Terms of Reference – Allocation for Hearings (Or: To Each their Own )

One of the worrying aspects of the establishment of the Royal Commission revolves around the lack of appeal processes for commissioners’ decisions. Previous posts have tried to tackle some segments of the problem of lack of accountability about decisions. This post covers the most important concern – that of the allocation of matters between the six commissioners. It is something which has not arisen in the past where one commissioner was the norm.

On one hand, people will argue that the commissioners have been chosen for each one’s particular area of expertise. On this basis, it would be logical to have Professor Milroy hear matters pertaining to Indigenous victims and also to hear matters concerning adverse mental health outcomes. This is because she is both Indigenous and a psychiatry academic. She could be expected to have a sympathetic and understanding approach.

However, others, including possible representatives of institutions, may choose to interpret her qualifications and approach as being evidence of bias towards Indigenous and mentally-damaged victims. The fight for public opinion support willl soon be underway. It would be sad if this attitude to Professor Milroy were to dominate because the commission did not fully be seen to be justifying which matters are referred to her.

On the other hand, the institutions may wish to see particular matters  referred to a commissioner they think will be more sympathetic to them. A previous posting called for the disqualification of Commissioner Robert Fitzgerald because he is too closely associated with the Catholic Church. If the commission were to refer matters of abusive Catholic priests to him, then questions would need to be asked. In the end, there would need to be a formal appeal process about this, otherwise it would require public pressure to achieve the same end. This would not be a good look for credibility.

Sometimes the argument for a particular commissioner not hearing certain matters becomes much more complex and therefore not quite so obvious. Take for example, Commissioner Coate, who some would say had a sympathetic towards juveniles, especially Indigenous youth, who have fallen foul of the law. This misses the important point that she is, nevertheless, part of the correctional systems official processes.

To see why this could be a problem, it is necessary to recount something which arose in the early days of the Children’s Homes campaign. Freedom of Information laws had just been introduced and some people were able to access their files in detail, the author included. These files usually included the original orders which placed them in the Homes. The situation of the Stolen Generation is well documented. Authority figures, such as judges and magistrates do not have the trust of those people and their descendants  because the power was totally abused in their case.

[The author was in the Salvation Army Boys Home in Brisbane with two members of the Stolen Generation. Many years later he met one of them when commissioned by the Queensland Government to help form a Children’s Homes victims’ support group in a prison. The man felt rejected by both Indigenous and non-Indigenous cultures, what became obvious as the wide-spread “both but neither” problem, which also applied to people from ethnic families. As the prison program director said, this man could have been freed much earlier except for his highly antagonistic attitude towards prison staff. The warders in their uniforms were no different to him than the police officers who forcibly removed him from his family.]

For those who were taken into care because of “neglect”, in the old days, they had a page in their file which seemed truly remarkable at the time. The document was from the Children’s Court officially “charging “ them with being neglected, and “sentencing” them to be placed in a Children’s Home. While this may have been for administrative convenience, those more qualified could point out the obvious psychological attitude problems which result from self-blame for the child’s circumstances. Curiously, under the old rules, a child under-15 who was found smoking in public could be charged with being neglected and sent to a home until the age of 18 years.

A member of the Stolen Generation, or a convicted “neglected” person, may have misgivings about talking to a former juvenile criminal judge, for these reasons of perception. In the absence of understanding of this complex issue, one could feel that Commissioner Coate could feel quite hurt when the issue arose. The sensible thing to do would be to accept the valid psychological points behind a victim’s request to have a hearing before a different commissioner.

Parallel arguments could be made for someone who was abused by a police officer and was allocated to Commissioner Atkinson, a former copper. Ditto, probably for matters concerning the Police Citizens Youth Clubs and, even by extension, the YMCA.  Those with more qualifications than the author would be able to raise many more instances, including with regard to other commissioners, along the general lines argued above.

Because the Royal Commission is set up under a quasi-judicial model, traditional legal arguments would be likely when allocating matters to individual commissioners. However, the situation is not exactly parallel to the allocation of cases to particular judges. There is the extra dimension of basic trust in the commissioner to give a fair hearing. As everyone knows, basic trust is the first thing to suffer under any form of abuse, beginning with the systems abuse of taking kids away from their families to the spiritual abuse of religious figures.

A key argument of those opposing a system of appeals against allocation to particular commissioners would be that any spurious claim could be used to gain access to a more favourable commissioner. This can be rejected, again, because it is not a direct parallel with the usual court system. It is not the same as a person being charged with child abuse wishing to avoid a hearing by a judge known for tough sentencing for such offences. Defamation laws prevents giving the example of this that has occurred recently, but those in this field of law will probably know of the case on which it is based.

Many people will be watching to see how Pope Francis directs his Australian branch to co-operate with the Royal Commission. They will also be watching to see if the commissioners understand that they must not raise barriers to victim testimony, even where they do not quite understand what the concerns raised really are all about.

The only way the commissioners can have credibility on this issue is to AUTOMATICALLY allow victims to choose which commissioner they appear before, if they so desire.

TOMORROW: Terms of reference – staffing considerations

That’s all I can say

Lewis Blayse (né Lewin Blazevich)

 

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