Book – New Directions in Royal Commissions & Public Inquiries. Do we need them?

Editor: Scott PrasserPublisher: Connor Court PublishingReviewer: David Topp

On these pages during June 2023,[1] I reviewed the Scott Prasser co-edited White Elephant Stampede {“WES”} compendium of case studies of policy and project management failures.[2] This edition’s review is of another of Prasser’s co-edited works, this time of a topic even closer to barristers’ hearts: Royal Commissions and public inquiries broadly.

New Directions is not Prasser’s first rodeo. It is in fact his third foray into the topic, having commissioned Royal Commissions and Public Inquiries in Australia in 2006 and Royal Commissions and Public Inquiries: Practice and Potential in 2014. Former Court of Appeal and Supreme Court Justice, Margaret White AO FAAL, requires no introduction to readers of this publication, given her eminence in those roles. Yet, notwithstanding White’s many decades of experience, it was to Prasser’s 2006 work that she turned when asked in 2013 to helm a Queensland government inquiry into racing industry governance: ‘…Scott’s work … was pretty dog-eared by the time we had completed our task!’[3]

Why then has Prasser commissioned a third variant? As he explains, ‘ten royal commissions since 2013 – one every year until 2022’ have been established at Federal level {in addition to state and territory based counterparts}, causing esteemed national affairs commentator, Paul Kelly, to cite the ‘cult of the royal commission’ due to their current ubiquity.[4]

Interestingly however, the high-water mark for royal commissions was actually the 19 year period as long ago as 1910-29, when 54 royal commissions were appointed. The subsequent Great Depression then World War 2 correlated with a substantial decrease, which trend continued, thereafter, when, during ‘the long period of uninterrupted Coalition governments from December 1949-72, only seven were established.’[5]

The catalyst for a marked reversal was the 1972 election of the Whitlam government. Some 73 non-statutory, mainly policy advisory inquiries, as well as 13 royal commissions, were established. The ‘new-broom’ nature of Whitlam’s ascension to the Prime Ministership after 23 years in the political wilderness for his Australian Labor Party, previously, is cited by way of explanation. Appointing inquirers drawn from outside the government was seen as a means to promote faster policy development and to overcome any suspected baked-in resistance from the public service due to the prolonged incumbency of the previous conservative administrations[6].

Then, and not-dissimilarly to the way that profound Whitlamesque legislative reforms such as the Family Law and [as it then was] Trade Practices Acts were retained rather than repealed, the Fraser administration of 1975 – 1983 demonstrated similar eagerness for royal commissions and public inquiries, generally. As did administrations on both sides of the political fence, thereafter[7].

As mentioned above, state and territory governments are similarly active in this space. The most recent past President of the Court of Appeal, Walter Sofronoff, was retained by the ACT government to conduct what became a highly publicized inquiry into the decision making processes behind the Bruce Lehrmann rape prosecution. Similarly, Holmes JA, as the immediate past Chief Justice then was, was seconded from the Court of Appeal bench to helm the Queensland Floods Commission of Inquiry (‘QFCI’) following the 2011 Brisbane River flood event.

Indeed, Catherine Holmes has subsequently become a household name nationally due to the extraordinarily large amount of attention given to her Royal Commission report of July 2023 into the infamous ‘Robodebt’ welfare clawback scheme implemented and continued during the life of the former Coalition government, under various leaders, of 2013 – 2022. The publicity for which was compounded in no small part due to the many high-profile politicians required to give evidence and, in the case of some of them, their dogmatic reactions which only served to pour fuel on the proverbial fire:

‘Mr [Scott] Morrison, can I [Commissioner Holmes] just get you to stick to answering the question a bit more. I do understand that you come from a background where rhetoric is important, but it is necessary to listen to the question and just answer it without extra detail – unnecessary detail, if you could’[8].

Commissioner Holmes’ twin inquiries were but two of many examples of commissions of inquiry established after disastrous events, such as bushfires or mass casualty accidents. One such pretext for post-disaster inquiries is to provide what no court of law can: a forum for victims; a ‘cathartic, part of the process of healing’ avenue to be heard[9]. This very brief was followed by both the QFCI – public meetings were held in Grantham, Murphys Creek and 16 other flood-affected places across Queensland – and by the Robodebt commission which afforded family members of persons who suicided after having received Robodebt demand letters an opportunity for their anguish to be heard.

Returning to the QFCI, both your present reviewer and environmental historian, Dr Margaret Cook, published books following the 2011 floods,[10] though mine, sharing the QFCI’s release year of 2012, necessarily, could not cover it. I therefore took great interest in New Directions’ Chapter 6 authored by Dr Cook specifically into the QFCI, including Dr Cook’s account of the ways in which then premier, Anna Bligh, declared upon announcement: “[T]his is not a criticism of what we have done. It will identify what we did well and what we can do better”,[11] and then deputy premier, Andrew Fraser’s, claim that the QFCI ‘was about the “truth” and never about politics’[12], only for an in the result narrowing of focus ‘to a forensic examination of complex hydrologic and meteorological data that required detailed technical knowledge’[13] with a consequential shift of emphasis to an assessment of blame.[14]    

A marked example of the shift of focus observed by Dr Cook consisted of the differences between her opinions of the QFCI’s interim and final reports:

• ‘The QFCI’s interim report was issued in August 2011 with 175 recommendations concentrated on short term issues. It found the engineers had been “diligent and competent” and “acted in good faith throughout the flood event”. Like the … Victorian bushfire inquiry’s interim report, this suggested actions that should be taken before the next summer when floods are more likely. As such, it steered away from blame ...’[15];

and

• ‘The QFCI re-opened for ten days, placing the flood engineers firmly in the spotlight to determine if they had lied to the Inquiry, falsified documents and not complied with the manual [of Wivenhoe Dam operations] … The QFCI undermined public confidence in experts and left engineers feeling professionally slighted.’[16].

A similar juxtaposition was noted by Dr Cook concerning media reporting of the QFCI. Dr Cook’s primary work explained the way in which the Courier-Mail ‘offered more balanced reporting and largely focused on human stories and resilience’ post 2011. Whereas, its News Limited stablemate, The Australian, concentrated on allegations of wrongdoing against the Wivenhoe Dam engineers on duty during January 2011 and prevented analysis of non-dam systems that increased the flood hazard.[17]

Dr Cook’s conclusion that ‘[W]hat society wanted was for science and government to remove the risk altogether, an unattainable goal’[18] reflects the statement Prasser and his co-editors, David Gration and Bruce Kingston, made in WES that governments in western democracies are expected to ‘do something’ about almost every issue because governments can, supposedly, ‘fix’ everything.[19] The white elephant project the editors were citing in this specific page of WES was the mothballed Tugun desalination plant which, as the name suggests, was ‘the something’ the Beattie Government produced to meet the public demand for ‘action’. Action for what? Not action in response to the 2011 flood event. Rather, the polar opposite: action in response to its precursor phenomenon, the infamous millennium drought of 2000 – 2007, with consequential severe falls in Wivenhoe Dam’s water supply capacity.

The ‘only in Queensland’ irony is palpable.

Jokes aside, however, the inability of governments – and, for that matter, also, the judicial branch of government – to cure existential societal problems was made clear by the post QFCI processes. Dr Cook concluded that ‘the QFCI and public debate reaffirmed a faith in dams, if only they were operated differently, when the real problem facing Southeast Queensland is that many of us continue to live on a floodplain’.[20] This ‘faith’ was further affirmed by the outcome of the subsequently brought class action lawsuit which, at first instance, was a highly publicised victory for the cohort of plaintiffs. In delivering judgment, Justice Beech-Jones expressly confirmed ‘…the bulk of the evidence before the QFCI and its report were not tendered and therefore could not be considered by this Court. I have not read the QFCI report’.[21] On appeal, the NSW Court of Appeal began with high praise of His Honour’s methodologies in arriving at his victory to the class at first instance:

‘The trial judgment being divided into 15 chapters, it was inevitable in such a large factual case that findings would be made on specific issues which were then relied upon in the assessment of higher level issues … At each of these stages, the judgment meticulously cross-referenced both later and earlier findings, so that the trail of the reasoning was readily ascertainable. That was as true of the complex technical evidence and the computer simulations … of the factual circumstances as they occurred in January 2011. The tasks to be undertaken by this Court have been immeasurably assisted by the care and ultimately the clarity of the primary judgment’.[22]

Despite that auspicious beginning, however, it was, as Glenn Newton KC so succinctly noted in this publication’s most recent edition, a ‘judgment which the [NSW] COA then proceeded to overturn’.[23]

As an aside, there has been a complete lack of any discussion after Brisbane’s encore flood event of February 2022 of either a public inquiry or a class action lawsuit. It is submitted that the markedly differing dynamics of the rainfall patterns and the Wivenhoe Dam starting levels that were extant in the February 2022 ‘rain bomb’ event compared to January 2011 inform these omissions.

Chapter 14 of New Directions – Judge-led public inquiries in the United Kingdom – shared Dr Cook’s concerns about inquiries being too legalistic and adversarial. Other inquiries analysed in New Directions ‘misread their roles’ by becoming advocates for a particular policy or group rather than clarifying facts and proposing workable solutions,[24] produced reports that were regarded as being of poor quality and vacuous[25] or were appointed for politically expedient reasons to justify government decisions already made.[26]

Given all of these at times strong critiques of past inquiries, do we need them, as the sub-title to New Directions asks?

A partial answer to this emerges from the last mentioned critique above – retrospective justification of governmental decision making – not being an outcome universally guaranteed. Prasser notes the historical propensity for inquiries, both discussed in New Directions and not, to ‘often go their own way regardless of the constraints governments have sought to impose, including restricted terms of reference, tight reporting timeframes, limited resources, and specially selected members’.[27] An example of this ‘regardless’ phenomenon familiar to many political watchers in Queensland is the conversion of the initial 6 week predicted length of the Fitzgerald Inquiry into the multi-year behemoth that it became. The legacies of the Fitzgerald Inquiry to this state were brought back into contemporary attention by the 11 August 2023 passing away of former Premier, Mike Ahern, whose ascension to the premiership in 1987 over Sir Joh Bjelke Petersen occurred ‘amid the ructions caused by’ that Inquiry[28] and who, thereafter, promised to implement the recommendations ‘lock stock and barrel’.[29]

Ultimately, the answer to the rhetorical question of are inquiries necessary is yes. The potential of inquiries to overcome public distrust of government – being another of Prasser’s positive reasons for inquiries[30] – having been proven by the Robodebt commission’s outcome, both in terms of the damning nature of the findings and the potential for ‘another possible legal recourse: the pursuit of damages against the former ministers’.[31] Prasser’s final statement, in answer to his work’s rhetorical sub-title, that ‘no modern government can now do without them’[32] is therefore made out.

Margaret White’s launch remarks included her recollection, upon commencement of her racing industry governance inquiry of 2013, that ‘…we’ll need a couple of copies of Prasser’.[33] Quite so. New Directions ought be Exhibit 1 in all future public inquiry commissioners’ bundles as well as occupying pride of place in the briefs to counsel assisting.

Disclosure: The reviewer is presently in discussions with New Directions publisher, Connor Court, for publication of a book of his own.

[1] Hearsay Issue 92, June 2023

[2] White Elephant Stampede [Eds: David Gration, Bruce Kingston and Scott Prasser], Connor Court Publishing 2022

[3] The Hon Mrs Margaret White AO FAAL’s address at New Directions’ official launch, 18 April 2023

[4] New Directions, at 3

[5] New Directions, at 19

[6] New Directions, at 20

[7] New Directions, at 21-22

[8] Robodebt inquiry transcript 14 December 2022, at P-1773

[9] New Directions, at 131

[10] Respectively Tennyson Breach 2012 and A River With a City Problem 2019 {and re-released 2023}

[11] New Directions, at 128

[12] New Directions, at 142-143

[13] New Directions, at 127

[14] New Directions, at 130-131

[15] New Directions, at 132

[16] New Directions, at 132 and 142

[17] Dr M Cook ‘A River with a City Problem’ 2023 reprint, University of Qld Press, at page 186

[18] New Directions, at 142

[19] WES, at page 215

[20] New Directions, at 144

[21] Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority trading as Seqwater (No 22) [2019] NSWSC 1657, judgment summary, at [4]

[22] Queensland Bulk Water Supply Authority t/as Seqwater v Rodriguez & Sons Pty Ltd [2021] NSWCA 206 (8 September 2021), at [6]

[23] Glenn Newton KC ‘The Uncertainties of Litigation and What Are The Alternatives?’ Hearsay Issue 92, June 2023

[24] The Royal Commission into Aged Care Quality and Safety: New Directions, at pages 253, 254 and 391

[25] The Thodey Review into the Australian Public Service: New Directions, Chapter 7 and page 392

[26] The NSW Government appointed Independent Local Government Review Panel of 2012-2014 which ‘recommended the wholesale forced amalgamation of a number of NSW councils’: New Directions, at pages 172 and 392

[27] New Directions, at 393

[28] Sean Parnell ‘Tributes for former Queensland premier Mike Ahern after his death at 81’, Brisbane Times, 11 August 2023

[29] Ibid

[30] New Directions, at 393

[31] Paul Kelly ‘Broken Trust and Revenge Politics’ The Weekend Australian 15-16 July 2023, at page 36

[32] New Directions, at 394

[33] The Hon Mrs Margaret White AO FAAL’s address at New Directions’ official launch, 18 April 2023