It’s Royal Commission (RC) season and misconduct is in the air. Let’s look at what they are, which ongoing RCs you should keep your eye out for, as well as the history of RCs in Australia.
Next Monday at 4.10pm, the Australian public will finally get to read the RC Report into Misconduct in the Banking, Superannuation and Financial Services Industry (also known as the ‘Banking RC’). I can guarantee that all eyes will be scouring through the Report to see what former Australian High Court judge, Commissioner Hayne AC QC, has to say.
Given the plentiful coverage next week, let’s go back to basics to see:
- What RCs, or commissions of inquiry, are about;
- How they’re instigated (from a legal perspective);
- What happens after a final RC report;
- Current RCs you should be keeping your eye out for; and
- Random RC trivia from the history pages.
A little disclaimer before we start. There is a whole lot about RCs that I won’t cover, because there is so much to talk about. I have only picked on some key points that stand out.
What are RCs about?
A RC is a formal independent public inquiry. It typically investigates allegations of impropriety or gross administrative incompetence, often following public outcry.
In this sense, RCs are interesting because they sit at an intersection of law, politics and policy / reform. The lawyers that I know who have worked on RCs find it a rewarding experience in trying to get closer to the truth. Although, I must add that not everyone has a positive experience.
Unlike the typical court process in Australia, which follows a common law approach, RCs are inquisitorial. The Commissioner (or Commissioners) appointed has the power and discretion to direct the investigation. This is as long as the investigation is within the RC’s terms of reference.
Ok, I hear you – how are RCs instigated?
RCs can be instigated (fancy word for ‘started’) by the Commonwealth Government or by a State Government.
The grounds rules are set out in specific legislation:
- Federal – Commonwealth: Royal Commissions Act 1902 (Cth)
- State – NSW: Royal Commissions Act 1923 (NSW)
- State – Qld: Commissions of Inquiry Act 1950 (Qld)
- State – SA: Royal Commissions Act 1917 (SA)
- State – Tas: Commissions of Inquiry Act 1995 (Tas)
- State – Vic: Inquiries Act 2014 (Vic)
- State – WA: Royal Commissions Act 1968 (WA)
- Territory – ACT: Royal Commissions Act 1991 (ACT)
- Territory – NT… is a bit of an anomaly—see this specific piece of legislation Commission of Inquiry (Deaths in Custody) Act 1987 (NT).
There is a pretty old-skool method used to start a RC. The magic words are ‘Letters Patent’. Some of you might recall this from your time sitting in Administrative Law lectures (or not at all).
‘Without in any way prejudicing, limiting, or derogating from the power of the King, or of the Governor-General, to make or authorise any inquiry, or to issue any commission to make any inquiry, it is hereby enacted and declared that the Governor-General may, by Letters Patent in the name of the King, issue such commissions, directed to such person or persons, as he or she thinks fit, requiring or authorising him or her or them or any of them to make inquiry into and report upon any matter specified in the Letters Patent, and which relates to or is connected with the peace, order, and good government of the Commonwealth, or any public purpose or any power of the Commonwealth.’
It essentially says this…
The Governor-General, representative of the Queen (back in 1902 it was a King), can issue a formal document called ‘Letters Patent’ to establish a RC.
Two important bits of information on a Letters Patent are: (1) the names of the Commissioner(s) appointed; and (2) the terms of reference, which set out the scope of the RC’s inquiry.
If you’re curious, you can check out the Banking RC’s Letters Patent here.
What is the process?
A RC is vested with (a fancy word for ‘legally given’) wide-ranging powers. They include summoning a person to give evidence and/or produce documents. A RC may also take evidence outside of Australia.
There are serious criminal consequences for doing things that you’re not supposed to do. For example:
- 2 years’ imprisonment for failing to attend as a witness before a RC without reasonable excuse: s 3(1) and (1B);
- Up to 5 years’ imprisonment or a fine for intentionally giving false or misleading evidence on matters material to the inquiry: s 6H(2).
Lawyers, who are always keen on using the cover of legal professional privilege, also have to watch out. You may commit an offence if you refuse or fail to produce a document that you’ve wrongly claimed privilege over: ss and 6AA and 6AB.
What is the outcome?
After all the hearings, the Commissioner (or Commissioners) will make findings and recommendations in a final report. In the case of the Banking RC, there was also an interim report released midway.
The final report is given to the government. It is made public when the report is tabled in (basically, ‘produced to’) Parliament.
If you’re a skeptic, then you will probably see RCs as one giant waste of time leading nowhere. You’re not alone, given the comments of Sir Alan Herbert (1890 – 1971), an English humorist, novelist, playwright and law reform activist who served as an Independent Member of Parliament in the UK:
‘I am probably the only Member of this Committee who in his election address boldly asserted that when he became a Member of Parliament he would set his face against the habit of Government Departments asking Royal Commissions to find out things which they ought to know already themselves, and which almost everybody knows. Therefore, I am bound to make my protest now. A Royal Commission is generally appointed, not so much for digging up the truth, as for digging in it: and a Government Department appointing a Royal Commission is like a dog burying a bone, except that the dog does eventually return to the bone.’
Despite Sir Herbert’s witty and lucid protests, RCs can still be powerful mechanisms to uncover wrongdoing and propose change—to the extent that a standard court case will never go.
RCs to keep an eye out for
It’s 2019, so keep a lookout for the following RCs:
- Misconduct in the Banking, Superannuation and Financial Services Industry: The final report will be released to the public next Monday at 4.10pm. It follows the close of trading on the Australian Securities Exchange—unsurprising timing.
- Aged Care Quality and Safety: Interim report due 31 October 2019. Final report due 30 April 2020.
If you live in Victoria, the State Government recently announced two Victorian Royal Commissions:
- Mental Health: Looking into how to best support Victorians with mental illness. There was a month-long public consultation process. The Terms of Reference and Commissioners will be announced in February 2019.
- Management of Informants: Announced in response to how Victoria Police handled a police informant, known as Lawyer X or Informant No. 3838, and secured convictions based on improperly obtained evidence. A final report is due by the end of 2019.
There was also a less high-profile Murray Darling Basin Royal Commission Report released recently on 29 January 2019.
RC trivia from the history pages
RCs date back to the time of William I. The King had issued a 1085 royal mandate which led to the creation of the Domesday Book. It was a census of all land and resources that the King could tax. It was also coincidence that ‘Domesday’ sounded like ‘Doomsday’ for medieval landowners who were, up to that point, used to squirreling away their extensive properties under a hay bale.
At the Commonwealth level in Australia, there have been 134 Royal Commissions to date. They cover a variety of matters, of which you can see a full list here.
The first recorded RC in Australia was in 1902, known as the ‘Royal Commission appointed to inquire into and report upon the arrangements made for the transport of troops returning from service in South Africa in the S.S. Drayton Grange’.
Sounds like rather dry stuff, but it wasn’t then. Here’s a bit of trivia for you, though the circumstances were tragic. The first Australian RC was about returning soldiers from the Boer War in South Africa, fought between 1899 – 1902. There were various controversies, best described by the National Archives of Australia:
‘Other controversies, now long forgotten, also arose from the war. Some officers, notably Percy Ricardo of Queensland and S Inglis of Western Australia, were accused of cowardice. Some soldiers were accused of looting and brutality, notably those returning to Australia on the troop ship Aurania. When 17 soldiers died during or after returning on another troop ship, the Drayton Grange, a public outcry prompted a royal commission. Some of these controversies are well documented.’
Other intriguing inquiries from the distant past include RCs on:
- ‘the butter industry’ (1904 – 1905)
- ‘tobacco monopoly’ (1905 – 1906)
- ‘secret drugs, cures, and foods’ (1906 – 1907)
- ‘postal services’ (1908 – 1910)
- ‘industrial troubles on Melbourne wharfs’ (1919 – 1920)
- ‘wireless’ (1927)
- ‘statements in the press in regard to offers alleged to have been made to members to resign seats in the Federal Parliament’ (1928)
- ‘espionage’ (1954 – 1955).
One thing is clear, early RCs obsessed over food, postal mail and transport (#priorities).
So, when someone next asks you about RCs, you can tell them all about it. Also, don’t forget to check out the Banking RC report when it (or other things) hits the fans next Monday, 4 February 2019 at 4.10pm.
Sources / extra reading for your inner nerd:
- Public Record Office Victoria website
(On RC recordkeeping)
- Parliament of Australia website
(List of Commonwealth RCs and Commissions of Inquiry)
- The Conversation
(Royal Commissions: How do they work?)
- Corrs Chambers Westgarth
(On murmurings of a potential RC into the energy sector and fuel prices)
- Institute for Government (UK)
(Write-up on the history of RCs in the UK)