Morris QC on royal commissions

I’ve known Tony Morris QC for a number of years as webmaster of a very useful legal site called Lex Scripta. More recently he attained national fame and then notoriety as the Royal Commissioner investigating events at Bundaberg Hospital involving the so-called “Dr Death” Jayant Patel. Morris’s enquiry met a premature demise at the hands of a Queensland Supreme Court judgment last year, which held that a reasonable apprehension of bias arose from the way Morris had behaved in relation to a couple of Queensland Health administrators who were alleged to have been involved in covering up Patel’s death-dealing activities and even helping him to flee Australia.

I read the judgment at the time, and recall concluding that, while Morris had behaved somewhat imprudently in a number of respects, the Court appeared to have adopted an unduly narrow and restrictive attitude towards the proper role and functioning of a royal commissioner. I doubt that the Supreme Court decision would have stood had it been appealed through to the High Court, but it obviously didn’t suit the Beattie government’s political interests to do so. I can’t help wondering whether Tony Morris’s fate might now be an actuating factor in what I see as an excessively cautious approach being adopted by AWB Royal Commissioner Terrence Cole QC.

Fortunately Tony Morris hasn’t been reticent about expressing his views about royal commissions in general, or about the Supreme Court’s treatment of him. Many of his observations are extremely relevant to the current situation with the Cole enquiry. I’ve taken the liberty of reproducing extensive extracts from a paper he wrote last November. I’ve concentrated on the arguments of general principle advanced by Morris, and largely omitted his specific references to the details of the Bundaberg Hospital enquiry. Readers interested in that controversy might care to read the whole paper.

Tony Fitzgerald – a person as unlike Sir Robert Menzies as it is possible to imagine – nonetheless had this much in common with Ming the Merciless: both were extraordinarily hard acts to follow. Fitzgerald effectively re-invented the public inquiry as a means of addressing the most egregious flaws in the administration of government, and created the model for similar inquiries throughout Australia.

Twenty years on, we tend to forget that it was not always thus. Pre-Fitzgerald, public inquiries were almost invariably chaired by serving members of the judiciary. To describe them as “hide bound” may be unfair, but it is undoubtedly the case that they operated in a context of court-like procedural rigidity which largely defeated any investigative effectiveness.

So that I am not misunderstood, let me make it perfectly clear that I have a great deal of faith in our Anglo-Australian judicial system, and the way in which our courts operate. Throughout the history of civilisation, human wisdom and ingenuity has failed to come up with a more effective system of tribunals for determining matters in dispute, either between citizen and citizen, or between citizen and government. Within those parameters, Australian courts – and their counterparts in the United Kingdom and other common law jurisdictions – are the fairest, most rigorous, and most impartial tribunals that have ever existed, or are ever likely to exist.

But the very word “tribunal” implies a particular kind of proceeding – a proceeding which involves three participants, two adversaries and one neutral decision-maker. Whether in a civil case, where the adversaries are plaintiff and defendant or applicant and respondent, or in a criminal case, where the adversaries are prosecution and defence, the role of the third participant is the same. The third participant may be a judge or a magistrate sitting alone, or may comprise a judge and jury, or a bench of three or more judges. Their sole function is to hear both sides of the case, as advanced by the adversarial parties, and reach an impartial decision on the evidence and submissions which are presented.

A public inquiry – whether described as a Royal Commission, or a Commission of Inquiry, or any other title – is fundamentally different. It is not adversarial in nature. A commissioner does not have the luxury of deciding between two opposing contentions. His or her function is to ascertain the truth. The truth may possibly emerge from the evidence and submissions put forward by interested parties. But, more often, commissioners discover the truth as a result of enquiries or investigations conducted, and witnesses called, of their own volition.

The inadequacy of the traditional judicial method in such a context is highlighted when it is recalled that, in the quarter-century preceding the Fitzgerald Inquiry, two other public inquiries were conducted in this State, both of which were broadly concerned with matters of police misconduct. Each was chaired by a judge of the greatest eminence: in one instance, Justice Gibbs of the Supreme Court of Queensland, who subsequently became a Justice of the High Court of Australia, and ultimately Australia’s Chief Justice; in the other instance, Justice Lucas of the Supreme Court of Queensland, who is deservedly remembered as one of that Court’s most distinguished members.

The Gibbs Inquiry was focussed on prostitution which was allegedly occurring, with police protection, at the National Hotel in Brisbane. The Inquiry was an abject failure. At the time, Sir Harry Gibbs was unkindly referred to as the only man in Queensland who could not find a tart at the National Hotel. …

The failure of the Gibbs inquiry, and the limited success of the Lucas Inquiry, were no reflection on the intelligence, integrity or ability of the respective Chairmen. It was the methodology that was flawed. The judicial method is perfectly attuned to ascertaining the truth as between two opposing cases: it was never designed to ascertain the truth at large.

The Fitzgerald Inquiry coincided with a trend amongst Australian judges – a trend which has since become almost universal – of declining to participate in public inquiries. The reasons for this are entirely commendable: inquiries generally deal with matters of intense public controversy, and for a serving judge to participate in such an inquiry has the real potential to bring the courts and judiciary into partisan political debate, and to undermine the fundamental separation between the legislative and executive branches and the judicial branch of government.

But, whilst that is the reason for the trend, it has another advantage. Nobody doubts that serving judges (or at least most of them) have the intellectual attainments necessary to conduct a public inquiry. But, in order to do so successfully, a very different mind-set is required from that which is appropriate for ordinary judicial work.

A commissioner is something less than a judge: generally speaking, he or she has no power to make decisions which are legally binding, and any recommendations fall to be implemented at the discretion of the government of the day. But, whilst commissioners are something less than judges, their functions are much broader: they oversee the investigations and enquiries which precede the calling of evidence in a public forum; they determine the evidence that is received, the order in which it is received, and the manner in which it is received; and they liaise with interested parties – which may include the government, the opposition, and other interest groups – using both their statutory powers and their influence to ensure that the truth emerges. Such a role would be unthinkable in the case of a judge in our Anglo-Australian judicial tradition; it is closer to the role of an “Investigating Magistrate” in the legal systems of some European countries. …

As I have observed, the Fitzgerald Inquiry occurred at a time when serving members of the judiciary were increasingly reluctant to participate in public inquiries. The Fitzgerald Inquiry – and other public inquiries of the same era, such as the federal Costigan Inquiry – undoubtedly benefited from the opportunity to escape the court-like procedural rigidity which had characterised public inquiries at an earlier time in history, and took full advantage of the new-found ability of such inquiries to conduct their own “behind the scenes” investigative operations.

On the other hand, the Fitzgerald Inquiry preceded legal developments which have tended to diminish the investigative flexibility of such inquiries, and to impose on them a straight-jacket of judicial review which gives greater emphasis to the personal interests of individual participants, over the public interest in discovering the truth. As it seems to me, this recent trend of judicial decisions has tended to handicap public inquiries, in at least four areas.

First and foremost, the success of a public inquiry depends on attracting and maintaining the support and goodwill of the public. In a nutshell, the public need to know that the inquiry is “fair dinkum”. Unless the public is convinced that the inquiry is “fair dinkum”, the inquiry will inevitably face a series of impediments.

It is, I am sure, no secret to say that much of the evidence which emerged at the Bundaberg Hospital Commission of Inquiry would not have come to our attention, unless people were convinced that we were “fair dinkum”. Why would a clinician – let alone a bureaucrat – risk his or her career to blow the whistle, unless they were convinced that some good would come of it? Why would people trust us with intelligence, such as where to find the smoking gun in relation to hospital waiting lists, unless we had already won their trust? …

The second reason is equally important. A judge, hearing a case in a court of law, has no part in formulating or implementing the tactics and strategies which will ensure that the truth emerges. After all, judges are not concerned with absolute truth, merely with relative truth. A judge’s function is not to discover what actually happened – it is merely to decide which of two versions of history, presented by the opposing parties, represents the closer approximation to the truth. If neither party is able to secure relevant evidence, or if neither chooses to call a particular witness who might be able to assist the judge in discovering the truth, then the judge has to do the best that he or she can without the benefit of such evidence.

Public inquiries are not like that – nor should they be. The Fitzgerald Inquiry would have been finished in a matter of weeks – and would have achieved no more than the Gibbs Inquiry or the Lucas Inquiry – if it were not for the evidence of one, Jack Reginald Herbert. Fitzgerald’s counsel assisting travelled to London to interview Herbert, and did a deal with him which involved his receiving immunity from prosecution in return for lifting the lid on the Pandora’s Box of police corruption in this State. No judge, sitting in any court of law, could have done that. Yet the course of Queensland history would have been very different if it had not happened.

The Herbert example is, of course, an extreme one. He was a vile creature, who confessed to his own perjury and corruption in order to bring down his partners in crime. Yet Fitzgerald was able to do a deal with him which acknowledged that, for the greater public good, the judicial system could turn a blind eye to Herbert’s own criminality, in return for evidence which exposed more wide-ranging problems. …

The third reason why it is necessary to apply to public inquiries standards different from those applicable to courts of law is that public inquiries must be informed by what Justice James Thomas has called “a sense of social, political, moral or economic direction”. For a judge in a court of law, there is a roadmap – it may sometimes be imperfect, sometimes ambiguous, sometimes incomplete – but a roadmap nonetheless. That roadmap is the law, comprising Acts of Parliament, regulations and other subordinate legislation, and previous judicial decisions. If the judge strays off the road, there are appeal courts to set him or her back on the right track. But public inquiries do not have any such roadmap: they must navigate by dead reckoning, informed by what Justice Thomas calls their “sense of social, political, moral or economic direction” – what I would call, more succinctly, their “moral compass”. …

The fourth and final reason why public inquiries ought not be subject to the same constraints as a court of law is, however, the most important. As the word “inquiry” implies, the process is an investigative one. It is, frankly, bizarre that the most formal type of investigative process known in our system of constitutional government should be hamstrung by constraints which do not apply to less formal inquiries, such as those conducted by the police and other law enforcement agencies.

Consider the case of a police homicide detective, investigating a series of suspicious deaths. If the principal suspect were found to have fled, it is absurd to imagine that the police should be restrained in asking hard questions of the person who arranged payment of the principal suspect’s airfares. Yet that, in substance, seems to be something which I – as a commissioner – was not permitted to do.

Every investigative process – whether it be criminal, civil, scientific, or of any other nature – consists of essentially the same series of steps. One begins by looking at the evidence which is most readily available. One then forms an hypothesis as to what might have happened, drawing inferences – and maybe forming suspicions – based on the available evidence. As the evidence accumulates, you test your hypothesis, your inferences, your suspicions. Of course, you keep an open mind. As more evidence emerges, your suspicions may be answered; inferences may be negatived; initial hypotheses may be contra-indicated. You may have to modify the existing hypothesis; or you may reject it entirely, and attempt to formulate a new one. Once all of the evidence is complete, you reach your conclusions. If you are lucky (or prescient), your conclusions may bear some resemblance to your initial hypothesis; more often, you will have considered and rejected a series of hypotheses during the course of the investigation.

The idea that one can conduct any kind of investigation, with a mind that is a blank canvass, is simply farcical. One might as well say that Howard Florey’s investigation of the clinical uses of penicillin was misconceived, because Florey began with an hypothesis (or a suspicion, if you like) that penicillin could be adapted as a chemotherapeutic agent. This may be contrasted with Alexander Fleming’s initial discovery of the antibiotic properties of penicillin, which occurred entirely by chance. Are future public inquiries to be entitled, like Florey, to develop and explore hypotheses – or are they obliged, like Fleming, to leave everything to chance ? …

The question remains whether, in the current legal environment, the Fitzgerald Inquiry could have been so successful; indeed, whether it could have succeeded at all.

I, for one, do not doubt that Tony Fitzgerald’s own legal acumen would have enabled him to navigate any legal obstacles placed in his path. But, for the reasons which I have outlined, I seriously doubt that the exercise could have been nearly so effective, had Fitzgerald been operating within the current legal framework. In any event, it would have to be a very different exercise from that which occurred twenty years ago.

And that leads to my ultimate point: if the current legal environment would not be conducive to another Fitzgerald Inquiry, one must seriously question whether legislative action is needed to ensure that a future Fitzgerald Inquiry will have just as much chance of success.

As I have mentioned, serving members of the judiciary have withdrawn from participating in public inquiries, for the very reason that such inquiries are properly viewed as part of the political process – part of the legislative/executive branch of government – rather than an exercise of judicial power. By the same process of reasoning, public inquiries – as part of the democratic processes connected with the legislative and executive branches of government – should not be subject to interference by unelected judges.

Needless to say, there will always be situation where judicial oversight of public inquiries is essential – for instance, if a commissioner were to do something completely outside his or her powers, such as attempting to gaol a recalcitrant witness, or operating a telephone tap without the appropriate warrant, or investigating issues which are totally removed from the terms of reference. But, when it comes to operational judgments regarding the day-to-day conduct of an inquiry, commissioners need the freedom to decide how best to ensure that the truth emerges. If there are genuine reasons for doubting the commissioner’s impartiality, that is best judged when the process is at an end, and it is possible for everyone to see whether or not the commissioner’s findings and recommendations are justified by the evidence on the public record. …

Morris manifestly has a personal axe to grind, but he makes some important points worth bearing in mind in the context of current events in the AWB enquiry.

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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17 years ago

Speaking of the devil, Fitzgerald is reported today:

The man who exposed police corruption on an unprecedented scale said debate over whether it was “appropriate” for the AWB inquiry to wide its focus – after commissioner Terence Cole said it was not within his powers to examine ministerial conduct – came down to weasel words. He said: “It’s become like a children’s game – ‘I’ll come if you ask me’, but ‘I’ll only ask you if you say you’ll come’.”

Other authorities are also reported, with majority opinion clearly on the side of Parish and Morris.

Nicholas Gruen
17 years ago

Thanks for drawing our attention to Tony Morris’s views. He was certainly hamming it up as the Commissioner, and I think the idea of preventing the judiciary investigating bias of a commissioner is pretty suss. Other than that his points are very telling. Very few of John Howard’s appointees disappoint him. The only one I can think of is Donald McDonald.