Informal and 'judicial' Haneef inquiry a paper tiger

The inquiry into Mohamed Haneef's deportation from Australia has only started, and already questions are being asked about its validity.

This so-called “judicial inquiry” is to examine the circumstances of Haneef's arrest, detention, charging, release and the effectiveness of the procedures across Commonwealth and state law-enforcement agencies.

While no one doubts that this needs to be investigated, the issue is whether the inquiry headed by former New South Wales Supreme Court judge, John Clarke, QC, as presently constituted, is the appropriate means to get at the truth behind this apparent debacle.

The problem is that in Australia, under current constitutional and legal arrangements, there is no such thing as a “judicial inquiry”, although this term has been repeatedly used by the Commonwealth Attorney-General in his announcements of the Clarke inquiry and by many commentators.

The term “judicial inquiry” is applied to the Clarke inquiry and similar inquiries such as royal commissions because such bodies are chaired by former or current judges or senior legal counsel.

In fact, although these inquiries, especially royal commissions, may have the outward trappings of courts, they are not “judicial” or courts in any way.

The problem with the Clarke inquiry is that it is not a “judicial inquiry”, a court of law or, more relevantly, a royal commission. Rather, it is an informal inquiry without the powers of a royal commission to procure files, compel witnesses to attend and give evidence and, most importantly, it has no ability to afford protection to witnesses for the evidence they may provide.

Nor, as an informal inquiry, and not a court of law, does the inquiry offer any right of appeal from its conclusions.

The Federal Government has maintained that a royal commission would be too expensive and take too long. There are many precedents for royal commissions meeting deadlines and being cost-effective.

Also, the Attorney-General has suggested that royal commission powers of investigation were not needed as all relevant agencies and key witnesses concerned have indicated a willingness to assist the inquiry.

While no one doubts the abilities of Clarke, it is not known whether his inquiry, without royal commission powers of investigation, will be able to gain all the files from relevant agencies and to ensure all witnesses come forward.

Experience suggests that when reputations, careers and organisational interests are at stake, voluntary co-operation quickly declines.

Persistent use of the term “judicial inquiry” may just reflect a lack of appreciation of this matter.

Or it may be a means to create the illusion that the Clarke inquiry has the same independence, integrity and separation from the executive government as a court of law.

This is wrong in fact, wrong in law and wrong in constitutional realities.

There are a number of alternatives to the Clarke inquiry.

The Federal Ombudsman, for instance, has the same powers as a royal commission, can offer protection to witnesses, is highly regarded and has investigated similar issues.

That the Attorney-General has suggested that a royal commission may still be appointed if Clarke so advises after his investigations have progressed suggests that the Rudd Government is uncertain about the appropriateness of the present inquiry.

Setting up a royal commission midway through an existing inquiry could have adverse consequences for the outcome of the investigations.