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01 Apr 2009

The ALRC review of Royal Commissions: Is reform on the horizon?

by Philip Harrison

The ALRC could recommend recognition of an additional, hybrid approach to inquiries.

Looking beyond the irony in a review of Royal Commissions - themselves the most significant means of inquiry into matters of public importance - the Australian Law Reform Commission's review of Royal Commissions presents an opportunity to develop more modern, flexible and ideally less expensive means of inquiry.

While the catch-cry "This matter demands a Royal Commission", may be heard just a little too often, a Royal Commission remains the highest form of inquiry into matters of public importance. When the parliamentary or judicial process cannot accommodate an issue of particular controversy, a Royal Commission may be established - so long as the politics of the matter will allow it.

However, Royal Commissions, particularly those carrying out investigations and not engaged in policy development, have proved too inflexible to deal quickly with matters of lesser import; and, are possibly too antiquated to manage matters of greater moment, that require forensic investigation, backed by credible powers of compulsion.

As the Attorney-General remarked, in introducing the Clarke Inquiry into the case of Dr Mohamed Haneef to the media, and in explaining why that Inquiry was not constituted as a Royal Commission:

"The reality is that Royal Commissions are incredibly expensive; they are inflexible, they are extremely cumbersome, they take a considerable length of time."

In large part, this sentiment has seen a steady fall in the number of Royal Commissions since the mid-1970s.

Basis for inquiry

In January 2009, the Commonwealth Attorney-General issued terms of reference for the Australian Law Reform Commission's review of the provisions and operation of the Royal Commissions Act 1902 (Cth).

In introducing its review, the ALRC identified the problems with recent inquiries - such as the Oil-for-Food Inquiry and the Royal Commission into the Building and Construction Industry - as including difficulties with:

  • the power to compel the provision of information
  • a lack of power to investigate breaches of the Royal Commissions Act
  • an inadequacy in penalties for a failure to comply with that Act; and
  • the lack of capacity of Royal Commissions to communicate information about unlawful behaviour to law enforcement bodies.

In answer to such problems, the ALRC is to consider whether there is any need to develop an alternative form, or even forms, of Commonwealth executive inquiry; with statutory functions; in order to provide more flexibility, less formality and greater cost-effectiveness. In particular, the ALRC will consider whether there would be any advantage in codifying special arrangements and powers that could apply to alternative forms of inquiry.

The ALRC expects to release an overview document in the next few months, seeking feedback on a number of questions, presumably to be framed to meet the difficulties identified with the current, antiquated approach to Royal Commissions. This will be followed by a discussion paper, in the middle of this year, in which the ALRC will set out its preliminary proposals for reform, for broader discussion.

Likely outcome

It may well be that the ALRC will recommend recognition of an additional, hybrid approach to inquiries, adopting some of the aspects of a Royal Commission, to ensure it can delve into the truth of a matter; while jettisoning some of their formal, time-consuming aspects.

For example, a relatively streamlined approach, such as that taken in the Inquiry into the case of Dr Mohamed Haneef, may be assisted by the ability to compel the attendance of witnesses and the production of documents. The Royal Commission process may become less expensive if, in some instances, evidence could be taken by Commission staff, on the Royal Commissioner's behalf.

In any case, an antipodean precedent has recently been set, by the New Zealand Law Commission's 2008 report into the Commissions of Inquiry Act 1908 (NZ). It favoured new inquiries legislation and proposed reforms aimed at providing a two-level, flexible, fair and efficient model for inquiries. That report has found form in the Inquiries Bill 2008 (NZ), introduced into the New Zealand Parliament late last year.

The ALRC is due to provide its report and recommendations to the Attorney-General by 30 October 2009. Any response will then be for the Government; and, any legislative change then for the Parliament.

Consequently, it may be unlikely that there will be any substantive change to the way Royal Commissions are conducted, until sometime after the next Federal election. Hopefully, however, any change will bring Royal Commissions well into the twenty-first century.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.