Royal commission must not be turned into a witch-hunt
IT is not surprising given the pressure from within her own party, numerous interest groups and concerned citizens that Julia Gillard has announced a royal commission into the child abuse issue across religious, state and not-for-profit sector institutions.
The Prime Minister has gone where no other prime minister has dare tread. John Howard rejected such a proposal, from the Bravehearts group in 2005.
Before celebrating this decision it is important to understand what a royal commission is and what it can and cannot do.
First, a royal commission is not a "judicial inquiry". There is no such thing in our system of government. There are courts separated from executive government and presided over by judges and magistrates to hear cases based on law. By contrast, royal commissions, although often chaired by current or former judges, are not courts of law. They are appointed by executive government, are instruments of executive government and report to executive government. Executive government decides their terms of reference, timeframes and resources. So a royal commission is not about making judgments, but about clarifying the facts and making recommendations on a broad range of issues.
Second, in a royal commission of this sensitivity it is important that the government clarifies its aims. What exactly is this royal commission to do? The terms of reference and membership will be vital in ensuring this royal commission is not being manipulated for political purposes or be a "witch-hunt" for some group. Many saw the 1995 royal commission appointed by the Court government as a means to besmirch former Labor premier Carmen Lawrence, who had become federal health minister. Then prime minister Paul Keating condemned the royal commission as being "conceived as an act of political malevolence" whereby "the basic principles of natural justice were ignored, the terms of reference were deliberately narrow, drawn up to
put Dr Lawrence and the Labor Party on trial."
The Gillard government must avoid any perception that there is any political advantage being derived from appointing this royal commission.
Third, there is the issue of royal commissions' coercive powers of investigation to demand witnesses to attend hearings, to obtain evidence even if self-incriminatory, to have rights of entry, to procure documents and even sometimes to authorise phone-tapping. Fines and imprisonment can result if individuals do not co-operate. Remember, royal commissions are not courts and therefore operate under different standards regarding evidence.
While some believe that these powers allow commissions to find "hidden truths" others are less sure. Issues of procedural fairness are sometimes lacking. The 1966 principles of procedural fairness laid down for inquiries by Lord Justice Salmon in Britain have not been adopted in the Australian legislation concerning royal commission powers and procedures, with the exception of Tasmania. Such principles are part of the Canadian Act governing all public inquiries.
The public nature of royal commissions and that they can take evidence in the form of hearsay and scuttlebutt, also means that those mentioned at hearings may have their reputations permanently damaged. There is little immediate redress until the final report might clear them.
Again, in this case care must be taken about how the royal commission will operate and what it will be seeking to do - find flaws in existing arrangements, allocate blame to institutions or improve overall policies on this vital area?
Fourth, as royal commissions are arms of executive government and are not part of the legal system, they have largely avoided the extensive normal checks and balances imposed on the courts in terms of appeal or review. Advocates of royal commissions argue this allows them to progress their investigations quickly and to make clear recommendations. Perhaps, but royal commissions do not always get it right regarding their processes or findings. Royal commissions are coming under increasing review by the courts, but there is a way to go.
Justice Ronald Sackville, experienced in chairing royal commissions, believes "investigative royal commissions constitute a serious and continuing threat to civil liberties in Australia."
Fifth, for those wanting the issue of abuse to be addressed in a timely fashion, it has to be understood that royal commissions inevitably take longer than expected. The royal commission into Aboriginal deaths in custody appointed in 1987 was to report within 12 months; it took nearly three years. The Costigan royal commission took over four years.
A royal commission into child abuse will involve complex issues of law and policy and might take longer than anyone could estimate. So the government needs to address this issue and consider a terms of reference that allows different issues to be addressed in some sequence of order rather than to wait two or three years for the final report.
Sixth, there is the federal dimension. Many of the issues concerning child abuse involve matters of state responsibility, police, education child care. The states have to come on board. There are plenty of precedents for state-commonwealth inquiries, but they need careful development. The Gillard government must attend to this in ways better than it has handled other issues with the states recently.
Royal commissions are the "institutions of last resort" to be appointed when all else has failed. The allegations about child abuse in the Catholic Church and other institutions raise grave concerns, of course. However, if this royal commission is not going to result in a media circus and a feeding frenzy of prejudice and revenge of unprecedented scope then the Gillard government must take time to determine its aims, its powers and its membership so that this inquiry is conducted not just effectively, but with due respect to everyone's rights. Most importantly, it must lead to long-term policy change rather than just focus on individual cases, important as some of these will be in informing the commission of its recommendations, if this issue is to be seriously resolved.
Scott Prasser wrote Royal Commissions and Public Inquiries in Australia.
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