This week has seen an example of something warned about in a previous posting. This concerns using (or misusing) the terms of reference, interpreted in a narrow way, as providing a justification for excluding an important matter from consideration by an enquiry. The same tactic could come up in the Royal Commission.
The Queensland Government is conducting its own inquiry into child safety matters, known as the Carmody Inquiry. An important part of the enquiry was to investigate the “Heiner Affair”, or “Shreddergate”. An earlier inquiry into matters concerning the John Oxley Juvenile Detention Centre, the Heiner inquiry, was aborted and evidence shredded by the former Goss Labor Government.
Now, Tim Carmody, the head of the present enquiry, says he may not be able to investigate the Heiner Affair at all because of a technicality in the terms of reference. Objections had been raised by the Counsel Assisting the enquiry and by some organisations appearing before the enquiry.
The terms of reference permit the enquiry to “review the adequacy and appropriateness of any response of, and action taken by, government to allegations, including allegations of criminal conduct associated with government responses, into historic child sexual abuse in youth detention centers.” This includes the action of the government in destroying evidence.
However, Mr. Carmody claims he is not satisfied that sexual abuse did in fact occur, so he could not enquire into the government response, that is shredding evidence documents. This very conveniently lets the Shreddergate people, including former PM Kevin Rudd, off the hook.
It is all a very catch-22 situation. How can the enquiry determine if sexual abuse occurred when it does not investigate, because it has presumed that no evidence of abuse exists, because it has not investigated it? This is much like a prosecutor saying no case can be brought because of lack of evidence from police, and oh, by the way, police did not investigate because the prosecutor had no evidence of a crime. Ludicrous, but effective in avoiding the issue.
Mr. Carmody and the Queensland Attorney-General say they will consider the issue further sometime in the undefined future. Meanwhile, the Heiner Affair is not being investigated.
It is very easy to see how the same type of tactic could be used in the Royal Commission to ensure some matters are not considered. The earlier postings on the terms of reference give some examples where the sly use of poor wording could be used in this manner. This is why the original terms of reference should be revisited to ensure their meaning is not open to disputation.
Read more here:
TOMORROW: A first look at the Victorian enquiry
That’s all I can say
Lewis Blayse (né Lewin Blazevich)