In Australia, at both the Commonwealth and State level, there is no all-encompassing legislation comparable to the Canadian Inquiries Act under which all public inquiries have to be appointed. This would make their identification easier. The exceptions to this are royal commissions that are established under their own specific legislation. Commonwealth royal commissions are appointed under the Royal Commissions Act 1902. Similar legislation occurs in all the States. This legislation confers on royal commissions specific powers of investigation that other inquires do not have. This is discussed later.
A small number of public inquiries may also be established under other legislation.
Key features of public inquiries sets out criteria by which public inquiries can be identified and distinguished from other advisory instruments.
The eleven key distinguishing features of public inquiries include:
- Non-permanent, ad hoc and temporary bodies and are not part of the normal public bureaucracy, or any ongoing advisory body;
- Established and appointed by executive government, by either cabinet, the prime-minister or premier and relevant minister. Public inquiries are not appointed by a department or existing agency by a senior departmental officer like consultancies or internal project teams.
- Funded totally by government, not by any external public or private sources. The executive government determines the level of resourcing. Inquiries have no resort to any special ongoing funding source from within or outside of government.
- Appointed and exist at the discretion of executive government not by parliament or some other institution of government. Moreover, this appointment is ad hoc.
- Discrete organisational units and are not part of any existing government agency, department or permanent advisory body.
- Have the majority of their membership drawn from outside of government and do not include sitting government ministers or backbenchers though occasionally inquiries may include senior public servants as members.
- Inquiries actively promote their existence to the wider community and are not secret bodies working inside government without public awareness of their appointment and tasks.
- Have clear terms of publicly stated reference.
- Actively seek public participation through public hearings, forums, interviews and seeking submissions from the general community or from targeted approaches to interest groups.
- Produce a report with recommendations and that is submitted to executive government and is ultimately made public. Sometimes, for legal or national security reasons the full details of an inquiry may not be publicly (eg 1984 Royal Commission into the Federated Ship Painters’ and Dockers’ Union; the 1942 Royal Commission into Darwin was initially only provided to Cabinet and was not publicly released till 1945).
- Public inquiriesonly have advisory powers and cannot action their proposals. Even royal commissions whose reports appear to be making judgements about individuals or organisations can only make recommendations to other authorities with the appropriate powers and responsibilities to conduct follow up actions and where relevant, prosecutions.
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Based on the criteria outlined above public inquiries exclude:
- Internal public service inquiries or committees such as inter-departmental committees (IDCs) or project teams: These are constituted totally by public servants and their reports are rarely made public. Their members are drawn totally from within the public service.
- Departmental policy research units : Although providing policy advice such units report directly to the public service hierarchy or minister and are totally constituted by public servants and their reports are not made public.
- Inquiries conducted by public servants sometimes on internal matters (eg discipline) or in relation to broader public policy issue because of their limited public exposure and often non-public release of their findings.
- Consultancies are excluded because their existence is often confidential, their reports private and their mechanisms of gathering information rarely involve extensive public consultation.
- Special policy research bureaux located in government departments, some of which are statutory based and therefore have some independence from the normal routines of government eg Australian Bureau of Agricultural Resource Economics (ABARE), Bureau of Resource Sciences (BRS), and the former Bureau of Immigration and Population Research. These bodies are npt public inquiries because they are permanent and ongoing bodies and although many of their reports are released, much of their work remains confidential.
- Permanent statutory advisory bodies or offices located more formally outside of government departments eg Law Reform Commission, Productivity Commission, Commonwealth Scientific and Industrial Research Organisation (CSIRO), and the Office of the Chief Scientist and Institute of Family Studies. Although having some features of public inquiries such as public processes of information gathering, their permanent and ongoing nature excludes them from being a public inquiry.
- Parliamentary committees use public processes of investigation and reporting and have powers to call witnesses, but are not public inquiries because their membership is partisan, dominated by government backbenchers and their reports are often regarded as biased and ‘political.’
- ‘Think Tanks’ most of which are independently funded, (eg Evatt Foundation, Menzies Research Centre, Sydney Institute, Centre for Independent Studies, Brisbane Institute) do conduct in depth investigations, research or ‘inquiries’ into topics and often release their reports. ‘Think tanks’ neither receive their references from government nor report to executive government. Also, their ongoing nature and limited public processes exclude these bodies as public inquiries.
- Inquiries established by government entities such as statutory boards rather than executive government are excluded as they are not appointed directly by executive government or report to government. For instance, the Howard Government’s Australian Science Capability Review conducted by Professor Batterham, the Commonwealth Chief Scientist, was not deemed a public inquiry despite its public processes of consultation, executive government appointment and publicly released report. This is because the Chief Scientist is a permanent statutory based office and the review was within the prescribed duties of that office.
- Another type of inquiry excluded are those appointed jointly by intergovernmental bodies.
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