In his first public speech since the Royal Commission's final report in February, Kenneth Hayne mulled why Australians are calling for more royal commissions and what it says about our democracy.
"The increasingly frequent calls for Royal Commissions in this country cannot, and should not, be dismissed as some passing fad or fashion," Hayne said in a speech made at Melbourne Law School on July 26 but published only recently.
"Instead, we need to grapple closely with what these calls are telling us about the state of our democratic institutions."
He reminded the audience that a Royal Commission is independent, neutral, public and produces a reasoned report. However, its powers of gathering information are no different from the powers that the executive and legislative branches already have and it can't take action as courts and regulators can do.
Policy debate deteriorating
Hayne also said that Australia seems to be unable to conduct reasoned debated about policy matters.
He said policy ideas seem often to be framed only for partisan or sectional advantage with little articulation of how or why their implementation would contribute to the greater good.
"Reasoned debates about issues of policy are now rare. (Three or four word slogans have taken their place.)," he said.
"Political, and other commentary focuses on what divides us rather than what unites us. (Conflict sells stories; harmony does not.) And political rhetoric now resorts to the language of war, seeking to portray opposing views as presenting existential threats to society as we now know it."
Why have more royal commissions?
He said public law doctrines are very important but they are not enough to "come to grips with the issues that lie beneath" the rising demands for royal commissions as they take the structures and systems of the government as they exist.
"Those issues are different. They are issues about development of policy. They are issues about public debate about policy. They are issues about public accountability when the legal system has not been engaged or has not been engaged effectively for the vindication of the law and those who have suffered a wrong," he said.
Hayne said these are the kinds of issues that lead to the strength and frequency of public appeals for royal commissions.
"I offer no answer to the issues. We would all do well to consider them in relation to all three branches of government - legislative, executive and judicial," he said in closing.