Are royal commissions the new normal for developing complex public policy?

By Peter Debus

Wednesday June 12, 2019

Picture: Getty Images

With three federal royal commissions and one Victorian one currently underway, and two others recently completed, it is reasonable to pause and ask, Why so many? Why now? And what does this say about the failure of standard governance and oversight procedures?

These were all questions canvassed at a recent seminar held by CPA Australia featuring a panel of experts experienced with sitting on commission benches and presenting evidence and arguments before royal commissions.

Susan Pascoe, the former head of the Australian Charities and Not-for-Profits Commission, sat on the enquiry into the Black Saturday bushfires.

Kylie Kilgour is currently presiding as CEO over the enquiry into police informants (Lawyer X commission) in Victoria.

The third panellist, Luke Bo’sher, is CEO of the Summer Foundation, where he has worked on both policy development and advocacy for young people at the disability enquiry and the aged care enquiry, as it affects young people dumped into inappropriate aged housing.

The reasons for conducting a royal commission

According to Kilgour, a royal commission can be deployed to cut through when confronted by a complex, ‘wicked’ problem.

Both as a senior executive in a Justice department handling the recommendations of various commissions and now as a jurist presiding over a highly charged enquiry into police, police informants and underworld gangs, Kilgour is surprisingly upbeat about the value of royal commissions. They can be ‘progressive, they shine a light’.

While Bo’sher agreed that a commission can help to get to the bottom of a problem and thereby assist with a better policy-development process, for vulnerable and disenfranchised citizens they provide a safe way to contribute.

For those he represents, they can provide ‘comfort and security’.

The issue of higher levels of distrust in government was a recurring theme in the discussion, and Bo’sher believes that it is the extraordinary powers and non-departmental processes of a royal commission that give them the confidence that the government of the day will follow through.

A response to systematic failures across all domains?

A question posed was: are there common patterns of failure across all the domains that result in a royal commission?

Pascoe felt there are two key drivers for organisations that find themselves the subject of a royal commission.

The first she described as a lack of governance, accountability and transparency, with the three being interdependent in the way they contributed to a major failure.

The second she saw as an attitudinal failing whereby an organisation treated regulations and regulators  as a nuisance and treated both in a ‘perfunctory fashion’.

Bo’sher noted that professionals and managers in NGOs and community organisations had a role to play in stopping a situation from becoming so bad in the first place. For those in the NFP sector, they have a duty to speak up when they see — or hear from their frontline staff — that service delivery is failing on the ground.

The political element

While the focus of the seminar was on the role and responsibilities of managers and executives in dealing with a royal commission, the political element behind royal commissions was never far from the surface.

Pascoe told how she was probed informally about her political affiliations and possible membership of a political party, giving an assurance that she was not a member of any political party before receiving an invitation from the Department of the Premier and Cabinet to sit on an enquiry.

Kilgour expressed the view that while some governments are pressured unwillingly into establishing a royal commission, in contrast, the Labor government in Victoria has been proactive in setting up royal commissions, seeing them as a means of getting reform going with difficult problems that will need broad public support.

Are royal commissions here to stay?

So, can we expect the proliferation of royal commissions to become the new normal?

Despite their recent proliferation, none of the panellists think they have become a regular tool in the public sector’s kit for advancing policy development.

Kilgour assured that policy design and development continues as ever in the traditional way throughout departments across the country, but for the complex, intractable problems with a broad cross-section of the public having a stake, these commissions have clear advantages.

But their establishment should not be taken lightly.

They can be long, resource-heavy in terms of the public sector, and come with a high price tag.

For example, the current commission into the disabled has a budget of approximately $500m, which is about the annual budget for the Commonwealth Department of Social Services.

The panellists were asked to think about what the appropriate professional response would be for executives who need to assist an enquiry and then react to its recommendations.

Kilgour urged managers to be proactive and keep abreast of a commission as it progresses; to understand the implications of its terms of reference and to think ahead on what it will mean for one’s agency.

Where a commission delves into a field in which the NFP and community sectors might be involved, Bo’sher felt that executives needed to think ahead about their capability and reassure government that they can cope with the responsibilities if commissioners wish to make recommendations for collaboration with the sector.

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