ANUKI SURAWEERA & BRENDAN OFNER
ARTS / LLB III & ECONOMICS / LLB III
Following the conclusion of the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services on 4 February 2019, former Prime Minister Malcolm Turnbull remarked that “...what the Royal Commission has done is provided something of a shock, a shock treatment, to really ram home the need for that cultural change”.[1] Today, Royal Commissions occupy a unique position in the Australian political landscape. Increasingly, they are appealed to as a solution to a broad range of public sector and public policy issues. However, the degree to which Royal Commissions are the catch-all panacea for systemic issues, as they are sometimes viewed by the public, is still unclear. In this article, we will examine whether public faith in Royal Commissions is disproportionate to their ability to effect real change. While an exhaustive analysis of the effectiveness of Royal Commissions is inevitably beyond the scope of this article, we hope to outline key considerations when assessing their importance and the relationship between their efficacy and popularity. We intend to make this inquiry through two limbs by looking at first their ability to prompt legislative change and second their ability to change social discourse around an issue. Ultimately, we will place the Royal Commission within the broader suite of public inquiries, to examine the benefits and shortcomings of their unique structural powers.
I - Methodology and Background
This article’s methodology for determining the success of Royal Commissions will be a case study-based analysis of their success in ameliorating the social and regulatory issues within their terms of reference. Given the diversity of issues that are addressed by Royal Commissions, the evaluations herein will be focused around case studies of particularly pertinent Royal Commissions such as the Royal Commission into Indigenous Deaths in Custody and Institutional Responses to Child Sexual Abuse. This analysis is inclusive of factors such as political will and the legislative process which are external to the Royal Commission itself but by-products of their activities. We believe the public perception of Royal Commissions is indeed coloured by an expectation that Royal Commissions achieve substantive change in the areas of regulation and policy-making despite the inability of Royal Commissions to generate binding recommendations. However, we conclude that, though they play a significant role in informally shaping public discourse and political priorities, the public perception of the effectiveness of Royal Commissions is overly optimistic when juxtaposed to their substantive results.
“We believe the public perception of Royal Commissions is indeed coloured by an expectation that Royal Commissions achieve substantive change in the areas of regulation and policy-making despite the inability of Royal Commissions to generate binding recommendations.”
Royal Commissions are non-judicial and non-administrative governmental tools used to examine issues of public concern as defined by their terms of reference. Royal Commissions can be either inquisitorial or operate in an advisory capacity with a focus on policy reform.[2] The prerogative power to establish a Royal Commission by Letters Patent arises at common law and is supplemented by the Royal Commissions Act 1902 (Cth).[3] They traditionally served as mechanisms for examining complex social issues through systematic research and investigation, contributing a rigorous analysis and recommendations which inform the policy making process.[4] Historically, Royal Commissions date back to the 11th century, however during the post-World War II period the number of Royal Commissions significantly dwindled, with the development and popularisation of alternative forms of public inquiries, including Law Reform Commissions at both the State and Federal levels.[5] In recent years we have seen a rise in the number of Royal Commissions. In tandem with this trend, the media attention devoted to the operation of Royal Commissions is significantly greater than for other legislative and parliamentary review mechanisms, such as Law Reform Commissions. Royal Commissions garner a significant degree of public interest despite seeming at first glance to be inaccessible policy tools, suggesting that they have qualities distinct from broader legislative and parliamentary review bodies.
II Royal Commission - Political Agent or Political Tool?
Despite Royal Commissions being viewed as a versatile tool for the creation and critique of public policy, their structure and powers are often insufficient for them to directly affect legislative change. The powers afforded to Royal Commissions are broad and include powers of compulsion which are unique among law reform agencies. They are able to gather evidence, summon witnesses and compel the production of documents.[7] While in other respects they strongly resemble permanent law reform agencies,[6] such as the NSWLRC and ALRC, Royal Commissions only operate in relation to specific, pre-determined issues for limited periods of time.[8] Additionally, governments are capable of exercising significant influence over the scope of Royal Commission activities by defining the terms of inquiry and selecting a commissioner.[9] Therefore, the establishment of a Royal Commission depends solely on the presence of sufficient political will to address a particular issue. In addition, Royal Commissions often involve a consideration of multiple concerns across a number of industries, which may reduce their effectiveness in producing implementable recommendations compared to more specialised approaches to inquiry.[10]
“...the government is not obliged to implement or even formally respond to any recommendations...”
However, the public should be cautious of putting too much faith in Royal Commissions as the government is not obliged to implement or even formally respond to any recommendations. For example, the Royal Commission into Indigenous Deaths in Custody cost the public over $400 million dollars and it is still debateable whether the Commission delivered significant benefits for Indigenous Australians.[11] The NSW Aboriginal Justice Advisory Council has argued that of 299 recommendations made by the inquiry, at least 140 have not been implemented in any way.[12] In a similar vein, the Royal Commission into Institutional Responses to Child Sexual Abuse delivered 288 recommendations, of which only 48% were implemented in full. While this quantitative discussion in and of itself cannot measure the complex interaction of numerous policies and concerns in relation to entrenched social issues, the contrast between the significant resources devoted to Royal Commissions and their imperceptible effects on social issues is stark.[13]
One explanation for the prevalence of Royal Commissions despite these limitations is that they are crisis management mechanisms for governments, created as “expedient instrument[s] of political management…in response to some public controversy”.[14] The purported impartiality and objectivity of Royal Commissions are a key part of their value. By partially adopting the structures and conventions of a court, Royal Commissions are able to more effectively communicate an impression of objective and even apolitical authority which is advantageous for governments.[15] This facade of impartiality is essential, with Eburn and Dovers (2015) cynically identifying the core requirements for the creation of Royal Commissions as, one, a lack of government credibility in relation to key issues and, two, the government nevertheless possessing some degree of control over the policy and political agenda.[16] As a political ‘safety valve’, Royal Commissions exist to address failures that the government is unable to rectify whether due to the intractability of the issue or a lack of unified political will. Further, the extensive time frames of Royal Commissions often allow politicians to shift the responsibility for implementing regulatory changes to the next Parliament. Gilligan (2002) argues that the political symbolism and legitimation function of Royal Commissions are central to their creation and that they are an asset to governments rather than apolitical inquiries.[17] Royal Commissions are constrained by their terms of reference, and lacking a direct democratic mandate and the ability to make binding recommendations, often fail to genuinely reform public policy. However, it is simplistic to identify a one-way relationship between political will and Royal Commission outcomes. Indeed, Royal Commissions have often spurred public debate and reoriented political priorities.
III - Royal Commissions in the Public Consciousness
While all law reform mechanisms generate recommendations and make findings, none have the same access to information and preeminent legitimacy as Royal Commissions allowing Royal Commissions to engage in agenda setting and generate an authoritative account of an issue. The Royal Commission Act extends Commission powers beyond that granted by common law, giving the Commission coercive powers.[18] These powers include the ability to summon a person to give evidence or order the production of documents, including where production of that evidence would incriminate the person.[19] Further, Royal Commissions are able to summon witnesses to be examined and cross-examined by counsel, allowing for quasi-judicial forms of inquiry to complement analysis and recommendations.[20] These unique powers give the Commission tools beyond those available to other public inquiry organs such as Law Reform Commissions, enabling the gathering of information and exposure of systemic issues. Regardless of whether recommendations are implemented, a Commissioner’s findings are typically uncontested and for the general public serves as an officially endorsed, legitimate version of facts. Despite the limited effectiveness of Royal Commissions in generating shifts in policy and legislation equal to governmental expenditure on their investigations, they remain the preferred instrument of public inquiry due to their unique powers.
As a component of broader social discourse relating to systemic failures in the public sector, Royal Commissions can be fundamentally important as fact-finding inquiries which publicly confront issues of injustice, inequity and corruption. The political purpose and motivation underpinning their creation does not negate the power of Royal Commissions to instigate broader social change. The contemporary media landscape is characterised by low cost barriers and greater dissemination of information, enabling fact-finding commissions to impact social discourse even where their recommendations are not directly adopted.[21] Consequently, fact-finding commissions have played an increasingly important role both domestically and internationally in mobilising social change.[22] Illustrating this is the Royal Commission into Aboriginal Deaths in Custody, which provided the general public with a new insight into the over-representation of Aboriginal people in all forms of custody and, most importantly, in police custody.[23] The Royal Commission into Aboriginal Deaths in Custody exposed three broad issues which continue to persist in social discourse: issues with police enforcement; issues with the laws themselves and inconsistency in the application of discretionary powers to Aboriginal and Torres Strait Islander peoples. These questions continue to influence policy discussions and debate and are supported by the Commission's findings.
“Royal Commissions can be fundamentally important as fact-finding inquiries which publicly confront issues of injustice, inequity and corruption.”
While changes in contemporary media have spurred an increase in the relevance and effectiveness of Royal Commissions, Royal Commissions have long been mechanisms for addressing issues which are intertwined with a broader context of social injustice. Justice Sackville notes that, while the 1991 Royal Commission into Aboriginal Deaths in Custody was established for the purpose of investigating the deaths of 99 Indigenous Australians in prison or police custody, the recommendations and report generated by the inquiry extended far beyond that. The report included “a very large number of recommendations designed to address the social, health and economic disadvantages suffered by indigenous people”.[24] The social impact of Royal Commissions is not limited to their fulfilment of a narrow mandate or implementation of recommendations. Rather, official inquiry into the root causes of a public issue can make a valuable contribution to social discourse. However, the aggregate effectiveness of Royal Commissions may be questioned. In each year after 1991 except one, the number of Indigenous deaths in custody has been higher than before the Commission’s report was released. Indigenous Australians now make up 27% of the Australian prison population, compared to 14% in 1991.[25] To some extent, the initiation of the Royal Commission into the Protection and Detention of Children in the Northern Territory can be seen as evidence of the continued failure of Australian policy makers to address the issue of Indigenous incarceration.
IV - Conclusions and Findings
Royal Commissions are primarily fact-finding exercises rather than effective mechanisms for the development of public policy. Commissions are largely ineffective in bringing about new legislation to address systemic and institutional failures, particularly in relation to entrenched social issues such as Indigenous incarceration.[26] However, it must be recognised that the failure to generate effective legislation does not mean that Royal Commissions do not contribute to the public good. The process of bringing to light organisational and individual misconduct can engender greater transparency in areas of systemic failures.[27]
[1] David Crowe, ‘'Shock treatment': Turnbull admits banking royal commission should have been called earlier,’ The Sydney Morning Herald (online, 5 February 2019) <https://www.smh.com.au/business/banking-and-finance/shock-treatment-turnbull-admits-banking-royal-commission-should-have-been-called-earlier-20190205-p50vpk.html>.
[2] Mike Rowe and Laura McAllister, ‘The Roles of Commissions of Inquiry in the Policy Process’ (2006) 21(4) Public Policy and Administration, 99.
[3] Royal Commissions Act 1902 (Cth) s 2(1)(A).
[4] Rowe and McAllister (n 2).
[5] S Prasser, Royal Commissions and Public Inquiries in Australia (2006), Appendix 1.
[6] Justice Ronald Sackville ‘Law reform agencies and Royal Commissions: toiling in the same field?’ (FCA) [2005] FedJSchol 10.
[7] Royal Commissions Act 1902 (Cth) ss 2, 3, 6.
[8] Sackville (n 6).
[9] George Gilligan, ‘Royal Commissions of Inquiry’ (2002) 35(3) The Australian and New Zealand Journal of Criminology 289, 294.
[10] Michael Eburn and Stephen Dovers, ‘Learning Lessons from Disasters: Alternatives to Royal Commissions and Other Quasi‐Judicial Inquiries’ (2015) 74 Australian Journal of Public Administration 495.
[11] Australian Human Rights Commission, Social Justice Report 2001: Chapter 1: Ten years on from the Royal Commission into Aboriginal Deaths in Custody <https://www.humanrights.gov.au/our-work/social-justice-report-2001-chapter-1-ten-years-royal-commission-aboriginal-deaths-custody>.
[12] Ibid.
[13] Peter Wilkins and John Phillimore, ‘Royal commission recommendations: processes to ensure they are implemented’, The Mandarin (Feature Article, 6 February 2019) <https://www.themandarin.com.au/103724-royal-commission-recommendations-processes-to-ensure-they-are-implemented/>.
[14] Gilligan (n 9) 292.
[15] Eburn and Dovers (n 10).
[16] Eburn and Dovers (n 10) 302.
[17] Eburn and Dovers (n 10) 305.
[18] McGuinness v Attorney-General (Vic) (1940) 63 CLR 73, 83, 99.
[19] Royal Commissions Act 1902 (Cth) s 2(1)(A).
[20] Eburn and Dovers (n 10) 302.
[21] Kari Karppinen, Rethinking Media Pluralism (Fordham University Press, 1st ed, 2013) 104.
[22] Jamie Rowan, ‘Mobilizing Truth: Agenda Setting in a Transnational Social Movement’ (2012) 37(3) Law & Social Inquiry 686.
[23] Royal Commission into Aboriginal Deaths in Custody (National Report, April 1991) vol 2, 13.1.2.
[24] Australian Law Reform Commission, Making Inquiries: A New Statutory Framework, (Report No 111, October 2009) 3 [3.1]-[3.37].
[25] Catherine Hanrahan, ‘What does it take to make a royal commission successful?’, Australian Broadcasting Network (online, 19 October 2016) <https://www.abc.net.au/news/2016-10-19/four-corners-nt-royal-commission-history/7945640>.
[26] Eburn and Dovers (n 10) 300.
[27] Sackville (n 5).