Putting the ‘Public’ back into Inquiries: Assessing the success of Public Inquiries in Australia Marlene Krasovitsky A thesis submitted to fulfil requirements for the degree of Doctor of Philosophy Department of Government and International Relations Faculty of Arts and Social Sciences The University of Sydney 2019 Statement of Originality This is to certify that to the best of my knowledge, the content of this thesis is my own work. This thesis has not been submitted for any other degree or for other purposes. I certify that the intellectual content of this thesis is the product of my own work and that any assistance received in preparing this thesis has been acknowledged. Marlene Krasovitsky 3 March 2019 i Abstract Public Inquiries are significant, authoritative institutions established by governments to address some of the most important and controversial issues in public policy and society. Inquiries are powerful mechanisms to investigate and advise on matters of public concern. They are designed to right wrongs and address egregious breaches of public trust. However, Public Inquiries are not just tools of government. They are also tools of society, and they express a significant dimension of the social contract, the reciprocal acceptance of obligations between citizens and their government. Public Inquiries often respond to crises, scandals, or the incremental development of inadequacies, which violate public expectations of the reciprocal obligations between State and citizens. The central objective of this thesis is to assess the success of Public Inquiries in Australia. Public administration scholars and political scientists generally contemplate success from the point of view of government. This is problematic because it has resulted in less than adequate recognition of the ‘public interest or common good’ served by Public Inquiries (Prasser and Tracey 2014, p. 227). On the basis of illustrative case studies, the thesis argues that including citizen perspectives provides a powerful means by which to assess the success of Public Inquiries in repairing breaches of societal expectations. The literature review (Chapter 2) is utilised systematically to distil three recurring propositions regarding the assessment of success of Public Inquiries. These propositions suggest that an assessment of the success of a Public Inquiry should examine the ways in which a Public Inquiry: has responded to a crisis and restored legitimacy; given voice to the public, including stakeholders, ‘victims’ or experts; and provided the opportunity for policy change and improved outcomes. Based on these three propositions, and their theoretical foundations, an analytical framework is derived to assess the success of Public Inquiries (Chapter 3). Three Public Inquiries are selected as case studies for analysis, each corresponding to a distinct ‘type’ of Public Inquiry. The first type is the ‘Investigatory Inquiry’ (Inquiry into Certain Australian Companies in Relation to the UN Oil for Food Programme 2006; Chapter 4). The second type is the ‘Policy Advisory Inquiry’ (Queensland Child Protection Commission of Inquiry 2013; Chapter 5). The third type is the ‘Hybrid Inquiry’ (Queensland Floods Commission of Inquiry 2012, ii Chapter 6). The analytical framework is applied to each case study (respectively in Chapters 4, 5 and 6). The thesis then draws out the implications of these findings for scholarship (Chapter 7). For Public Inquiries to be positioned as part of the social contract, the perspectives of citizens could be more effectively incorporated. The case study analyses reveal various proxies or markers of citizen perspectives. These include media commentary, subsequent Inquiries, and legal action. Further analysis of the case studies using these proxies provides significant insights into how citizens assess the success of the Public Inquiry. The thesis then moves to theory building and argues that despite their many variations, the overarching purpose of a Public Inquiry is to rebuild the social contract after breach. Three enduring functions of Inquiries are identified: to respond; to hear; and to prevent. The analytical framework applied to the three case studies is revised to include citizen perspectives in order to assess success. That is, an assessment of the success of a Public Inquiry should examine three characteristics. First, the ways in which the Public Inquiry is trusted to make sense of the events or the violation of expectations. Second, the ways in which people were heard. Third, the ways in which the Public Inquiry rights wrongs and thus changes policy, processes or outcomes for the better. iii Acknowledgments My deepest thanks go to my family, my husband Gregory and my two sons, Michael and David. I am forever grateful for Gregory’s patience and for not objecting to the enormous amounts of time he spent alone on weekends and in the evening. I also appreciate the many walks we took around Centennial Park when I had the headspace and time to bore him with whatever my most pressing concern, gripe or puzzle was with the PhD. He always listened and gently offered a helpful perspective. My children were so much younger when I started this PhD. Michael was just starting medical school after completing his first degree. David was in the second year of his undergraduate degree and has since gone on to complete a second degree in law. David and his wonderful partner, Philippa, have given birth to the most magnificent child in the universe, Plum Amelie. Life moves on. The support and encouragement of my family has meant the world to me. They have checked in on my progress, nudged me along the way and given me space to talk through my various conundrums and uncertainties. They have made me feel proud. I acknowledge and deeply appreciate their love and support. I wish to acknowledge the support, encouragement and wisdom of my supervisors Associate Professor Joanne Kelly and Associate Professor Gaby Ramia. Joanne’s stewardship and insight was invaluable in dense and confusing times. Joanne’s challenges continued to push me to delve further, clarify my thinking, and most importantly to build confidence in my own voice. Gaby stepped in as supervisor in the final stages of the PhD. I am grateful to him for taking me on, for asking me such hard questions and ensuring I could support my various assertions. Gaby cast a critical, constructive eye over my work and helped me sharpen my focus and commentary. I am deeply grateful to Joanne and Gaby. Professional editor, Dr Sharon Lierse, provided copyediting and proofreading services, in accordance with guidelines laid out in the university-endorsed ‘Guidelines for editing research theses’. I also want to thank and acknowledge my current colleague and Director, Dr Kirsty Nowlan. Kirsty has been through this herself and intimately understands the struggles. Kirsty has provided me with the chance to take study leave, has encouraged me every time I have achieved a PhD milestone, and has wrangled with me over the likes of Habermas. I gratefully acknowledge and thank you. And to my broader circle of family and friends, I am so grateful to have you. Thank you for your love, interest, patience and support. iv Table of Contents Statement of Originality i Abstract ii Acknowledgments iv Table of Contents v List of Tables x List of Abbreviations xi Glossary of Inquiries xiv Chapter 1 – Introduction 1 1.1 Introduction to the Thesis 1 1.2 What are Public Inquiries and what do they do? 2 1.3 What is the connection between the social contract and Public Inquiries? 5 1.3.1 What is the social contract? 5 1.3.2 Limits of social contract theory and the possibility of other political theory perspectives 7 1.3.3 Public Inquiries as a public good 11 1.4 Overview of the Public Inquiry literature 16 1.5 Parallels with Truth Commissions 18 1.6 Why success? Why not effectiveness? And what’s the difference? 20 1.7 Research design 23 1.8 Structure of the thesis 26 Chapter 2 - Literature Review 28 2.1 Introduction 28 2.2 Theoretical perspectives on Public Inquiries 28 2.2.1 Political science, public administration and crisis perspectives 29 2.2.1.1 Crisis perspectives 31 2.2.1.2 Crisis disrupts legitimacy. But what is legitimacy? 35 2.2.2 Participation perspectives 41 2.2.2.1 Habermas: Linking communication and participation with legitimacy 45 2.2.2.2 Redefining ‘expertise’: opening the window for paradigm shift 47 2.2.3 Public policy and public management perspectives 50 v 2.2.3.1 Change perspectives 53 2.2.3.2 Do crises lead to change? 54 2.3 Conclusion 58 Chapter 3 - Research Design 58 3.1 Introduction 59 3.2 Research design 59 3.3 Examples of Public Inquiries – the selection process 66 3.4 Analytical framework to assess the success of Public Inquiries 76 3.5 Implications of research findings – inductively building theory 78 3.6 Conclusion 80 Chapter 4 - The Inquiry into certain Australian companies in relation to the 81 UN Oil for Food Programme 2006 Case Study 1: An Investigatory Public Inquiry 4.1 Introduction 81 4.2 Background to the Inquiry 82 4.3 The Inquiry 84 4.4 The Letters Patent 85 4.5 The Report 86 4.6 Inquiry finding and recommendations 88 4.7 Response to the Report 88 4.8 The Oil for Food Task Force 90 4.9 Success Proposition 1: In what ways did the Public Inquiry respond to crisis and restore legitimacy? 91 4.9.1 Finding 94 4.10 Success Proposition 2: In what ways did the Public Inquiry give voice? 94 4.10.1 Finding 97 4.11 Success Proposition 3 – in what ways did the Public Inquiry provide the opportunity for policy change and improved outcomes? 97 4.11.1 Administrative change 99 4.11.2 Finding 101 4.12 Conclusion 102 Chapter 5 - The Queensland Child Protection Commission of Inquiry, 104 February 2013 vi Case Study 2: A Policy Advisory Public Inquiry 5.1 Introduction 104 5.2 Background to the Inquiry 105 5.3 The Inquiry 105 5.4 The Letters Patent 107 5.5 The Report 109 5.6 ‘Shreddergate’ - the final word 110 5.7 Response to the Inquiry Report 111 5.8 Success Proposition 1: In what ways did the Public Inquiry respond to crisis and restore legitimacy? 114 5.8.1 Finding 115 5.9 Success Proposition 2: In what ways did the Public Inquiry give voice? 116 5.9.1.