How many royal commissions are necessary?

By Stephen Bartos

Wednesday July 28, 2021

For most policy issues, however, a royal commission is a poor substitute for properly resourcing the public service to do policy well
For most policy issues, a royal commission is a poor substitute for properly resourcing the public service to do policy well. (golubovy/Adobe)

Another day, another royal commission. For every major problem facing Australia it seems someone, somewhere, will call for a royal commission.

The Australian government is partly responsible for fostering this tendency. It has established numerous royal commissions in recent times, turning them into a routine feature of the public administration landscape.

That does not mean we need dozens more.

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Royal commissions are expensive, time consuming, drawn out and often inconclusive. There are circumstances for which they can be genuinely useful; but for most national, state or territory problems the better approach is for governments, advised by competent public servants, to develop their own robust policy solutions.  

Proposed topics for new royal commissions in recent months have included: Australia’s COVID-19 response; our media diversity (driven by Kevin Rudd, with a focus on the influence of News Corp); housing supply and its links to the economy; exploitation of workers in the fruit and vegetable industry; Victoria’s handling of quarantine (from the likes of Sky News’ Alan Jones and the Victorian opposition); management scandals in the AFL; mining in the Pilbara region; what was described as the ‘heartless and cruel’ robodebt program; Australia’s dairy industry (a call wisely rejected by a senate committee); and many others. Scarcely a week goes by without another topic being added to the list.

Even this publication’s own ‘brains trust’ got into the game, with former departmental secretary Terry Moran calling for two royal commissions: into robodebt and the handling of the pandemic. 

Prior to WWII, royal commissions were numerous but over subsequent decades they became less frequent. The Parliamentary Library publishes a full list

That historic decline in frequency has turned around of late. The government’s list of recent royal commissions provides links to six royal commissions established since 2013. There are also two underway: into disability and defence and veteran suicide

That is a high frequency for the post-war period. No wonder that commentators of various sorts have fallen into the habit of calling for a royal commission whenever a problem presents itself. The government itself has paved the way.

Royal commissions do not come cheaply. They employ large numbers of staff and highly priced senior counsel (the most expensive type of lawyer). The more than $400 million allocated to the Royal Commission into Institutional Responses to Child Sexual Abuse attracted attention. That was higher than most due to trauma counselling and six commissioners, but you would be lucky to get change from $50 million for even the smallest and briefest royal commission.

Legal expenses drive much of the high cost. Royal commissions are run out of the Attorney-General’s department and tend to be staffed and run by lawyers.

Any new royal commissions would have to compete for attention and resources with the two already underway. There would be diminishing returns from adding more to the list, and doubt over whether they could all be supported adequately.

Arguably, because of their wide scope potentially affecting any and all aspects of government, a more logical public service home base is the prime minister’s department. At times that is where royal commissions have been located. At present, however, most royal commissions operate from a legal viewpoint, so they are located in the attorney-general’s department. This is sometimes, but not always, appropriate.

Some commissions are forensic in their subject matter and terms of reference, investigating crimes and legality — where lawyers excel. 

Others are about policy.

While there are exceptions, by disposition and training lawyers are singularly ill-equipped to deal with public policy, because it always involves ambiguity, compromise and second-best-but-politically-acceptable solutions — whereas the law likes certainty and precision. 

Lawyers have a hard time understanding why a government would not adopt what the evidence gathered by those lawyers suggests is the best solution to a problem. Public servants who deal with the demands of policymaking know that often the solution that can be steered through the demands of competing interest groups, political interests and practical resource constraints is not always the best — just the possible. 

There is no requirement for commissioners to be retired judges (although most recent royal commissions have included them). One of Australia’s best royal commissions, certainly the one that had the most impact on the public service, was into Australian Government Administration (RCAGA). It was led by an economist, Dr HC Coombs. Although two of the five commissioners were lawyers, that was more or less incidental. Neither were judges: Enid Campbell was an academic, Peter Bailey an experienced public servant. The others were an economist and a trade unionist. Yet their report was a landmark step in reforming and reshaping the public service.

There are some purposes for which legal expertise is desirable — for example, working out whether Crown Casino should hold a licence (a royal commission in Victoria at present), or establishing who did what in the oil-for-food affair. 

Where witnesses need to be compelled to give evidence, and issues of regulatory compliance or legality have to be investigated, a royal commission can be a useful mechanism.

Not always though — if a government has a reasonable view that a person or organisation has acted illegally, often the better course of action is legal proceedings. Courts and judges also have powers to call witnesses and compel evidence to be presented. Unlike royal commissions, they can also sentence guilty parties if that is appropriate. 

Finally, royal commissions are not guaranteed to deliver results. Their reports might sit on a bookshelf and not be implemented for years, if at all. The classic case is the Royal Commission into Aboriginal Deaths in Custody. It was established in 1987, reported in 1991, but since then little has changed to turn around the tragic incidences of Aboriginal people dying while in custody. For those affected, the royal commission report remains unfinished business. 

The same can be said about the banking royal commission, with too few of its recommendations implemented, including key ones on responsible lending. That inquiry was, more than most commissions, a lawyers’ picnic — not so much due to the commission’s own staff but because of the phalanxes of lawyers hired by the banks and other financial institutions to assist them in giving evidence. 

So before calling for a royal commission, consider that it will cost millions, might not do what you want, and might never be implemented. 

There are still good reasons for royal commissions — either to investigate wrongdoing or compliance issues that cannot be uncovered in other ways, or to give people who have been affected by tragic circumstances a chance to tell their stories (as for example with institutionalised child sex abuse, and likely with veterans’ suicides). 

For most policy issues, however, a royal commission is a poor substitute for properly resourcing the public service to do policy well: consult widely, gather evidence, build consensus among interested parties, investigate and pilot test options, refine in the light of practical on the ground results from those tests, develop enabling legislation and regulation, assess costs and benefits.  Yes, many of these things are also done by royal commissions — but at higher cost and with far more delay. 

Disclosure:  the author was employed as a Senior Advisor to the Royal Commission on Aged Care Quality and Safety; this article makes no comment on that royal commission. 


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