Dr WOODRUFF (Franklin - Leader of the Greens) - Mr Deputy Speaker, I want to continue with comments in relation to the Commission of Inquiry's report, page 25 of volume one, section 5.1 'Challenges we faced'. They made it clear that the power to make findings or draw conclusions from the evidence that they gathered was given to them under the Commissions of Inquiry Act. Specifically, they reference section 18, which requires them to follow more steps, including issuing a notice outlining the allegation and the evidence that supported it before the person gives evidence, allowing for oral or written submissions in response to an allegation and giving the opportunity for a person to call or cross-examine witnesses to defend themselves. They said:
The way these requirements were drafted in the act enabled various parties, including the state and lawyers acting for some individuals, to adopt interpretations which have practical consequences for the way we approached our work.
We heard arguments that any adverse comment about an individual's behaviour could constitute misconduct. This interpretation made it difficult, and in some cases impossible for us to make findings we might otherwise have made.
I want to reflect on a conversation I had with the Attorney-General on 25 November 2021, shortly after the commission of inquiry was called. The Greens played a huge part in making sure that the commission of inquiry was called. We pushed it along from the beginning. We disclosed in public to the media, on the back of Camille Bianchi's work, the allegations against James Griffin at the Launceston General Hospital. We continued to prosecute this with the Attorney-General, asking her about the Commissions of Inquiry Act and the Law Reform Institute's investigation of that act, which was done in 2003.
The Law Reform final report of September 2003 made five recommendations for legislative amendments to the Commissions of Inquiry Act.. Four of those relate to section 18, which I have just outlined. Their recommendations set out the requirements to be met before a commission can make a finding of misconduct against a person relating to the circumstances, the evidence that has to be given to a person relating to the circumstances, and the right to waive the minimum 48-hour period notice for allegations of misconduct and allowing a commissioner to make a finding of misconduct in special circumstances.
Ms Archer was scathing of my suggestions that she ought to look into changes to the Commissions of Inquiry Act on the back of the TLRI report from 2003, which had not been responded to. It had sat there for 17 years. It had not been properly responded to.
Ms Archer said:
The report you cite from 2003 obviously is 17 years old now. The act was amended in 2013 to ensure the commission of inquiry was properly empowered. I am not aware of any issues regarding scope of powers encountered. Having said that, as we work through setting up and establishing a commission of inquiry, in this instance we will look at whether any additional legislative amendments might be required. I will be guided by what we know following the five-year process of the Royal Commission into Institutional Responses to Child Sexual Abuse rather than a report that is now 17 years old.
When I challenged her about the fact that it had never been responded to, she said:
I have not junked it. I just said that it was now out of date in that it is 17 years old.
The commission of inquiry has called out that poor response from minister Archer. It seems, from the commission of inquiry's evidence, that I was right, the Law Reform Institute was right, and Ms Archer and this Government failed to investigate and make changes to the Commissions of Inquiry Act before the commission of inquiry's work. It appears that the commission of inquiry's work would have been far easier and more flexible if those recommended changes had been made.
The Tasmanian Law Reform Institute report says:
Tasmania's Commissions of Inquiry Act has a unique approach to procedural fairness. Rather than relying on the protections that are developed under the common law, the Tasmanian Parliament saw fit upon recommendations of the Law Reform Commissioner to provide a statutory guarantee of procedural fairness by implementing the Salmon rules.
The Salmon rules are from the United Kingdom in 1966. They were never meant to be included in the evidence of inquiry. They were guidelines only.
The TLRI said:
We are the only jurisdiction to attempt to legislatively enact in such detail principles of procedural fairness.
That enactment has come back to bite us because it has effectively hamstrung the commission of inquiry's work. When we moved the Commissions of Inquiry Act in the first place in 2000, the Government's motivation for enacting one of those minimum notice period times could be seen to reflect its general motivation for the initial inclusion of a provision to reassure potential witnesses that they would not be ambushed with allegations of misconduct and would be given a reasonable time frame to be able to respond to such allegations.
In the debate on the Commissions of Inquiry Bill in 1993, the Attorney-General said the provisions now in section 18 address:
Concerns raised during the bribery royal commission that people could make unsubstantiated allegations without adequate opportunity for them to be rebutted.
It has the balance wrong. We see from the commission of inquiry's evidence that if the Attorney-General had acted when called on it, we would have had a much better opportunity to find adverse outcomes against people in the inquiry.
