"Only One Path to the Truth" - Commentary by Tony Kevin, Opinion Page, Canberra Times, 1 June 2005

http://canberra.yourguide.com.au/detail.asp?class=your%20say&subclass=
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THERE is an old adage, familiar to senior public servants - governments don't like to set up public inquiries unless they know what result the inquiry will produce.

We have three kinds of special-case public inquiries in Australia. The weakest is the administrative inquiry, set up by the government of the day but chaired by an eminent person, usually a retired judge or former senior government official, and reporting back to the government. Such is the current Palmer inquiry.

Slightly but not much more powerful is the Senate committee inquiry, set up by majority Senate vote to look into any matter of public interest, e.g., the 2002 "children overboard" inquiry, which expanded into an inquiry also into the safety of asylum-seeker vessels subjected to Australian border protection operations in 2001, and questions arising from the sinking of the asylum-seeker vessel SIEV X.

The strongest instrument is the Royal Commission or judicial inquiry: a fully judicial process, conducted by a judge, independent (once set up) of the government of the day, and subject to normal court rules of evidence and of the rights and obligations of sworn witnesses. Witnesses are accountable here. Perjury or withholding of evidence is a punishable criminal offence. Witnesses are protected against retribution afterwards in the form of employment sanctions or defamation suits.

Royal Commissions or judicial inquiries have a well-earned history of extracting truth. The most famous example in Australia is the Fitzgerald Royal Commission into police corruption in Queensland in the Bjelke-Petersen era.

Only the Prime Minister can set up national Royal Commissions or judicial inquiries. In his nine years in office, John Howard has only set up two Royal Commissions - into the HIH insurance scandal, and into allegations of corruption in the construction industry. In both cases, there was a broad public consensus that the industry was in a mess and needed to be brought under public scrutiny. Neither case involved the conduct of a government agency: as did, the Fitzgerald Royal Commission, or the two Royal Commissions into the sinking of HMAS Voyager.

There have been several cases now where the Howard Government has refused or ignored strong public calls for judicial inquiries. The most notorious is the unresolved issue of the sinking of SIEV X in the surveillance zone of the Australian government's border protection operation Operation Relex, that cost 353 lives. For three years the Howard Government has ignored a series of passed Senate motions calling for a full-powers judicial inquiry into whether Australian authorities could have saved these lives.

Now we have another strong case for a Royal Commission - the mess in DIMIA over more than 200 (now) allegedly mishandled detention and deportation cases. To most fair-minded Australians - if not to the Prime Minister - there are more than enough questions here to justify a Royal Commission. The questions go to Ministerial accountability, DIMIA administrative malpractice, and a DIMIA departmental culture of punishing the defenceless.

The Prime Minister's preferred instrument in cases where the integrity of his governance may be called into question is the internal administrative inquiry. Here, he chooses the person to conduct the inquiry; sets the scope and terms of reference, and publishes only as much of these as he wishes to; receives the report himself; and decides how much of that report will be made public. It is a very controlled process, whose credibility depends entirely on a public presumption that the Prime Minister is acting in good faith as the custodian of the integrity of federal governance. That presumption has been sorely tested in recent years.

The administrative inquiry has been sometimes resorted to by the Howard Government to maintain control over politically sensitive matters: for example, the 1996 O'Neil enquiry into allegations that DFAT was protecting known pedophiles on its staff, or the 2004 Flood inquiry into Australian intelligence agencies. And now, the Palmer inquiry into - well, what exactly? Its scope seems to grow day by day. The unfortunate former Australian Federal Police Commissioner, who initially was asked to check out one case of alleged maladministration, Cornelia Rau's, then found himself saddled with first Vivian Solon, and now over 200 cases.

The good Commissioner has sensibly, called a halt to this Gilbertian procedure. He has properly called for a wider inquiry (as I understand it, a Royal Commission or judicial inquiry). He has undertaken to complete his initial task - a report on Rau - expeditiously. Now the government proposes to pass its poisoned chalice to another former police chief, Neil Comrie.

Howard claims that it is necessary first to have such administrative inquiries "essentially to establish the fact base" before anything stronger could be contemplated. He must know better.

Internal administrative inquiries risk polluting the evidentiary stream. When official witnesses can - as in internal inquiries or Senate committees - be economical with the truth, tailor their evidence, prevaricate or misrepresent without sanction, the outcome of such flawed processes risks of itself contaminating any future Royal Commission or judicial inquiry. This is because witnesses will then have an interest in defending the claimed integrity of their earlier testimony, delivered under inadequate legal obligations and protections.

There are significant disincentives to witnesses in internal administrative inquiries to tell the whole truth, even if they would like to give honest and complete testimony. The "children overboard" inquiry history showed this clearly. Administrative inquiries can end up as whitewashes.

It is not, as Amanda Vanstone argued, a matter of giving Palmer or Comrie more resources. Problems on this scale of seriousness should not be addressed by internal inquiries reporting to the Prime Minister. When operational governance cultures come into serious public question - as they did in the Queensland police force, and as they do now in DIMIA - recourse to a Royal Commission or judicial inquiry from the outset is the only appropriate course.

Neither SIEV X nor detention/deportation abuses are party-political matters, though John Howard tries to spin them in that way. They are matters that go to the quality of Australian governance, in areas of intense concern to us as citizens.

Where Cornelia Rau and Vivian Solon went, there but for the grace of God go we. We need as citizens to have assurance that our senior public service, our defence force, and our police forces are incorruptible. Royal Commissions or judicial inquiries are finally, in such serious cases, the only way we can have that assurance.

Mr Howard pretends to be blind to these truths about our community expectations. He hopes that if he toughs this one out - and as we move onto his next major public provocation, the industrial relations "reforms" - our attention will wander. I hope his backbenchers may remind him that many Australians including coalition voters - are not so easily distracted.

 

Tony Kevin is a Visiting Fellow at the ANU, and the author of "A Certain Maritime Incident: The Sinking of SIEV X" (Scribe Books, 2004)