Not All Royal Commissions Are Equal

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13 July 2023
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The media are a lot more interested in scandals like robo-debt under a Coalition government than in Lawyer X under a Labor government in Victoria.

The last few weeks have been the tale of two royal commissions. Last week in Canberra the report of the robo-debt scheme inquiry was released.

It continues to dominate the political news as its “sealed chapter” recommends the referral of public servants for potential civil legal action or criminal prosecution, and the commission’s findings have been forwarded to the Australian Public Service Commissioner, the National Anti-Corruption Commissioner and the Australian Federal Police.

Meanwhile, there are calls for Scott Morrison to resign from parliament because he was one of the ministers responsible for the scheme.

The report documents a massive failure of public administration as the federal government from 2015 to 2019 unlawfully operated a scheme that reduced or withheld social security payments to more than half a million welfare recipients. Recipients were incorrectly told they had debts to repay and in some cases cash in their bank accounts was confiscated.

The commission heard harrowing evidence of the personal and sometimes tragic consequences of bureaucratic and political failure.

It’s debatable, though, whether the solution proposed by the royal commissioner, Catherine Holmes, is the right one. She’s defended her referrals for investigation and her adverse findings against half a dozen senior and mid-ranking public servants as “a means of holding individuals to account, in order to reinforce the importance of public service officers acting with integrity”.

Which could be interpreted as a desire to make an example of some bureaucrats. But even public servants are entitled to a fair trial.

As Holmes herself acknowledged in her report, royal commissions are not a court of law, and they operate without all the protections of the judicial process. Yet as she went on to say, her findings against those she named “were liable to cause real damage to [their] reputation”.

The ever-growing use by governments of royal commissions, inquiries and investigations to adjudicate on the guilt of citizens without a trial abrogates all the principles of the rule of law. The establishment of the federal National Anti-Corruption Commission will make this situation worse.

In Australia today not all royal commissions are equal.

The media are a lot more interested in what happens under a Coalition government (robo-debt) than a Labor government (Lawyer X in Victoria).

Last month, in Melbourne, the Victorian Director of Public Prosecutions announced no one would be charged following arguably the most serious case of official misconduct in Australian legal history.

Beginning in the 1990s, the Victorian police paid a criminal defence barrister (Lawyer X) to inform on her clients. According to the High Court, “Victoria Police [were] guilty of reprehensible conduct in knowingly encouraging [the lawyer] to act as she did … As a result, the prosecution of each convicted person was corrupted in a manner which debased fundamental premises of the criminal justice system.”

There now won’t be a single prosecution. Such is what passes for justice in the state.

Two criminal convictions have already been overturned and guilty findings against potentially another 1000 people may have been affected.

If the Lawyer X scandal (although scandal doesn’t capture the enormity of what occurred) received a fraction of the attention devoted to robo-debt maybe there’d be some prospect of reform to the criminal justice system in Victoria. It might be, however, that it’s impossible for change to come from within.

Three years ago, The Age reported: “Questions have also been raised about who in the legal sector knew and did nothing about it either. Ms Gobbo’s lawyers [‘Lawyer X’] have told the royal commission there was material suggesting two current Supreme Court judges and former heads of public prosecutions at a state and federal level knew at the very least, Ms Gobbo was acting in conflict. ‘The only lawyer who was scrutinised and criticised was Ms Gobbo,’ they said.”

After a royal commission into Lawyer X, the appointment of a former High Court judge as a “special investigator”, numerous court cases and internal police investigations, not a single person has been held responsible for what happened. And, as Victorians were told last month, there now won’t be a single prosecution. Such is what passes for justice in the state.

A cynic might conclude that in Australia if you’re accused of breaking the law it’s better to be a cop in Victoria than a public servant in Canberra.

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This article was originally published in The Australian Financial Review and was written by the author in their capacity as a contributor for that publication. It has been republished on the IPA website with permission. The views expressed are those of the author alone.

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