Terms of Reference (Or: The Devil in the Detail)

The terms of reference of the royal commission, released recently, by the Prime Minister, Julia Gillard, are notable not so much for what is included, but rather for what is specifically excluded or simply not mentioned.

After a long, rambling and “feel good” exposition of why it is so very important to protect children, the first shortfall occurs. The enquiry “will not specifically examine the issue of child sexual abuse and related matters outside institutional contexts.” This has been taken by the media and others to mean it will not cover abuses within family, social circles, and similar contexts. Presumably, this is all too hard to tackle.

It can readily be imagined that this caveat will be exploited by lawyers representing institutions to blur the boundaries concerning what is or what is not a valid line of enquiry. For example, are medical registration boards and the AMA (Australian Medical Association) to be quizzed over individual doctors’ actions? Is the Pharmacy Board responsible for protecting children from pharmacists? Are shopping centre owners responsible for diminishing the chances of a child being assaulted in their public toilets? All of this is splitting hairs, of course, but that is precisely what the expensive lawyers are employed to do, let us not forget.

One very serious hair-splitting way out of responsibility could be the following: a priest has access to a child through family or friendship links rather than through official church activity. Is “Uncle Father Fred” to be treated as an in-family abuser or as a member of an institution? This argument could apply for any institutional member or agent.

The devil in the detail with the terms of reference is that it has an “either or” approach to the social and institutional aspects for the commission. It does not address the possibility of the “and both” case alluded to above. No doubt this will be clarified by the royal commission when lawyers try to capitalise on this lack of clarity.

While section e. of the terms of reference refers to individuals being given the opportunity to present their personal accounts, all remaining sections cover procedural matters and systems of reporting, etc. The principal media players will focus on section e. but find the others rather boring and often not worth reporting. This means that public attention will experience long droughts while the trivialities of systems are being discussed.

Another disturbing exclusion concerning the enquiry exists. The royal commission can decide that a matter will be adequately dealt with elsewhere, such as “by another enquiry or criminal or civil proceedings.” Does this mean that the state enquiries currently operating or in the past (e.g., the Forde Enquiry) let some off the hook of exposure during the royal commission? How many cases will be ignored because they “may” be taken to a court in some undefined future?

Finally, the terms of reference exclude non-sexual forms of abuse. Again, there is an “either or” approach ignoring the “and both” potentials. The obvious cover-up would be that, in the case where the same individual both sexually and physically or psychologically abused a child, these other abuses could not be raised. In reality, people need to know which organisations exacerbated victims’ sufferings by multiple forms of abuse.

I have tried hard not to give too paranoid a view of how limitations in the wording of the terms of reference could be used by unscrupulous individuals. However, as later posts will reveal, some participants have a record of being somewhat “hard ball” in their methods. Vigilance with regard to possible abuse of the commission’s terms of reference seems warranted by rational people.

TOMORROW: The commissioners.

That’s all I can say

Lewis Blayse (né Lewin Blazevich)

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