Royal Commissions in Australia: Implementation Analysis

Introduction

Federal governments are increasingly using Royal Commissions to address policy challenges and institutional failings.
Political scientists debate the effectiveness of these inquiries in producing policy and political outcomes.
Two views:
- Classics: Inquiries are ineffectual, with poor policy implementation due to executive bias.
- Executives steer inquiries to produce pre-ordained political outputs or ignore/reinterpret them during implementation.
- Inquiries are attractive for appearing proactive or avoiding blame without necessarily facilitating policy change.
- Contradictory View: Inquiries can be effective in producing transformative policy outcomes.
- Pushback against dismissing inquiries as ineffectual.
- Public inquiry politics need not be seen as problematic.
- The classic mobilization of bias thesis needs revision to understand contemporary public policy complexities.
Contradictions exist because some inquiry reports are shelved, while others lead to substantive change.
Political science can improve in evaluating the extent and impact of inquiry implementation in specific contexts.
Determining the extent of inquiry implementation is methodologically challenging.
Inquiry researchers tend to focus on broader outcomes rather than the fine print of implementation.
Despite their cost and seeming importance, little is known about the extent and nature of implementation following Royal Commissions in Australia.
A project was designed to locate federal, twenty-first-century Royal Commissions in the debate.
The project aimed to determine whether these commissions have been implemented and produced transformative policy outcomes or whether they tend to be shelved.
The recommendations of six twenty-first-century, federal-level Royal Commissions were tracked.
Evidence shows that commissions reporting between 2002 and 2015 have not been extensively implemented.
While there are examples of high levels of implementation and policy change in some cases, typical levels of policy implementation and inquiry outcomes are modest.
The cases produced significant evidence of political machinations limiting the extent to which these commissions were implemented.
Classic claims of inquiry scholars are alive and well in explaining the less-than-impressive track record of Royal Commissions in Australia since the turn of the century.
More contemporary, policy and public-managerial oriented explanations complement the classic mobilization of bias view.
Contemporary explanations are required to better understand and improve rates of inquiry implementation.

Methodology

Included every Royal Commission that reported in Australia since 2000 and could theoretically be implemented by late 2018.
The start date of 2000 was chosen for three reasons:
- Only three Royal Commissions took place from 1990 to 1999.
- Commission Reports began to be digitized in accessible ways after 2000.
- The findings are representative of twenty-first-century, federal-level Royal Commissions.
The cut-off date of 2015 allowed enough time for a significant amount of implementation to have occurred before tracking.
Delayed analysis of the most recent inquiries allowed more time for them to be implemented.
The smallest gap was five years from report publication to analysis.
There is a chance that some recommendations may have been implemented after the project finished.
The sample included six inquiries:
- HIH Royal Commission (2003)
- Royal Commission into the Building and Construction Industry (2003)
- The Royal Commission to Inquire into the Centenary House Lease (2004)
- The Inquiry into certain Australian companies in relation to the UN Oil-for-Food Programme (2005)
- The Royal Commission into the Home Insulation Program (HIP) (2014)
- The Royal Commission into Trade Union Governance and Corruption (2015).
The Royal Commission to Inquire into the Centenary House Lease was removed because it contained no recommendations and was based on an analysis of a previous inquiry from 1994 on the same topic.
The Equine Influenza Inquiry (2008) was included to maintain the sample size.
The Equine Influenza Inquiry was a Commission of Inquiry under the Quarantine Act (1908) rather than the Royal Commission Act (1902).
The Quarantine Act allows for an inquiry that shares all the features of a Royal Commission, applied to the examination of outbreaks and epidemics.
A two-stage method was applied to each case.
Stage one involved tracking each recommendation through documentary analysis.
Many recommendations were hard to track.
- These related to value or value-oriented aspirations.
- These involved passing recommendations to other agencies for implementation.
Recommendations were tracked through direct contact with public sector agencies.
A database was created for each case, recording the recommendation, the executive response, and the evidence used to designate it as implemented, partially implemented, or not implemented.
Stage two involved semi-structured qualitative interviews with independent stakeholders.
The purpose was to deliver data on the outcomes that the inquiries did or did not produce and the reasons for success or failure.
The outcome focus was essential because of the variable nature of recommendations and the significance ascribed to their implementation.
Interviews were required to understand the scale of effects produced by the implementation of recommendations.
A transformative political reform might outweigh one hundred technical changes (or vice versa).
In total, 48 interviews were conducted.
Primarily sought external voices who could speak about the impact of the inquiries in impartial terms or because they had lived professional experience of the policy area.
Public servants were interviewed to fill gaps left by other participants.
The decision to relegate the voices of public servants was taken because of the unconscious bias that these actors might hold in relation to the portrayal of implementation success.
The Royal Commission into the Building and Construction Industry provided an indicative illustration of this strategy and the kinds of interviewees pursued.
Interviewees included industrial relations lawyers, members of industry associations, key union representatives, members of independent think tanks, and industrial relations experts in academia.
Followed these with selective interviews with public servants.
The central question always remained the same: what, if anything, did the implementation of the inquiry’s recommendations produce in terms of policy outcomes?
Secondary questions then probed the reasons why the implementation of the inquiry did or did not produce intended outcomes.

Royal Commission Implementation: Frequency and Outcomes

More recommendations were not implemented than implemented.
From 444 tracked recommendations, 45% (201) were implemented, and 55% (243) were shelved.
$Implemented = 201$
$Shelved = 243$
If only fully implemented recommendations are counted, the implementation ratio drops to 37% (166 out of 444).
ImplementationRatio = arc{166}{444} \approx 37 %
Stage two interview data reinforces these crude indicators.
Table 1 categorizes commissions from left to right in terms of the extent of their implementation.
The Oil-for-Food (Australian Wheat Board – AWB) Commission and the Equine Influenza Inquiry were fully implemented.
The policy impact of these two commissions is distinguishable.
The AWB inquiry was primarily focused on accountability and delivered only five recommendations.
Two recommendations created The International Trade Integrity Act (2007) and The Wheat Marketing Amendment Act (2007).
Neither has had significant reform implications or case law associated with them.
The Equine Influenza Inquiry produced 38 recommendations that encouraged a significant amount of legislative, organizational, and policy instrument change.
Recommendations related to: the creation of an Inspector-General of Horse Importation (later superseded by the Inspector-General of Biosecurity), pre-export horse quarantine measures, vaccination and biosecurity controls, and enhanced facilities and procedures in Australian quarantine stations.
All interviewees stated that the implementation of these measures had made a positive impact in terms of improvements to biosecurity measures.
Acknowledged as a niche policy area, but the commission had a substantive impact within it.
Below these two inquiries are a mix of Commissions which were partially implemented and encouraged varying forms of the outcome.
The HiH Commission represents ‘the best of the rest’ as a small majority of its recommendations were implemented (59%), and interviewees confirmed that some substantive policy outcomes did materialize in its wake.
These are related to changes in the manner in which large corporations are audited and regulated.
Two Commissions sit in joint fourth in the table with identical proportions of implemented (38%) and not implemented (62%) recommendations.
These Commissions, although similar in their focus in many ways, can be distinguished by the fact that interviewees stated that one had significant effects while the other did not.
The Royal Commission into the Building and Construction Industry was significantly larger than any other inquiry in the sample.
Produced 212 recommendations and 243 sub recommendations.
The commission with the largest number of recommendations implemented and the greatest number of recommendations shelved.
The relatively low 38% implementation meant that no evidence of action was found in relation to 132 recommendations.
Stage two interviewees all agreed that this Commission had led to outcomes of significance, most notably the creation of the Australian Building and Construction Commission (ABCC) and changes to the National Code of Practice for the Construction Industry.
Views contrasted against those related to the Royal Commission into Trade Union Governance and Corruption.
This Commission produced 79 recommendations, almost all focused on amending existing legislation with a specific focus on the Fair Work Act (2009).
Only 30 (38%) of its recommendations were implemented.
These principally related to the creation of a Registered Organizations Commission (ROC), which now regulates unions and employer associations, and a series of amendments to The Fair Work Act (2009) which introduced whistle-blower protections and penalties around so-called ‘corrupting benefits’.
No interviewee was willing to confirm that this Commission was a driver of significant outcomes.
Only 12 recommendations (24%) were tracked to implemented status in relation to the HIP Royal Commission.
Confirmed reforms in this case relate to changes in risk management perceptions, personnel, and practices in the Australian Public Service (APS), principally within the Department for Environment, and a series of changes to training and standards within the insulation industry that were driven independently by industry associations rather than government.
This score places it at the bottom of the sample’s league table.
Stage two interview data reinforced this position.
No interviewee was willing to claim that this was a Royal Commission that had a substantive impact.
These findings can be interpreted with reference to the different characteristics of these inquiries.
Pre-existing inquiry literature provides pre-existing categories that can be discussed in terms of their likely association with the variance in implementation rates.
Useful to think about the ‘context’ and ‘content’ characteristics of an inquiry.
Inquiry content relates to internal processes and objectives.
Most well-known categorizations found in the dichotomy that separates ‘adversarial’ from ‘inquisitorial’ inquiries.
These terms were generated initially in studies of administrative law to denote processes which generate evidence through challenge or more neutral modes of fact-finding.
This type of dichotomy resonates with others of a similar nature which differentiates between processes that search for accountability versus policy learning or between policy learning and forms of political or symbolic action.
The assumption made on the back of these categories and their differences is that inquiries characterized by more policy-facing characteristics will have more chance of implementation than those that do not.
Thinking about inquiry context reveals other characteristics of importance.
Central to these are the dynamics that lead to an inquiry being appointed.
A crucial factor is the existence and nature of a focusing event because these events propel policy learning and reform.
When inquiries are convened in the wake of large-scale crises, there can be a willingness to act upon recommendations that are not always present after inquiries that investigate more prosaic or contestable issues.
The way in which events are framed is also crucial when it comes to this willingness.
Whether natural events or human error are associated with blame or whether systems or individuals are found to be at fault, for example, can influence learning outcomes after events.
This takes us to a second context dimension, which is whether an executive voluntarily appoints an inquiry or whether their hand is forced by issue salience and political pressure.
At one end of the spectrum are policy reviews convened to illuminate issues which an executive is genuinely curious about in terms of problem definition and solutions.
At the other end are inquiries avoided until political pressure grows so strong that an executive capitulates.
A voluntary inquiry might be better received, as it is part of an executive strategy, than one appointed for political reasons after being forced onto a government.
Content and context categories can be brought to bear in relation to these Royal Commissions.
Style content does not appear to be hugely relevant.

Alive and Kicking: The Mobilisation of Bias Thesis

The tracking process and second-stage interviews both produced data indicating the mobilization of bias thesis remains valid as an explanation for public inquiry outcomes.
A precis is needed on what it means to define an action as a mobilization of bias.
The term was first associated with the work of Schattschneider (1960, 71) who famously stated that ‘all forms of political organization have a bias in favor of the exploitation of some kinds of conflict and the suppression of others because organization is the mobilization of bias. Some issues are organized into politics, and others are organized out’.
This statement provided a touchstone for studies of power, agenda setting, and public policy through the decades, which have focused on the ways in which political elites use organizations to pursue their interests (Bachrach and Baratz 1970; Gustafsson 1983; McConnell 2020).
Two cross-case themes show this happening clearly: ‘offloading’ and ‘reframing’.

Reframing

The most obvious example of a mobilization of bias occurred across the four cases that were not fully implemented.
The term reframing is used to capture a process identified when government response documents were compared with the original recommendations delivered by the Commissions.
Responses rewrote inquiry recommendations in ways that made them more sympathetic to doing less or doing nothing.
The Royal Commission that investigated the HIP exemplifies this reframing process.
This case is unusual as its Final Report does not offer an explicit and numbered set of recommendations.
Readers need to work through the observations from the Report and parse out the recommendations from the detail of its chapters.
This opens the door for would-be implementers to determine what the Commission did (and did not) recommend.
The tracking process identified 49 recommendations in the Commission’s Final Report.
In the government’s official response, only six ‘action points’ were outlined and described as either ‘complete or moving to completion’ (Hunt 2016, 1).
Two of the six action points, relating to compensating business and improving health and safety of workers in roof spaces, can be directly linked to specific recommendations.
One action point (compensating families of the deceased) is not related to any Commission recommendation.
Three have been redefined to such an extent that connecting them to the inquiry reports is very difficult.
Specific recommendations are simply ‘lost’ through this reframing, such as the Commission’s wish for the Australian Law Reform Commission to consider legislation that would impose liabilities on anyone who defrauded a government assistance scheme (a so-called false claims act).
This process aligns very closely with the mobilization of bias thesis.
Similar evidence relates to the Royal Commission into the Building and Construction Industry.
The official response to that inquiry contains interesting rhetorical turns.
One of the most significant is the phrase – made in response to 142 recommendations – that the ‘The Government’s response to this recommendation is reflected in the BCIIB’.
After tracking these recommendations, it is apparent that this form of words means that the government has considered the recommendation in the drafting process and believes that the Building and Construction Industry Inquiry Bill (BCIIB) took forward the agenda of the Commission in broad terms.
An executive can choose to take forward the spirit rather than the detail of an inquiry.
142 recommendations were responded to in this way, yet only 43 were eventually enacted into the revised legislation.
18 recommendations simply designated as ‘under consideration’ were never implemented.
These machinations were partly explained by former Commonwealth officials privy to the implementation process who stressed that there was not a huge amount of enthusiasm for the Commission’s recommendations and that the Commission lacked a champion inside the Australian Public Service.

Offloading

A second mobilization of bias was observed in the same four cases through a process in which an executive rhetorically accepted responsibility for implementing recommendations but then shipped them off to other actors and took no further action.
In some cases, this kind of ‘offloading’ is essential as implementation must be done by others who have the appropriate expertise, constitutional authority, or because an inquiry has specifically stipulated them as implementers.
These cases are replete with instances in which recommendations have been offloaded, but ministers and departments have subsequently defined them as implemented without any follow-up to determine whether that is the case.
In certain instances, offloading has led to implementation because the receiving agency views them as complementary to their own agenda.
When recommendations move out of central government and cross-sectoral borders, the incentive to implement them reduces rapidly and in the absence of a statutory mandate, they can be killed quietly through the neglect of actors who need not support them.
This occurred in each of the four cases that were not fully implemented.
The HIH Royal Commission is illuminating here as the official response to it designated many recommendations as both accepted and implemented when the reality was that they were simply given to an agency that had no obligation to act on them (for a small sample see Treasury 2003, recommendations 6, 14, 46).
Of the 61 recommendations made by the Commission, the Australian government offloaded 29 to regulators, private or independent organizations, and state and territory governments.
While the majority of these were implemented by APRA, those relating to the states and territories, the Australian Stock Exchange, and accounting standards were neglected.
The HIP Royal Commission also reinforced this finding.
A significant number of that Commission’s recommendations related to workplace health and safety.
Central to these was the need to enhance regulation in the states and territories in ways that would improve the professional standards of the insulation industry.
- Federal Level Royal Commissions rarely make an impact at the state level
- As recommendations go down through the gears of government, their authority declines, the will to implement them dilutes, and they get shelved
- Federal Government has an avenue for offloading recommendations beyond their borders into jurisdictions where implementation is unlikely.

Beyond the Classics: The Production, Refinement, and Abandonment of Lessons

Alternative explanations exist for the shelving seen in these cases, relating to the production, refinement, and abandonment of learned lessons and implemented reforms.

The Craft of Producing Implementable Knowledge

Inquiry reports written with an understanding of the inhospitable public sector environments that recommendations will go into, and the many ways in which inquiries can be shelved, will have a greater chance of success.
The extent to which inquiry authors have expertise in the craft of creating implementable knowledge is a factor that determines implementation success.
Only one case – the Equine Influenza Inquiry – produced recommendations seen to be fully implementable by interviewees.
This case offers insight into how implementation success can be achieved through the crafting of reports and recommendations.

Two Characteristics of The Equine Influenza inquiry

*   It pursued ‘single loop’ learning and lessons.
*   Single-loop lessons tend to focus on the ostensible and practical and avoid digging deeper through modes of reflection that focus more on culture and values (Argyris 1982).
*   This typically results in recommendations that are modest in scale and therefore more implementable but not necessarily transformative in a radical sense.
*   The Equine Influenza Inquiry’s recommendations were very specific to horse biosecurity, quite limited in scope, and therefore deemed implementable.
*   Included an independent implementation monitor

Independent Monitor

    *   Professor Peter Shergold AC was approached by the then Department of Agriculture Fisheries and Forestry (DAFF) to provide, as an independent expert, regular external assessments of the implementation process.
    *   He presented five reports to the Minister between 2008 and 2010, noting in his Final Report that ‘the challenge of implementing new and improved quarantine procedures has been met to a high standard’ (Shergold 2010, 4).

Policy Refinement and Expansion

Policy refinement is a concept coined by Stark (2018, 140) to describe the way in which difficult to implement, politically sensitive, or big-ticket recommendations from an inquiry are given to a third party to refine in preparation for future implementation.
This can involve a subsequent ‘inquiry after the inquiry’ as a means of learning more about areas of inquiry, developing blueprints for implementation, consulting a range of interests, or determining the order of policy objectives to facilitate a reform.
In these cases, policy refiners were often turned to, and at times, this meant successful implementation, while in other cases, refinement led to a lack of implementation.
One of the most illuminating cases of policy refinement in this sample is the HIP Royal Commission.
This is because this was a process in which a subsequent review took on the work proposed by a Commission and attempted to expand the policy reform agenda.
This refinement process relates to 33 of the Commission’s 49 recommendations, which relate to reforms in the APS.
In response, the government passed these recommendations onto Peter Shergold AC for subsequent review and analysis.
In August 2015, Shergold responded with a Report entitled ‘Learning from Failure: Why Large Government Policy Initiatives Have Gone So Badly Wrong in the Past and How the Chances of Success in the Future Can be Improved’.
This represents a typical example of policy refinement in certain regards as it is an inquiry after an inquiry that aims to translate the broad agenda of the Royal Commission into implementable and context-specific recommendations.
Learning from Failure also attempted to widen the agenda presented by the Commission, and consequently, it presented a much more comprehensive analysis of areas that could enhance APS capacity.
The expansion is one reason, according to its author, that Learning from Failure was not extensively implemented.

The Partisan Pendulum

One repeated theme in interviewee data, connects to the discussion of inquiry characteristics above: their reports were published in a period in which leadership spills and general elections meant a lack of continuity in executive leadership.
The fluctuating politics that characterized federal government between 2007 and 2019 was often cited as a reason for the abandonment of Commission recommendations.
Arguments were presented with a view that Commissions need bi-partisan commitment to reform across a long period if they are to be successful.
Reform agendas engaged by these Commissions foundered because a change of executive reduced the appetite for reform or meant that a previous regime’s agenda was actively dismantled.
This was most apparent in relation to those Commissions that addressed union issues.
The pendulum metaphor also applies to other cases.
Commissions tend to belong to specific executives and even individual ministers.
When they go, so too does the will to implement them.

Conclusion

Reflecting on what the findings say about the future of the Australian Royal Commission as a lesson-learning mechanism.
Royal Commissions are not going anywhere soon.
At the time of writing, there are five federal-level Royal Commissions that are ‘live’ in the sense that they are either taking evidence, writing their reports, or have recently handed them over to the Governor-General.
Political science predictions are perilous, but there are some assertions can be made with a degree of confidence after studying these mechanisms intensively for three years.
None of these Commissions will be shelved immediately after they publish their reports.
All the reports studied here were accepted, approved, and implementation processes of some kind began in a public manner.
Implementation processes offer innumerable opportunities to quietly kill or simply neglect recommendations in a way that ensures their demise.
Political and bureaucratic leaders at the federal level appear very willing to shelve Commission recommendations once the spotlight moves on.
They do this by reframing and refining recommendations out of existence or by offloading them into inhospitable public sector environments in which recommendations struggle to survive.
Royal Commission recommendations have a 50–50 chance of survival.
Survival odds of a Royal Commission recommendation can be improved by taking a few simple steps that can future-proof it.
This can be done by injecting some public-managerial nous and public policy craft into the process of report writing.
Framing reports in ways that make them implementable, delivering recommendations that have some of the details of implementation so that they do not have to be sent out for policy refinement, and gathering evidence in collaborative ways (where possible) are all relatively uncontroversial processes that would enhance the implementation rates following Royal Commissions.
Royal Commissions will continue to be used in the long term because Westminster systems always need a powerful, independent mechanism of accountability that can deliver reassurance that hard questions have been asked and answered after large-scale failures.
Accountability and lesson-learning are not the same.
Unless federal-level Royal Commissions modernize and improve their policy learning capacity in ways that recognize the challenges of modern policymaking, the rather dismal rates of implementation that have been recorded are likely to continue.
Royal Commissions need to synthesize their accountability functions with far greater cognizance of the craft of policy learning and the practice of policy implementation.
Political scientists and public inquiry personnel face the same challenge: both must attempt to go beyond ‘the classics’.
For those within inquiries, this means going beyond classic nineteenth-century views about what Royal Commissions are and how they ought to go about their business.
For the political scientist, this means synthesizing classic explanations of shelving with more contemporary accounts so that we can better understand and improve the functioning of these important institutions. Disclosure statement No potential conflict of interest was reported by the author(s).