Blurred lines: appointing sitting judges to commissions of inquiry

One of the issues concerning commissions of inquiry, royal commissions, and public inquiries is whether sitting members of the judiciary should chair such executive appointed bodies.

There has been a long-term trend across all jurisdictions in Australia away from appointing sitting justices to chair public inquiries. This is primarily because it is seen to undermine the separation of powers between the executive and the judiciary – one of the cornerstones of our Westminster system of government. There are other drivers supporting this trend too.

However, the Palaszczuk Government's decision in May 2022 of appointing a sitting judge, Justice Deborah Roberts of the District Court, to chair a commission of inquiry into Queensland Police responses to domestic violence, raises this issue once again. It is an important issue that deserves public debate.

Problems of sitting justices chairing public inquiries

There are four problems in appointing sitting justices to chair commissions of inquiry:

First, a sitting judge accepting the offer to chair a public inquiry is seen to be doing the bidding of executive government thus undermining the separation of powers doctrine between the executive and the judiciary. It is this doctrine of separation of powers that assures our courts are independent from government or undue interference.

Commissions of inquiry are instruments of executive government. As they are often chaired by sitting or retired judges such inquiries are often inaccurately called, 'judicial inquiries.' There is no such thing in our system of government. The judiciary does not initiate inquiries – only executive government does.

Executive government alone appoints inquiries, selects their members, sets their terms of reference and timeframes, allocates their resources and decides to accept or reject inquiries' recommendations.

Second, given the political nature of some inquiries, a trend which is increasing, the involvement by a sitting member of the judiciary in such an inquiry can inadvertently embroil the judiciary in public controversy, undermine its independence and cause potential conflicts of interests if legal issues from an inquiry later have to be adjudicated in court.

Third, they take judges away from their designated and taxpayer funded role of hearing cases of law in courts. That major commissions of inquiry can take between two - four years, makes this problem worse. it represents a depletion of resources to the courts.

Fourth, it has also been argued that while judges (including retired ones) have skills in finding the facts in relation to investigative type inquiries, of seeking the truth and apportioning responsibility, these inquiries are often required to make wide ranging policy recommendations on complex issues about in which they, as members or former members of the judiciary, have little expertise.

Why do governments appoint sitting and former justices to chair public inquiries?

Governments appoint sitting (and former members) of the judiciary to chair inquiries because they are highly regarded and thus give an inquiry status and a perception of independence. Such traits are particularly appealing to governments faced with difficult political circumstances, allegations of corruption and maladministration given the increasing politicisation of the public service and other institutions of government.