatisfactory in bringing closure.[4] The search for ‘truth’ will not always produce the answers people want to hear – for perpetrators and victims alike. Former Commissioner and Justice of the High Court Kenneth Hayne AC QC argues that the role of Royal Commissions is not to advance the interests of victims, but rather “to inquire”.[5] Similarly, another former Commission member Hal Wootten AC QC notes that there are “no magic ointments or silver bullets for complex social problems” and that a Royal Commission cannot claim to be one.[6] Even so, the fact that Indigenous rates of incarceration have risen since the Royal Commission into Aboriginal Deaths in Custody suggests that the benefit of some Royal Commissions is short-lived at best.[7] Indigenous overrepresentation in custodial systems has endured even though Indigenous people comprise less that 2.5 per cent of the total population.[8] Despite not effecting lasting change, the public examination of the lives, deaths and stories of the 99 Indigenous people who died in custody is valuable in itself. The process of the Royal Commission effectively recognised and acknowledged mistreatment which otherwise would have remained untold. In this regard, the Royal Commission performed a sufficient ‘truth-telling’ role for many families of victims. As Joyce Chia from Monash University stated in an interview with the ABC, the mere recognition that “a wrong has been done” is effective itself in delivering some closure to the community.[9]
The importance of victim testimony
There is little doubt that the testimony of everyday people is a powerful aspect of any Royal Commission. During the Financial Royal Commission, witness Grant Stewart spoke out against an insurance company for pressure-selling his disabled son over-the-phone life insurance.[10] Stewart reflected that testifying was worthwhile in itself and gave him the opportunity to connect with other people who had been through similar experiences.[11] However, Susan Henry, Chair of the HNAB Action Group for Victims of Financial Services Misconduct, was less satisfied with the management of witness testimony.[12] Henry argued that the Commission did not reveal the extent of the damage caused by financial misconduct and that many victims felt that their grievances were not adequately addressed.[13] Indeed, Henry stated that “victims should be at the heart of any Royal Commission” and giving insufficient airtime during hearings was a failure of process.[14] Similarly, whistle-blower Jeff Morris was disappointed that the Commission did not tackle the “depth or breadth of misconduct” present in the financial services sector.[15] The effectiveness of Royal Commissions can therefore be compromised by failing to sufficiently explore victim experiences. Nevertheless, some Royal Commissions have managed to get the focus right, exemplified by the ‘Message to Australia’ handwritten notes created by over a thousand victims who shared their experiences during the Royal Commission into Institutional Responses to Child Sexual Abuse.[16] These messages conveyed the victims’ hopes for safer environments for children in the future and were published in a commemorative book that resides in the National Library of Australia.[17] The public record of these experiences is a powerful reminder that child sexual abuse is often “far closer to us than we realise”.[18] Indeed, this innovative approach to testimony was empowering for victims as it allowed them to speak in their own words and through their own medium. While the Royal Commission itself involved 6706 private sessions and 57 public hearings, the ‘Messages to Australia’ transcended this formal process, engaging the wider public in a more authentic and accessible way.[19] It is important to note that the capacity for a Royal Commission to address victim concerns is inherently linked to the time and resources allocated to the Commissioner by the Government. The five year timeline for the Child Sexual Abuse Royal Commission, as opposed to the 12 month timeline for the Financial Royal Commission, necessarily impacted the approach that the respective Commissioners could take. A longer time period allows for a more comprehensive victim-centric process and more time spent on hearing victims impacted by the misconduct or institutional abuse.
Recommendations and reform
The success of Royal Commissions is often measured in the public mindset by the willingness of the Government to implement recommendations from a Final Report.[20] Implementation of recommendations is particularly important for victims who appear as witnesses as it is witness testimony that informs the making of recommendations. As acknowledged by Rowena Orr QC, counsel assisting the Financial Royal Commission, giving evidence is not easy. Many witnesses travel long distances away from their families and homes and disclose their private affairs in a very public forum.[21] Consequently, the failure of the Government to adopt recommendations may cause a sense of futility about the process for victims. Royal Commissions can direct a short burst of attention to a particular social issue before the issue becomes just another dot point on a Government agenda. The issue of inequality before the law faced by Indigenous Australians after the Royal Commission into Aboriginal Deaths in Custody is a clear example of this. The Redfern Statement recognises that various investigations and reports into Indigenous Affairs have resulted in over 400 recommendations being made to Parliament which have mostly been ‘partially implemented’ or ‘ignored altogether’.[22] Similarly, the Financial Royal Commission was seen to barely ‘scratch the surface’ of misconduct, despite institutions such as AMP introducing costly ‘fix and rebuild programs’.[23] Nevertheless, effective change may not necessarily take the form of tangible action plans. For example, the Royal Commission into Institutional Responses to Child Sexual Abuse contributed to a positive change in public perspectives.[24] It facilitated a shift from the attitude that abuse is caused by ‘a few bad apples’ to recognising how institutions can facilitate opportunities for mistreatment of vulnerable individuals.[25]
“To legally require the executive to implement all recommendations as government policy would conflict with our understanding of executive autonomy for policy decisions.”
One way of validating victim testimonies is through legislative safeguards. Reforming the Royal Commissions Act 1902 (Cth) to provide greater assurance that the Government will directly address recommendations may be a useful first step. For example, the Act could include a section that requires the Government to provide clear reasons for not introducing a recommendation made in a final report. To legally require the executive to implement all recommendations as government policy would conflict with our understanding of executive autonomy for policy decisions. Instead, a provision that requires reasons would force the executive to directly engage with each recommendation in a substantial way. Currently, recommendations are essentially just that – ‘suggestions’ that the government is under no obligation to implement. However, greater political and legal accountability should be legislated for. While it may be argued that government officials already engage with a Royal Commission Final Report in its entirety, a ‘requirement of reasons’ provision would create greater assurance for victims that they have been listened to at the highest levels of government.
Currently, section 1A of the Royal Commissions Act authorises the Governor-General to issue a Royal Commission and empower the appointed Commissioner “to make inquiry into and report upon any matter specified in the Letters Patent”. [26] A new section could be introduced into the Act after section 1A that states that if a Government does not decide to fully implement a final recommendation made by a Commissioner, the Government will provide reasons as to why it is not acting upon the recommendation. The proposed new section would not provide witnesses with a right of appealing a Government policy decision. Instead, the proposed provision would reflect the seriousness of the misconduct under investigation and the importance of witness testimonies which form the foundation of the recommendations made to Parliament.
[1] Commonwealth of Australia, Royal Commission into Institutional Responses to Child Sexual Abuse Final Report (2017) <https://www.childabuseroyalcommission.gov.au/sites/default/files/final_report__volume_1_our_inquiry.pdf>.
[2] Commonwealth of Australia, Royal Commission into Aboriginal Deaths in Custody National Report (1991) <http://www.austlii.edu.au/au/other/IndigLRes/rciadic/national/vol1/9.html>.
[3] Ibid.
[4] Hal Wootten AC QC, ‘Reflections on the 20th Anniversary of the Royal Commission into Aboriginal Deaths in Custody’ (2011) 7(27) Indigenous Law Bulletin 3, 7.
[5] James Frost, ‘Banking royal commission: Kenneth Hayne lashes out at Bankwest critics’, The Australian Financial Review (online), 25 June 2018 <https://www.afr.com/business/banking-and-finance/banking-royal-commission-kenneth-hayne-lashes-out-at-bankwest-critics-20180624-h11suk>.
[6] Ibid.
[7] Ibid.
[8] Laura Beacroft, Mathew Lyneham and Matthew Willis, ‘Twenty Years of Monitoring Since the Royal Commission into Aboriginal Deaths in Custody: An Overview by the Australian Institute of Criminology’ (2011) 15(1) Australian Indigenous Law Review 64, 77.
[9] Catherine Hanrahan, ‘What does it take to make a royal commission successful’, Australian Broadcasting Corporation (online), 19 October 2016 <https://www.abc.net.au/news/2016-10-19/four-corners-nt-royal-commission-history/7945640>.
[10] John Collett and Sarah Danckert, ‘It was worth it: Victims who fronted royal commission give their verdict’, The Sydney Morning Herald (online), 30 November 2018 <https://www.smh.com.au/business/banking-and-finance/it-was-worth-it-victims-who-fronted-royal-commission-give-their-verdict-20181129-p50j3v.html>.
[11] Ibid.
[12] Martin Farrer and Gareth Hutchens, ‘‘It’s not even scratched the surface’’: bank victims demand royal commission 2.0’, The Guardian Australia, 1 December 2018 <https://www.theguardian.com/australia-news/2018/dec/01/its-not-even-scratched-the-surface-bank-victims-demand-royal-commission-20>.
[13] Ibid.
[14] Ibid.
[15] John Collett and Sarah Danckert, ‘It was worth it: Victims who fronted royal commission give their verdict’, The Sydney Morning Herald (online), 30 November 2018 <https://www.smh.com.au/business/banking-and-finance/it-was-worth-it-victims-who-fronted-royal-commission-give-their-verdict-20181129-p50j3v.html>.
[16] Commonwealth of Australia, Royal Commission into Institutional Responses to Child Sexual Abuse: Message to Australia (2017) < https://www.childabuseroyalcommission.gov.au/message-australia>.
[17] Ibid.
[18] Kim Oates, ‘The Royal Commission into child sexual abuse: A beginning, not an end’ (2018) 54 Journal of Paediatrics and Child Health 221.
[19] Ben Mathews, ‘Optimising implementation of reforms to better prevent and respond to child sexual abuse in institutions: Insights from public health, regulatory theory, and Australia’s Royal Commission’ (2017) 74 Child Abuse & Neglect: The International Journal 86, 88.
[20] Catherine Hanrahan, ‘What does it take to make a royal commission successful’, Australian Broadcasting Corporation (online), 19 October 2016 <https://www.abc.net.au/news/2016-10-19/four-corners-nt-royal-commission-history/7945640>.
[21] Australian Prudential Regulation Authority, APRA update on implementation of Royal Commission recommendations (2019) <https://www.apra.gov.au/media-centre/media-releases/apra-update-implementation-royal-commission-recommendations>.
[22] National Congress of Australia’s First Peoples, The Redfern Statement (2016) <https://nationalcongress.com.au/advocacy/wp-content/uploads/2018/05/The-Redfern-Statement-9-June-_Final.pdf>.
[23] Martin Farrer and Gareth Hutchens, ‘‘It’s not even scratched the surface’’: bank victims demand royal commission 2.0’, The Guardian Australia, 1 December 2018 <https://www.theguardian.com/australia-news/2018/dec/01/its-not-even-scratched-the-surface-bank-victims-demand-royal-commission-20>.
[24] Stephen Smallbone, ‘The impact of Australia’s Royal Commission on child and youth-serving organisations’ (2017) 74 Child Abuse & Neglect: The International Journal 99, 100.
[25] Ibid.
[26] Royal Commissions Act 1902 (Cth) s 1A.