The Forms and Limits of Judicial Inquiry: Judges as Inquiry Commissioners in Canada and Australia

In both Canada and Australia the conduct ofpublic inquiries draws heavily from the expertise of the legal profession, with judges frequently serving as commissioners and inquiry hearings often reproducing the popular imagery of a courtroom. Despite this affinity between public inquiries and the legal profession, however, jurisprudential and academic authorities repeatedly stress that public inquiries are non-adjudicative. Indeed, the received wisdom is that the investigative focus of public inquiries justifies their divergence from the procedural and substantive commitments of adjudication. This paper challenges that assumption. It argues that the service of judges as inquiry commissioners should be premised on their fidelity to the basic value ofadjudication, a commitment necessary both to honour the due process rights of inquiry participants and the constitutional principle of separation of powers. Drawing from constitutional jurisprudence, practical examples of judicial service on inquiry commissions in Canada and Australia, and an understanding of adjudicative processes from the perspectives of their participants, I propose an analytic method to resolve the unique dilemmas faced byjudges as inquiry commissioners. This method speaks directly to the ethics of judges, reinforcing a connection between their skills, procedural methods, and commitment to honour the basic principles of a just legal system.