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A question of justice
Detective Chief Inspector Peter Fox has campaigned long and hard for a royal commission. Source: The Daily Telegraph
A commonwealth royal commission - even with co-operation from the states - is ill equipped to trigger a wave of prosecutions.
It might provide psychological benefits to the victims of sexual abuse. It might shine a spotlight on priests and others who have protected pedophiles.
And it might result in recommendations for policy or legal changes designed to minimise the risk of children coming to harm when in the care of institutions.
But if the goal is to lock up criminals by uncovering fresh evidence, there is a real risk of failure.
A royal commission might uncover shocking conduct, but it will do so in a way that could place those responsible beyond the reach of the law.
Even before Julia Gillard unveiled her plans, concerns were emerging about the fact that evidence gathered using the coercive powers of a royal commission cannot generally be used in subsequent criminal proceedings.
And before Gillard gave the inquiry a focus that goes beyond the Catholic Church, concerns had also emerged that the commission's hearings would be used to smear this church with allegations that would never stand up in court.
The Prime Minister's announcement made it clear that the inquiry will
look at the abuse of children in all institutions. But the origin of this inquiry was the wave of accusations against the Catholic Church over its institutional failings in dealing with pedophile priests.
Government figures such as backbencher Doug Cameron had no doubt yesterday that the focus should be on this church because "that's where the major problem seems to be".
Those origins, and the restrictions on evidence obtained by this commission, have triggered concerns about the real goal.
"There is clearly a political, anti-Catholic agenda here," says Melbourne's Peter Faris QC.
"The Catholic Church is the strongest of the churches and this has the potential to be a general smear of the Catholic Church," says Faris.
Terry O'Gorman, president of the Australian Council of Civil Liberties, says the extreme powers that are vested in royal commissions mean great care will need to be taken to ensure it does not become a witch-hunt.
"At a time when politicians arguably want to distract from other things and suddenly call for a royal commission, the onus is on those who call for it to show that the existing state structures are so inadequate that they cannot cope," O'Gorman says.
"A royal commission could turn into an anti-Catholic witch-hunt."
The Archbishop of Sydney, Cardinal George Pell, has also questioned whether a federal royal commission will serve any purpose, arguing that past victims of pedophile priests have already been delivered justice.
By securing the co-operation of NSW and Victoria, the federal government appears to have overcome many of the constitutional limitations that might have either restricted the scope of the inquiry or exposed it to potential challenges.
Without the involvement of the states, those pushing for commonwealth involvement had argued that it could have drawn on the external affairs power and used treaty obligations as the legal basis for the commission.
But constitutional lawyer Patrick Keyzer says that there would still have been so many doubts about the basis for such a commission that it might not have been viable.
"There is enough of a doubt for the commonwealth Attorney-General to be able to say, 'Look, we don't really have that power'," says Keyzer, who is director of the centre for law, governance and public policy at Bond University.
While the commission's terms of reference have not been finalised, one of those who led the push for this inquiry wants it to focus primarily on policy change.
"One goal would be to explain how and why this phenomenon occurred in the first place and to shed light on a subject that has operated under the cloak of secrecy," says prominent Melbourne solicitor Josh Bornstein.
"An additional goal would be to try and understand how our protections for children have failed so badly and what could be done to ensure nothing like that recurs.
"A good inquiry will get at all of the facts, analyse the problem and explain what occurred," Bornstein says.
By pushing ahead with an inquiry, the government appears to have decided that the benefits of uncovering the facts about pedophilia are worth paying the price.
That price will be significant. Last night there was talk that the government might appoint several royal commissioners, adding to legal bills that could run to millions of dollars.
But the most important part of the price will be the fact that much of the evidence that is uncovered will be inadmissible in subsequent court proceedings.
This royal commission comes after the success of earlier inquiries such as the Fitzgerald inquiry in Queensland and the Wood royal commission in NSW.
The changes that followed those royal commissions might have given the impression that royal commissions are the heavy artillery of law enforcement.
But that view ignores the fact that those inquiries were held before most states had established state crime commissions.
Those commissions have many of the powers of royal commissions. But they operate in private, unlike the federal government's royal commission, which is likely to generate months of media reports about wrongdoing by church and other officials.
Faris, who is a former head of the National Crime Authority, says the better option would have been to use its successor, the Australian Crime Commission - and its counterparts.
He believes that notion was probably discarded in favour of public hearings that could result in adverse findings against the Catholic Church.
"They want to smear the church. They want findings that will go all around the world," Faris claims.
He believes that if the government is serious about broadening the focus away from the Catholic Church, it should also seek out accusations of sexual abuse against Muslims and Aborigines.
Bornstein takes a different view. He believes the orthodox methods of pursuing pedophiles have failed and there is a need for a powerful organisation to take the lead.
"Child abuse by the clergy transcends state borders," he says.
"It is a national and international issue.
"In Victoria there is a state inquiry that has little or no credibility - its resources are inadequate and even those who are conducting the inquiry doubt its capacity to do the job properly."
He says the NSW government's inquiry into pedophilia in the Catholic Church in the Hunter Valley was "hastily cobbled together".
And while Bornstein accepts there are limits on the subsequent use of evidence from royal commissions, he says this has not been an impediment at previous royal commissions such as the inquiry into the Painters and Dockers, the royal commission into the building industry and the inquiry into Victoria Police.
"The fact that there may be future criminal proceedings is not, and never has been an obstacle to a royal commission," he says.
"Our objectives should be primarily policy-based . . . and this may assist police to pursue matters in which they have been frustrated."
But that limited goal does not satisfy O'Gorman.
"Generally speaking, investigations by competent police achieve more than a royal commission," says O'Gorman.
He believes royal commissions should only be called once it is shown that the traditional methods of law enforcement have failed.
And while NSW Detective Chief Inspector Peter Fox has asserted that his investigations were blocked, O'Gorman says this is a matter that could have been addressed by existing institutions.
He believes the royal commissioner or commissioners who run this inquiry will need to "walk a fine line" when it comes to publicity.
"There will need to be sufficient open hearings so the public can have faith in it, but on the other hand, you don't want reputations trashed.
"Much of the evidence heard in a royal commission is often tenth-hand hearsay that is not admissible in court because it does not meet the standards of the criminal law."
Bond University's Keyzer believes the simplest solution would have been for the states to hold separate royal commissions without the involvement of the commonwealth.
Cameron Murphy, who leads the NSW Council for Civil Liberties, says the ideal way of investigating pedophilia is to do it under state law.
But he blames the failure of the Catholic Church to call in police for the fact that it is now faced with a royal commission.
"What we have is an organisation that seems incapable of allowing the state to investigate it appropriately," Murphy says.
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