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House of Representatives                                Ch 14                                                 p 509

Matters before royal commissions and other bodies

Although it is clear that royal commissions do not exercise judicial authority, and that persons involved in royal commissions are not on trial in a legal sense, the proceedings have a quasi-judicial character. The findings of a royal commission can have very great significance for individuals, and the view has been taken that in some circumstances the sub judice convention should be applied to royal commissions.

In 1954 Speaker Cameron took the view that he would be failing in his duty if he allowed any discussion of matters which had been deliberately handed to a royal commission for investigation. ¹ The contemporary view is that a general prohibition of discussion of the proceedings of a royal commission is too broad and restricts the House unduly. It is necessary for the Chair to consider the nature of the inquiry. Where the proceedings are concerned with issues of fact or findings relating to the propriety of the actions of specific persons the House should be restrained in its references. ² Where, however, the proceedings before a royal commission are intended to produce advice as to future policy or legislation they assume a national interest and importance, and restraint of comment in the House cannot be justified. In 1978 Speaker Snedden drew a Member’s attention to the need for restraint in his remarks about the evidence before a royal commission. Debate was centred on a royal commission appointed by the Government to inquire into a sensitive matter relating to an electoral re-distribution in Queensland involving questions of fact and the propriety of actions of Cabinet Ministers and others. ³ The Speaker said:

I interrupt the honourable gentleman to say that a Royal Commission is in course. The sub judice rules adopted by the Parliament and by myself are such that I do not believe that the national Parliament should be deprived of the opportunity of debating any major national matter. However, before the honourable gentleman proceeds further with what he proposes to say I indicate to him that in my view if he wishes to say that evidence ABC has been given he is free to do so. The Royal Commissioner would listen to the evidence and make his judgment on the evidence and not on what the honourable gentleman says the evidence was. But I regard it as going beyond the bounds of our sub judice rules if the honourable gentleman puts any construction on the matter for the simple reason that if the Royal Commissioner in fact concluded in a way which was consistent with the honourable gentleman’s construction it may appear that the Commissioner was influenced, whereas in fact he would not have been. So I ask the honourable gentleman not to put constructions on the matter. ⁴

The question as to whether the proceedings before a royal commission are sub judice is therefore treated with some flexibility to allow for variations in the subject matter, the varying degree of national interest and the degree to which proceedings might be or appear to be prejudiced.

The application of the convention became an issue in 1995 in connection with a royal commission appointed by the Government of Western Australia. In this case, although the terms of reference did not identify person s, the Royal Commissioner subsequently outlined issues which included references to the propriety of the actions of a Minister at the time she had been Premier of Western Australia. In allowing Members to continue to refer to the commission’s proceedings, the Speaker noted that the terms of reference did not require the royal commission to inquire into whether there had been any breach of a law of the Commonwealth, to the fact that the issues had a highly political element, to the publicity already given to the matter and to the purpose of the convention. Nevertheless the Speaker rejected the view that the convention should not continue to be applied to royal commissions, and stated that each case should be judged on its merits. ⁵

When other bodies have a judicial or quasi-judicial function in relation to specific persons the House needs to be conscious of the possibility of prejudicing, or appearing to prejudice, their case. When the judicial function is wider than this—for example , a matter for arbitration or determination by the Industrial Relations Commission—there would generally be no reason for restraint of comment in the House. To disallow debate on such issues would be contrary to one of the most important functions of the House, and the view is held that anything said in the House would be unlikely to influence the commissioners, who make their determinations on the facts as placed before them.

The discretion of the Chair, and the need to recognise the competing considerations, is always at the core of these matters.

H.R. Deb. (12.8.54) 222.

The same rule has been held to apply to judicial inquiries into the actions of specific persons, H.R. Deb. (5.3.84) 511. See also H.R. Deb. (1.12.88) 3649-50 where the question arose in connection with a State commission of inquiry.

See Ch. on ‘Elections and the electoral system’.

H.R. Deb. (30.5.78) 2780.

H.R. Deb. (18.9.95) 1049-52.