Blurred lines: appointing sitting judges to commissions of inquiry

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.