12. Royal Commissions Of Inquiry And Statutory Tribunals
From Human Rights In Australia by LJM Cooray (1985)

Introduction
The Nature And Functions Of Commissions Of Inquiry
The Problems
Suggestions
The Lessons From The Costigan Commission
Royal Commissions And The Independence Of The Judiciary

Introduction
The recent proceedings and reports of the Costigan Royal Commission have given rise to a great deal of public controversy concerning the propriety of recourse to such inquiries.

A large measure of debate was concentrated on the alleged denial of a fair hearing to particular individuals and the damage caused to the reputations and interests of persons who have not been adequately heard in their defence.

The controversy resulted in numerous conflicting views being published in the media. In view of the comprehensive coverage of the issues, it is not intended to provide a detailed analysis. Some of the important principles which arose in the public debate are discussed.

12.1 The Nature And Functions Of Commissions Of Inquiry
It is a feature of modern democratic governments that inquiries are from time to time conducted into matters of public importance. Such inquiries are not judicial proceedings but are in the nature of fact finding exercises. Commissions are ordinarily appointed at times of grave public disquiet about some aspect of government or some problem of widespread public concern. In times of such crises the normal investigatory procedures and judicial inquiries may seem inexpedient and inappropriate. This is so particularly where there are political ramifications and where the conduct of public officials is at issue. Again, if the matter requires special expertise (such as for example, an inquiry into the financial system or into the practices of a particular trade) there may be no feasible alternative to a Commission proceeding.

Commissions of Inquiry have the power to take evidence upon oath and to call for persons and documents. Their authority is protected by rules regarding contempt. But they do not make conclusive or binding decisions. Usually, they would report on facts found in investigations and make recommendations for remedial actions. The scope of their inquiries would be determined by the specific terms of reference. The finding and reports are meant to assist the appropriate organs of government to take further action under the law. Parliament, in consequence of Commission recommendations, may enact legislation to remedy the problems uncovered. If offences are disclosed, the law officers may decide to institute regular criminal proceedings against individuals.

In the United States of America the usual practice is to investigate matters of public importance through Congressional Committees or Special Prosecutors. In the United Kingdom it has generally been regarded that such inquiries are best conducted by independent individuals of high competence and standing (usually judges) so as to remove such matters from the area of partisan politics. The British practice has been followed in Australia.

12.2 The Problems
Although a Commission of Inquiry cannot hand down final judgements concerning individuals, such proceedings can and sometimes do give rise to difficult questions.

The proceedings of some Commissions involve investigatory functions as well as functions resembling the conduct of adversarial contests such as those which occur in courts. More often than not a Commission will commence with an investigation and culminate in an adversary situation. At the investigatory stage, allegations against individuals and bodies may come to light and where the allegations carry substance, the accuser will be confronted by the accused appearing in his defence at a subsequent adversarial stage. Some allegations, however, will remain undetermined.

Given the communication potential of the modern media, the proceedings of some Commissions are conducted in a blaze of publicity. This situation can result in serious damage to reputations and interests of persons particularly at the investigatory stage where they have limited or no opportunity to participate. A Commission would attempt to conduct its purely investigatory functions without publicity but this is often difficult in modern conditions. There is also some constraint placed on secret hearings owing to the demand for public scrutiny at all stages. The Commissions therefore face an extremely difficult task of balancing the interests of individuals against legitimate public curiosity about its own conduct.

The proceedings of a Commission are not subject to the ordinary rules of evidence and judicial procedure. Commissions are unfettered by such rules because of the nature of the inquiries they are called upon to undertake and also because their decisions are not final. This however, can lead to the airing of unjustified allegations as well as insufficient determination of allegations. Many questions can remain unresolved and those which are resolved may not stand strict judicial testing. A certain amount of damage to individual interests will therefore inevitably occur.

12.3 Suggestions
It cannot be seriously doubted that there are in fact situations where a Royal Commission is desirable or necessary. An example is a situation where there is public disquiet about possible widespread involvement of police officers in organised crime. In such circumstances the efficacy of the normal police investigatory process could be seriously questioned. Persons responsible for illegal activities may be in positions of such political and economic power that they could easily evade ordinary methods of investigation. In such circumstances, a Commission proceeding may be the only feasible method of bringing to light information which would otherwise be suppressed.

Against these considerations is the reality that in modern times, the consequence of public allegations can be as harmful as actual judicial conviction for an offence. Therefore, a person who stands arraigned before a Commission would often be deserving of the traditional protection that the system of justice affords to persons facing judicial proceedings.

Commission proceedings, therefore, throw up a classic instance of a conflict of interests arising in a democratic society. The problem is a difficult one but the damage may be minimised if certain principles and practices are adopted. Among them would be the following:

  1. Commission proceedings should never be regarded as a substitute for judicial proceedings and as such should be resorted to in exceptional situations. They should be regarded as inappropriate in relation to allegations of a criminal nature unless the circumstances are particularly compelling.
  2. Investigatory aspects of proceedings should, as far as possible, be conducted in private in order to avoid publicising allegations without commensurate publicity for defence. A major responsibility for this safeguard rests with the media.
  3. Where allegations come to light, a Commission should endeavour to provide maximum opportunity to the person affected to conduct his defence in public. This would call for comprehensive observance of the rules of evidence and fair procedure.
  4. Those appointed to serve on Commissions should be persons of the highest competence and integrity who enjoy unquestionable public confidence. This is however easier said than done. If Commissions proliferate it will not be possible to find sufficiently competent individuals who have the time and the will to serve on them.

12.4 The Lessons From The Costigan Commission
The Costigan Commission proceedings and its aftermath provided many important lessons. The most important was that decisions affecting rights and duties of citizens or decisions which involve the apportioning of blame are best taken by duly constituted courts acting subject to the time tested procedural and evidentiary safeguards.

One particular finding of the Commission concerned the death of an individual which the police had decided was a case of suicide. The Commission felt that a murder had been committed and raised suspicions of criminality on the part of certain identifiable persons. This conclusion was reached after much deliberation and consideration of expert testimony. But a subsequent judicial inquiry found the suspicions to be completely unfounded and that the Commission's findings were based on inadequately supported reasons. It is not suggested that the Commission acted unfairly or incompetently. Its procedures and methods were however quite unsuited to the determination of an issue concerning alleged criminal conduct.

The mitigating circumstance in this finding was that it did not constitute a final decision and therefore did not affect the liberty of the subject. Although Royal Commissions have no power to give binding determinations, there are numerous other tribunals functioning in Australia which do possess such powers. The decisions of these tribunals affect not only the reputation of citizens but also their substantive material rights. Often they directly affect the livelihood of persons. See further chapter 13.3. The Costigan Commission received widespread media attention and public discussion of pros and cons mainly because its findings affected persons with power and influence in the society. However the prejudice caused daily to the substantive rights of ordinary citizens by hundreds of bureaucratic regulatory and adjudicatory agencies does not receive the close public scrutiny accorded to the "Goanna" case. The immense power of non-judicial tribunals over the lives of the ordinary citizens is not an issue which the media investigates, except to report on adverse findings and allegations against individuals.

12.5 Royal Commissions And The Independence Of The Judiciary
The appointment of Royal Commissioners creates problems particularly where the issues to be investigated involve a mixture of law and policy or policy alone (as distinct from investigation of facts or an enquiry into the existing state of the law). The proliferation of Commissions means that it is very difficult to find competent individuals who have the time and the will to serve on them.

The appointment of judges to Royal Commissions may have implications for judicial independence. Where a judge is asked to merely use his legal training and skills no problem arises. Thus a judge can confidently and competently deal with an enquiry on the state of the law or on the need for reform of particular areas of the law. But a different perspective arises when a judge is not so limited by the terms of a Royal Commission. Justice Hope investigated ASIO. Justice Street investigated whether certain allegations against the Premier of New South Wales were justified. Here the judge must operate in the realm of politics. This has unfortunate side effects for judicial independence.

Therefore the whole issue requires reconsideration. The difference between the United States and the United Kingdom approach is referred to above in chapter 12.1. In the context of the above two factors, there seems to be a case for following the American system. The number of Parliamentarians in Australia periodically multiplies. Prime Ministers are finding it difficult to keep back-benchers occupied. Thus there could with advantage be a move towards the House of Representatives in Australia setting up Committees and following the path the Senate has taken. Both Houses could establish Committees to review issues which are political or involve a mix of law and politics, as an alternative to appointing Royal Commissions staffed by independent judges. The move to appoint full-time special Commissioners or Prosecutors is to be welcomed. If judges are appointed they should resign their judicial office.