Ethics in the age of Royal Commissions
By Michael Dolan
In 2012 the then Prime Minister, Julia Gillard, announced that she would recommend to the Governor-General that a Royal Commission be appointed to inquire into institutional responses to child sexual abuse. After 5 years intensive work across Australia, the Royal Commission’s final report was delivered in December 2017.
Since that time, two more Royal Commissions have been appointed by the Federal Government – one into Misconduct in the Banking, Superannuation, and Financial Services Industry in 2017 and the other into Aged Care Quality and Safety in late 2018. In December 2018 the Victorian Government appointed a Royal Commission into the Management of Victoria Police Informants.
Each of these four Royal Commissions has been headed by a distinguished retired judge. One common theme running through their work has been the need to focus on alleged unethical conduct and behaviour by institutions, organisations, and people.
Only the Child Abuse Royal Commission has delivered a final report. The Financial Services Royal Commission delivered an interim report on 28 September 2018 with its final report expected to be handed to the Governor-General by 1 February 2019. The other two Royal Commissions are still in the early days of their preparation and work.
Financial institutional business behaviour under intense scrutiny
The importance of ethical behaviour in day to day business activities came into sharp relief last year in the hearings and reporting of the into Financial Services Royal Commission. Even many experienced observers and commentators were shocked by many of the revelations which came out of the public hearings, often only after sustained cross-examination by Counsel assisting.
What has become obvious already from that work is need for financial institutions to foster and promote a culture of ethical behaviour within their organisations where the customer comes first. This must be endorsed and supported by Boards and Senior Management with the early implementation of intensive staff training and salary incentives for good behaviour.
There is an urgent need for financial institutions to look inwards to their ethical obligations towards customers and shareholders and commit to honest and transparent behaviour in the future. Only by doing so will they regain the trust of the public which has now been shown to have unravelled so badly to the detriment of Australian society.
Lawyers working within these organisations have an important role to play in this regard because, as officers of the court, they have a fundamental commitment to ethical behaviour and are in an ideal position to lead by example and provide expert advice. Being ethical is not only about obeying the letter of the law, it is about doing the right thing when no-one is looking.
The Lawyer X Affair
Lawyers have a fiduciary and ethical duty to keep their clients’ confidences and they also have a paramount duty to the court and the administration of justice. Late last year details emerged publicly about a registered Victoria Police informer who was a practising barrister appearing for defendants in criminal trials over several years.
On 3 December 2018 the Victorian Government announced the establishment of a Royal Commission to independently inquire into Victoria Police’s recruitment and management of one of its informants.
The government press release announcing the Royal Commission stated:
“The informant was a criminal defence barrister for several people who were convicted of criminal offences over the past two decades. At the same time, this barrister acted as an informant to Victoria Police about some of these people. The decision of the High Court released today calls into question whether some convictions have occurred fairly and in accordance with law. The integrity of the criminal justice system is paramount and all people charged with crimes are entitled to a fair trial, no matter who they are.”
It is timely for all lawyers to refresh their minds about these fundamental ethical duties and to consider what immediate lessons should be learnt from this unfortunate episode. No doubt the Royal Commission will examine many of these matters in great detail and its findings and recommendations will be studied with great interest.
- Royal Commission into Institutional Responses to Child Sexual Abuse https://www.childabuseroyalcommission.gov.au/
- Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry https://financialservices.royalcommission.gov.au/Pages/default.aspx
- Royal Commission into Aged Care Quality and Safety https://agedcare.royalcommission.gov.au/Pages/default.aspx
- Royal Commission into Victoria Police’s recruitment and management of one of its informants.