Why are we not holding the government accountable for sex abuse?

While much has been written and said about the Victorian Government's parliamentary inquiry, little has been said of the failure to include in the current terms of reference an investigation of the Government's role in the handling of child sex abuse allegations.

We should not forget that a grave concern of the Cummins Report, where the recommendation for an inquiry was made, was the need to protect children in government care.

We know through the Senate Inquiries into the Stolen Generation, Child Migrants and Forgotten Australian that thousands of children suffered abuse at the hands of the State, their legal guardian.

Premier Baillieu referred to these inquiries to support his decision to hold a parliamentary inquiry rather than a Royal Commission. But as worthy as the work was, what were the tangible results for victims? There were no prosecutions of perpetrators, there was no calling to account of those who shielded the perpetrators, and there were no changes to the systems that allowed children to be abused in the first place.

How convenient then for the Government that the focus of the debate has been on the Catholic Church and its role in hiding the incidence of sexual abuse of children within its ranks. However, in allowing the focus to remain on Churches and non-Government institutions, the Baillieu Government has conveniently sidestepped any scrutiny of the government's conduct.

The Premier may well claim that a parliamentary inquiry is preferable to a judicial inquiry because it will be able to proceed in a "less formal and legalistic manner than a Royal Commission", but the reality is that it is less likely to be viewed as independent. This is particularly so if Government was also to be investigated.

The Committee's actual powers must also be looked into. The Government has the power to call on witnesses to attend under s 28 of the Parliamentary Committees Act 1993 which states that Committees have the "power to send for persons, documents and other things."

The difficulty lies in enforcing this power.

While witnesses are likely to think very seriously about refusing to appear before a parliamentary committee, the committee itself will have no powers to compel compliance with its wishes. Rather, a committee would have to take the extraordinary step of referring the matter to parliament, which would in turn have to find a witness in contempt. This is a tortuous and long winded process that is never likely to happen.

Indeed, there are few, if any, examples of a parliament in Australia having punished a witness for refusal to give evidence or to provide documentation to a parliamentary committee.

There is also an argument that compulsion of witnesses by the Parliamentary Committee may be a breach of human rights. Australia is a signatory to the International Covenant on Civil and Political rights which establishes the right to a "fair and public hearing by a competent independent and impartial tribunal established by law".

We also know from the recent Ombudsman's report that there are boxes of uncollated documents in the archives of the Department of Human Services some of which include references to sexual abuse of children in the care of the state by staff members. Some of these boxes have been marked ready to be destroyed. Even if the Inquiry does not include the role of Government, these documents may well be relevant to abuse in religious and non-government homes.

Public servants should be required to give evidence on the Government's role in allowing the sexual abuse of children in its care and should be called upon to produce documents relevant to these issues. What power does the Committee have to compel public servants to give evidence where the Minister orders them not to? What will is there on the part of politicians to ensure that the truth is revealed where there has been a failure to protect children under the watch of both sides of politics?

The terms of reference must be altered to include the role of Government in the handling of child sex abuse complaints. These investigations should be undertaken by a Royal Commission which would establish very clearly the independent nature of the inquiry.

Only a Royal Commission has full and direct powers to compel witnesses to appear and documentation to be provided. Witnesses who do not co-operate can be jailed.

We should not forget that the Cummins recommendation was clear insofar as it called for any inquiry to "have the power to compel the elicitation of witness evidence and of documentary and electronic evidence."