The Great Communicator was to arrive.
It was Friday Bob Hawke was to give evidence at the Vitab inquiry. The place: First Floor of the AIDAB Building in Civic. He had to come out of the lift and walk 15 metres to inquiry room. He was trapped.
A gaggle of Television Teenagers awaited his arrival.
He answered one or two inane questions in a croaky voice and went inside not adding one iota to the store of public knowledge.
Nor did he inside. Vitab inquirer Professor Dennis Pearce has allowed the Great Punter and others to give evidence in private.
Outside the Television Teenagers got on their mobiles.
“”Great stuff, mate. Great footage. 30 seconds, easy,” they told their news editors.
And thus the morning of the Vitab inquiry which gave the public the least information about the stuff-up that threatened the profit of a $5 billion industry in four states and two territories got the widest national and local coverage so far of the Vitab issue.
Personalities before politics; politics before substance.
Much other evidence has been in public. Why, then, the private evidence? It seems odd. It seems out of kilter with the normal run of Royal Commissions. And in general the public have a right to be suspicious of inquiries behind closed doors.
But it is not as simple as that.
The ACT Inquiries Act gives Professor Pearce the same power as the Supreme Court to compel witnesses to attend and compel them to answer questions.
This is a wide power. In the courts it is balanced by the right of parties to be represented; to hear the case against them; to test the case by cross-examining witnesses and to put submissions on law and fact to the court.
With those safeguards, it is then reasonable that courts can make findings which determine people’s rights and liberties.
An inquiry is different. Professor Pearce’s function is to report to the Government what happened. There is no need for it to make final determinations of people’s rights and liberties. So Professor Pearce is not given the power to do that. Any adverse reflection he makes in his report about someone is not a determination of rights and liberties; there would have to be another process, probably a court process over allegations of breaches of contract or some other process for termination of employment or some disciplinary procedure, all of which would provide opportunities for the accused to answer.
Given that, the Inquiries Act gives the inquirer power to side-step the usual rights of representation and cross-examination. Professor Pearce is the inquisitor. He asks the questions (unlike a judge who watches the parties’ lawyers battle it out). And he can shut lawyers out from asking questions of their own clients or of other witnesses.
This enables him to act speedily and cheaply (and in days of $100 million Royal Commissions there is great public interest in the cost of inquiries).
The Inquiries Act to some extent puts speed and cost ahead of the rights of witnesses. In turn it then balances this by giving the inquirer the power to hear some evidence in private. Professor Pearce has done this where he thinks reputation, commercial confidences or future litigation may be affected.
If the Inquiries Act insisted all be in public, then in fairness to witnesses, you would have to allow representation and cross-examination of other witnesses. Once you let the lawyers in, though, costs go through the roof and delays become inevitable. You don’t get a result till Christmas. That defeats the very purpose of the inquiry: to find out what happened.
The sad truth is that lawyers’ fees and their propensity to spin out inquiries inordinately have now tipped the public-interest balance. A cheap, quick, inquisitorial inquiry (even partly in private) is preferred to a long, expensive lawyers’ field day.
You cannot demand Bob Hawke and others give evidence in public to an inquisitorial proceedings without legal representation and a right to cross-examine other witnesses, and if you do that you cannot turn around a whinge at the huge public costs of inquiries.
The ACT Inquiries Act has to strike a balance in an imperfect world.
That said, there is a price for a semi-private inquiry. Unless the public can see all the evidence upon which the findings were based, they have to either put blind faith in the inquirer or wonder whether the findings are sound.
We may not know for 30 years what Bob Hawke and the Vitab directors told the inquiry. More importantly, we will not know what they did not say.
Taking evidence in private is fine if you accept the limited role of the inquiry: a report to government about governmental processes. But if you really want the truth of the Vitab fiasco (who financed, why it was set up, who in Australia was to benefit from it, how much governments and the racing industry in Australia was expected to lose by it), short of an appalling expensive Painters and Dockers-style Royal Commission, you’d best go down to the racetrack.