What really goes on at a Royal Commission

Former commissioners The Hon Justice Neville Owen and Robert Fitzgerald AM discuss the inner working of a Royal Commission.

The Hon Justice Neville Owen and Robert Fitzgerald AM, who presided over two very different Australian Royal Commissions, shared surprising insights in conversation with Professor Pamela Hanrahan at the Australian Governance Summit.

Justice Owen’s 2003 report of the Royal Commission into the collapse of HIH Insurance remains essential reading for directors — marked with the indelible phrase “Did anyone ask themselves: is this right?”

Owen revealed the inquiry was aided by the computer skills of a group of Irish backpackers — all temp workers — who cracked an encryption code and revealed internal communications. This put witnesses under pressure when questioned to account for their email correspondence.

Both Owen and Fitzgerald emphasised that for anyone giving evidence it was crucial to take the time to reflect, to make sure you understand what’s in the documents. “Be thoughtful and truthful, take time to think,” advised Fitzgerald. “Don’t try to outsmart the Royal Commission because you probably won’t.”

Fitzgerald was a Commissioner on the Royal Commission into Institutional Responses to Child Sexual Abuse, which reported in 2017. He said that over five years, it had more than 1300 witnesses — victims, perpetrators and institutions — cost about $350m plus $100m in counselling and legal fees, had more than 300 staff in every capital city at its peak and broadcast of all the public hearings.

“The community had a right to know what was going on,” said Fitzgerald. “It was about them and their children’s children.”

Reflecting on the banking Royal Commission and others in train, Owen said, “The populace has lost faith in the ability of the political process to come to grips with these really serious issues.”

Asked how to judge their success, he said the real benefit lies in the platform for public policy. “You do not judge the success of the Commission on the number of people who are sitting in jail and the length of the terms they have to serve.”

One of the issues facing Royal Commissions was the trial in the court of public opinion.

“Reputational risk is significant,” said Owen. “That is why Royal Commissioners have a very great responsibility to apply the rules of procedural fairness, not only in their letter, but in their spirit — because of that risk of reputational damage. It is important with witnesses to give them the opportunity to put their side of the story.”