Speaking to delegates at the Comparative Constitutional Studies 2019 Constitutional Law Conference in Melbourne, Kenneth Hayne questioned why calls for Royal Commissions have become so commonplace in Australia.
While not addressing the findings of the financial services Royal Commission directly, Hayne said the necessity of such a Commission (and others) may suggest that the existing structures of government - legislative, executive or judicial - are "not working as they should."
"If they were," Hayne asked, "why would we want or need so many Royal Commissions?"
To answer the question, Hayne first noted that the legislative and executive branches of government makes "all sorts of inquiries" – including the one we discussed last week – and that compulsory gathering of information is “not the sole province of a Royal Commission.” Furthermore, he said that appointing a Royal Commission is a “political act,” often done “in response to what the political branches see as public pressure for an open and transparent examination of some issue or issues.”
Hayne continued: “Although there is a political dimension to every Royal Commission it does not follow that the Commission will be conducted as a political exercise.”
He said the process of inquiry tends to have three distinct consequences: these are that it often provides an opportunity for issues to be heard that some think have not been properly understood; that those involved in relevant conduct will be required to give their accounts of “what happened and why”; and that it will “provide a focus for debate about the issues the Commission is examining.”
Summing this up in a few words, Hayne said the public expects that a Royal Commission will be independent, neutral, public and “yielding a reasoned report” – all terms that he said “may be contrasted with what some, perhaps many, would see as the characteristics of modern political practice with its emphasis on party difference, and with decision-making processes that are not only opaque but also, too often, are seen as skewed, if not captured, by the interests of those large and powerful enough to lobby governments behind closed doors.”
Trust in institution – whether governmental or private – has been “damaged or destroyed,” Hayne added.
“Our future is often framed as some return to an imaginary glorious past when the issues that now beset us had not arisen,” he said.
“The increasingly frequent calls for Royal Commissions in this country cannot, and should not, be dismissed as some passing fad or fashion,” Hayne continued. “Instead, we need to grapple closely with what these calls are telling us about the state of our democratic institutions.”
Hayne’s comments are interesting in light of the Government ramping up its response to the Royal Commission, and the inquiries that will follow. Could Government and regulators have worked better alongside Australia’s financial institutions to have avoided these issues? Are calls for further Commissions a symptom of a larger problem?
Let us know what you think.
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