At the outset he said that he would ask the questions; witnesses could have lawyers present, but the lawyers could not speak nor question witnesses. Witnesses would get a chance to respond to what other witnesses said if they wanted at the end.
And the inquiry ripped along.
Also last week, the High Court ruled that witnesses at government-appointed inquiries do not have a right to publicly funded legal representation. Some witnesses whose credibility and reputation were at stake at a NSW inquiry sought to stop the inquiry unless they got free legals. The High Court said no, refusing to extend to inquiry witnesses its earlier ruling that an accused at a trial had a right to representation if he could not afford his own. It has not published its reasons.
This was bad news for lawyers. Lawyers have made a fortune over the years at Royal Commissions, perhaps the WA Inc Royal Commission being the zenith. Getting their paws on public money would have added to their take.
Inquiry witnesses might argue that their reputations, right to fair trial and other rights could be affected so they should have a right to free legal counsel. However, Professor Pearce dealt with this problem by saying that if matters of reputation or fair trial came up he would close the inquiry to the public.
The ACT’s Inquiries Act is a very good one. It is not on the full-scale Royal Commission model, complete with counsel assisting and a phalanx of lawyers representing every witness asking questions and cross-examining. Rather it gives the inquirer wide discretion on procedure, so the nature of the inquiry can vary according to the nature of the task. At this inquiry no-one is legally represented; they are only legally advised. Without lawyers making submissions and questioning witnesses, costs have been kept down, perhaps to less than a third of a Royal Commission-style hearing.
Even so, the costs are chewing ACT taxpayers money at a faster rate than it is being earned by the Vitab deal in the first place, but at least they are not out of hand.
The basic difference between a Royal Commission and the Pearce approach is that a Royal Commission has a counsel assisting (who presents one side of the argument) and the lawyers for various witnesses put the other side. It is a concocted adversarial system, and it seems unnecessary and far to expensive.
The nature of inquiries is essentially inquisitorial and aims to find facts, not to deal with crime, so why not use the inquisitorial method as Pearce is doing?
If you really must have a Royal Commission-style inquiry (like WA Inc) and all the witnesses have lawyers to look after their interests and to challenge and test evidence, why not get value for money from it by giving it the power to send people for trial if it thinks there is a prima-facie case against anyone. Under the present system we have a commission, a committal and a trial.
Thank heavens the High Court was sensible enough to reject having another publicly funded trough for the lawyers of witnesses at inquiries. It is bad enough now with Ministers getting free legals.
Lawyers add cost and delay and the more you have of them the longer the delay and the higher the cost. They are obviously necessary at trials where the accused must be protected, but at inquiries they only get in the way.
On a vaguely related matter, I wonder if Bill Wood was secretly pleased about Wayne Berry’s departure from the Ministry. If the non-aligned Wood could not secure one of Labor’s 10 most-favoured-candidates spots for the next election in the left-dominated pre-selection, the left could have demanded of Chief Minister Rosemary Follett that she dump him from the Ministry before the election.
That cannot happen now. To lose one Minister is unfortunate; to lose two looks like carelessness.