Public inquiry design choices: what ideas should be adopted from past inquiries around the world?

• COVID inquiries

Inquiries are often characterised by institutional conservatism that limits their capacity to prompt effective reform – but it doesn’t have to be that way. This paper assesses the effectiveness of a range of innovations used in past public inquiries, from the UK to Australia

Alastair Stark and Duc Le

The institutional design choices made at the start of a public inquiry can have a profound effect on the quality of the lessons it produces. Yet these initial moments of choice are typically characterised by uncertainty: this is, after all, likely to be new territory for the chair, their counsel and the seconded officials who have been sent to support them. They now need to make timely decisions under the glare of a very public spotlight, with little available guidance about the implications of their choices.

In this moment anything is possible, and innovations in inquiry design can be implemented in ways which will produce good lesson-learning outcomes. However, the uncertainty of the moment often encourages legal and bureaucratic professionals to rely on what has been done before, regardless of the performance of past inquiries, and to think within the procedural boxes that are preferred within their own professional disciplines. Consequently, inquiries are often characterised by an institutional conservatism that limits their capacity to prompt effective reform.

But it doesn’t have to be this way. Innovation is always possible.

Even when inquiries are given limited terms of reference and structured through statutory frameworks that delineate their powers, inquiry staff still have more agency than they think when it comes to designing how they get their evidence and what they put in their reports. They are only limited by their imagination.

Step one in designing a successful lesson-learning process thus requires inquiry personnel to understand they have the capacity to make choices that reject the traditional elements of public inquiries that so often fail, and promote innovation instead.

To aid their understanding, this paper presents a summary of specific design elements from past inquiries around the world which we regard as having worked particularly well (with occasional caveats). Our analysis is divided into eight distinct elements of the inquiry process:

1. Lesson-learning episodes
2. Use of multiple chairs
3. Hiring of personnel
4. Non-traditional evidence-taking (legal)
5. Non-traditional evidence-taking (participatory)
6. Non-traditional evidence-taking (research)
7. Post-report oversight
8. Post-report memory retention

Design choice 1: Lesson-learning episodes

One innovative way of thinking about inquiries is to view them as one element of a larger lesson-learning episode. While an inquiry will be given its terms of reference and needs to stick to them (or ask for them to be changed), it is often possible for the chairs who are leading a variety of lesson-learning endeavours to coordinate informally with each other before, during and after their respective processes to ensure complementarity.

This kind of informal collaboration was witnessed in Ontario in relation to the learning episode that focused on the SARS outbreak of 2003-04. This had three main lesson-learning mechanisms:

• The Ontario Expert Panel on SARS and Infectious Disease Control, which was primarily oriented towards public health, medical and scientific practitioners at a provincial level.
• The SARS Commission, which still focused on public health policy, but also addressed the thornier issue of holding political decision-makers to account, as well as tougher policy questions around, for example, local government restructuring.
• A review by the National Advisory Committee on SARS, which focused on public health dimensions at the national level.

Each of these mechanisms had a different focus and was structured differently. The Commission was chaired by a judge and gathered evidence using an Accident Investigation Board process, facilitated through private interviews run by retired police officers. In contrast, both the National Advisory Committee and Expert Panel were chaired by public health practitioners who were also well-respected academics. Their processes better reflected the principles of evidence-based policy research than more typical inquiry evidence-taking.

However, the crucial point is that each chair was in communication with the others in the early stages of inquiry design, during their proceedings, and once their reports were released. This coordination facilitated two important outcomes:

1. A proper division of labour and expertise in which it was decided that the experts would leave all political questions, accountability issues and tricky policy questions to the judge-led Commission, while they stuck to the public health science.
2. A process in which the three mechanisms used their publications to support each other on a range of common positions, such as the need for a public health agency that would consolidate disease control policy (now Public Health Ontario). While this coordination was informal, there is nothing to prevent a more formal form of information sharing and collaboration between multiple lesson-learning mechanisms.

Design choice 2: Use of multiple chairs

There is still widespread reliance on judges as singular inquiry chairs, particularly in the United Kingdom. The value of the judge is clear: they provide gravitas, symbolise the fairness and independence of the judiciary, and are seen as capable of holding powerful actors to account. They also have the capacity to build precepts of natural justice into the procedures of an inquiry in a way that protects witnesses and promotes fairness. On a professional level, judges also typically have the capacity to absorb and adjudicate on large volumes of information.

However, a single chair of this nature can create a number of potential issues.

1. It may lead to inquiries reflecting the adversarial norms of the courtroom, and adopting evidence-taking procedures based on interrogation.
2. Judges may have a limited appreciation of what is required to create and implement public policy, and typically tend to be unwilling to think about such concerns.
3. Finally, many judges appear to enjoy the process of report writing and often take carriage of that process personally. However, when it comes to writing for a policy audience of would-be implementers, they are not always effective.

Therefore, there are significant advantages to be gained from an institutional design that uses additional chairs. Establishing additional leaders at the top of an inquiry with specific professional skill-sets effectively guarantees these skills will be deployed as a means of generating evidence.

For example, the Victorian Bushfires Royal Commission that investigated the Black Saturday bushfires of 2009 utilised a three-person design which used a retired ombudsman and a former public service commissioner alongside a judge. This increased the quality of policy analysis in the inquiry’s evidence (via the ombudsman), led to the introduction of a participatory community consultation (via the public sector commissioner), and ensured the recommendations could be easily understood and implemented by the public sector audience waiting for them.

In other examples, subject expertise has been brought on to inquiries via commissioners with specialist knowledge. The Canterbury Earthquakes Royal Commission, for example, utilised a three-person model with a judge flanked by a commercial engineer and an engineering academic.

Other inquiries have managed to create panels which combine knowledge of how to create change in public sector organisations with specialist knowledge about the crisis in question. The Royal Commission into the Pike River Coal Mine Tragedy in New Zealand, for example, utilised a mining commissioner from Australia alongside the former chief-executive of the Electoral Commission, who had significant experience of public service. Both sat alongside a judge in a three-person panel. This is a potent combination as the authority of the judge and the knowledge of the expert can be facilitated by the ability of a co-chair who understands how policy is created and implemented (and how recommendations might be shelved).

Larger panels of commissioners are also common internationally. The Fukushima Nuclear Accident Independent Investigation Commission, for example, utilised 10 commissioners who had experience of seismology, law, business regulation and public policy. Similarly, the seven commissioners who currently chair the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability in Australia contains a mix of experience that allows for the representation of a range of disabilities, policy concerns and First Nations people.

However, there is also a danger that larger panels can slow inquiries down and create problems of cohesion. This can materialise in the form of dissenting positions and minority reports. The spectacular fall-out between the two chairs who led Australia’s Aged Care Quality and Safety Royal Commission, for example, shows how recommendations can be undermined through a clash of personalities and professional backgrounds within an inquiry. When this occurs, the likelihood of inquiries being shelved increases as the uncertainty around recommendations gives executives and public servants a rationale for rejection.

Design choice 3: Hiring of personnel

The ‘usual suspects’ in terms of inquiry staff are lawyers, administrators and researchers of one kind or another. However, inquiries are often multi-million-dollar organisations with many moving parts that are required to take evidence from a range of sources and speak to a variety of audiences. There is, therefore, value in thinking about hiring staff who can perform a variety of organisational functions.

For example, large inquiries with many components often benefit from hiring dedicated coordinators who can speak across professional and organisational boundaries. For example, South Korea’s Special Investigation Commission on Social Disasters examined a series of fatalities caused by humidifier disinfectants with a structure that utilised no fewer than 125 members split across four sub-committees and four bureaus. They utilised two coordinators to ensure consistency and communication across these components. Similarly, part of the success of the Victorian Bushfires Royal Commission (discussed above) has also been attributed to the use of special advisors who had legal and bureaucratic experience, and could therefore communicate (and sometimes mediate) between those two professions.

Report writing is another area in which staff can be brought in to improve inquiry outcomes. Editors and journalists are often brought on board to help draft final reports that are not only accurate but engaging for different audiences. The Commission of Inquiry into the Investigation of the Bombing of Air India Flight 182, for example, employed a six-member team who designed, produced, edited and translated the reports in a way that meant they could be read and understood both by the general public and more specific policy agencies.

Another category of personnel that might also be considered within public inquiries are change management specialists. It is essential that inquiries reflect on the future changes they are trying to engineer, and how these might be implemented. While public servants can have this capacity in relation to policy, often inquiries are attempting to influence different sectors or areas of governance with which they are unfamiliar. Public inquiry analysts have argued that in these situations, change management experts might be a useful addition to an inquiry team.

Design choice 4: Non-traditional evidence-taking (legal)

Witness testimony from the stand and cross-examination are often necessary design features of an inquiry. They are a means of producing evidence about wrongdoing that may have caused or exacerbated a crisis. Moreover, the public questioning of decision-makers is often an important spectacle that can produce catharsis and social-psychological healing post-crisis.

However, cross examination should be used sparingly and carefully when it comes to the formulation of policy lessons. While the forensic levels of data that public questioning produces can be beneficial in this regard, adversarial questioning – particularly in relation to experts who have not played a role in the actual crisis – can create problems. Witnesses may clam up and only offer evidence in relation to the question asked; would-be implementers may reject recommendations on the assumption they have been produced through a ‘witch-hunt’; and communities of practice may not see legal-adversarial processes as legitimate in relation to their expertise.

But there are alternatives to this traditional adversarial approach. For example:

1. The so-called hot-tub method of questioning, popular in Australia and New Zealand. In effect, this process puts panels of witnesses into the stand who can discuss and question each other in response to the questions of counsel assisting. The idea is that these interactions lead to expert-led discussions that are more sensitive to the issues and comprehensive in their coverage. Taking evidence in this concurrent manner is also said to speed up proceedings compared with singular forms of evidence-taking and, most importantly, it allows chairs to listen to a much more complete series of narratives in one place and time. This method has been used regularly in Antipodean inquiries such as the Royal Commission into Family Violence.
2. Rely much more on written witness statements. For example, Hong Kong’s Commission of Inquiry into the Collision of Vessels near Lamma Island drew on an extensive series of witness statements from the emergency services in the wake of the disaster as its primary means of evidence, while the aforementioned SARS Commission traded (in its words) ‘anonymity for candour’ by taking evidence through an Accident Investigation Board process which utilised private interviews and no public questioning.
3. The SARS Commission is also interesting because it utilised public hearings as a means of allowing affected groups to ‘have their day in court’ through public witness statements that were read out in front of victims and the press, but which were not questioned by counsel. This indicates another, more novel use of the public stand, which can be used to memorialise events rather than question witnesses. This process was also used in the Victorian Bushfires Royal Commission as a means of attempting to create social memory of that disaster.
4. The utilisation of coronial-style proceedings might also be considered as an alternative to public cross-examination. In the Victorian Bushfires Royal Commission, public proceedings and memorialising witness statements were used alongside a small, more private process through which families who had lost loved ones sat and worked through what happened to them specifically, in a process that mimicked coronial proceedings. In effect, these sessions involved emergency services and experts walking families and lawyers through the details of each death. These sessions provided a forensic level of detail which was said to have a huge impact on the lessons learned for blue-light responders and disaster management policymakers. The use of three different types of proceeding in this case highlights the way in which legal procedure can be used innovatively for policy-learning purposes.

Design choice 5: Non-traditional evidence-taking (participatory)

Public policy processes increasingly feature evidence-generating processes that are designed to utilise citizen participation to better understand lived experience. Inquiries can also utilise these mechanisms.

The simplest process is for the inquiry to travel to those communities affected by crisis in order to take evidence directly from them in situ. For example, the International Commission of Inquiry on East Timor travelled extensively throughout local communities in East Timor with a forensic anthropologist, who assisted the evidence-taking process in ways which helped them build a detailed picture of the human rights violations that took place there. Although expensive and slow in terms of proceedings, this process was said to have led to the generation of evidence from unanticipated sources, and to have contributed to post-conflict reconstruction by giving victims voice. In this sense, participatory inquiries may produce symbolic outputs post-crisis that assist with the recovery process.

Specific community reference groups are another mechanism that can enhance participation and provide evidence around lived experience. The Muslim Community Reference Group, for example, was created as part of the Royal Commission of Inquiry into the Terrorist Attack on Christchurch Mosques, in order to constructively question and critique aspects of the inquiry and provide feedback from the Muslim community. This group fed into the inquiry directly and, at the same time, delivered a very public example of the constructive and positive impact that they could make to contemporary policymaking. Once again, the visible inclusion of a mechanism that represented victims produced a combination of evidence-based and symbolic outputs.

More typical consultation mechanisms can connect communities to inquiries in beneficial ways. The Pitt Review into the 2007 Summer Floods in England and Wales staged a series of town hall meetings in flood-affected communities, and ran multiple stakeholder conferences with more than 1,000 professionals from the flood management sector.

Community consultation exercises have also been a regular feature of Royal Commissions at the state level in Australia. For example, the Hazelwood Mine Fire Inquiry held 10 community consultation meetings with local communities to discuss the causes of the fire, health improvements in communities, and mine rehabilitation efforts. These consultations often demand significant levels of planning and resourcing, and can expose public inquiry staff to intense emotions, particularly after significant crises. However, inquiry personnel often comment on how evidence taken from these events aligns with that which is subsequently generated through more rational-technical means. It seems there is often complementarity between the causal explanations that come via the lived experience of affected communities, and those which emerge from more scientific evaluations.

More innovative participatory mechanisms have also been used in conjunction with inquiries. The South Australian government convened a Citizen Jury in order to better understand public opinion on the issue of nuclear waste disposal after the Nuclear Fuel Cycle Royal Commission reported on the technical- and policy-related evidence. While the Commission focused on the evidence for and against nuclear waste disposal, the Citizen Jury was designed to allow the government to observe public opinion. This Jury, however, proved to be problematic as it could not reach consensus and produced two reports representing two different positions. Nevertheless, the politics of the Jury provided a clear indication to government of the difficulty of implementing a policy that would see nuclear waste being stored in South Australia. The policy was not pursued after the Jury reported.

Design choice 6: Non-traditional evidence-taking (research)

While inquiries typically employ forms of desk-based research that are driven by seconded officials and counsel assisting, innovations can also occur in this area. The Canterbury Earthquakes Royal Commission deployed a peer review process which invited specific papers on building collapses from the government, then sent these out for peer review by international experts. Similarly, the Pitt Review on the 2007 Summer Floods convened a Scientific & Engineering Panel which provided scientific advice on flood management and assisted in the editing of the final report. While fairly standard for these kinds of expert involvement, the panel decided to resuscitate a previous project: the Foresight Future Flooding Project – a large-scale, inter-agency project conducted three years earlier. Consequently, the inquiry produced its own qualitative risk analysis of flood vulnerability, which was designed to increase the interest of the UK’s flood management sector.

Design choice 7: Post-report oversight

The extent and nature of implementation following an inquiry can be enhanced by introducing an implementation monitor. This mechanism has been used extensively in Australia, with the first recorded case being the Equine Influenza Inquiry, which recommended a retired senior public servant should write and publicise quarterly reports on the extent and nature of implementation.

The implementation monitor role was subsequently used in a much more formal way in both the Hazelwood Mine Fire Inquiry and the Victorian Bushfire Royal Commission. After these inquiries, the implementation monitor was given statutory footing and a duty to formally lay monitoring reports before the state’s Parliament. However, these time-limited roles often cease prior to long-running recommendations being implemented. In such situations, Inspector-Generals for Emergency Management have taken charge of overseeing the reform process.

Elsewhere audit offices have been mandated to monitor and report on implementation. For example, the recommendations of the Commission of Inquiry into Police Conduct was given to New Zealand’s Auditor-General (OAG), who regularly produced progress reports on the extent and nature of implementation across a 10-year period.

More recently, questions have been asked about the role’s effectiveness as the Royal Commission into Family Violence, which has an implementation monitor attached to it, has not been implemented to the same extent. Nevertheless, when they work well, these monitors can play an important supporting role that assists with policy development and implementation. Disadvantages relate to time, cost, and a persistent view in implementing agencies that monitors are not required, and that their role can be managed through ‘in-house’ public sector processes.

Design choice 8: Post-report memory retention

Post-report oversight mechanisms may ensure implementation, but this does not guarantee that learned lessons will not be forgotten before the next big crisis. Even well-implemented recommendations which respond to path-breaking crises can be forgotten over time, as a consequence of political hyperactivity, policy reform, changes in the structure of government, and changes in social memory beyond the state.

Consequently, inquiries often include efforts to memorialise the trauma of victims in special volumes or publications, such as that which accompanied the Royal Commission of Inquiry into the Terrorist Attack on Christchurch Mosques, which specifically documents the experience of families, survivors and witnesses for future generations.

Other inquiries have made specific recommendations that disasters and crises be included on school curricula as a means of keeping social memory alive, or are commemorated via museums or commemorative spaces. These social spaces of remembrance are certainly important to keep alive the narratives that justify policies in the future.

However, we conclude that public inquiries wishing to ensure their lessons retain their relevance even after the long quiet between crises ought to give serious thought to the processes of institutionalisation that can hardwire them into policy over long periods. Institutionalisation of this sort requires at least two dimensions:

• Initially, ensure that lessons are absorbed into the ‘business as usual’ processes and standard operating procedures of the relevant agencies that will need them in the future. This will ensure their survival in the short-to-medium term.
• The longer-term dimension, however, requires these agencies to develop cultures that remember why those processes exist in the future. This means remembering both the crisis and subsequent inquiry-driven reforms through organisational storytelling and remembrance. This is an important step in ensuring the lessons of any inquiry survive for the long term.

Dr Alastair Stark is the author of Public Inquiries, Policy Learning, and the Threat of Future Crises. Dr Duc Le is a disaster management expert based at the Queensland University of Technology.