Royal Commissions (VCE SSCE Legal Studies): Revision Notes

Royal Commissions

What is a Royal Commission?

A Royal Commission is the highest form of inquiry into matters of public concern and importance in Australia. These are major public investigations that the government establishes to examine areas or issues of significant public interest.

Royal Commissions are called 'royal' because they are created by Australia's head of state through their representatives (the Governor-General at Commonwealth level or the governor at state level). However, in practice, it is the government that decides to initiate a Royal Commission in response to a major issue.

Special powers of Royal Commissions

Royal Commissions have wide-ranging powers that enable them to conduct thorough investigations:

• Summon witnesses: They can compel people to attend hearings
• Obtain evidence under oath: Witnesses must give evidence under oath or affirmation
• Cross-examine witnesses: Individuals can be questioned extensively
• Obtain documents: They can compel organisations and individuals to produce relevant documents
• Hold public and private hearings: Most hearings are public, but private hearings can be held when necessary

How Royal Commissions are established

The power to establish a Royal Commission is provided by statute. At the Commonwealth level, this power is granted through the Royal Commissions Act 1902 (Cth). In Victoria, the power is granted under the Inquiries Act 2014 (Vic).

The establishment process:

1. The government decides that a Royal Commission is needed in response to a major public issue or concern
2. The government advises the King's representative (Governor-General or state governor) to establish the inquiry
3. The King's representative issues letters patent, which specify:
   • The person or persons appointed to constitute the Royal Commission
   • Who will chair the inquiry (if there is more than one commissioner)
   • The terms of reference (what the Royal Commission must investigate)
   • The timeframe for reporting
4. The government provides funding for the Royal Commission
5. The chairperson engages people to assist with the inquiry

Processes used by Royal Commissions

Once established, Royal Commissions conduct extensive investigations using various methods:

1. Consultation and research papers

Royal Commissions prepare consultation papers (also called issues papers) that:

• Outline the matter being investigated
• Pose questions about possible reforms
• Provide guidance for individuals and organisations wishing to make submissions

2. Consultation sessions

These involve:

• Round-table discussions with experts
• Community-level discussions
• Consultations with interested individuals and organisations

3. Public submissions

Royal Commissions invite community input through written and oral submissions. This allows individuals who cannot attend consultation sessions to contribute their views. In some cases, submissions can be made anonymously, particularly in sensitive inquiries.

4. Document collection

Royal Commissions have extensive powers to compel organisations and individuals to produce relevant documents. This helps commissioners understand issues and identify potential misconduct.

5. Public hearings

Royal Commissions hold public hearings to gather evidence relevant to their terms of reference. At these hearings, they can:

• Summon people to attend
• Require witnesses to give evidence under oath or affirmation
• Subject witnesses to cross-examination
• Hold private hearings when necessary

6. Final report and recommendations

After completing their investigation, Royal Commissions prepare a report that:

• Outlines findings
• Makes recommendations for addressing the matter under investigation
• May include recommendations for changes in law, government policy, or administrative systems
• Can recommend that individuals be prosecuted for unlawful conduct (although prosecutors are not required to act on these recommendations)

Examples of Royal Commissions

Commonwealth Royal Commissions:

• Aboriginal Deaths in Custody (1987–91)
• Institutional Responses to Child Sexual Abuse (2016–17)
• Aged Care Quality and Safety (2018–21)
• Violence, Abuse, Neglect and Exploitation of People with Disability (2019–22)
• Robodebt Scheme (2022–23)

Victorian Royal Commissions:

• West Gate Bridge collapse (1971–72)
• Esso Longford Gas Plant accident (1998–99)
• 'Black Saturday' Bushfires (2009–10)
• Management of Police Informants (2018–2020)
• Victoria's Mental Health System (2018–2021)
• Yoorrook Justice Commission (2021–2025)

Case study: Yoorrook Justice Commission (2021–2025)

In May 2021, the Governor of Victoria established the Yoorrook Justice Commission, Australia's first formal truth-telling body for First Peoples. This Royal Commission was created to officially hear, record and address the truths about historical and ongoing injustices experienced by First Nations peoples in Victoria from colonisation in 1788 to the present.

Terms of reference

The Yoorrook Justice Commission was established to inquire into and report on:

• Historical systemic injustices including:

  • Cultural violations and denial of First Peoples' law
  • Theft and destruction of cultural knowledge and property
  • Massacres, wars, killing and genocide
  • The Stolen Generation (forced removal of children from families)
  • Other unfair child protection, family and welfare policies

• Ongoing systemic injustices in areas such as:

  • Law enforcement and the criminal justice system
  • Healthcare
  • Housing
  • Education
  • Employment
  • Other areas of economic, social and political life

• Causes and consequences of systemic injustice and how it can be fairly acknowledged and redressed in a culturally appropriate way

Information gathering process

The Royal Commission used culturally appropriate methods to gather information:

• Travelled throughout Victoria to meet with First Peoples' Elders
• Held group 'yarning circles' and private meetings
• Participated in public meetings at schools, universities, cultural heritage centres and religious organisations
• Undertook public hearings (called wurrek tyerrang) to gather evidence
• Accepted written and oral submissions
• Accepted First Nations artwork and artefacts
• Had power to compel individuals (such as public servants) to give evidence under oath

Within one year, the Commission had conducted at least 29 Elders' yarning circles and on-Country visits, and generated extensive media coverage.

Interim report (June 2022)

The interim report outlined:

• Progress to date
• The approach to analysing information received
• Priority areas for the next phase, particularly:
  • State-sanctioned removal of First Peoples' children from families
  • Continuing injustices in the criminal justice system
• The connection between child removal, justice system inequities and other ongoing justice issues

Case study: Robodebt Royal Commission (2022–23)

Background to the Robodebt Scheme

In 2016, the Federal Government established the Online Compliance Intervention (OCI) system to ensure people receiving welfare benefits from Centrelink met qualifying criteria. The system automatically compared individual income information with 'average income data' from the Australian Taxation Office to identify potential overpayments.

The wrongful debt recovery notices caused severe financial hardship and emotional stress. In May 2020, the Government discontinued the defective 'Robodebt Scheme' and agreed to reimburse victims. In November 2020, the Government offered a further $112 million in compensation to settle a class action (a legal proceeding where a group of people bring a claim together in the name of one person).

Purpose of the Royal Commission

In August 2022, the Governor-General established the Royal Commission into the Robodebt Scheme to examine:

• Who designed and set up the scheme, why it was implemented, and any concerns raised about its legality or fairness
• The use of external (non-government) debt collectors
• Concerns raised after the scheme was implemented
• The intended or actual outcomes of the scheme, including impacts on individuals and families and the costs
• Ways to prevent similar failures of government administration in the future

Inquiry process

With a budget of $30 million and eight months to complete its work, the Royal Commission:

• Accepted written and oral submissions from the public (via website, email, phone or paper form)
• Undertook 46 days of public hearings where senior government officials and public service workers were called as witnesses to give evidence under oath
• Compelled government departments to produce documents (close to 1 million documents were produced)
• Called senior government members to answer questions, including former Prime Minister Scott Morrison and former Minister for Human Services Marise Payne
• Heard from government agency employees who had raised concerns about the scheme
• Broadcast all hearings via livestream on the Royal Commission's website
• Made transcripts available to the public

Recommendations

The final report (July 2023) outlined failings in how the Robodebt Scheme was set up, implemented and monitored. Key findings included that senior government officials ignored early legal advice that the scheme was likely to be unlawful.

The Royal Commission made recommendations to ensure similar failures do not occur again, particularly that Services Australia (which manages Centrelink) should:

• Design policies and processes with primary emphasis on the recipients it serves
• Have regard to vulnerable people who may be affected by compliance programs when designing such programs

The ability of Royal Commissions to influence law reform

Royal Commissions can be an effective way to influence law reform, but they have both strengths and limitations.

Strengths

Political justification for reform

• Governments can use Royal Commission findings and recommendations to justify making changes in law and government policy
• Because the government asks Royal Commissions to investigate important matters, they may be more likely to act on recommendations

Raising public awareness

• Royal Commissions raise community awareness and interest in particular areas of concern
• They encourage individuals and groups to make submissions and undertake their own initiatives (petitions, demonstrations, media campaigns) to influence law reform

Measuring community views

• Royal Commissions can gauge community views through consultations and public submissions
• This helps ensure reforms reflect community values and concerns

Comprehensive investigation

• Royal Commissions can investigate areas thoroughly, allowing government to initiate new laws that comprehensively cover the area inquired about

Wide-ranging powers

• Their power to call anyone to appear and give evidence ensures thorough examination of issues
• They can compel production of documents and evidence that might otherwise remain hidden

Independence and objectivity

• Royal Commissions are independent of parliament
• They are more likely to remain objective and unbiased in making recommendations

Weaknesses

Loss of credibility

• Royal Commissions may lose credibility when governments exclude potentially politically damaging areas from terms of reference
• They may be called on matters to win voter support rather than for genuine reform

Mixed influence on law reform

• The extent to which a Royal Commission influences law reform depends on the subject matter and whether there is bipartisan support
• They may be used as tools against political opponents or to avoid addressing more critical issues

No obligation to implement recommendations

• Parliament has no obligation to support or introduce legislation adopting Royal Commission recommendations
• Recommendations may be ignored if politically inconvenient

Time and cost

• Royal Commission investigations can be time-consuming (average two to four years) and expensive (e.g. the 2001 Royal Commission into the Building and Construction Industry cost $60 million)
• The lengthy process may mean reforms are delayed

Selective investigation

• Royal Commissions choose how to conduct investigations
• Certain individuals or organisations with relevant information may not be called to give evidence
• Important information might not be revealed

Timing and terms of reference impact

• The ability to influence law reform depends on timing of reporting and terms of reference
• For example, if reporting immediately after an election, influence might be diminished

Exam guidance

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