Sackville, Justice Ronald --- "Law reform agencies and Royal Commissions: toiling in the same field?" (FCA) [2005] FedJSchol 10

AUSTRALIAN LAW REFORM COMMISSION

30TH ANNIVERSARY SYMPOSIUM:

LAW REFORM AGENCIES

AND ROYAL COMMISSIONS:

TOILING IN THE SAME FIELD?

PAPER BY

JUSTICE RONALD SACKVILLE*

Darling Harbour,

9 June, 2005

* Judge, Federal Court of Australia

The Characteristics of Law Reform Agencies

Institutional law reform is a surprisingly recent phenomenon in Australia. The first full-time law reform agency, the New South Wales Law Reform Commission (NSWLRC), was created by statute in 1967.[1] As with so many new ideas adopted in that era, it was borrowed from England, the model being the recently established English Law Commission.[2] Another six years elapsed before the Australian Parliament created the Australian Law Reform Commission (ALRC) as a national body responsible for systematically developing and reforming the law.[3]

During the relatively short period since these events—a mere three decades in the case of the ALRC—law reform agencies have carved out an important policy-making role in all Australian jurisdictions. While they have had to endure the usual vicissitudes associated with dependence on continuing government funding, their position as influential legal policy makers appears to be secure. Their testament is not only an impressive record of published reports, but Commonwealth, state and territory legislation giving effect to many of their proposals for change.

All law reform agencies, by hypothesis, are concerned with ‘law reform’. The governing Commonwealth, state and territory legislation does not mark out the limits of that concept with any precision, probably because the task is impossible. The statutory functions of the ALRC, for example, are to review Commonwealth laws, relating to matters referred by the Attorney-General, for the purposes of ‘systematically developing and reforming the law’, particularly by:

‘(i) bringing the law into line with current conditions and ensuring that it meets current needs; and
(ii) removing defects in the law; and
(iii) simplifying the law; and
(iv) adopting new or more effective methods for administering the law and dispensing justice; and
(v) providing improved access to justice.’[4]

A framework as broad as this allows for references on topics ranging from the specifically legal or forensic, such as civil admiralty jurisdiction and costs shifting in litigation,[5] to much more wide-ranging inquiries addressing issues such as gene patenting and human health, and equality before the law.[6]

Despite differences in their charters, full-time law reform agencies share at least five characteristics, apart from their focus on law reform:[7]

• they are permanent statutory bodies;
• they consult widely among interest groups and provide opportunities for community participation in shaping reform proposals;
• much of their work is carried out in public and, in particular, their reports are tabled in parliament;
• they are independent, in the sense that their members exercise their own judgment in weighing up policy issues and formulate recommendations free from governmental interference or direction; and

8. since their members are appointed and their programs are largely determined by elected governments,[8] and since implementation of their recommendations usually requires legislation, the agencies enjoy a degree of democratic legitimacy.

A final attribute of law reform agencies is that, despite the interdisciplinary nature of a good deal of their work, they are predominantly directed and staffed by lawyers. It is true that as the agencies have ventured more frequently beyond the confines of ‘lawyers’ law’ into areas of broad social policy, non-lawyers have made greater contributions to many law reform projects. Illustrations of an interdisciplinary approach are provided by the NSWLRC’s reference on de facto relationships[9] and the ALRC’s projects on Aboriginal customary law and the protection of human genetic information.[10] It is also true that the lawyers who now occupy full-time positions in law reform agencies tend not to be judges or practising lawyers (as was once usually the case), but to have an academic background. Nonetheless, law reform remains very much the province of lawyers.

Specialist Law Reform Bodies

Agencies that incorporate ‘law reform’ in their titles do not enjoy a monopoly on making law reform proposals to governments. A variety of more or less permanent bodies perform similar functions, usually in specialist areas. Some such bodies are set up by statute. For example, the Administrative Review Council is a statutory body responsible for advising the Attorney-General on the federal system of administrative law,[11] while the Family Law Council has a corresponding role in relation to family law.[12] Other semi-permanent bodies are ministerial creations, such as the Copyright Law Review Committee and the Advisory Council on Intellectual Property. Despite the lack of a statutory basis, these specialist bodies have often brought about significant amendments to the existing law.[13]

Ad hoc inquiries can also contribute substantially to law reform. The most striking example is the transformation of federal administrative law brought about by the implementation in the mid-1970s of the proposals of the Kerr Committee.[14] The Access to Justice Advisory Committee, set up by the Commonwealth Attorney-General in 1993, put forward a range of law reform proposals,[15] some of which were picked up in the Government’s 1995 Justice Statement.[16] Obviously enough, the effectiveness of ad hoc inquiries in achieving reform is heavily dependent on the political will of the government receiving their reports to implement the recommendations, since the committees are normally disbanded on completion of their work. Nonetheless, ad hoc bodies appointed by a particular government can bring about change over time by influencing legislative developments in other jurisdictions. An example is the gradual implementation by some states of recommendations for reform of residential tenancy law and of debt enforcement procedures made in 1975 by the Australian Government Commission of Inquiry into Poverty.[17]

The statutory and ad hoc bodies to which I have referred obviously have many of the characteristics of law reform agencies. Indeed the statutory bodies can properly be classified as specialist law reform agencies. The non-statutory bodies have most of the same characteristics (other than a statutory foundation), but their activities tend to be more sporadic than those of full-time law reform agencies and their existence is more fragile. Moreover, although non-statutory committees often include distinguished people among their members, the absence of a statutory framework underpinning their functions can lead, rightly or wrongly, to perceptions that they enjoy less independence than their statutory counterparts.

Royal Commissions

Some history

Any assessment of law reform in Australia must take account of the role of Royal Commissions as policy makers. This is because virtually all governments in Australia appoint Royal Commissions or similar bodies, such as boards of inquiry, with what seems to be surprising regularity. The phenomenon is less surprising, however, when the history is taken into account.

The use of Royal Commissions by the Crown can be traced to the Domesday Book, compiled by Royal Commissioners sent by William the Conqueror into every county to record land titles.[18] In nineteenth century United Kingdom, Royal Commissions of Inquiry ‘came to their fullest development and most extensive use’.[19] Over 60 were appointed between 1800 and 1831, on topics ranging from bogs in Ireland and the election of Jurats in Jersey, to the administration of justice in England, Scotland and Ireland and the operations of the army and navy.[20] Between 1831 and 1900, some 356 Royal Commissions were established,[21] with the period of greatest activity occurring in the middle of the century.

The heavy reliance in Britain on Royal Commissions as the means of inquiring into social, economic, colonial and legal questions was due to a number of factors. The embryonic public service lacked the skills and resources to undertake the requisite investigations. Parliamentary committees were unwieldy: their membership tended to be both numerous and non-expert; the committees necessarily had a short life span; and they were frequently thought uncongenial to the aspirations of the Ministry. By contrast, Royal Commissions, although of uneven quality, were more politically predictable and, from time to time, produced thorough and authoritative reports on topics of great importance to a society undergoing an industrial revolution and a democratic transformation.

Given this imperial heritage, it was perhaps to be expected that the Australian colonies would take with alacrity to Royal Commissions and boards of inquiry. Indeed as early as 1854, in the aftermath of the Eureka stockade, the Victorian legislature conferred powers of compulsion upon boards and commissions of inquiry.[22] As Leonard Hallett observes, in this respect Victoria anticipated New South Wales by sixteen years and the United Kingdom by 67 years.[23] One commentator attributes the colonial enthusiasm for compulsory powers of inquiry to Australia’s penal origins.[24] Be that as it may, colonial governments utilised the power to appoint Royal Commissions and boards of inquiry liberally, with Victoria in particular establishing a large number of such bodies prior to federation.[25]

Soon after federation, the Commonwealth Parliament signalled its intention to follow the path of the colonies by enacting the Royal Commissions Act 1902 (Cth). Within five years of the enactment, successive Commonwealth Governments had appointed no less than 12 Royal Commissions. The topics for inquiry included policy issues of great significance to the fledging nation, such as the location of the seat of government (1903), customs and tariffs (1904), old-age pensions (1905) and the government of what is now Papua New Guinea (1906). Some of the inquiries were set up to investigate scandals or wrongdoing, such as wretched conditions on board troop ships (1902),[26] the murder of missionaries in British New Guinea (1904), and secret drugs and cures (1906) (exposing the evils of quackery and patent medicines).

The use of Royal Commissions by the Commonwealth in the hundred years since 1906 has not been markedly different from the pattern of the first few years after federation. In the years between 1907 and the end of World War II, the Commonwealth set up 70 Royal Commissions. Many of these were concerned with broad social, economic or political questions, such as national insurance (1923), child endowment and family allowances (1927), the perennial issue of taxation policy (1920, 1932) and the monetary and banking systems (1935). Others investigated the usual rich array of alleged improprieties or, in one case, a non-existent missing document.[27]

Only two of the Royal Commissions during this period inquired specifically into what might be regarded as law reform issues. The Royal Commission on the Constitution (1927) undertook the Sisyphean task of proposing amendments to the Australian Constitution.[28] The Royal Commission on performing rights (1932) investigated the adequacy of copyright law, particularly in relation to dramatic and musical performances. In addition, however, a number of Royal Commissions addressed particular legal questions in the context of much broader policy inquiries. For example, the Royal Commission on wireless (1927) considered the application of copyright law to radio broadcasts, within the framework of proposing a regulatory regime for the new industry. The Royal Commission on the Navigation Act (1923) focussed on the trade implications of Australian shipping, but revisited some of the legal issues addressed by an earlier inquiry.

The post-War experience at the Commonwealth level reflects changes in social and economic values, the geopolitical situation and technological innovation more than any rethinking of political attitudes to the appropriate uses of Royal Commissions. Television (1954) and FM broadcasting (1974) replaced the wireless as topics for inquiry. Petroleum (1973), meat production (1981) and grain storage and handling (1986) were the industries chosen for scrutiny. Conservative governments developed a propensity for investigating the activities of unions (1980, 1981, 2001), while the Cold War and its aftermath (tinged with domestic politics) generated inquiries into espionage (1954), the intelligence services (1974, 1994) and British nuclear tests in Australia (1984). Drugs (1977) and drug trafficking (1981) were thought to be sufficiently serious social problems to warrant national as well as state inquiries. Aboriginal affairs attracted close attention (1973, 1975, 1987), as land rights and Aboriginal disadvantage entered the public and political consciousness.

Royal Commissions and Law Reform Agencies

Obviously enough, Royal Commissions appointed exclusively to perform an investigative, fact-finding function will usually have little in common with law reform agencies. The very point of a Royal Commission is often to enable the Commissioners to investigate alleged wrongdoing, unhindered by many of the safeguards that constrain the criminal justice system. A Royal Commission established by the Commonwealth, for example, can compel the attendance of a recalcitrant witness, by arrest if necessary, and can override the privilege against self-incrimination.[29] By contrast, law reform agencies do not investigate or report on allegations of impropriety by individuals; nor generally do they have powers of compulsion.[30]

Royal Commissions whose terms of reference require or empower them to examine policy issues and to recommend legislative or administrative changes are, however, in a different position. Unlike purely factual inquiries, policy-oriented Royal Commissions resemble law reform agencies in important respects.

Thus, in practice, Royal Commissions are established pursuant to statute. They, too, almost invariably consult widely on the policy issues they intend to address, usually by inviting interest groups and members of the public to make submissions or to contribute to public meetings at which the issues under consideration are discussed. Royal Commissions, like reform agencies, conduct much of their business in public; certainly reports containing policy recommendations are presented to parliament and made public.[31] Royal Commissions also enjoy at least the same measure of independence from government, as do members of law reform agencies when acting on their references. Moreover, like law reform agencies, Royal Commissions can be said to enjoy a degree of democratic legitimacy, in that an elected government settles the Royal Commission’s terms of reference and appoints its membership. Similarly, an elected government, albeit not necessarily of the same complexion as that responsible for setting up the Royal Commission, decides which of its policy recommendations will be accepted and implemented.

The analogy between law reform agencies and Royal Commissions is by no means perfect, even for those inquiries concerned solely or principally with policy issues. The most obvious difference is that the former are permanent statutory bodies, while the latter are generally set up to inquire into a particular event or topic and are usually expected to complete their work within a relatively short period. Even so, this difference can be more apparent than real. One reason is that Royal Commissions, once established, tend to have a life of their own,[32] frequently venturing into fields not necessarily contemplated by the government establishing them. Furthermore, the publicity Royal Commissions generate can lead to them being granted further powers and undertaking more extensive investigations than originally intended.[33]

Another reason for the blurring of the distinction between permanent law reform agencies and ad hoc Royal Commissions is that Royal Commissions increasingly recommend the creation of permanent or semi-permanent bodies as a means of continuing or completing their work. For example, the Fitzgerald Inquiry into Illegal Activities and Police Misconduct in Queensland recommended in 1989 the creation of the Criminal Justice Commission (CJC), which was to be ‘permanently charged with the monitoring, reviewing, co-ordinating and initiating reform of the administration of criminal justice’.[34]

Similarly, 13 years later the Kennedy Police Royal Commission in Western Australia recommended replacement of the state’s Anti-Corruption Commission with a Corruption and Crime Commission modelled on the Queensland Crime and Misconduct Commission (which in turn had replaced the CJC in 2002).[35] The 1991 report of the Royal Commission into Aboriginal Deaths in Custody recommended elaborate strategies to monitor and report on the implementation of the Commission’s recommendations, including funding the Aboriginal and Torres Strait Islander Commission (ATSIC) to fulfil a ‘special responsibility’ to monitor progress.[36] More recently, the Royal Commission into the Building and Construction Industry recommended legislation to create an Australian Building and Construction Commission, as a specialised body to ‘police the industry’.[37] The functions of this body were to include monitoring the relevant legislation and recommending amendments where appropriate.[38]

Another point of apparent difference between law reform agencies and Royal Commissions is that the latter need not be headed by a lawyer. However, in practice, few Royal Commissions, at least at federal level, are chaired by non-lawyers. For example, of the 25 Royal Commissions established by the Commonwealth in the last 30 years, only three have been chaired by non-lawyers.[39] Royal Commissions, like law reform agencies, are therefore largely the province of lawyers.

A third distinction is that Royal Commissions frequently inquire into topics that cannot fairly be described as ‘law reform’, even on a generous reading of that term. In cases where the Royal Commission is required to undertake policy analysis involving possible changes to the law (as distinct from simply investigating alleged misconduct or disputed facts), the terms of reference may take the inquiry well beyond the boundaries of law reform. For example, the Fitzgerald Inquiry in Queensland, despite its prosaic formal title, made far-reaching recommendations designed to restore transparency and integrity to the Queensland electoral system and to the public administration of the State.[40] This is hardly a topic that is likely to be entrusted to a law reform agency.

Given that the differences between law reform agencies and Royal Commissions are not always as significant as they might appear, there can be a degree of overlap between their respective functions. The HIH Royal Commission, for example, in consequence of investigating the causes of Australia’s largest corporate collapse, made 61 recommendations on matters of corporate governance, financial reporting and assurance, regulation of general insurance, taxation and general insurance, and a support scheme for policyholders of failed insurers.[41] Many of these recommendations are precisely the kind of proposals that a law reform agency, apprised of the general problems disclosed by the Royal Commission’s investigations into the collapse, could be expected to make. Indeed, the apparently novel recommendation that policyholders should be protected against the failure of an insurer mirrors an unimplemented proposal made by the ALRC in its reference on Insurance Contracts as long ago as 1982.[42] It is fair to say that it should not take the collapse of a major insurer and an extremely expensive investigation by a Royal Commission to identify the need to protect policyholders from the risks presented by a mismanaged insurer.

The Royal Commission into Aboriginal Deaths in Custody, like the later HIH Royal Commission, performed both investigative and policy-making functions. The Deaths in Custody Commission painstakingly investigated the deaths of 99 indigenous persons in police or prison custody, occurring between 1980 and 1989. The report included a very large number of recommendations designed to address the social, health and economic disadvantages suffered by Indigenous people. The recommendations covered topics that would not ordinarily be found in reports of law reform agencies, such as proposals for improving housing and infrastructure for indigenous communities and strategies for minimising the social and health problems Aboriginal people experience in consequence of alcohol use.[43] But many of the recommendations were of a kind that could have been made—and in some cases have been made—by law reform agencies. These include proposals for reforming the sentencing process applied to indigenous offenders and suggestions for improving the relationship between indigenous people and the police.[44] Indeed, the Royal Commission endorsed the ALRC’s report on the Recognition of Aboriginal Customary Law and recommended that the Australian Government report on progress in its implementation.[45]

Towards Spheres of Influences

Governments have many diverse motives for creating Royal Commissions. Scott Prasser provides a list of ten ‘basic reasons’:

‘1. to respond to a crisis situation where immediate action of an independent kind is deemed necessary (eg a bridge collapse, ship collision);

2. to investigate allegations of impropriety concerning some aspect ... of government;
3. to obtain more information of a more specific kind so as to provide the government with a clearer approach to achieving broad policy goals;
4. to define policy problems in either more precise or more acceptable (politically or ideologically) terms;
5. to provide the government with a broader range of policy options than what is being suggested by the public service or even to ‘second guess’ those public service proposals;
6. to review in an impartial manner existing programs, policies and organisations;
7. to resolve public controversy and promote public participation and consensus about key issues through the inquiry process and membership;
8. to assist governments in managing the policy agenda by the illusion of action, deflection of criticism, or co-option of critics;
9. to justify government decisions already made but not publicised (and in some cases not formally decided);
   10. to help determine what to do about promises made in opposition.’[46]

As the list implies, some Royal Commissions are set up essentially for party-political advantage and with little genuine interest by their creators in obtaining detailed policy advice. Others are established as a response to (or in order to pre-empt) public demands to tackle apparent corruption or wrongdoing, or to allay community concern about man-made disasters or corporate collapses. Doubtless some are intended to provide expert, objective and informed advice on significant social, economic or regulatory issues, of a kind not easily obtained within the usual processes of government.

It will be seen that Prasser’s list includes several references to ‘policy goals’, ‘policy problems’ and ‘policy options’. Yet it seems to be relatively rare for Royal Commissions to be created solely or principally for the purpose of making policy recommendations. Their policy-making functions are normally incidental to investigations of alleged wrongdoing or particular events requiring examination. The Royal Commissions on Human Relationships and on Australian Government Administration provide examples of that rara avis, the exclusively policy-oriented Royal Commission.[47] In addition, very occasionally, Royal Commissions may choose to forego the exercise of compulsory investigative powers in order to concentrate on policy issues. An example is the South Australian Royal Commission into the Non-Medical Use of Drugs (1979), which eschewed the investigative law enforcement approach of its counterparts elsewhere[48] in favour of focussing on education, treatment, diversion programs and other social control mechanisms.[49]

The allocation of policy-making responsibilities between Royal Commissions (or other ad hoc inquiries) and law reform agencies is not necessarily the outcome of a careful assessment by governments of their respective attributes and deficiencies. However, if such a process were to be adopted, attention would have to be paid to the kind of inquiries to be undertaken, the expertise required and available, the research program appropriate for investigation of the policy questions, the most useful consultative mechanisms to ascertain community views, and the compatibility of the project with other tasks to be performed by the relevant body.

Another important factor in any decision to allocate responsibilities ought to be the nature and extent of resources needed by the respective bodies to carry out their policy-making functions. In this respect, given their track record, law reform agencies are remarkably inexpensive organisations. In 2003–04, for example, the ALRC received government funding of $3.27 million,[50] barely higher in real terms than its allocation in the heady early days of its existence.[51]

By contrast, Royal Commissions are almost invariably very expensive undertakings. This is in large measure because investigations into factual matters, especially alleged impropriety or misconduct, tend to be time-consuming and to require the services of highly paid professionals. The investigative techniques utilised are often elaborate, especially where the conduct under investigation is clandestine in nature. The cost of hearings at which practising lawyers appear to assist the Commission and to represent interested parties can be very substantial indeed.[52] Moreover, a Royal Commission incurs start-up costs that an existing agency can usually avoid. No doubt all of these factors contributed to the cost of a single Royal Commission, the inquiry into the collapse of the HIH Group, exceeding $39 million over its short life of eighteen months.[53]

A further factor that should bear on the allocation of responsibilities is closely related to the first. The techniques best adapted to formulating sound policy on legal issues are usually very different from the investigative and forensic techniques required to investigate and make findings on disputed factual matters. The first usually involves, among other things, a carefully constructed research program, the systematic gathering of empirical information, inter-disciplinary collaboration, detailed analysis and discussion of policy options, and long-term planning. The second usually requires investigative and policy skills, the ability to identify and follow paper or electronic trails, painstaking analysis of relevant documentation, innovative use of technology and compulsory powers, forensic experience, and the ability to collate and evaluate a vast amount of factual information.

A Greater Role for Law Reform Agencies

One of the lessons of three decades or more of institutionalised law reform in Australia is that permanent law reform agencies, generally speaking, discharge their policy-making functions thoroughly and in a cost-effective manner. By comparison, the policy-making functions of Royal Commissions tend to be incidental to their investigative and forensic responsibilities. Royal Commissions also tend to be very expensive undertakings, not necessarily well suited to policy-making. Australian governments contemplating setting up a Royal Commission should therefore consider carefully whether an existing law reform agency might not be a more suitable vehicle to carry out the policy-making functions that otherwise would be entrusted to a Royal Commission.

No doubt there may be difficulties in particular cases in separating investigative and forensic functions, on the one hand, from policy-making, on the other. But such difficulties ought not to be insuperable, particularly if there are strong grounds for thinking that a law reform agency is better equipped to formulate policy than the proposed Royal Commission. It is also true that additional resources may be required to enable law reform agencies to replace, at least in part, the policy-making role of Royal Commissions. But the money would be very well spent.

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1. [1]Law Reform Commission Act 1967 (NSW).
2. [2]Law Commissions Act 1965 c 22 (UK).
3. [3]Law Reform Commission Act 1973 (Cth) s 6(1).
4. [4]Australian Law Reform Commission Act 1996 (Cth) s 21(1)(a).
5. [5]Australian Law Reform Commission, Civil Admiralty Jurisdiction, ALRC 33 (1986); Australian Law Reform Commission, Costs Shifting: Who Pays for Litigation, ALRC 75 (1995).
6. [6]Australian Law Reform Commission, Genes and Ingenuity: Gene Patenting and Human Health, ALRC 99 (2004); Australian Law Reform Commission, Equality Before the Law: Justice for Women, ALRC 69 (1994).
7. [7]R Sackville, ‘The Role of Law Reform Agencies in Australia’ (1985) 59 Australian Law Journal 151, 152–157.
8. [8]Ordinarily, law reform agencies act on references made by the relevant Attorney-General. See, eg, Australian Law Reform Commission Act 1996 (Cth) s 21(1).
9. [9]New South Wales Law Reform Commission, De Facto Relationships, Report 36 (1983).
10. [10]Australian Law Reform Commission, The Recognition of Aboriginal Customary Laws, ALRC 31 (1986); Australian Law Reform Commission and Australian Health Ethics Committee, Essentially Yours: The Protection of Human Genetic Information in Australia, ALRC 96 (2003).
11. [11]Administrative Appeals Tribunal Act 1975 (Cth) ss 48, 51.
12. [12]Family Law Act 1975 (Cth) s 115(3).
13. [13]The Copyright Law Review Committee, for example, has prepared twelve reports, some on important issues, such as the protection of computer software and simplification of the Copyright Act 1968 (Cth). Unfortunately, it appears that the Committee has now been disbanded: ‘FTA spells the end for copyright group’ Australian, 10 June 2005, 4.
14. [14]Commonwealth Administrative Review Committee, Report, Parliamentary Paper No 144 (1971). The legislation, still in force, is the Administrative Appeals Tribunal Act 1975 (Cth), the Ombudsman Act 1976 (Cth) and the Administrative Decisions (Judicial Review) Act 1977 (Cth).
15. [15]Access to Justice Advisory Committee, Access to Justice: An Action Plan (1994).
16. [16]Commonwealth Attorney-General's Department, Justice Statement (1995).
17. [17]Committee of Inquiry into Poverty in Australia, Law and Poverty in Australia, Main Report No 2, Parliamentary Paper No 294 (1975), ch 3, 5.
18. [18]H Clokie and J Robinson, Royal Commissions of Inquiry: The Significance of Investigations in British Politics (1937), 28, 219.
19. [19]Ibid, 54.
20. [20]Ibid, 57–59.
21. [21]Ibid, 75–78. This figure excludes 32 special Commissions created to investigate allegations of bribery.
22. [22]Commissions of Inquiry Statute 1854 (Vic). The statute remained in force for only one year, but legislation to similar effect was passed a decade later: Statute of Evidence Act 1864 (Vic). See L Hallett, Royal Commissions and Boards of Inquiry (1982), 337–344; Bretherton v Kaye and Winneke [1971] VicRp 12; [1971] VR 111, 114 (Gillard J).
23. [23]L Hallett, Royal Commissions and Boards of Inquiry (1982). It was not until the Tribunals of Inquiry (Evidence) Act 1921 (UK) that Parliament passed similar general legislation.
24. [24]G Gilligan, ‘Royal Commissions of Inquiry’ (2002) 35 Australia and New Zealand Journal of Criminology 289, 291.
25. [25]As to Victoria, see D Borchardt, Checklist of Royal Commissions, Select Committees of Parliament and Boards of Inquiry (Part III Victoria) (1970). Similar checklists exist for other States and the Commonwealth. Although the compulsory powers of inquiries derive from statute, in the absence of specific legislation the source of the power to appoint inquiries is the prerogative of the Crown: McGuinness v Attorney-General (Vic) [1940] HCA 6; (1940) 63 CLR 73.
26. [26]The Royal Commission into conditions aboard the SS Drayton Grange, was actually appointed before the Royal Commissions Act 1902 (Cth) came into force.
27. [27]A Royal Commission in 1943 investigated an allegation by a Minister (EJ Ward) that a key document relating to the Brisbane line was missing from a file placed before the Advisory War Council. The Royal Commission found that the document did not exist.
28. [28]Some 60 years later the Constitutional Commission attempted the same task, with much the same results so far as implementation was concerned: Constitutional Commission, Final Report (1988). The inquiry was not set up under the Royal Commissions Act 1902 (Cth), but simply as an exercise of the prerogative power. Presumably this course was taken because the Commission did not require powers of compulsion.
29. [29]Royal Commissions Act 1902 (Cth), ss 6A, 6B. Evidence given under compulsion is not admissible in subsequent civil or criminal proceedings (other than for offences against the Act itself): s 6DD. See generally S Donaghue, Royal Commissions and Permanent Commissions of Inquiry (2001), ch 9.

[30] Cf Law Reform Commission Act 1967 (NSW), s 10(1), conferring certain powers of compulsion on the New South Wales Law Reform Commission.

31. [31]Not all Royal Commission reports are necessarily made public. For example, those that recommend prosecutions against individuals may be kept confidential. However, reports making policy recommendations are almost invariably made public.
32. [32]A point made by A P Herbert in Pageant for Parliament (Suggestions for the Same), first printed in Punch in 1934. The verse includes the following:

‘I am the Royal Commissioner on Kissing,

Appointed by Gladstone in ’74;

The rest of my colleagues are buried or missing;

Our Minutes were lost in the Great War’.

The entire piece is reprinted in H Clokie and J Robinson, Royal Commissions of Inquiry: The Significance of Investigations in British Politics (1937), 236–238.

33. [33]The Royal Commission into the Federated Ship Painters’ and Dockers’ Union (1984) travelled far beyond inquiring into the activities of a union and is best remembered for its focus on tax evasion. The Fitzgerald Inquiry prompted five amendments to the Commissions of Inquiry Act 1950 (Qld), designed to widen its powers: J Ransley, ‘The Powers of Royal Commissions and Controls Over Them’ in P Weller (ed) Royal Commissions and the Making of Public Policy (1994) , 23.
34. [34]Commission of Inquiry into Possible Illegal Activities and Associated Police Misconduct, Report of a Commission of Inquiry Pursuant to Orders in Council, Fitzgerald Report (1989), 308, 372 ff. As to the subsequent history of the CJC, including its merger in 2002 into the Crime and Misconduct Commission: see P Hall, Investigating Corruption and Misconduct in Public Office: Commissions of Inquiry—Powers and Procedures (2004), 264–267. The Fitzgerald Inquiry also recommended (at 370–371) the establishment of an Electoral and Administrative Review Commission.
35. [35]Royal Commission Into Whether There Has Been Any Corrupt or Criminal Conduct by Western Australian Police Officers, Interim Report (2002), ch 13, rec 13.1(a). See now Corruption and Crime Commission Act 2003 (WA); P Hall, Investigating Corruption and Misconduct in Public Office: Commissions of Inquiry—Powers and Procedures (2004), ch 7.
36. [36]Royal Commission into Aboriginal Deaths in Custody, National Report (1991), vol 5, 69. ATSIC itself was abolished in 2005.
37. [37]Royal Commission into the Building and Construction Industry, Final Report (2003), vol 1, 27, 29.
38. [38]Ibid, 40. The Australian Government has announced its intention to implement this recommendation.
39. [39]A list of Royal Commissions is available at Parliament of Australia Parliamentary Library, Royal Commissions and Commissions of Inquiry 1902–2004 <www.aph.gov.au/library> 12 May 2005. The three Royal Commissions chaired by non-lawyers concerned the Christmas Island phosphate industry; the efficiency of hospitals; and grain storage and handling.
40. [40]Commission of Inquiry into Possible Illegal Activities and Associated Police Misconduct, Report of a Commission of Inquiry Pursuant to Orders in Council, Fitzgerald Report (1989), 370–371. The Fitzgerald Inquiry put Queensland’s ‘system of government on trial’, although this was not an inevitable outcome of its terms of reference: P Finn, ‘The Significance of the Fitzgerald and the WA Royal Commissions’ in P Weller (ed) Royal Commissions and the Making of Public Policy (1994) , 33–34.
41. [41]HIH Royal Commission, The Failure of HIH Insurance (2003), vol 1, 1xv–1xxiv.
42. [42]Australian Law Reform Commission, Insurance Contracts, ALRC 20 (1982), xxxix, ch 14. The ALRC pointed out that 23 insurers (both authorised and unauthorised under the Insurers Act 1973 (Cth)) had failed between 1970 and 1980.
43. [43]Royal Commission into Aboriginal Deaths in Custody, National Report (1991), vol 5, 83 ff.
44. [44]Ibid, 90–95, 117–121.
45. [45]Ibid, 118. See Australian Law Reform Commission, The Recognition of Aboriginal Customary Laws, ALRC 31 (1986).
46. [46]S Prasser, ‘Royal Commissions and Public Inquiries: Scope and Uses’ in P Weller (ed) Royal Commissions and the Making of Public Policy (1994) , 6–8.
47. [47]Royal Commission on Human Relationships, Final Report, Parliamentary Paper 104–108 (1977); Royal Commission on Australian Government Administration, Report (1976).
48. [48]Australian Royal Commission of Inquiry into Drugs, Report, Parliamentary Paper 25–29, 226 (1980) (set up by the Commonwealth and four States); Royal Commission into Drug Trafficking (New South Wales), Further Report of the Royal Commission into Drug Trafficking (1980).
49. [49]Royal Commission into the Non-Medical Use of Drugs (South Australia), Final Report (1979). As to the effect of the Royal Commission’s ‘assault on orthodox wisdom’, see D Manderson, From Mr Sin to Mr Big: A History of Australian Drug Laws (1993), 171–172.
50. [50]Australian Law Reform Commission, Annual Report 2003–04, ALRC 100 (2004), 60.
51. [51]The ALRC’s allocation for the 1975–76 year was $521,800: Australian Law Reform Commission, Annual Report, ALRC 5 (1976), 58. Between June 1975 and June 2004, the Consumer Price Index increased by 507.4 per cent. If the 1975–76 allocation were simply adjusted for inflation, the equivalent in 2004 dollars would be $2.64 million.
52. [52]Not least because of the need to accord procedural fairness to those suspected of wrongdoing: Annetts v McCann (1990) 170 CLR 596; S Donaghue, Royal Commissions and Permanent Commissions of Inquiry (2001), ch 7.
53. [53]HIH Royal Commission, The Failure of HIH Insurance (2003), vol 1, 26. The figure is exclusive of government funding for the legal costs of people appearing before the Commission. The Royal Commission into the Building and Construction Industry estimated its total expenditure as $58.6 million: Royal Commission into the Building and Construction Industry, Final Report (2003), vol 22, 45.