While there has been much discussion and debate over the scope of the terms of reference and powers of the proposed Royal Commission into Child Abuse, there has been little consideration of the constitutional basis for these powers. Gabrielle Appleby considers this important aspect of the Commission’s establishment.
On 12 November 2012 the Prime Minister announced that she will recommend to the Governor-General the establishment of a royal commission into child abuse in a number of institutions, including churches, schools and foster homes.
Much has been written and discussed about the scope of the proposed commission’s terms of reference to try to ensure that the claims of victims and the responses of institutions are properly canvassed. There has also been some commentary on the scope of the powers of the commission, and whether it will have the power to compel testimony from priests about matters that have been divulged in the confessional. This post considers the constitutional power of the Commonwealth to establish a commission with these powers.
The Commonwealth’s Power to Establish Royal Commissions
In establishing a Royal Commission, the Governor-General will act, by convention, on the advice of the Government – usually in the form of the Executive Council.
What is less clear, however, is the type and scope of the power that is exercised, given that the Commonwealth is a polity of necessarily limited constitutional powers. There is a now a statutory power for the Governor-General to make or authorise an inquiry, or establish a commission to do so, including a royal commission. The Royal Commissions Act 1902 (Cth) empowers the Governor-General, by Letters Patent, to issue commissions as he or she thinks fit to make inquiry and report on any matter, ‘which relates to or is connected with the peace, order, and good government of the Commonwealth, or any public purpose or any power of the Commonwealth.’ This is expressed so broadly that the matters that fall within such an inquiry could clearly fall outside the Commonwealth’s legislative powers. The Act indicates that it in no way prejudices, limits or derogates from any pre-existing power of the Governor-General ‘to authorise any inquiry, or to issue any commission to make any inquiry.’
Historically, the Crown has enjoyed a non-statutory power to ‘inquire’. There have been differing views about the exact nature of this power. Dixon J described the power in McGuinness v Attorney-General (Vic) (1940) as sourced in ‘the prerogative of the Crown’. In contrast, Griffith CJ in Clough v Leahy (1904) referred to the power to establish commissions as ‘not a prerogative right’, but a capacity of the Crown, that is, the power of inquiry is a capacity of the Crown shared with every individual citizen. The power to inquire has generally been considered not to be limited by the subject matters over which, or purposes for which, the Commonwealth has legislative power.
Compulsive and Coercive Powers of Royal Commissions
Regardless of which view is correct – that the power to inquire is a prerogative or a capacity of the Crown – these powers are non-statutory in nature. As such, they are subject to certain restrictions on their depth. This means that they cannot be used to transgress fundamental common law rights of citizens – such as the right to property – except with the express authorisation of statute. Under this principle the Executive would not be able to compel testimony, including that which may violate religious beliefs such as the sanctity of the confessional. The Executive also requires statutory authority to create new offences, and dispense with the law. The High Court has therefore held that a commission can only exercise certain powers – the power to compel testimony, to provide privilege from prosecution, or to punish for contempt – with statutory authority. These limits exist to ensure there is a check on the power of the Executive, protecting the rights of individual citizens against arbitrary interference.
The Royal Commissions Act confers a number of powers on commissions established under the Act, or otherwise established. The Act confers, for example, the power to summon witnesses to give evidence and produce documents, and the Act makes it an offence for individuals to fail to appear or produce documents. Evidence given before a commission is not admissible as evidence in other civil or criminal proceedings, thus protecting witnesses from future legal action as a result of evidence they give before a commission. There are also offences for acting in contempt of a royal commission.
In so far as the subject matter or purpose of an inquiry lies within the Commonwealth’s legislative powers (in ss 51, 52 and 122 of the Constitution), the conferral of compulsive powers on a Commission is perfectly constitutional. But what happens when the Commonwealth is establishing a commission to inquire into matters that are largely outside the Commonwealth’s legislative powers?
The High Court has held that the Commonwealth cannot confer compulsive powers on a commission investigating matters otherwise outside the Commonwealth’s legislative competence by relying on s 51(xxxix) of the Constitution, which allows the Commonwealth Parliament to enact legislation that is incidental to the execution of the executive power. In Lockwood v Commonwealth (1954), Fullagar J explained:
Where … the subject matter of the inquiry lies outside the field of Commonwealth power, the Commonwealth cannot constitutionally confer compulsive powers on any body set up to make the inquiry.
Therefore, inquiries established outside of the Commonwealth’s heads of powers can only have the power to inquire, but not compel. Such a commission is in the same position as a nosy citizen. As Griffith CJ said in Clough v Leahy:
The power of inquiry, of asking questions, is a power which every individual citizen possesses, and, provided that in asking these questions he does not violate any law, what Court can prohibit him from asking them? He cannot compel an answer; and if he gets an answer which is defamatory of anybody else, and the circumstances are such that the occasion is not privileged, the person who utters the words is liable to the consequences of an unlawful publication of defamatory matter.
Locating the Source of the Powers of the Proposed Royal Commission into Child Abuse
So where is the legislative power to support the conferral of powers on the proposed Royal Commission into child abuse? If there is not the necessary head of power to support legislation conferring compulsive powers on the Commission, it will severely undermine the ability of the Commission to fully explore allegations of abuse and responses to it. There are some strong arguments that there is the necessary legislative power, despite the Commonwealth not being vested with legislative power over ‘child protection’ or a similar subject.
The Commonwealth may rely on the external affairs power – s 51(xxix) of the Constitution. Since the landmark judgment in Commonwealth v Tasmania (Tasmanian Dam Case), it has been accepted that the Commonwealth possesses a wide power power to make laws that enact treaty obligations. The laws must be reasonably considered to be appropriate and adapted to implementing a specific treaty obligation.
This power has been used by the Commonwealth to vastly expand its powers into areas such as environmental protection, comprehensive regulation of industrial matters and protection of human rights, which have previously been understood to fall outside of Commonwealth legislative competence.
Since 1991 Australia has been a party to the Convention on the Rights of the Child. Article 19 provides:
1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.
2. Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.
The specific reference to investigation and reporting of instances of child maltreatment including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child in Article 19(2) envisages states that are party to the Convention establishing official inquiries into child abuse in institutional care, through, for example, a Royal Commission.
The broad nature of the obligation in Article 19(2) would allow the Commonwealth to establish a royal commission into child abuse in institutional care with wide-ranging powers. The Commonwealth has indicated that it will seek the cooperation of the States and Territories to ensure the commission can access information held by state governments (see the Consultation Paper). Indeed, the royal commission is to be discussed in today’s COAG meeting.
While it may certainly be desirable for the States and Territories to cooperate with the Commonwealth commission, and it may increase its legitimacy and status publicly, I can see no compelling reason why such cooperation is constitutionally necessary. The Commonwealth is constitutionally limited from passing laws that would curtail the States’ capacity to function as governments (this is known as the Melbourne Corporation principle). It would seem highly unlikely that the Commonwealth would be in breach of this principle in establishing the Commission and conferring compulsive powers on it, even if those compulsive powers extended to the States. A very limited exception to this may be if the Commission was given the power to order the production of documents protected by State claims to Cabinet confidentiality, but this seems unlikely given the scope of the powers currently conferred by the Royal Commissions Act.
The Commonwealth may only establish commissions of inquiry, including royal commissions, with the power to compel testimony and protect witnesses and commissioners from the threat of legal proceedings through statute and in areas over which the Commonwealth has legislative power.
The Commonwealth’s announcement of the establishment of a royal commission to investigate child abuse in institutions and institutional responses to it takes the federal government into a subject area previously considered to be within the domain of the States: child welfare and protection. However, the Commonwealth is in a strong position to argue that it can support the powers of the commission because of its obligations to protect children conferred by the Convention on the Rights of the Child. It demonstrates, once again, the degree to which Commonwealth jurisdiction has been broadened through the external affairs power.
Gabrielle Appleby is a Senior Lecturer at the Adelaide Law School.
 In the recent decision in relation to the National School Chaplaincy Program (Williams v Commonwealth), the High Court held that the Commonwealth’s capacity to spend money and enter into contracts without statutory authority was much more limited than previously understood. There is an unanswered question about the extent to which this decision affects the Commonwealth’s other capacities – such as the capacity to inquire. I believe that the better view is that the peculiar nature of the spending power (the High Court identified, for example, the ability of the Commonwealth to regulate the conduct of individuals through funding, and the expenditure of public moneys) would limit this decision to that capacity only.