Extraordinary powers come with weapon in PM's armoury

[poddster]

Tony Abbott has deployed the biggest weapon in the federal government's armoury to investigate the governance and financial affairs of the nation's unions. By elevating the investigation from a judicial inquiry to a royal commission, he has invoked the strongest powers available to an inquiry under Australian law.

Government inquiries normally operate on the basis that people and organisations provide information by consent. People cannot be forced to reveal information.

A royal commission is different. The Royal Commissions Act of 1902 grants coercive powers that even exceed those of a court.

A royal commission can compel people to give evidence or to produce documents or other things. If they fail to do so, arrest warrants can be issued, and they can be jailed for up to six months.

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When people appear in court, they can normally avoid answering questions if this would expose that they have broken the law. This reflects the fact that an accused person has the right to silence.

This protection is removed when it comes to a royal commission. People cannot refuse to answer a question or to produce a document if this might incriminate them, or make them liable to a penalty. Such information can be used by the commission, but it cannot then be presented as evidence against them in a subsequent trial.

People appearing before a royal commission may be tempted to protect themselves by giving false or misleading evidence. The law makes this a serious offence, and exposes them to jail for up to five years if they do so. Similarly, anyone who conceals or destroys a document that might be sought by the commission can be jailed for up to two years.

A commission can also search for evidence on its own initiative. It can seek a warrant allowing a police officer to enter and search any premises for any document or thing connected with the inquiry.

Royal commissions are rare because they are expensive and their powers are extraordinary. Not surprisingly, they are often criticised because they permit information to be extracted from witnesses in a way that overrides normal legal rights. Many a royal commission has been labelled a ''modern day star chamber'' akin to the powerful and secretive body of Tudor England.

Like the star chamber of old, royal commissions put to one side notions of justice or of a fair trial. Instead, they prioritise the gaining of information over a person's reputation or liberty.

Accordingly, royal commissions tend to be ordered only for the most pressing of public concerns where the justice system has proven inadequate. Good examples are the inquiries into Aboriginal deaths in custody and institutional responses to child sexual abuse. Unions and industrial issues have also been the subject of several commissions, such as those into the building and construction industry and the Federated Ship Painters and Dockers Union.

Like any inquiry, royal commissions are shaped not only by the powers at their disposal, but by the person appointed to run them. The commissioner is often a senior lawyer, such as a retired judge, as such a person is likely to instil confidence in the community while applying the exceptional powers available.

The selection of former judge Dyson Heydon certainly fits this mould. He is a brilliant lawyer with a strong streak of independence. As a member of the High Court, he had one of the highest rates of dissent in its history. His speeches and judgments often reflected his conservative tendencies when it came to the development of the law.

Heydon may have a traditional mindset, but he is very much his own man. No one could reasonably suggest that he will do anything other than the job put before him.

With these qualities and background, Heydon brings immediate credibility to the commission. This, and his formidable forensic skills, are what the government hoped for. As many will soon find out, Heydon is also not likely to be shy when it comes to using the powers at his disposal. He will no doubt do his utmost to answer the questions put to him by the government's terms of reference for the inquiry.

George Williams is the Anthony Mason Professor of law at the University of NSW.

[poddster]

Tony Abbott has deployed the biggest weapon in the federal government's armoury to investigate the governance and financial affairs of the nation's unions. By elevating the investigation from a judicial inquiry to a royal commission, he has invoked the strongest powers available to an inquiry under Australian law.

Government inquiries normally operate on the basis that people and organisations provide information by consent. People cannot be forced to reveal information.

A royal commission is different. The Royal Commissions Act of 1902 grants coercive powers that even exceed those of a court.

A royal commission can compel people to give evidence or to produce documents or other things. If they fail to do so, arrest warrants can be issued, and they can be jailed for up to six months.

When people appear in court, they can normally avoid answering questions if this would expose that they have broken the law. This reflects the fact that an accused person has the right to silence.

This protection is removed when it comes to a royal commission. People cannot refuse to answer a question or to produce a document if this might incriminate them, or make them liable to a penalty. Such information can be used by the commission, but it cannot then be presented as evidence against them in a subsequent trial.

People appearing before a royal commission may be tempted to protect themselves by giving false or misleading evidence. The law makes this a serious offence, and exposes them to jail for up to five years if they do so. Similarly, anyone who conceals or destroys a document that might be sought by the commission can be jailed for up to two years.

A commission can also search for evidence on its own initiative. It can seek a warrant allowing a police officer to enter and search any premises for any document or thing connected with the inquiry.

Royal commissions are rare because they are expensive and their powers are extraordinary. Not surprisingly, they are often criticised because they permit information to be extracted from witnesses in a way that overrides normal legal rights. Many a royal commission has been labelled a ''modern day star chamber'' akin to the powerful and secretive body of Tudor England.

Like the star chamber of old, royal commissions put to one side notions of justice or of a fair trial. Instead, they prioritise the gaining of information over a person's reputation or liberty.

Accordingly, royal commissions tend to be ordered only for the most pressing of public concerns where the justice system has proven inadequate. Good examples are the inquiries into Aboriginal deaths in custody and institutional responses to child sexual abuse. Unions and industrial issues have also been the subject of several commissions, such as those into the building and construction industry and the Federated Ship Painters and Dockers Union.

Like any inquiry, royal commissions are shaped not only by the powers at their disposal, but by the person appointed to run them. The commissioner is often a senior lawyer, such as a retired judge, as such a person is likely to instil confidence in the community while applying the exceptional powers available.

The selection of former judge Dyson Heydon certainly fits this mould. He is a brilliant lawyer with a strong streak of independence. As a member of the High Court, he had one of the highest rates of dissent in its history. His speeches and judgments often reflected his conservative tendencies when it came to the development of the law.

Heydon may have a traditional mindset, but he is very much his own man. No one could reasonably suggest that he will do anything other than the job put before him.

With these qualities and background, Heydon brings immediate credibility to the commission. This, and his formidable forensic skills, are what the government hoped for. As many will soon find out, Heydon is also not likely to be shy when it comes to using the powers at his disposal. He will no doubt do his utmost to answer the questions put to him by the government's terms of reference for the inquiry.

George Williams is the Anthony Mason Professor of law at the University of NSW.

[poddster]

When people appear in court, they can normally avoid answering questions if this would expose that they have broken the law. This reflects the fact that an accused person has the right to silence.

This protection is removed when it comes to a royal commission. People cannot refuse to answer a question or to produce a document if this might incriminate them, or make them liable to a penalty. Such information can be used by the commission, but it cannot then be presented as evidence against them in a subsequent trial.

People appearing before a royal commission may be tempted to protect themselves by giving false or misleading evidence. The law makes this a serious offence, and exposes them to jail for up to five years if they do so. Similarly, anyone who conceals or destroys a document that might be sought by the commission can be jailed for up to two years.

A commission can also search for evidence on its own initiative. It can seek a warrant allowing a police officer to enter and search any premises for any document or thing connected with the inquiry.

Royal commissions are rare because they are expensive and their powers are extraordinary. Not surprisingly, they are often criticised because they permit information to be extracted from witnesses in a way that overrides normal legal rights. Many a royal commission has been labelled a ''modern day star chamber'' akin to the powerful and secretive body of Tudor England.

Like the star chamber of old, royal commissions put to one side notions of justice or of a fair trial. Instead, they prioritise the gaining of information over a person's reputation or liberty.

Accordingly, royal commissions tend to be ordered only for the most pressing of public concerns where the justice system has proven inadequate. Good examples are the inquiries into Aboriginal deaths in custody and institutional responses to child sexual abuse. Unions and industrial issues have also been the subject of several commissions, such as those into the building and construction industry and the Federated Ship Painters and Dockers Union.

Like any inquiry, royal commissions are shaped not only by the powers at their disposal, but by the person appointed to run them. The commissioner is often a senior lawyer, such as a retired judge, as such a person is likely to instil confidence in the community while applying the exceptional powers available.

The selection of former judge Dyson Heydon certainly fits this mould. He is a brilliant lawyer with a strong streak of independence. As a member of the High Court, he had one of the highest rates of dissent in its history. His speeches and judgments often reflected his conservative tendencies when it came to the development of the law.

Heydon may have a traditional mindset, but he is very much his own man. No one could reasonably suggest that he will do anything other than the job put before him.

With these qualities and background, Heydon brings immediate credibility to the commission. This, and his formidable forensic skills, are what the government hoped for. As many will soon find out, Heydon is also not likely to be shy when it comes to using the powers at his disposal. He will no doubt do his utmost to answer the questions put to him by the government's terms of reference for the inquiry.

George Williams is the Anthony Mason Professor of law at the University of NSW.

[jimmy*part4]

Can you Shorten that? (get it....Shorten, lol)

I thought I saw a Pods family reunion.....so I took a picture for you!

*And Good Morning :)*

[colic2bullsgirlore]

and.... here was me thinking Abbots biggest weapon was secrecy...the words "No comment on operational matters"......

and the use on the public of the "ostrich" style of governance.... Dont worry you can trust the integrity of our Defence

forces..............burns..... schmurns......

I wonder why the date of the last Defence Hot Issue Brief was September 6 2013?????

http://www.defence.gov.au/publications/HotIssueBriefs/

126 Latest	DSRG	Sep 6, 2013	Alleged filming of a female Defence APS member at a Defence establishment
1125	Army	Aug 21, 2013	Army member dies in motorcycle accident in Thailand
1124	Army	Aug 15, 2013	Army member charged with sexual assault
1123	Army	Ju1 19, 2013	Army member charged with serious offences
1122	Navy	Ju1 16, 2013	Civilian ship strikes alongside Navy vessel
1121	Air Force	Ju1 5, 2013	Air Force recruit charged with assault offences
1120	Army	Ju1 4, 2013	Army member found guilty of sexual and other offences
1119	Army	Ju1 2, 2013	Army member charged with sexual assault
1118	Army	Jun 27, 2013	Army member injured at Holsworthy military base
1117	Army	Jun 27, 2013	Four Army members injured in vehicle accident
1116	Navy	Jun 25, 2013	Incident on hotel roof
1115	CJOPS	Jun 25, 2013	RAN sailor injured during foreign port visit
1114	Army	Jun 24, 2013	Army member charged with sexual assault
1113	CJOPS	Jun 24, 2013	AP-3C Orion aircraft precautionary landing in Fiji
1112	Army	Jun 21, 2013	Army member charged with possession of child exploitation material
1111	Army	Jun 20, 2013	Army member alleged to have committed an act of indecency
1110	Army	Jun 19, 2013	Army member arrested and charged with serious offences
1109	Air Force	Jun 18, 2013	Defence member arrested on suspicion of child pornography offences
1108	Air Force	Jun 17, 2013	Allegation of unacceptable behaviour
1107	DSRG	Jun 12, 2013	Break-in and theft from Defence Logistics Transformation Program Facilities Project construction sit...
1106	Army	Jun 2, 2013	Body of missing Army member believed located
1105	Army	May 31, 2013	Army member charged with hit and run offences
1104	DSRG	May 29, 2013	Fire in on-base house at Larrakeyah Barracks
1103	Army	May 28, 2013	Army G-Wagon vehicle accident, Shoalwater Bay Training Area
1102	Army	May 28, 2013	Army member reported missing
1101	Navy	May 23, 2013	Navy members injured during training exercise
1100	Army	May 22, 2013	Vehicle accident at Puckapunyal Military Training Area
1099	Army	May 20, 2013	Load carriage incident High Range Training Area, Townsville, Queensland
1098	DMO	May 4, 2013	Allegation of unauthorised access to defence facility
1097	Air Force	May 4, 2013	Australian Defence Force member arrested and charged of alleged sexual assault
1096	Navy	May 2, 2013	Large number of personnel ill at Navy establishment
1095	Army	Apr 30, 2013	Army member found deceased
1094	Navy	Apr 29, 2013	Not to be released until investigations are completed
1093	Navy	Apr 24, 2013	Death of a Navy member
1092	Navy	Apr 15, 2013	Navy member - convicted on weapons theft from HMAS Bathurst
1091	VCDF	Apr 14, 2013	Withheld on privacy grounds
1090	VCDF	Mar 27, 2013	Allegation of sexual offence by an ADF member in Canberra
1089	Army	Mar 11, 2013	Army member charged with serious offences
1088	Navy	Mar, 10, 2013	Australian Navy Cadet (ANC) - state police investigation
1087	Army	Feb 16, 2013	Army member found deceased
1086	Army	Feb 16, 2013	Army reserve member killed in New Zealand
1085	Navy	Feb 7, 2013	Toxic Hazard Incident
1084	Air Force	Feb 5, 2013	Hawk 127 Aircraft - MAYDAY Declared - Update
1083	Air Force	Feb 4, 2013	Hawk 127 Aircraft - MAYDAY Declared

Public Release of Hot Issue Briefs

The Black Review of the Defence Accountability Framework challenged Defence to enhance individual and collective accountability. Placing on the public record Defence's advice to the Minister for Defence on these issue - including instances of inappropriate behaviour - is a part of that accountability.

From 20 January 2012, Hot Issue Briefs will be released on the Defence Website, usually within one week after submission to the Minister. The only exceptions to that rule will be individually and personally approved by the Secretary of the Department of Defence or the Chief of the Defence Force, and based solely on criteria that public release would:

• endanger operational outcomes,
• prejudice legal proceedings, or
• impede or frustrate ADF Investigative Service or civil police investigations.

In those circumstances, the Secretary or the Chief of the Defence Force will be required to set an expiration date on the information in that Hot Issue Brief, after which time the brief will be publicly released.

This approach is consistent with the key changes to the Freedom of Information Act 1982 that came into effect on 1 November 2010, and the Information Publication Scheme.

[boris1gary]

[i-need-a-martini]

Well I am sure that this Royal Commission will be about as successful as the last one was that Abbott instigated whilst under Howard - the Cole Royal Commission. And let me see - what was that one about? Oh yeah...criminal activity in the Building and Construction industry. DeJaVu anyone?

At the time one of the most expensive Royal Commissions in our history and what did it uncover? Nothing. No criminal activity was found despite the investigation going on for something like 4 years.

It seems to be Abbotts (and the Liberal governments) pet project.

I read somewhere recently that in the history of our government the only Liberal Government NOT to hold a judicial inquiry or royal commission into unions was Billy McMahon.

[debra9275]

nah secrecy is definitely his biggest weapon

http://www.theguardian.com/world/2014/feb/13/operation-sovereign-borders-health-panel-sacked-over-fe...

[colic2bullsgirlore]

Subterfuge may be a better word to describe his biggest weapon

subterfuge

ˈsʌbtəfjuːdʒ/

noun

noun: subterfuge; plural noun: subterfuges

1.

deceit used in order to achieve one's goal.

"he had to use subterfuge and bluff on many occasions"

synonyms:

trickery, intrigue, deviousness, evasion, deceit, deception, dishonesty, cheating, duplicity, guile, cunning, craft, craftiness, slyness, chicanery, bluff, pretence, fraud, fraudulence, sophistry, sharp practice;More

Operational matterss...

Who knew that operational matters not commented on include allegations of sexual assault

.... I wonder why the Hot issue brief was withheld

http://www.blogotariat.com/node/1471005

February 9, 2014 - 12:30 -- Admin

In January 2014 two Royal Australian Navy vessels, HMAS Parramatta (a frigate commanded by Cmdr. Simon Cannell) and HMAS Glenelg (a patrol boast under ... were identified in the media in relation to allegations of asylum seeker abuse.

The Sydney Morning Herald 22 January 2014:

The allegations relate to a boat that sailed from Kupang, in West Timor, bound for Darwin in late December.

Yousif Fasher, one of the passengers, said at the time the boat had reached a small island near Darwin before the engine broke down and they called the United Nations for help.

Two Australian navy ships, HMAS Parramatta and HMAS Glenelg, had come to take them from the island...

I note that at least one of these ships, HMAS Parramatta, is included in the list below, as is the frigate HMAS Ballarat which is also performing border protection duties involving asylum seeker boats.

The Prime Minister, Immigration Minister and Defence Minister have all defended the Navy with regard to the abuse allegations, however they have offered no proof of innocence or proof of a properly conducted investigation.

Given that both onshore violence by RAN members and onwater violence aboard naval ships is known to occur, the Abbott Government needs to fully investigate the asylum seeker allegations and publish the results of such an investigation.

Brief history listing certain allegations, criminal charges and/or convictions involving serving members of the Royal Australian Navy between 2011-13

Sky News 8 November 2013:

A woman claims the 'inappropriate behaviour' that prompted the navy to launch an investigation into sailors involved sexual assaults on young male sailors on HMAS Ballarat.

The Navy has confirmed the ship involved in the allegations is Anzac Class Frigate HMAS Ballarat, which is currently deployed on border protection operations.Chief of Navy, Vice Admiral Ray Griggs, said the navy was being as open and transparent as it could within the limits of its investigation processes.

'Allegations such as these are serious and it is critical that the investigative process is properly followed.

As such I will not speculate on any aspect of the allegations,' he said in a statement on Thursday.

'We have dealt with the allegations swiftly and I reiterate that inappropriate behaviour is not consistent with our values and is not tolerated in Navy.'

The woman who made the sexual assault claims is a former navy member who alleged younger male sailors were set upon and sexually assaulted by their crewmates.'People were set upon by other members, stripped off and had things essentially put in their bums,' the woman, identified only as Bridget, told Network Ten on Thursday.In one instance, a sailor was left with a bleeding rectum after being anally penetrated by a whiteboard marker, she claimed.

Bridget said her friends still serving in the navy had asked her to get the truth out, because people were scared.'If it happened in a normal workplace, the police would be called, charges would be laid,' she said.

The Australian Defence Force opened a formal investigation on Tuesday after allegations against some members of an unnamed ship's company were made by a sailor.

However investigators will not be able to join the ship for several days.HMAS Ballarat responded to a distress call from an asylum-seeker boat off the coast of Indonesia.Australian Customs and Border Protection and the Australian Maritime Safety Authority could not comment on Thursday.

The federal government is not scheduled to brief the nation on border protection until Friday.However Indonesian search and rescue agency, BASARNAS, has confirmed to AAP that a distress call had been received from a vessel in the Sunda Strait earlier on Thursday.The Indonesian spokesman said HMAS Ballarat had responded to the distress call from the boat.

[spotweldersfriend]

Don't forget the inquiry into the AWB bribes.Very,very narrow terms of reference to keep Howards boys in the clear. Like I said before,if we need a Royal Commission for something really important,how about one into our invasion of Iraq.