While it is the government that decides to establish a royal commission into a particular matter, royal commissions are formally commenced by the King’s representative, the Governor (on a state level) or the Governor-General (on a federal level). A royal commission is commenced by the Governor or Governor-General issuing Letters Patent, a formal document that sets out the terms of reference and appoints one or more royal commissioners to conduct the inquiry. In the context of Australia’s constitutional monarchy, this practice reflects that historically the power to establish a royal commission was a prerogative power of the Crown.

Recent Commonwealth royal commissions include the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability and the Royal Commission into the Robodebt Scheme.

The Commonwealth Royal Commission into Defence and Veteran Suicide commenced on 8 July 2021 and is due to report by 9 September 2024.

Recent South Australian royal commissions include the Royal Commission into Early Childhood Education and Care and the Child Protection Systems Royal Commission.

On 13 December 2023, the South Australian Government announced its decision to establish a Royal Commission into Domestic, Family and Sexual Violence.

Courts and tribunals

Courts and tribunals resolve disputes between private individuals or organisations, or between private individuals or organisations and the government. Strict rules of procedure and evidence generally apply and matters must be proved beyond reasonable doubt (in criminal matters) or on the balance of probabilities (in civil matters). An impartial arbiter (usually a judge or magistrate) makes formal findings on the evidence presented and resolves the dispute between the parties by making binding orders.

A royal commission, conversely, is guided by the terms of reference and is not bound by the rules or practices of court as to procedure or evidence. Courts are adversarial, whereas royal commissions are inquisitorial, investigating matters and gathering evidence as they see fit. Royal commissions cannot make binding orders. They can only make recommendations to the government about systemic, structural or policy matters that need changing.

Coroner’s inquests

Coronial inquests are much more similar to royal commissions than court or tribunal proceedings. They are inquisitorial in nature, with the Coroner similarly empowered to gather evidence, present findings and make recommendations.

The main difference is that coronial inquests are held to determine the cause or circumstances of a person’s death or disappearance or a fire or accident that causes injury to a person or property. Inquests in South Australia are governed by the Coroners Act 2003 (SA) and are much more confined than royal commissions. Recommendations will usually be directed towards actions that might prevent or reduce the likelihood of the death or incident the subject of the inquest.

Other government reviews, investigations, inquiries and taskforces

State and federal governments often conduct reviews and inquiries or establish taskforces to examine particular areas of concern. Royal commissions are the highest form of inquiry in Australia, with the greatest independence, broadest investigatory powers and a high standard of openness and accountability.

Parliament and parliamentary committees

Parliament is made up of elected officials who make laws and represent their constituents. Parliamentary committees scrutinise laws and inquire into matters of public interest for the purposes of recommending legislative or policy reform.

Like parliamentary committees, royal commissions can make recommendations about law reform that may be implemented by parliament. However, royal commissions cannot make laws, and royal commissioners are impartial and do not represent any particular political party, agenda or subset of the community.

Other government commissions

There are a number of statutory authorities also called ‘commissions’, such as the Australian Competition and Consumer Commission, the Australian Human Rights Commission and of course the Legal Services Commission. These are independent authorities funded by Government with broad functions, powers and ongoing roles. Royal commissions are temporary, established for a specific investigatory purpose and usually cease to exist once they have reported.

Royal Commissioner: One or more commissioners may be appointed to conduct the inquiry and prepare the final report. Commissioners usually have legal qualifications or extensive experience in the subject matter of the royal commission.

Counsel assisting: One or more experienced lawyers will usually be appointed to present evidence, question witnesses and make submissions to the royal commission. Counsel assisting do not represent any particular person, organisation or viewpoint and must remain impartial.

Other lawyers: Sometimes other lawyers will also present evidence, question witnesses and make submissions on behalf of their clients who may be involved in or affected by the royal commission.

Royal commission staff: A number of administrative and secretarial staff support the royal commission’s proceedings and functions.

Witnesses: People with a particular interest in or knowledge of the subject matter of the royal commission may ask to give evidence before the royal commission or may be compelled. If their evidence is confidential or sensitive, hearings may be conducted in private. In rare instances, witnesses may be able to speak with the royal commissioner or commissioners individually.

Experts: Experts with qualifications or experience in the subject of the royal commission are usually invited to provide written submissions or appear before the commission at public hearings.

Members of the public: Royal commission hearings are usually open to the public meaning that members of the public may attend in person or watch online if hearings are broadcast.

A royal commission is empowered to gather evidence and exhaustively investigate matters relating to its terms of reference. It can compel individuals to appear before it and answer questions and can require the production of documents or other evidence of relevance.

When a royal commission has concluded its investigation, it can present a report with formal findings and recommendations for change. If appropriate, it can also refer matters to relevant authorities for further investigation and action. This could include, for example, the referral of evidence of criminal offending to the police.

A royal commission is limited by the terms of reference issued by the Governor or Governor-General. It cannot go beyond the terms of reference to conduct a separate investigation.

A royal commission cannot implement legal, governmental or policy changes itself. It can only make recommendations to the government.

A royal commission cannot make formal findings of civil liability or criminal guilt in respect of individuals or organisations. It cannot award compensation or impose criminal penalties (other than penalties for contempt of its proceedings).

While a royal commission cannot implement changes itself, its report and recommendations send a strong, public message to the government about the state of the matters it has considered and the changes it recommends. The government is usually expected to provide a response to the royal commission’s findings and recommendations. As royal commissions are not common, they usually attract media attention and accordingly can garner public pressure to act on the recommendations.

Submissions

Once a royal commission has been established, it will usually invite members of the public to provide submissions by a particular date. Anyone can write to the commission to tell their story or express their views about one or more matters addressed in the royal commission’s terms of reference. Submissions are usually written but more recently royal commissions have been willing to accept other forms such as video submissions.

Submissions will usually be made public and published on the commission’s website unless the author has specifically requested to remain anonymous or for their submission to remain private.

Hearings

Royal commissions usually conduct public hearings to receive evidence and hear from relevant witnesses and experts. Members of the public may request an appearance before the commission or may be invited or required to attend to give evidence.

Hearings are usually public which allows any member of the public to attend and watch from the public gallery. More recently, royal commissions have broadcast their public hearings online.

Occasionally royal commissions will conduct private hearings to receive sensitive or confidential evidence. Where appropriate, royal commissioners may also decide to hold private sessions, in which they meet with particular individuals one-on-one. This can allow a royal commission to fully investigate matters but the weight that can be given to information received this way may be more limited if it cannot be effectively tested or referred to in the final report and recommendations. 

Other opportunities

Some royal commissions hold hearings in different locations, including regional or remote locations, to give all community members an opportunity to participate. In addition to public hearings, royal commissions may employ other methods to consult with the community, such as surveys, roundtables and forums.

These days it is quite common for a royal commission to have an official website which will publicly advertise the dates and locations of its hearings and other ways to participate. This can allow interested members of the public to monitor the progress of the royal commission, attend upcoming hearings and access published evidence, submissions and reports of the commission.

The letters patent issued by the Governor or Governor-General will usually prescribe a fixed date by which the royal commission must present its final report and recommendations. Royal commissions will sometimes publish an interim report to summarise the commission’s progress and set out recommendations if matters require urgent attention.

The final report of a royal commission will almost always be made public, though in exceptional cases portions may be kept confidential. In 2023 the Australasian Legal Information Institute (AustLII) launched a public database of all federal and state royal commissions and public inquiries held since the mid-1800s.

The final report will typically set out the royal commission’s terms of reference, findings made based on the evidence heard and submissions received, and formal recommendations.

The government will usually prepare a formal report responding to the commission’s findings and explaining whether and to what extent it will implement the recommendations. The government may then provide updates or reports on a regular basis about its progress in implementing the royal commission’s recommendations.