ACT Chief Minister Jon Stanhope wants a quick inquiry into the bushfires. In doing so he has engaged in a difficult balancing act.
There is value in getting results quickly so that any recommendations can be put into effect before the next bushfire season. A full inquiry under the Inquiries Act, however, takes the form of a quasi-judicial process with rights of cross-examination and the like. The result inevitably is cost and delay. Further, such an inquiry could easily clash with the coronial inquest that must go ahead with any death or fire of this nature.
The ACT has seen that clash or potential clash on two occasions: with the inquiries into disability services and the three deaths of disabled people in community accommodation and with inquiries into the hospital implosion. On both of those occasions the costs and delays were immense.
So it is easy to have sympathy for Stanhope’s position.
Stanhope appointed former Commonwealth and ACT Ombudsman Ron McLeod to inquire into all aspects of the fires and gave him a very wide brief. The breadth of the brief is fine and Opposition Leader Brendan Smyth is barking up the wrong tree on this element of the inquiry process. But in order to cut through the legal mumbo-jumbo, Stanhope did not constitute the inquiry as a board of inquiry under Section 5 of the Inquiries Act. Rather it is a mere administrative inquiry. And rather than appoint a lawyer as counsel assisting the inquiry – as under the Inquiries Act – Stanhope appointed a committee made up of the chief executives of the Chief Minister’s Department, the Department of Justice and Community Safety, and the Treasury to provide McLeod with any help he may require. A lawyer appointed as counsel assisting, on the other hand, would have meant public hearings, cross-examination and the full panoply of legal process.
But there is one advantage to an inquiry with full legal process under the Inquiries Act. That Act gives immunity to witnesses from being sued for defamation over any evidence they give to the inquiry. That is a very important protection. It enables people to speak freely. It will help the inquiry arrive at the truth more easily than if witnesses feel they might be subject to a law suit for anything they say.
Stanhope argues that immunity from defamation is unnecessary. Anyone who speaks the truth has nothing to fear, he argues. That displays a remarkable naivety of defamation law. Speaking the truth, or what you believe to be the truth, is very dangerous under our defamation law for the very simple reason that the onus of proving that truth is on the speaker or the publisher. So people who speak the truth at the inquiry have everything to fear. They have to be able to prove the truth of what they say. That exercise can be very costly. You have to get a lawyer and a lot of witnesses together.
Let’s take a simple example. Duffy Resident tells the inquiry: “The driver of Tanker X told me to sod off when I asked for help.” Driver X says that statement carries the defamatory imputation that he was negligent in his duty. Under our defamation law, it is now up to Duffy Resident to prove that Driver X was negligent in his duty. At the hearing, Duffy Resident swears Driver X said sod off. Driver X denies it. With that Yes-No stand-off, the court would be bound to say that Duffy Resident has not proved the truth of the defamatory imputation and that he must pay damages.
Duffy Resident therefore would be prudent to remain silent. He or she has everything to fear for telling the truth. This is why courts, royal commissions and formal inquiries give people immunity. Indeed, it is the only way that the truth can be arrived at.
The Inquiries Act gives witnesses the same immunity as witnesses in the Supreme Court.
Stanhope has very legitimate concerns about am inquiry getting bogged down in legal process and the Canberra community has a strong interest in a reasonably quick inquiry. Stanhope did well to choose someone like a former Commonwealth Ombudsman rather than a former judge or QC to do the inquiry and to avoid the worst elements of the legal process.
But that does not address the position of witnesses’ protection.
One way through would be to give witnesses a one-off protection for this inquiry. The Assembly has already had an emergency session over the fires. Why not call the Assembly to pass a law giving immunity from defamation action to any witness who gives evidence to the McLeod inquiry?
Then, and only then, would witnesses have nothing to fear from telling the truth. And thus the truth would be more likely to be told with names attached. Otherwise, it invites people to make their assertions anonymously. And invites the suggestion – rightly or wrongly — that a Government not willing to give immunity might be concerned about what might come out.