They are highly effective at exposing wrongdoing, but do they influence policy development? A two-stage approach might be more effective, write Dr Peter Wilkins and Professor John Phillimore.
The Hayne Royal Commission has generated considerable debate about its findings and recommendations. But how well suited was the vehicle of a royal commission to the dual roles of uncovering wrongdoing and developing policy to prevent further wrongdoing?
Royal commissions are often called into recent natural disasters or policy and program failures. They usually involve adversarial questioning that puts key participants in the public glare. This approach can be crucial to identifying individual and organisational wrongdoing.
There were numerous findings of wrongdoing that the government, parliament and the public were not previously aware of, and the methods used seemed well suited to achieving this end. The investigatory approach of royal commissions is well established although there is always scope for innovation. Commissioner Hayne’s approach of requiring the banks to self-report their misdeeds early on is an innovation that assisted him to save on costs and time.
Not the best vehicle for policy development
Whether a royal commission is the best vehicle for developing policy advice to government is a very different issue, especially where there are complex systems involved.
Traditional views of effective policy development include a focus on consulting widely, identifying and assessing multiple options, and considering costs and benefits and unintended consequences. More recent considerations of public value and co-design may also be relevant. Add to these piloting of new approaches and taking account of implementation issues and it is difficult to see that a royal commission is well suited to policy development.
Successful implementation of policies requires a detailed knowledge of the context including stakeholder perspectives and the social and political environments. Unless anticipated in the terms of reference, a royal commission will not look at the consequences of proposed actions across domains outside its immediate scope.
Research by Eburn and Dover published in the Australian Journal of Public Administration in 2015 assessed the merits of over 50 inquiries such as royal commissions and other quasi-judicial inquiries. They found that the lessons learned from one event may not be readily transferable to the next, and that the desire of governments to be seen to be applying the recommendations may mean that insufficient attention is given to these differences. Concerns were also raised about whether royal commissions have the capacity to consider the implications of their recommendations on other policy sectors.“Whether a royal commission is the best vehicle for developing policy advice to government is a very different issue, especially where there are complex systems involved.”
Commissioner Hayne has dismissed concerns about potential unintended consequences in his case, stating on page 4 that the argument “… is easily made because it has no content; the ‘consequences’ feared are not identified”.
The Australian Law Reform Commission identified in 2009 that royal commissions and other statutory inquiries are only rarely established for the purpose of considering matters of policy. It indicated that its proposals did not exclude an investigatory inquiry from making policy recommendations and recommended that there be guidance on whether the recommendations of a royal commission or other inquiry would assist government policymaking, but it did not consider the option of separating an investigatory inquiry from a related inquiry focused on policy development.
We believe that it is worth considering whether the role of royal commissions should sometimes be restricted to the identification of wrongdoing and the broader policy-development role assigned to another process or inquiry type.
The potential of this approach is illustrated by the WA Royal Commission into Commercial Activities of Government and Other Matters that primarily focused on wrongdoing. It also provided a framework for reforms, making 40 recommendations in 1992 in relation to the latter.
One of these recommendations was the establishment of a Commission on Government as an umbrella body, and another seven referred specific matters to the COG. The COG was created under a separate act of Parliament, the Commission on Government Act 1994 and was required to inquire into 24 specified matters including issues in relation to Parliament, electoral arrangements, statutory officials and public administration. The COG consulted widely and acted openly, releasing discussion papers and seeking submissions from the public.
A two-stage approach that separates investigating wrongdoing from formulation of policy advice is something that we believe should be considered routinely. We also think that there is a need for academic research into policy implementation that can assist inquiries to maximise the likelihood that their recommendations will not just be accepted but that they are implemented in a way that achieves the intended benefits.
Dr Peter Wilkins is an adjunct professor at Curtin University with the John Curtin Institute of Public Policy. He served as Western Australia’s deputy ombudsman from 2008 to 2012, and prior to this had been WA assistant auditor-general – performance review.
Professor John Phillimore is the executive director of the John Curtin Institute of Public Policy at Curtin University. He has 30 years’ experience working in universities and as a senior adviser to government ministers in Western Australia.