A Royal Commission: Wicked Problem First Responder

Royal commissions were once seen as the institution of last resort, appointed when all other processes and institutions had been exhausted or were deemed inappropriate. The recent increase in their numbers, particularly concerning some of the most vulnerable people in our society, indicates that they may have become institutions of first response to political, regulatory and governance failures.

While some may interpret their terms of reference more broadly than expected, exposing unforeseen problems, bad policy and even corruption, others may make sweeping recommendations that cannot be implemented. Some take too long and cost too much. Some have poor processes and produce shoddy reports, often resulting in the need to appoint yet another royal commission.

Additionally, valuable resources are often diverted to respond to requests for information and appearance from already overstretched agencies that have staffing ceilings and little ability to stop work in progress to respond to voluminous requests for information, to brief royal commissions ahead of public hearings.

While there may be good reasons for calling for a royal commission, it’s worth asking whether it’s the only way to create a catalyst for change, especially when the thorny issues are at the forefront and politicians need to be reformed.

With more than 135 Royal Commissions since the adoption of the Royal Commission Act in 1902 (the Act), royal commissions undoubtedly created industries for journalists and lawyers.

While the royal banking commission was perhaps billed as a major investigation into rich rogue bankers, one of the biggest recommendations (banning commission payments to mortgage brokers) had the unintended consequence of actually driving clients back to big banks for loans.

Perhaps most interesting was the idea that Kenneth Hayne’s effort would somehow change the culture in most of the city – only magically, through a series of embarrassing appearances at the witness stand and some ambitious recommendations – bank executives are going to start putting people before profit.

More recently, we have heard harrowing stories of experiences in Royal Commissions into child sexual abuse in institutions, aged care, disabled, defense and veteran suicide. Despite all the legislative protections for people living with vulnerabilities, for those employed or cared for by our public institutions, neglect and abuse still occur too often.

The Royal Commission into Aboriginal Deaths in Custody, initiated in 1987 and completed in 1991, provided recommendations aimed at reducing the incarceration rate of Aboriginal and Torres Strait Islander people, including through non-custodial sentences and diversion programs. Thirty years later, the incarceration rate for Indigenous Australians has doubled.

The most recent Royal Commission on Aged Care made 148 far-reaching recommendations for fundamental reform of the elderly care system. However, the commissioners disagreed on several recommendations, which undoubtedly undermined their influence and gave the government leeway to adopt policies that might fit and potentially ignore those that did not.

There is no doubt that political issues, such as the quality of care for the elderly or responses to institutional problems, are often extremely complex. Defining exactly what the problem is and how the Commission is dealing with it is therefore extremely important. It is important to have the right terms of reference.

Royal Commissions also provide opportunities for dialogue with stakeholders, advocates and policy makers. If they do this well, they will have a ready-made coalition of experts and stakeholders to support the implementation of the report’s recommendations.

It also makes it much harder for governments to ignore important recommendations. That said, these commitments can come at a devastating cost to participants who must relive painful events and trauma.

One of the shortcomings of the Act itself is that it allows for exclusions on the admissibility of evidence regarding advice to government provided by the public service (including advice on policy and funding).

This means that questions about why policy and regulatory failures have been left to a last resort investigation cannot be fully understood by commissioners, let alone the public. Advice that may have been given by the civil service to government on reform initiatives to respond to past recommendations is privileged under public interest immunity from admissibility. This leaves a royal commission no choice but to relearn and reframe the problem.

In addition to the recommendations provided by a royal commission in the past, the duplication of recommendations is another problem in itself. Past reviews, inquiries and audits in various policy areas have produced far-reaching recommendations over the years aimed at improving governance and outcomes in various complex policy spaces.

We heard recently at the Royal Commission on Defense and Suicide of Veterans (which has now been extended for a further 12 months following recognition of the complexity of the issues before the Royal Commission, among others) that some 600 recommendations have been provided to the Department of Veterans Affairs over the past two decades, all aimed at improving various aspects of the veterans support system.

To illustrate the complexities faced by reviews and inquiries, including royal commissions, the current Royal Commission on Defense and Suicide of Veterans faces the challenge of reviewing 600 previously published recommendations on a veterans support system comprised of 100 years of policies, processes and complex enabling legislation (including multiple transitional provisions), in order to provide pathways effective reform programs that are attractive to a government to fund while not adding further complexity to an already strained veterans support system. A result that a royal commission has never achieved to date.

In addition, this royal commission is charged with recommending reforms to prevent and reduce the multifaceted problem of defense and veteran suicide, a complex problem that no mental health expert has yet managed to effectively impact on the population in general.

The question that remains is: does a royal commission change a wicked policy problem? History tells us that the answer is “no”.

Can a royal commission show us “how” to solve a thorny political problem? Again, history tells us that the answer is “no”.

While it could be argued that this is due to the enacted requirements of a Royal Commission or the manner in which they are conducted, it is evident that they can only deliberate on information that is largely in the public domain. The recommendations they provide can only be used to “recast” a problem and potential solutions. Royal commissions cannot resolve or advance policy on their own, as this requires government decisions.

To enable effective change, recommendations must “show” how a problem can be solved, what it would “look like” when solved, and have the full support of the government.

A royal commission can be a catalyst, but it cannot reasonably be expected to solve a problem. We need courageous decisions from the government.