Ron Sackville demonstrates that royal commissioners should stick to the script

This project was too important to be entrusted to a novice. If it succeeds, it will equip federal and state governments with the information they need to better protect our most vulnerable people.

Yet midway through this royal commission, something unforeseen has taken place. Sackville has broken with normal practice and has reinvented himself as a media celebrity who is perfectly at ease chatting to the ABC about Australia’s racist past and the contemporary failings of Morrison’s government.

This is a status that has eluded other royal commissioners.

Sackville has held some of the most important positions in law. He is a former dean of law at the University of NSW, a former chairman of the NSW Law Reform Commission, a former judge of the Federal Court and has run several other inquiries.

Yet those unaware of his stellar career could be forgiven for mistaking his recent activities as an extended application to be Disability Discrimination Commissioner at the Australian Human Rights Commission un­der a future Labor government.

In the past year, Sackville has appeared on ABC radio and television six times, has written an article for The Sydney Morning Herald and been quoted in The Canberra Times and the National Indigenous Times.

When Ken Hayne was running the banking royal commission his media appearances were limited to reports of what had taken place in the commission.

Hayne gave no interviews while his royal commission was under way. Neither did Dyson Heydon during his inquiry into union corruption, nor Tony Pagone during his aged care inquiry, nor Ian Hanger during his inquiry into the Rudd government’s home insulation program.

The role of royal commissions is to inquire into matters listed in their terms of reference and produce a report. This is different to the advocacy for specific groups by commissioners of the Australian Human Rights Commission.

There are two issues here: whether it is appropriate for Sackville to engage in public debate and promote certain views while his inquiry is under way; and whether this might give the impression that some issues have been prejudged.

When asked about this, Sackville provided a written response that says his public statements have been “entirely consistent with the principles, assumptions and directions embodied in the royal commission’s terms of reference”.

“The examples cited in your inquiry are, with due respect, misconceived,” his statement says.

After examining those terms of reference, Queensland LNP senator Amanda Stoker came to a different view.

“If we want Australians to accept the credibility of our royal commissions, it’s vital that commissioners act in a manner that doesn’t risk prejudicing public trust in their work,” Stoker says.

“That’s why royal commissions don’t ordinarily give public statements and media statements particularly about the contentious matters the commission will decide until the final report is handed down.

“Prejudging or appearing to prejudge the issues is really dangerous for public trust.”

So what about the terms of reference? Do they authorise this royal commissioner to engage with the media and generate debate?

“There’s nothing in the terms of reference that justify departure from the well-established practice for how to conduct a royal commission,” says Stoker.

“Making a unilateral decision to abandon those practices really does risk the ability of people to trust in the outcomes that the commission will ultimately produce.”

On October 12, Sackville wrote in The Sydney Morning Herald that the terms of reference required him to inquire into what should be done to promote a more inclusive society that supports the independence of people with disabilities. He then answered that question.

“This will require legislative and policy reforms instituted by governments but it will also require changes in community attitudes,” he wrote.

On December 1, Radio National’s Fran Kelly reminded him he had warned about the risk of “another stolen generation”. Sackville’s response: “What we are experiencing as far as the removal of First Nations children from families is concerned is the legacy of Australia’s colonial history and racism and so forth.”

When asked about the impact of the pandemic on people with disabilities, he said of the government’s response: “Even now they have not reached a stage which is desirable”.

On October 28, Leigh Sales had asked him on ABC TV if it was an “acceptable excuse” for the government to say the pandemic was unprecedented and fast-moving. The royal commissioner’s answer? “No”.

The statement Sackville provided to this writer says his reference to the legacy of colonialism “accurately reflected the terms of reference and material already published by the royal commission”. It says a report on the commission’s fifth session of public hearings had been tabled in parliament and that report included findings and recommendations.

He had been asked about that report and “it is perfectly proper for a royal commissioner to speak about the contents of a report containing findings and recommendations after a full hearing at which all interested parties had an opportunity to be heard.”

“It is a matter for government to determine its response to the findings and recommendations,” Sackville’s statement says.

We can expect to hear more from this royal commissioner. His original letters patent call for a final report and recommendations by April, 2022 but Sackville has asked for the inquiry to remain open until September 2023.