Senate committee recommends a non-existent body

Last week the Senate Standing Committee on the Environment and Communications chaired by Green Senator Sarah Hanson-Young recommended the “establishment of a judicial inquiry, with the powers of the royal commission called for by Mr Rudd’s petition into media diversity, ownership and regulation”.

Regardless of the issue of media diversity, the big problem is that the Senate Committee has recommended the appointment of a type of public inquiry that does not exist in Australia under our system of government and constitutional arrangements. There is no such institution as a ‘judicial inquiry’.

In essence – a ‘judicial ‘inquiry’ is a nonsense.

It is a term sometimes used innocently through ignorance of our constitutional system because some royal commissions are chaired by current or former members of the judiciary. Some inquiries follow court-like procedures such as hearings, witnesses, a bevy of legal representatives, taking evidence on oath and cross-examination of witnesses.   

Unfortunately, it is also a term employed deliberately and mischievously (including by governments) to give the wrongful impression that a particular inquiry will have the status of a court.

Nothing could be further from the truth.

In our system of government there is a separation of powers between the executive, the legislature and the judiciary. The judiciary does not appoint inquiries – it hears cases that are brought before it. Only the executive government can establish a royal commission.

Such inquiries have statutory coercive inquisitorial powers of investigation, very different procedures in terms of what is admissible as evidence compared to courts and can force witnesses to testify even if self-incriminatory. While courts make decisions that are conclusive and enforceable, royal commissions only make recommendations. It is up to executive government to decide to accept or reject those recommendations. That will depend on the nature of the recommendations, their practicality, costs and the underlying politics of the issue that led to the appointment of the royal commission in the first place.  

While sitting judges have been appointed to chair many a Commonwealth, state or territory royal commission in the past, there has long been concerns that their employment is undermining the separation of powers between the executive and the judiciary. Indeed, in some jurisdictions judges were long prohibited from chairing royal commissions. Controversies surrounding some recent inquiries is now making it rare for a sitting judge to chair such an inquiry. The concern is that the topics of some commissions have become too political and that possible legal issues concerning their reports may later come before the courts for adjudication. Former judges or those not from the bench will have to do, and former judges chairing a royal commission cannot act in any way like a court. Significantly, the two current Commonwealth royal commissions into disability and veteran suicides are chaired respectively by a retired supreme court judge and a former state deputy police commissioner.

The Coalition senators had every right to issue minority reports rejecting the recent Senate inquiry’s recommendations including concerns about its political motivations, possible threats to press freedom, and lack of acknowledgment of existing regulatory arrangements. However, their best starting point should have been to highlight how the majority members of the committee by proposing a ‘judicial inquiry’ simply did not know their constitutional law 101.

And that should have been the end of the story.