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Australia: Counting the costs of a Royal Commission - 16 May 2013

The 2013-14 Federal Budget has allocated $434.1 million over four years (including $66.8 million in 2012-13 and the already announced $43.2 million of capital funding for counseling and support) to fund the Royal Commission into Institutional Responses to Child Sexual Abuse (the Royal Commission). The Australian Government has identified the inquiry by the Royal Commission as a key priority for this year's Federal Budget. In delivering the Budget, Federal Treasurer, the Hon Wayne Swan MP, explained that the Australian Government has provided the Royal Commission "with the resources required to go about its important work and ensure survivors have the support they need." Commitment of resources of this size, making up close to two-thirds of the Attorney-General's portfolio, raises questions about why royal commissions are frequently considered appropriate in Australia as independent bodies of inquiry and the effect such continued implementation could have on the legitimacy of such an inquiry.

The Royal Commission into Institutional Responses to Child Sexual Abuse

On 12 November 2012, the Prime Minister announced that a Commonwealth royal commission would be established to investigate allegations of child sexual abuse in institutions in Australia. Yesterday, the Prime Minister indicated that the Royal Commission "is perhaps the most significant and far-reaching Royal Commission in Australia's history". The six member Royal Commission chaired by Justice Peter McClellan was formally established on 11 January 2013 by the Governor-General and is dedicated to investigating cases where institutions and organisations have failed to protect children, and to make recommendations on how institutions and governments can improve laws, policies and practices to prevent and better respond to such child sexual abuse. The Commissioners have been appointed for three years and are to prepare an interim report by 30 June 2014, with a final reporting date initially set for no later than 31 December 2015.

The Royal Commission is the first investigation at the Commonwealth level into child sexual abuse in institutions in Australia. The terms of reference, as set out in the Letters Patent issued by the Governor-General, direct the Commission to investigate the experiences of people directly or indirectly affected by child sexual abuse in an institutional context. The reference to institutions is wide ranging to cover any public or private body, agency, association, club or organisation, whether incorporated or not, and may include religious organisations including associated schools and parishes, child care centres, state government child protection agencies, juvenile justice centres, and refugee detention centres. As suggested by Defence Minister Stephen Smith in media reports late last year, the terms of reference may even be broad enough to include investigation of the sexual abuse of cadets in the Australian Defence Force. The first public sitting of the Royal Commission was held on 3 April 2013 and confirmed that the Australian Defence Force would be included in the investigations.

The unique features of royal commissions

Since Federation there have been 128 Commonwealth royal commissions. On the one hand, royal commissions can be investigatory in nature, convened to investigate allegations of impropriety or specific catastrophic events (such as floods or bushfires). Such royal commissions tend to focus on identifying the "truth" and the commission's powers of investigation are most useful in such instances. On the other hand, royal commissions can provide advice and options to governments of a policy nature. The majority, however, since the late 1970s, have been of the investigatory nature.

Investigatory royal commissions are often referred to as an 'institution of last resort' for governments. This is particularly so for handling issues of high political importance. The present Royal Commission clearly falls into such a category.

It is important to recognise the unique features of a royal commission that need to be taken into account when determining what a royal commission can achieve compared to other forms of inquiry or investigation. At its heart, a royal commission is a formal public inquiry into an issue defined as a matter of public importance. The issue to be investigated by a royal commission must have a level of seriousness and controversy to justify the use of a royal commission instead of some other form of public inquiry, such as a task force, committee or review. Royal commissions are temporary, ad hoc inquiries that investigate an issue and publicly report the findings. Royal commissions are not passive inquiries. A fundamental outcome of a royal commission is to make recommendations of a non-binding nature relating to the issue under inquiry. Ultimately, it does not provide a means for compensation or prosecution, even though the creation of a royal commission does not prevent such future action proceeding, as is evident in any number of recent class actions arising from catastrophic events.

The powers under the Royal Commissions Act

Royal commissions can be distinguished from other forms of public inquiry in that they are formally appointed by the Executive, rather than Parliament, and are established under specific legislation, the Royal Commissions Act 1902 (Cth) (the Act). The statutory foundation of a royal commission confers unique and coercive powers of investigation. Section 2 of the Act enables a royal commission to compel the production of evidence, including the power to summon witnesses to give evidence under oath or produce documents. It is an offence under Section 6L of the Act to prevent another person from giving evidence or producing documents that may be required. Section 4 of the Act empowers a royal commission to obtain search warrants in relation to the inquiry. It is an offence under Section 6K of the Act if, in the course of the investigation, it is discovered a person destroys or conceals a document that may be required in evidence.

Although many powers under the Act extend beyond those available to courts, the Act provides that the giving of evidence or provision of documents may not be imposed on those with a 'reasonable excuse'. It is yet to be determined whether religious confession will be deemed a reasonable excuse to not provide evidence.

The Act was amended in March this year in support of the Royal Commission to include measures to facilitate the provision of information by persons affected by child sexual abuse in institutional contexts in a setting less formal than a hearing, referred to as a 'private session', as detailed in Part 4 of the Act. Such a setting recognises the trauma and difficulty many participants will encounter when providing information to the Royal Commission.

When is it appropriate to establish a royal commission?

Although established by the Executive, a fundamental characteristic of a royal commission is the independence of the inquiry from the government. This is important to ensure public confidence in such investigations, particularly when the inquiry involves maladministration of the government.

However, given the continuing popularity of royal commissions as a response to a variety of issues in Australia, it is a matter of concern that the legitimacy of such inquiries may diminish if royal commissions are established too frequently. To maintain the legitimacy and authority of royal commissions, there must be a clear distinction between cases where royal commissions will be preferable and those where other forms of official inquiry might be more suitable. Royal commissions are always expensive, as is demonstrated by the commitment to the Royal Commission in this year's Budget. It is clear that royal commissions should only be convened to address issues of extremely substantial public importance, where no lesser form of public inquiry would be appropriate. The extensive powers under the Act exist to enable the investigation of particularly serious issues that cannot suitably be investigated by another mechanism and these need to be recognised to justify the high costs involved.