THE POLITICISATION OF ROYAL COMMISSIONS AND THE IMPACT ON POLICY
The high profile public hearings and subsequent recommendations of the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry has once again put royal commissions at the forefront of public discourse. Since 2013, there have been six royal commissions at the federal level along with many others conducted by states around the country. While royal commissions and other such commissions of inquiry have been a part of the Australian legal system since 1902, in recent times there appears to be a significant degree of political motivation in their establishment. This calls into question whether they are the appropriate vehicle to achieve some of the objectives they seek to realise.
Origins and purpose of royal commissions
At the federal level, royal commissions were established through the Royal Commissions Act 1902, which empowers the Governor-General to initiate inquiries with specific terms of reference and appoint a Commissioner to lead the process. Royal commissions are established to investigate areas of wrongdoing that are of significant public concern and are supported by vast range of powers including the ability to summon witnesses and, compel documents and other evidence. A key feature of royal commissions is their transparency, with witnesses being called to give evidence in public hearings at the full scrutiny of the media and the public at large. These features mean that royal commissions are well designed to investigate instances of wrongdoing, but what about the impact of their recommendations on the development of policy?
The politicisation of recommendations and the impact on policy
In The Mandarin last week, Dr Peter Wilkins and Professor John Phillimore explored the failings of royal commissions with respect to the development of policy. They explained that the generally accepted components of good policy design, namely wide consultation, identification and assessment of multiple options, consideration of unintended consequences, assessment of public value and the potential for co-design, were not part of the remit of a royal commission. They cite research by Eburn and Dover which was published in the Australian Journal of Public Administration in 2015 which analysed approximately 50 inquiries such as royal commissions and other quasi-judicial inquiries and found that lessons from one event may not necessarily be transferable to another and that royal commissions may not have the capacity to consider the impact of their recommendations on other sectors.
In addition to these concerns about how royal commissions develop their recommendations is the overt politicisation of both the acceptance and implementation of these recommendations. More and more, under the weight of public and opposition pressure, government’s are committing to implement the full suite of recommendations made by a royal commission prior to receiving the final report. While there is a degree of nobility in this kind of commitment as recognition of the importance of the issue being examined by the particular commission and the need for change, it often overlooks the complexity of the situation. The development of policy is the responsibility of the public service, which is equipped with the resources, expertise, background and time to work with stakeholders and craft well-considered responses to problems facing society. To commit to implement recommendations without the opportunity for the public service to assess how they work with existing policies and programs, what order they should be rolled out and how much they will cost has the potential to cause unforeseen issues.
Options for reform
Wilkins and Phillimore suggest that one solution to this problem is to restrict the role of royal commissions to the identification of wrongdoing and allocating responsibility for policy development to another process or inquiry type. This would be a positive evolution for the royal commission process in Australia and should be supported by appropriately incorporating the public service in the policy development component which is vital to ensuring the broader objectives of the royal commission are achieved. Another complementary option is what has been done by the Victorian Government for the Royal Commission into Mental Health.
In recent days, the terms of reference and the commissioners were announced. This was noteworthy for a few reasons – it is the first royal commission with a majority of female commissioners and is likely one of the few royal commissions without a former judge included as a commissioner. It has also been positioned by the Premier as an ‘expert’ lead inquiry, with each of the commissioners having significant previous experience in the mental health sector. The depth and diversity of the skills and experience each of the four commissioners bring is certainly a positive step in addressing the potential issues around policy development and should be a model that is followed in future royal commissions.
With the Royal Commission into Aged Care Quality and Safety commencing late last year, the Victoria Royal Commission into Mental Health beginning in March and a Royal Commission into Abuse in the Disability Sector on the horizon, royal commissions will continue in the headlines well into the future.
If governments continue to go down the path of instituting royal commissions, then there should be a greater focus on how to improve these processes to ensure that they can achieve their objectives in the modern context. Productive first steps in this should include the appointment of policy experts as commissioners and the separation of the inquiry and policy development functions, so that the final recommendations are designed in a practical and efficient way that fundamentally addresses the problems the inquiry was designed to resolve.
Sharaf Khan – Manager, Client Strategy
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