Address by Professor Scott Prasser Public Policy Institute – Australian Catholic University

1. Commonwealth Parliamentary LibraryRoyal commissions and public inquiries- their place in Australian government Address by Professor Scott Prasser Public Policy Institute – Australian Catholic University 13 March 2013

2. Overview • Defining them • Classifying them • History • What they do? • Place in government

3. 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

4. Types of public inquiries • Policyadvisory – 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)

7. Inquiries appointed by Commonwealth govts 1949-2013

9. 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

10. 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)

11. 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

12. 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)

13. 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

14. Inquiries as fishing expeditions: Marks Royal Commission

15. Inquiries – giving the answer wanted?

16. 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)

17. 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

18. 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

19. 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,

20. ALRC report on C’mth Royal Commissions Act

21. 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

22. 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?