February 25, 2013
That Julia Gillard’s royal commission into child abuse is the fruit of a coordinated campaign by victim support groups – with the active engagement of Fairfax Media and the ABC – can hardly be doubted. Gillard herself has said as much. “[My] announcement is a tribute to you for having sustained that campaign after many, many long years”, she told victim activists. True to a dictionary sense of “campaign”, it was an organised course of action designed to arouse public support for a cause.
Nor can we doubt that their target was the Catholic Church. This is not to deny that child abuse is horrendous or that investigation of the Church is warranted. But their repetitious and laser-like focus on Catholic cases, while ignoring those in other settings – notably state schools – points to something else.
The progressive media doesn’t lack for motives. There’s the Church’s opposition to gay marriage at a time when the Labor-Green alliance held out the best prospect of it ever being legalised. There’s the opportunity to cast an election year pall over Tony Abbott’s religious affiliation. There’s the hope of bringing down his close friend Cardinal Pell, forcing Abbott to repudiate Pell or risk the prime ministership. And there’s the once-in-a-lifetime chance to subdue an institution that remains defiantly beyond their reach. Whatever the reason, Gillard’s enquiry was conceived in a swirl of media-induced hysteria.
In retrospect, though, the anti-Catholic strategy may have misfired. Abbott sidestepped the trap by coming out in favour of a royal commission before Gillard, while Cardinal Pell ended up welcoming rather than opposing the idea. Then Gillard bypassed calls to focus on the Catholic Church and opted for a “wide-ranging” enquiry into “all religious organisations, state care providers, not-for-profit bodies … child service agencies and the police”. Over at the ABC, disappointment in this was palpable. From November 12 last year, when the enquiry’s scope was announced, until the terms of reference were released on January 11, ABC sites and programs were full of muttering about the risk of an unwieldy process.
Still, media leftists can be expected to make mischief with the more sensational revelations, especially if they erupt around election time.
A lot depends on whether the commission can shrug off the passions surrounding its inception. On this score, Gillard hasn’t been helpful. At the elaborately staged press conference on January 11, she resorted to the familiar language of victim advocacy. “To those survivors of child sexual abuse”, she said, “today we are able to say we want your voice to be heard.” It’s hard to miss phrases like this in media reports on the child abuse issue. They come naturally to counsellors and social workers. But the notion that a royal commission is some form of therapy is very much mistaken, and Gillard should have known better.
Royal commissions aren’t called to vindicate the cause of any organisation, person or class of persons. They are powerful fact finding machines, not platforms for the “voices” of some participants. More accurately, they are processes designed to test and evaluate those voices against all other evidence, including the “voices” of alleged wrongdoers. They can be dangerous beasts, wielding tremendous power over the rights of persons who haven’t been or may never be charged with a criminal offence. They should be called reluctantly, and then hedged with as many safeguards as possible, like restrictive terms of reference and competent, impartial commissioners. To politicise them is highly irresponsible.
Senior judges tend to make the best commissioners since they are trained to set aside personal leanings and sift evidence with a cold, dispassionate eye. They belong to an intellectual tradition that values logic and rationality. The great seventeenth century jurist, Sir Edward Coke, called it “the appeal to reason”. Therapists need not apply.
The prime minister shouldn’t have cast her lot in with “the victims” or stamped a pro-victim label on the enquiry. In the course of forensic examination, some of their testimony might actually be rejected. She should have announced the terms of reference and let well enough alone. Better still, she could have left it to the Attorney-General.
As if her press conference wasn’t bad enough, Gillard’s office followed up the next day with a “morning tea” for victims at Kirribilli House. Before the cameras (of course) Gillard comforted the victims and their advocates, sometimes holding their hands, sometimes embracing or caressing them, saying things like, “Iit’s your time now to tell your story … I hope that, in of itself, brings some healing.” How is this appropriate? Why is the prime minister out raising and shaping expectations when her commission is yet to hear a skerrick of evidence? Or has she, too, signed on for the campaign? Gillard’s desperate attempt to ingratiate herself with the electorate breached all bounds of propriety.
In his own media statement on January 16, Justice Peter McClellan, the commission’s chair, wisely avoided any hint of victim advocacy, focusing on technical aspects of the commission’s operations. If only the same could be said for Margaret Cunneen SC, his counterpart at the Special Commission of Inquiry into the Catholic Maitland-Newcastle diocese. Barry O’Farrell called that Inquiry last November following Chief Inspector Peter Fox’s appearance on the ABC’s Lateline. Fox alleged that senior police officers had colluded with the Church in a cover up. He declined to offer details or evidence to back up this dramatic claim, but that hardly mattered. He was being interviewed by Tony Jones in full campaign mode. The event precipitated Gillard’s commission as well.
On February 13, Special Commissioner Cunneen admitted the cameras to record her opening remarks, including this apparent lapse into therapy-speak: “I strongly encourage [victims] to contact the inquiry so that their voices may now be heard”. Cunneen, a crown prosecutor not a judge, may have conducted a preliminary review of available evidence and thought the victims had a legitimate grievance. But even then, why use such loaded words at so early a stage in the process?
Some royal commissions are general enquiries into social or institutional problems that have defied conventional administrative and legal remedies. Others are called to uncover criminal conduct in circumstances where regular law enforcement procedures have failed, such as in cases of police corruption or organised crime. In this second type, senior judges are virtually indispensable as commissioners. On its terms of reference, the current enquiry is something of a hybrid. And yet Justice McClellan foreshadowed, in his media statement, a legislative amendment so that the six “Commissioners need not all sit when conducting a formal hearing”. Since they comprise two judges, a former police commissioner, a lawyer-cum-welfare-bureaucrat, a former senator, and a psychiatrist, non-judicial commissioners might end up presiding over hearings that could expose witnesses to criminal charges or at least severe reputational damage.
If trial by media is bad, what are we to make of trial by psychiatrist? It’s not as if psychiatry has an unblemished record when it comes to safeguarding civil liberties. The authority to confine patients has been abused in some instances – consider the horrific events at Sydney’s notorious Chelmsford Hospital in the 1960s and 1970s – and, of course, “punitive psychiatry” was a powerful tool of oppression in totalitarian states like Nazi Germany and the Soviet Union. “[I]n the monolithic state”, says the British Medical Association, “psychiatry can be used to bypass normal legal procedures for assessing guilt or innocence and allow political imprisonment without the usual odium attaching to such political trials”.
Along with some disturbing testimony, Gillard’s royal commission may well afford us the spectacle of a new clerisy made up of social workers, psychiatrists and counsellors sitting in judgement of the old clergy they hope to supplant.
John Muscat is a lawyer and co-editor of The New City, a web journal of urban and political affairs
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