Commonwealth Parliamentary Library

Royal commissions and public inquiries-

their place in Australian government

Address by Professor Scott Prasser

Public Policy Institute – Australian Catholic University
13 March 2013

© Professor Scott Prasser

 Overview
• Defining them

• Classifying them

• History

• What they do?

• Place in government
© Professor Scott Prasser
 Defining public inquiries
• Appointed only by executive government
• Non permanent ad hoc temporary bodies
• Discrete units – not part of any existing body
• Members external to govt and public service
• Clear terms of reference, publicly announced
• Seek public and interest group participation
• Produce a public report
• Advisory only – only make recommendations
NOT
• judicial inquiries (no such thing!)/parl cmttees/perm
advisory bodies/consultancies/ or eg Henry Tax Review

© Professor Scott Prasser

 Types of public inquiries
• Policy advisory – provide expert advice on
some public policy issue/problem
(usually non-statutory, no powers)

• Inquisitorial – investigate corruption,

maladministration or to identify causes and
allocate responsibility for catastrophic event –
may make policy recommendations
(usually a statutory inquiry eg royal commission with
coercive powers)
© Professor Scott Prasser
© Professor Scott Prasser
© Professor Scott Prasser
 Inquiries appointed by Commonwealth govts 1949-2013

Government Royal Other Total

Commissions inquiries
Menzies Govts (Coalition) 5 30 35
1949 -1966
Holt / Gorton / McMahon Govts (Coalition) 2 27 29
1966 -1972
Whitlam Govt (Labor) 13 73 86
1972 – 1975
Fraser Govt (Coalition) 8 84 92
1975 -1983
1-4th Hawke Govts (Labor) 9 138 147
1983 - 1991
Keating Govts (Labor) 3 51 54
1991-1996
Sub-total for Hawke / Keating Govts (Labor) 12 189 201
1983-1996
Howard Govt (Coalition) 4 77 81
1996 -2007
Rudd - Gillard Govts (Labor) 1 60+ (approx) 61
2007-2013
Total 57 540 597

© Professor Scott Prasser

© Professor Scott Prasser
 What do they do? – policy inquiries
Policy inquiries – appointed when govt
faced with contentious policy issue to:
• Provide expert advice
• Identify the facts
• Promote participation
• Seek information/views
• Test opinions
• Clarify the issues and promote agreement
• Develop a solution
• Value: independence, openness, expertness
© Professor Scott Prasser
 Important policy public inquiries
• Committee of Inquiry into Universities (Murray 1956) and
Committee on the Future of Tertiary Education in
Australia (Martin 1961)
• Committee of Inquiry into the Australian Financial
System (Campbell 1979)
• Review of Social Security System (Cass 1985)
• Welfare Reference Group (McClure 1999)
• Review of Funding for Schooling (Gonski 2010)
And:
• Decimal Currency C’tee (Scott 1959)
• C’mth Admin Review C’tee (Kerr 1968)
• Committee of Inquiry into Folklife in Aust (Andersen
1986)
© Professor Scott Prasser
 Inquisitorial inquiries (eg royal commissions)
Coercive investigatory powers to check allegations of
wrongdoing, maladministration and disasters to:
•Identify facts
•Probe
•Find ‘hidden truths’ existing agencies can’t
•Find causes
•Allocate responsibility
•AND: suggest ameliorative actions (new
policies) for future
Value: independence, powers, openness
© Professor Scott Prasser
 Important inquisitorial inquiries
COMMONWEALTH
• Royal Commission on Espionage (Petrov) (1954)
• Royal Commission on the Loss of the HMAS Voyager (1964) and subsequent 1967
royal commission
• Royal Commission on the Activities of the Federated Ship Painters’ and Dockers’
Union (1980) (Costigan Royal Commission)
• Royal Commission into the Australian Meat Industry (1981)
• Royal Commission into Aboriginal Deaths in Custody (1987)
• Royal Commission into HIH (2001)
• Royal Commission into Child Abuse (2012)

STATE
• Royal Commission into Organised Crime in Clubs in NSW (Moffitt 1973)
• Commission of Inquiry into Police Misconduct (Fitzgerald 1987)
• Qld Public Hospitals Commission of Inquiry (Morris + Davies 2005)
• Vic Royal Commission into Bushfires (2009)

 
© Professor Scott Prasser
 Politically expedient (covert)
• Control the policy and political agenda:
– delay decisions
– smother criticism (recruitment and activity)
• Kite flying – try an idea out
• Promote support for policy idea
• Justify policy choice already made
• Pseudo consultation
• Co-opt opposition & interests
• Provide position for partisan appointee
• Fishing expeditions
© Professor Scott Prasser
Inquiries as fishing expeditions: Marks
Royal Commission

© Professor Scott Prasser

Inquiries – giving the answer wanted?

© Professor Scott Prasser

 Attacks on inquiries/RCs
• Politics: “conceived as an act of political malevolence by
the Court Government…the basic principles of natural
justice were ignored.” PM Keating on the Marks Royal Commission

• Utility: “a waste private time and public money” Ross Gittins, SMH

• Obfuscation: “not so much used for digging up the truth but

for digging it in” (Herbert)

• Delay: “I’ve been around long enough to know that the

prime function of politics is to win elections, and the function
of commissions of inquiry is to throw enough dust to cover
the facts.” (witness Telecommunications Inquiry 2002)
© Professor Scott Prasser
 Big questions – where do they fit?

“Australia … has a closed, non-porous policy

making system compared with, for instance, the
United States and its use of congressional
committees. Congressional committees provide a
stage for lobby groups and think tanks to bring
their ideas, research and advocacy within the
political process. No such formal process exists in
Australia at government level for reaching out for
new ideas or, at the very least seeking to achieve
co-operation between … interest groups.”
Sue Oliver 1993

© Professor Scott Prasser

 Range of advisory bodies
• Government departments and policy units
• Ministerial minders
• Consultants
• Dep’tal advisory bodies with key sectors
(hearing/representative)
• Specialised policy bureaux within government
• Statutory advisory bodies located in or near govt –
some with regulatory roles
• Intergov’tal bodies – temporary/permanent
• Parliamentary committees
• Public inquiries
© Professor Scott Prasser
 So - where do they fit?
• No formal constitutional standing
• BUT:
– royal commission type inquiries have
considerable legislative standing and
powers
– other inquiries almost no formal standing
• Part of executive government
• Not part of the judiciary
• Largely ignored in the academic
literature on Westminster, policy,
© Professor Scott Prasser
ALRC report on C’mth Royal
Commissions Act

© Professor Scott Prasser

 So-where do they fit-a gap in govt?
• Independence – members/openness
• Process – rational decision making steps
• Evidence based – research & collection
• Transparency – go to whoa
• Testing ideas – draft reports
• Promote understanding/agreement – synthesis
• Inquisitorial inquiries – powers and resources
greater than existing bodies
• ‘Institutions of last resort’ – reflect gaps in current
Westminster system
© Professor Scott Prasser
 References
Borchardt, D.H., 1991, Commissions of Inquiry in Australia
Lindell, G., 2002, Tribunals of Inquiry and Royal Commissions
Prasser, S., 2006, Royal Commissions and Public Inquiries in Australia
Ransley, J., 2001, Inquisitorial Royal Commissions and the
Investigation of Political Wrongdoing, PhD Thesis, Griffith Univ
Weller, P., (ed), 1994, Royal Commissions and the Making of Public
Policy, Macmillan, Melbourne
For case studies on public inquiries see:
– Frame, T., 1993, Where Fate Falls (on royal commissions into the Voyager
disaster)
– Moffitt, A., 1985, Quarter to Midnight: The Australian Crisis-Organised Crime and
the Decline of the Institutions of State (on NSW anti-corruption inquiries)
RESEARCH:
– ARC Application 2013: Royal Commissions and Public Inquiries – Are they worth
it? (collaboration with ACU, Univ of Qld Law School, Griffith School of
Criminology & Crime and Business School)
– Commonwealth Parl Library to develop a project on this area?

© Professor Scott Prasser