ELIZABETH THE SECOND, by the Grace of God Queen of Australia and Her other Realms and Territories, Head of the Commonwealth:
The Honourable Justice Peter David McClellan AM,
Mr Robert Atkinson,
The Honourable Justice Jennifer Ann Coate,
Mr Robert William Fitzgerald AM,
Dr Helen Mary Milroy, and
Mr Andrew James Marshall Murray
That hilariously medieval text is how the letters patent of the Royal Commission into the Institutional Responses to Child Sexual Abuse begins. Our Queen, who reigns over us by divine right, has chosen six lay persons to investigate the actions of Catholic clergy, the Church and other institutions. I shouldn’t be flippant about this. I think that the 120 odd Royal Commissions initiated by Australian Federal Government’s have done a great deal of good and I am very glad that we are having this enquiry into the abuse of children. But I am worried about how this will play out.
The main objective of the Royal Commission, as the letters patent make clear, is to make recommendations on how to end sexual abuse of children in Australian institutions, or more practically how to mitigate that abuse as far as possible. But finding out what has happened is also a first order priority. Establishing the truth about the sexual abuse of children in Australian institutions is essential. This is where the Royal Commission could become a nightmare for the commissioners.
How are the commissioners going to establish the truth without vigorous questioning and even some form of cross examination of victims of sexual abuse? Frank and detailed testimony of abuse will amount to direct accusations against individuals and institutions. If those accusations are not tested by detailed and persistent questioning by the commissioners or cross examination by representatives of the accused parties, then how should they be treated? Should they be taken as the truth? How are the commissioners going to aggregate the testimony into some findings if that testimony has not been tested or corroborated? If an accusation of abuse is made and then denied, then what are the commissioners to make of that? Is it ok to aggressively question the accused, but not the accusers? If vigorous comprehensive questioning of witnesses is conducted, then won’t that stop victims from coming forward? If it is not conducted then won’t the conclusions of the Royal Commission by open to criticism?
Unfortunately, Australia did not have a royal commission into the ‘stolen generations’ — the taking of Aboriginal children from their families between 1869 and 1969. There was the ‘National Enquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families’. The conclusions of that enquiry have been criticised for resting on the testimony of over 500 people which was not tested by much questioning of any kind. Before the testimony of witnesses can be accepted as the truth there is the obvious need to establish whether the recollections of individuals are clear, internally consistent and consonant with things that are known to be true.
Taking the testimony of witnesses on face value, without any testing, was not very controversial in the stolen generations enquiry case because the accusations were against state and federal governments that were feeling contrite and not inclined to dispute that testimony. In contrast, the coming Royal Commission on the sexual abuse of children will hear many, many accusations that will be ardently contested by both individuals and institutions, especially the Catholic Church and accused Catholic priests.
I can’t think of a Royal Commission like this one, where evidence will be so explosive and so heavily contested. I don’t know what the commissioners should do about the testing of testimony, or what they will do. It is going to be difficult.