Royal Commissions – a legal process in the public spotlight

Royal Commissions can expose an organisation, an individual or an entire sector to long-lasting reputational and operational risk. Detailed preparation done early, with a clear understanding of that potential exposure, and how to mitigate it, is vital.

The process is played out under intense public focus, so a concurrent legal and communications strategy is required when interacting with a Royal Commission.

YPG’s expertise

The team at York Park Group have dealt with Royal Commissions from every perspective.

Our team of experts have sat inside the governments which have initiated them, have worked in organisations responding to the recommended public policy reforms, supported organisations named in findings, and prepared submissions, evidence, and witnesses to appear before them.

We have worked as journalists covering Royal Commissions, and for groups advocating for and implementing changes coming out of Royal Commissions. We are deeply experienced in how Royal Commissions operate and how the public reacts to them.

How to think about a Royal Commission

At their essence, a Royal Commission exists to inquire in-depth about a certain issue, make findings, and provide recommendations to the Australian Government about what to do about the issue.

In practice, a Royal Commission exposes governments, organisations and individuals to extreme scrutiny, creating potentially significant reputational and operational risks.

Some recent Royal Commissions have been elevated even higher in the national consciousness to play a cathartic role in our society, exposing system-wide failures with the hope of creating long-term policy and society change.

A Royal Commission was once simply an independent legal and policy review; today, they can be used for the most serious of systemic policy failures, cutting across society, industry and government.

Over the past 25 years, Royal Commissions have been used to examine the aged care and financial services sectors, defence and veteran suicide, child protection in the Northern Territory, institutional responses to child sexual abuse, and mental health.

Anyone pulled into the orbit of a Royal Commission is expected to account for all of the actions of their organisation and how it contributed to the failures of a policy area. Organisations, sectors, individuals and governments which make submissions, are called as witnesses, or have findings made against them need to balance legal obligations with reputational risks.

Simultaneously, it can also be an opportunity for individuals and organisations with expertise to call for reforms and promote initiatives and public policy changes.

What are the Powers of a Royal Commission?

Royal Commissions hold extraordinary statutory powers. They can compel individuals to appear and demand written statements or information. Witnesses give evidence under oath, and failure to comply (whether by refusing to appear, withholding information, or giving misleading evidence) can amount to a criminal offence.

The Process

Phase 1: Establishment

While Royal Commissions are apolitical in their execution, their forming is often reflective of the politics surrounding the Government of the day.

The foundational document is the Letters Patent, which sets out the appointment of Commissioner(s) and outlines the Terms of Reference. The Terms of Reference define what the Commission may examine and the limits of its authority. They act as the Commission’s compass, shaping hearings, submissions, witness selection, and ultimately the findings.

Organisations, agencies and impacted individuals need to understand the Terms of Reference early to appreciate how the Royal Commission’s scope will apply to them, to inform their submission and potential appearance as a witness, and any future response.

The broad nature of a Royal Commission allows it to traverse a significant breadth of Australian business, governments and society.

Early understanding of the Letters Patent will also allow organisations to anticipate lines of inquiry, identify potential risks, and prepare accurately and confidently. Understanding how previous, concurrent, or related reviews (e.g the Segal Report) have covered some of the topics in the Terms of Reference is also a useful starting point.

Phase 2: Collecting Information and Evidence

This is where the Commission begins to build a detailed picture of the issues, drawing on diverse sources of information to test assumptions, identify systemic problems, and shape the themes that may guide later findings.

The Commission will likely include a call for public submissions, inviting organisations, individuals, peak bodies, advocates and affected communities to share their expertise, knowledge and proposed recommendations, alongside directions for the provision of statements. These submissions often bring to light issues that the Commission may wish to pursue in hearings.

The Commission will likely conduct public or, where appropriate, private hearings based on the evidence gathered under open submissions and compelled statements.

Witnesses may be asked to give evidence under oath. These proceedings are usually formatted with the Commissioner presiding over hearings as a judge would in a civil or criminal case, while a senior barrister (called Counsel Assisting) conducts an interview with a sworn witness.

Witnesses and their organisations often engage legal and external communications teams to assist with preparation for this. Public hearings are highly visible, broadcast live on a Royal Commission’s dedicated website and can attract significant media interest. Where the witness is particularly compelling, or the evidence contested or sensitive, it may even be broadcast live on TV and online news channels, live blogs and social platforms.

Preparation is critical; ensuring clear and consistent messaging, trained spokespeople, and a coordinated media and communications plan.

Phase 3: The Report

A Royal Commission provides its Final Report to the Governor General, which contains its finding and recommendations for change.

Recommendations can be wide-ranging, covering legislative reform, regulatory changes, practice improvements, and structural transformation of entire sectors.

The Final Report is then tabled in Parliament and published; an Interim Report may also be released.

The Government will usually provide a formal response to the Commission’s Final Report, detailing how it will act on the findings and recommendations.

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