Key trends and lessons from Australian Royal Commissions and inquiries

Over the last five years, a number of high-profile Royal Commissions have inquired into a range of important issues, including child sexual abuse, home insulation, trade unions, family violence, nuclear fuel and child detention. What lessons can be drawn from the history and practice of Royal Commissions and other inquiries in Australia?

Royal Commissions have served an important role of informing successive governments, both in an inquisitorial and policy context. They are an option for responding to a crisis and a call for action, as well as a mechanism for developing public policy.

Over the past six months, Corrs has conducted extensive research into the history of Royal Commissions and inquiries at a Commonwealth level, as well as in New South Wales and Victoria (including New South Wales special commissions of inquiry and Victorian boards of inquiry). In this article, we set out some of the major findings from our research, including what we see as the key trends and lessons that can be learnt.

5 key trends

Below are five of the most interesting trends our research identified:

1. Despite the recent spate of Royal Commissions, there has actually been a decline in the number of them over time.

At the Commonwealth level for example, the number of Royal Commissions peaked at 54 between 1910-1929, but over the last decade, there have been only four.

2. Inquisitorial inquiries are now more common than policy inquiries.

At the Commonwealth level, 60% of all Royal Commissions have been policy inquiries, but over the last 4 decades 60% have been inquisitorial inquiries.

Both trends one and two could be explained by the development and growth of the public service, including the proliferation of specific sources of policy advice (e.g. the Commonwealth Productivity Commission) and standing investigative and regulatory bodies (e.g. the Independent Commission Against Corruption (NSW) and the Independent Broad-based Anti-corruption Commission (Victoria)). However, the family violence and nuclear fuel cycle inquiries could also suggest a return to policy inquiries where the existing political or bureaucratic systems are unable to satisfactorily address complex or wicked problems.

3. At least in Victoria, there has been an increase in the number of recommendations made by Royal Commissions.

For example, the Royal Commission into the Metropolitan Ambulance Service made 50, the Bushfires Royal Commission made 67 and the Royal Commission into Family Violence made 227 recommendations.

4. Royal Commissions continue to attract significant media and public attention.

Many Royal Commissions live stream their public hearings, enabling their proceedings to be followed in print and on radio, television and any online device. This has given rise to both media and public expectations around access to inquiry proceedings and their outcomes (e.g the recommendations). Given Royal Commissions commonly seek to address systemic failures and/or complex problems, as well as the high exposure and hence expectations of Royal Commissions, an increase in the number of recommendations may not be surprising.

5. While Royal Commissions perform a valuable function in that they focus attention on a particular issue, their effectiveness depends upon their recommendations and, critically, whether they are implemented by government.

Research commissioned by the Royal Commission into Institutional Responses to Child Sexual Abuse revealed that out of 288 recommendations from 67 other inquiries, only 64% had been implemented (in full or part) and 21% were not implemented at all.[1]

In Victoria, this has resulted in the creation of statutory implementation monitors, who report publicly on the government’s implementation of Royal Commission recommendations, increasing accountability and, ultimately, the value derived from the inquiries.

When is a Royal Commission likely to be established?

Government, not parliament, establishes a Royal Commission.

An inquisitorial inquiry is often established following a crisis or systemic failures, in order to restore government legitimacy and public trust. A policy inquiry may be established to complement existing government and bureaucratic systems and sources of expertise.

Although Royal Commissions are established by government, they usually conduct themselves independently. The tradition of appointing retired judicial officers as Royal Commissioners assists in maintaining this perception of independence.

While governments write the terms of reference governing and directing Royal Commissions, a Royal Commission can publicly request an amendment to these terms of reference to permit it to explore other issues.

So, although the government establishes Royal Commissions, it cannot necessarily control its outcomes.

The research we have conducted suggests that a Royal Commission is likely to be established if:

• there is a significant issue or crisis, especially one triggering a loss of public trust;
• there is a defined scope to the inquiry, with a manageable risk of the inquiry creeping into new areas;
• the perception of independence is important, again with a manageable risk of the Commissioners and/or Counsel Assisting fully exercising such independence;
• coercive statutory powers (e.g. to require witnesses to attend or documents to be produced) are required;
• the costs of the inquiry (establishing and running it, then considering and implementing its recommendations) are justifiable compared to the costs of doing nothing;
• the timing works for the government’s agenda and the electoral cycle; and
• the outcomes are manageable.

Responding to a Royal Commission: Key questions to ask

Entities in either the public or private sector affected by a Royal Commission should consider the following questions:

1. Why has the inquiry been established and what is it seeking to achieve?

2. What are the limits on the inquiry?

These will be derived from the relevant legislation (e.g. Royal Commissions Act 1902 (Cth), Royal Commissions Act 1923 (NSW), Inquiries Act 2014 (Vic)), the specific letters patent and terms of reference for that inquiry and any relevant practice notes.

3. What opportunities does the inquiry present?

Some entities will clearly be affected by a particular inquiry, including being called to give evidence or required to produce documents. All relevant entities, however, should consider whether an inquiry presents an opportunity to proactively share their perspective on the issue and what is required to address it. An entity presenting its own draft recommendations might find they are adopted and endorsed.

4. What is the best means of engaging with the inquiry?

Most inquiries will conduct public hearings. Unlike court proceedings, the Commissioners and Counsel Assisting will determine who is called to give evidence. An entity may wish to be legally represented during the inquiry, and this will require an application for leave to appear. Given this, it is always advisable to develop an effective relationship with Counsel Assisting and the designated lawyers for the Royal Commission. There may also be other opportunities to voluntarily participate in the information gathering activities of an inquiry, including making a written submission and participating in private hearings or community or expert consultations.

5. What other consequences need to be managed?

Those entities directly affected by a particular inquiry need to be ready to respond. The inquiry may present a major disruption to the business as usual activities of the entity, drawing upon human and financial resources. An entity should consider establishing an appropriate project team to manage engagement with the inquiry.

Royal Commissions also attract significant media and public attention. Entities should also consider what stakeholder and public relations management is required, both before, during and after an inquiry.

Jared Heath was Principal Legal Adviser to the Victorian Royal Commission into Family Violence. He has also acted for clients involved in Independent Broad-based Anti-corruption Commission inquiries.

Corrs were appointed Solicitors Instructing Counsel Assisting the Victorian Bushfires Royal Commission. A team of Corrs lawyers also served as the legal advisors to the Victorian Royal Commission into Family Violence.