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.

For these reasons, such inquiries, chaired by someone from the judiciary, have become the 'institution of last resort' – the one institution seemingly not tainted by politics, parties and professional politicians.

Judges also have legal expertise and forensic skills useful in sifting and analysing evidence, especially concerning those inquiries into allegations of political wrong doing, or seeking to allocate responsibility regarding some calamitous event.

How are commissions of inquiry different from courts?

Commissions of inquiry, chaired by sitting or former members of the judiciary, have public hearings, involve cross-examination of witnesses by legal counsel, take evidence under oath and thus have all the outward appearances of courts – but they are not. They operate under very different principles than courts of low.

Not only are commissions of inquiry appointed by executive government, they are also different from courts of law in other ways:

• inquisitorial in style with statutory coercive powers to procure and seize information (even to phone-tap in some instances);

• can pursue leads based on gossip, rumour, and hearsay unlike courts that have more rigorous standards concerning the admissibility of evidence;

• can also suspend both legal professional privilege and the privilege against self-incrimination, which courts cannot;

• only can make recommendations, while courts deliver binding, enforceable judgements.

Australian and Queensland practice – trends

For these reasons appointing a sitting member of the judiciary to chair an inquiry has become increasingly rare around Australia at both federal and state levels.

In some states it has been rejected for a considerable time. In Victoria, Supreme Court judges since 1923 have not been allowed to chair commissions of inquiry with only a few special exceptions.

In South Australia, none of its most recent royal commissions have been chaired by serving justices – senior legal counsel and retired judges and those with other expertise, has sufficed.

Similar trends can be observed in other states and territories.

The Commonwealth-Territory 2015 Royal Commission into Detention of Children was chaired jointly by a retired judge and a member of the Australian Human Rights Commission who stood down from that role.

Federally, the High Court from its inception, has resisted allowing its members to chair royal commissions or inquiries except in three war-time emergency occasions – the last was in 1943. Moreover, the High Court has ruled that a sitting federal court judge, appointed to an inquiry in an individual capacity, had to stand down as it conferred a non-judicial function on a serving member of the court and was incompatible with Chapter III (The Judicature) of the Commonwealth Constitution.

Chairs of recent Commonwealth royal commissions into child sexual abuse and disability either retired immediately from the bench on their appointment or did so when the inquiry finished to avoid later possible conflicts of interest. The current Royal Commission into Veteran Suicides is chaired by a former deputy state police commissioner.

In Queensland too, from the 1960s onwards, few sitting justices have chaired commissions of inquiry. Rather, most chairs were senior legal counsel or retired judges. Tony Fitzgerald who chaired the famous 1987 commission into police corruption was at that time a Queen's Counsel, not a sitting justice,

Other commissions of inquiry appointed by the Palaszczuk Government such as those into Queensland's anti-corruption body (January 2022) and the DNA testing issues (June 2022), are chaired by retired judges.

One of the few exceptions to this long-standing practice in Queensland prior to the recent domestic violence inquiry, was the Bligh Government's appointment of Catherine Holmes, a sitting member of the Supreme Court, to lead the 2011 Queensland Flood Commission of Inquiry.

Conclusions

Thus, it seems that that the Palaszczuk Government's appointment of a sitting judge to chair the current inquiry into Queensland Police and family violence is contrary to past practice in this state, including its own recent actions, and current trends around Australia.

It is a step backwards.