Like what you've read?

On Line Opinion is the only Australian site where you get all sides of the story. We don't
charge, but we need your support. Here�s how you can help.

  • Advertise

    We have a monthly audience of 70,000 and advertising packages from $200 a month.

  • Volunteer

    We always need commissioning editors and sub-editors.

  • Contribute

    Got something to say? Submit an essay.


 The National Forum   Donate   Your Account   On Line Opinion   Forum   Blogs   Polling   About   
On Line Opinion logo ON LINE OPINION - Australia's e-journal of social and political debate

Subscribe!
Subscribe





On Line Opinion is a not-for-profit publication and relies on the generosity of its sponsors, editors and contributors. If you would like to help, contact us.
___________

Syndicate
RSS/XML


RSS 2.0

Informal and 'judicial' Haneef inquiry a paper tiger

By Scott Prasser - posted Wednesday, 7 May 2008


The inquiry into Mohamed Haneef's deportation from Australia has only started, and already questions are being asked about its validity.

This so-called “judicial inquiry” is to examine the circumstances of Haneef's arrest, detention, charging, release and the effectiveness of the procedures across Commonwealth and state law-enforcement agencies.

While no one doubts that this needs to be investigated, the issue is whether the inquiry headed by former New South Wales Supreme Court judge, John Clarke, QC, as presently constituted, is the appropriate means to get at the truth behind this apparent debacle.

Advertisement

The problem is that in Australia, under current constitutional and legal arrangements, there is no such thing as a “judicial inquiry”, although this term has been repeatedly used by the Commonwealth Attorney-General in his announcements of the Clarke inquiry and by many commentators.

The term “judicial inquiry” is applied to the Clarke inquiry and similar inquiries such as royal commissions because such bodies are chaired by former or current judges or senior legal counsel.

In fact, although these inquiries, especially royal commissions, may have the outward trappings of courts, they are not “judicial” or courts in any way.

The problem with the Clarke inquiry is that it is not a “judicial inquiry”, a court of law or, more relevantly, a royal commission. Rather, it is an informal inquiry without the powers of a royal commission to procure files, compel witnesses to attend and give evidence and, most importantly, it has no ability to afford protection to witnesses for the evidence they may provide.

Nor, as an informal inquiry, and not a court of law, does the inquiry offer any right of appeal from its conclusions.

The Federal Government has maintained that a royal commission would be too expensive and take too long. There are many precedents for royal commissions meeting deadlines and being cost-effective.

Advertisement

Also, the Attorney-General has suggested that royal commission powers of investigation were not needed as all relevant agencies and key witnesses concerned have indicated a willingness to assist the inquiry.

While no one doubts the abilities of Clarke, it is not known whether his inquiry, without royal commission powers of investigation, will be able to gain all the files from relevant agencies and to ensure all witnesses come forward.

Experience suggests that when reputations, careers and organisational interests are at stake, voluntary co-operation quickly declines.

Persistent use of the term “judicial inquiry” may just reflect a lack of appreciation of this matter.

Or it may be a means to create the illusion that the Clarke inquiry has the same independence, integrity and separation from the executive government as a court of law.

This is wrong in fact, wrong in law and wrong in constitutional realities.

There are a number of alternatives to the Clarke inquiry.

The Federal Ombudsman, for instance, has the same powers as a royal commission, can offer protection to witnesses, is highly regarded and has investigated similar issues.

That the Attorney-General has suggested that a royal commission may still be appointed if Clarke so advises after his investigations have progressed suggests that the Rudd Government is uncertain about the appropriateness of the present inquiry.

Setting up a royal commission midway through an existing inquiry could have adverse consequences for the outcome of the investigations.

  1. Pages:
  2. 1
  3. 2
  4. All

First published in The Courier-Mail on May 2, 2008.



Discuss in our Forums

See what other readers are saying about this article!

Click here to read & post comments.

17 posts so far.

Share this:
reddit this reddit thisbookmark with del.icio.us Del.icio.usdigg thisseed newsvineSeed NewsvineStumbleUpon StumbleUponsubmit to propellerkwoff it

About the Author

Dr Scott Prasser has worked on senior policy and research roles in federal and state governments. His recent publications include:Royal Commissions and Public Inquiries in Australia (2021); The Whitlam Era with David Clune (2022) and the edited New directions in royal commission and public inquiries: Do we need them?. His forthcoming publication is The Art of Opposition reviewing oppositions across Australia and internationally. .


Other articles by this Author

All articles by Scott Prasser

Creative Commons LicenseThis work is licensed under a Creative Commons License.

Photo of Scott Prasser
Article Tools
Comment 17 comments
Print Printable version
Subscribe Subscribe
Email Email a friend
Advertisement

About Us Search Discuss Feedback Legals Privacy