Management of conflicts of interest
- There are well established mechanisms to enable Royal Commissions to handle perceptions of conflicts of interest or apprehensions of bias.
- In general, no more than three or four Commissioners will participate in any given public hearing.
- The Chair will not authorise a Commissioner to participate in a public hearing if that Commissioner’s participation would give rise to a reasonable perception of a conflict of interest or a reasonable apprehension of bias.
- A Commissioner who does not participate in a particular public hearing will not participate in the preparation of any report produced as a direct result of that hearing.
The Disability Royal Commission (DRC) has placed on its website a summary of the declarations made by each of the six Commissioners as to matters that might give rise to a real or perceived conflict of interest during the life of the Commission
It is essential that the DRC has the confidence of the public, and of the disability community in particular, that it will discharge its responsibilities independently, thoroughly and transparently. This document explains the DRC’s policy and processes for managing potential conflicts of interest and for dealing with the related concept of “apprehended bias”.
The DRC’s approach
A practical matter
There is nothing unusual about Royal Commissions having to manage perceptions of conflicts of interest or apprehended bias. Indeed, it is almost inevitable that if Governments choose Commissioners because of their experience and expertise in the area under investigation, perceptions of potential conflicts of interest or apprehensions of bias may arise.
There are well established mechanisms to enable Royal Commissions to handle perceptions of conflicts of interest or apprehensions of bias.1 For instance, past affiliations or experiences may make it inappropriate for a Commissioner to participate in specific aspects of a Royal Commission’s work that touch on those affiliations or experiences.
Role of the Chair
The Royal Commissions Act 1902 (Cth) (RC Act) states that the Chair of a multi-member Royal Commission must determine which Commissioners are authorised to conduct or participate in a particular hearing. The Chair of the DRC is the Hon Ronald Sackville AO QC. Mr Sackville was a judicial officer for nearly 25 years, first in the Federal Court of Australia and then on the New South Wales Court of Appeal. He has very considerable experience in dealing with claims that a decision-maker has a conflict of interest or is affected by apprehended bias.
The DRC will conduct numerous public hearings over its projected three year life. Most hearings will focus on particular case studies and the systems and policy issues they illustrate.
In the ordinary course no more than three Commissioners will participate in any given hearing, although there may be some occasions when four or more may participate.
The composition of the DRC will vary from hearing to hearing, depending on the subject matter to be examined. For example, subject to the qualification referred to below, Commissioners might be expected to participate in public hearings dealing with specific matters within their particular field of expertise.
The qualification referred to above is, however, extremely important. The Chair will not authorise a Commissioner to participate in a public hearing if that Commissioner’s participation would give rise to a reasonable perception of a conflict of interest or a reasonable apprehension of bias.
A Commissioner who does not participate in a particular public hearing will not participate in the preparation of any report produced as a direct result of that hearing. For example, if the Royal Commission prepares and publishes a report on the case studies examined at a particular hearing, only the Commissioners who participated in that hearing and heard the evidence can contribute to the report.
Under no circumstances will a Commissioner participate in a hearing or in deliberations concerning matters that might bear in any way on that Commissioner’s past conduct or the discharge of his or her responsibilities in a previous role.
Legislation has been introduced into Parliament amending the RC Act to enable the DRC to conduct private sessions for people with disability who wish to tell their stories safely, securely and in private. If passed, the legislation will empower the Chair to authorise Commissioners to hold private sessions for the purpose of obtaining information in relation to matters into which the DRC is inquiring.
The Chair will regard the overriding consideration in the exercise of this power to be the safety, security and comfort of the person wishing to engage with the DRC. Under no circumstances will anyone be asked to tell their story to a Commissioner with whom they do not feel comfortable.
Footnote 1 The legal test for apprehended bias approved by the High Court and a brief explanation by the High Court of the application of the test to bodies such as Royal Commissions can be found on the Observations page.