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Ombudsman or Royal Commission? - Douglas Meagher QC
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Grant of Extraordinary Powers of a Royal Commission to Chief Commission of Police & Ombudsman
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The public concern about violent crime has led to a call for a Royal Commission, to which the response has been the promise of greater powers to the Chief Commissioner of Police, to the Ombudsman, and, at a Federal level, of a new anti-corruption body. In explanation and justification, the Victorian Premier, and now the Federal Government, have said it is a matter of "powers", and that by granting the powers of a Royal Commission to these bodies the demand is met and the public should be satisfied.
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Is this wrong? Is there a need for a Royal Commission? According to the Premier, a Royal Commission is of lesser merit. He says a Royal Commission would interfere with current criminal prosecutions, perhaps defeating them; that it costs too much; that it is wanted by those with vested interests, such as lawyers who are looking for financial reward.
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The first of these objections cannot be sustained. A Royal Commission is part of the executive arm of government. It is subject to the rule of law to the same extent as any other part of the executive, and therefore must respect the judicial process. It is in no different position, in this respect, than the Chief Commissioner of Police or the Ombudsman. If it were to interfere with the criminal process, the Royal Commissioner would be subject to judicial restraint by way of injunction and subject to punishment if in contempt of court.
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It is not necessary, nor permitted, for a Royal Commission to interfere in proceedings before a court. There is no necessity for its proceedings to be conducted in public. If they are, the Commissioner may suppress publication of names of those before the courts should that be likely to result in undesirable publicity. A Commissioner would abstain from direct questioning of those accused of crimes, either at all, or at least in respect of those with which they are charged. His reports to government are usually in two parts, one dealing with general recommendations which may be made public, and the other dealing with activities of those either before the courts, or who should be, which is not published. A decision as to publication may be on the recommendation of the Royal Commissioner, but in any event is made ultimately by the Government. There is no reason to fear that reports, however strongly written, will be permitted to interfere with judicial process.
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Nor in my experience has a Commissioner deliberately set out to interfere with judicial process. To the contrary, they have been at pains not to interfere. A Commissioner is usually a person with long experience in the law, being Judges, retired Judges or senior barristers, and only too well aware of the dangers of interference. They conduct their inquiries accordingly, with the result that I cannot recall any instance where trials have been aborted on their account. This is notwithstanding the large number of prosecutions that have emanated from several Commissions. The Costigan Commission reported on over 2,000 prosecutions resulting from its work; the Stewart Commission led to many prosecutions, though I cannot recall their number. So great was the flow of prosecutorial work that Special Prosecutors were appointed to supplement the offices of Public Prosecutors. Prosecutions were launched in consequence of the Fitzgerald Inquiry in Queensland, and the Woods Inquiry in New South Wales. I cannot recall an instance of a prosecution in consequence of these inquiries being stayed or aborted as a result of the work done by Commissioner.
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It is true that those appointed Commissioners are usually lawyers (though at times, depending on the commission, other professionals are appointed), and they are supported by lawyers in their work. Presumably the Premier's complaint is directed at the fees paid to the lawyers (Commissioner and supporting counsel), as distinct from the cost of the other staff supporting the Commission. That must be so, since any body charged with doing the work of a Commission will be provided with a similar sized staff, at the same if not greater cost. Staffing of a Royal Commission is temporary since it is of limited duration. A permanent staff, as required by a Crime Commission, is ultimately far more costly.
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Consequently, the Premier's concern must be directed at the fees paid to the Commissioner and supporting counsel. The fees are substantial, although often they accept a lower fee than they command in private practice. It should be noted that they are employed for a short time, there are none of the usual incidents of employment such as holiday pay, sick leave, annual leave or superannuation, and on conclusion they return to private practice with no residual financial benefits. Notwithstanding all of this, their fees are substantial. Can that be justified, or is the work as readily done by others?
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The Premier, and indeed the Federal Government, are of the opinion that Royal Commissions owe their success to the powers conferred upon them. So, no more is required that to grant these powers and success in investigation is assured. If this were true, then payment of high fees to lawyers when others are available at lesser cost would not be justifiable on a cost/benefit analysis. This appears to be the conclusion reached by government.
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The particular powers said to have this effect include that of compelling persons to attend on the investigator, to answers questions usually on oath, and to produce documents. This is supported by penalties, including imprisonment, if the person does not attend, or refuses to answer, or tells lies, or gives unsatisfactory answers by evasion or prevarication. Should any of these responses be adopted, the person may be prosecuted and if convicted, imprisoned. These powers are very useful to an investigator, not only when interrogating a person suspected of criminal activity, but also his friends, associates, and others more remote but with whom he has had contact, such as his banker, his credit card provider and so on. By the use of these powers, the investigator can acquaint himself with all aspects of the suspect's life, and pry into every corner of it.
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To this there is added the power to monitor communications, by telephone and perhaps by email and otherwise. This has become fashionable in recent days, with political debate over its use. The power is not new. Police forces have had access to it for a long time. It may be doubted whether it is the panacea that some seem to believe.
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Is it enough simply to confer these powers? What more does a Royal Commission provide?
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The answer to that is these powers are no more than tools, just as a trowel is necessary for laying bricks. Handing a person a trowel does not mean that person will then be able to lay bricks well, or as well as required, no more than handing a person a spanner means the engine will be repaired. These powers as tools are no different to the trowel or spanner. They do not, by their exercise alone, produce desired results. What determines that is the skill with which they are employed. It is that which money buys, and as with all professions and trades, it costs more to gain the more skilful.
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A Commission is usually charged with investigation of complex matters which have not been satisfactorily examined by conventional means. In respect of corruption, if investigation beyond that of conventional law enforcement agencies is necessary, then the skill required is that of gathering information, assessing its reliability, analysing in depth and drawing conclusions as to remedial action. Remedies may be limited to prosecution of the miscreants, or much broader, including legislative change, administrative changes and so on. For this to be successful, it is necessary to engage a person skilled and experienced in doing such work.
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Lawyers, particularly barristers and Judges, and others with experience in litigation, spend their working lives seeking out information, assessing its credibility, analysing it and drawing conclusions in the framework of existing laws. This work is not done in a vacuum. If done by a barrister, it is tested in court where it is criticised by the opponent barrister, and critically assessed by a Judge whose acceptance of it is sought. This is invaluable experience, and the longer a barrister spends doing it, the greater his skill. On appointment, a Judge gains further experience as he or she deals with matters argued by counsel, and the judicial assessment, in turn, is open to an appellate process where three other Judges examine its validity. By this process both trial Judge and appellate Judge gain further experience to that gained at the Bar.
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There is no better training in our community than is provided by these processes. They not only provide constant training to barrister and judge, but so far as barristers are concerned, also provide a guide as to comparative merit. As with all professions, some are better than others. Identifying those of greater merit is made easier by the grant of the status of senior counsel, and within the ranks of senior counsel, by reference to the fees they command in the market place.
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Consequently, it is not surprising that if a Government seeks redress of intractable problems, it should seek as its Royal Commissioner (and supporting counsel) those who are in demand for similar skills in the market place. If it wishes to do that, it has to pay for the services no differently to anyone else. There is little point in complaining at what has to be paid for the alternative is accept a significantly lesser level of skill and expertise.
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Finally, there are two further considerations of significance. The first is that of independence. To employ a Commissioner from the Bench or senior Bar is to employ a person whose independence is assured. Such person is unlikely to have been involved in the area of investigation before, and quite unlikely to be involved in it after the commission has ended. There is no absolute guarantee that such a person may not be corrupted, but it would be less likely than otherwise. The Commissioner has nothing to gain or lose in the conduct of his commission other than the fee paid, and reputation. The fee paid is usually of little moment because earnings in private practice would remain greater, and the intensity of work less.
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The second matter concerns protection from the dangers of abuse of the powers. The powers are intrusive, and when exercised, cause considerable disquiet, inconvenience and, in some cases, fear in those subjected to them. They can be employed directly or indirectly to gain a great deal of information about a person. That can be put to good or bad use. It is necessary, therefore, that the use of the powers be carefully controlled and restrained.
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In the case of a Royal Commission, monitoring occurs in three significant ways. First, the Commissioner being a senior lawyer or Judge is more likely to exercise care and restraint than are others not so well versed in the law. Second, Commissions are restricted by their terms of reference, so that a person subjected to the power has the legal right to test the intrusion by examining the terms of reference and complaining if they are exceeded, initially to the Commissioner, and, if not satisfactorily resolved, by application to a Court. Finally, at the end of the Commission, the material gathered is sent to the Government and the Commissioner loses any right thereafter to access it. He has, therefore, no reason for an interest in accumulating material for use in the indefinite future, or indeed, for any purpose extraneous to his commission. Little if any of this is so where like powers are conferred upon Police Commissioners, Ombudsmen, other statutory bodies or public servants, unless, as was the case when the National Crime Authority was first established (but is not now), its Commissioners were of similar skill and expertise and were restricted to limited tenure of 5 years without the possibility of renewal.
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Douglas R Meagher QC
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[AN ABRIDGEMENT OF THIS PAPER WAS PUBLISHED IN THE AGE ON 21 JUNE 2004]
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