As it currently stands, Royal Commissions hold broad investigative powers such as the ability to compel witnesses, enter premises’, and recently, even the ability to tap phones, and yet, the entirety of this evidence accumulates into a series of non-binding recommendations. Whether Royal Commissions should be granted more coercive power has always been a strong talking point amongst Australians and one must look no further than the Royal Commission into Aboriginal Deaths in Custody (ADIC) to see why, with only two thirds of the recommendations in the report being adopted, despite repeated iteration by the Royal Commission of the gravity of the issue.
Theoretically speaking, it is impossible to grant judicial (or legislative) power to Royal Commissions due to the separation of powers. The Commonwealth Constitution stipulates that the Australian government must function as three arms: the legislature, the judiciary and the executive, which must stay completely separate from one another. Since Royal Commissions are products of enquiry on behalf of the Cabinet (i.e. the executive), it is impossible to grant Royal Commissions judicial or legislative power without breaching what is arguably the most important rule in the Constitution.
Nonetheless, the recent, high-profile trial of Cardinal George Pell has stoked the fire of some who ask whether more justice could potentially be achieved in a hypothetical world where the bounds of a Royal Commission’s power extend beyond its executive parameters. In the ICSA Royal Commission, a proportion of evidence given by Pell was redacted from the Commission’s final report in fear that the information could potentially prejudice Pell’s trial for child sex abuse crimes, however, when the conviction was quashed, the Commission saw it fit to release what had originally been redacted. The redacted information was, in essence, a conclusion by the Commission that on the entirety of the evidence collected, it was simply implausible that Pell had no knowledge of multiple cases of sexual abuse at the hands of Catholic priests. Although this information was certainly no smoking gun, its use as character evidence in Pell’s trial could have prevented the High Court’s conclusion that a finding of ‘guilty beyond reasonable doubt’ was not available to the jury on the evidence, potentially changing the entire trajectory of the trial.
With this in mind, a Royal Commission with extensive executive and judicial powers must be contemplated in light of its positive and negative traits. Although a more powerful Royal Commission could lead to more justice being achieved in some circumstances, this leaves the door open for Royal Commissions to become essentially Orwellian enquiry processes which have the potential to completely disregard the rights of Australian citizens by combining superior investigative and prosecutorial abilities. This fact is very concerning since not all Royal Commissions are necessarily well-intentioned. For example, the 2015 Royal Commission into Trade Unions and Governance is widely regarded as having had a political agenda where the Abbot government sought to weaken the Labour party by targeting their strongest ally: The Australian Worker’s Union.
Another issue with granting Royal Commissions judicial power is that many cases don’t have an individual, or a number of individuals, who are particularly at fault and hence, judicial powers are rendered useless. Cases such as the ADIC Royal Commission pointed to legislature inability to act as the root cause of most issues and hence, a prosecutorial function would have served little use. This Royal Commission would have been much more effective had it been granted power to compel the legislature to act in a particular manner. This is evidenced by recent protests which showed that many Australian are still deeply concerned about the relationship between Indigenous communities and law enforcement agencies. This is an understandable concern considering the ADIC Royal Commission was forced to boil down over 3,000 recommendations into 323, and of those 323, only two-thirds were adopted. One must ask where Australia, and its Indigenous communities in particular, would be today had the legislature been compelled to enact a greater percentage of the report’s recommendations.
Conclusively, a world where Royal Commission powers go beyond traditional executive bounds certainly invites the imagination to think of the potential justice which could be achieved. However, this theoretical world also shows us why the current limits exist. The separation of power, and its resultant system of check and balances, prevents the government from enacting Draconian measures on the common Australian, allowing us to manifest our greatest trait: freedom. So even though Royal Commissions with broader powers tug at the strings of our imagination, there’s a very legitimate reason for their inexistence and that is, that they are unequivocally un-Australian.
Disclaimer: This article is not an indication of the political views of the author and any examples given are simply mentioned for illustration of potential legal effects of particular theoretical scenarios.
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