Echo Issue Outline: copyright Echo Education Services
First published in The Echo news digest and newspaper sources index.
Should the Easton Royal Commission have been set up?
Issue outline by J M McInerney
A note on royal commissions
The aim of a royal commission is to collect facts and to draw conclusions and make recommendations based on these facts. Those who appear before a royal commission may be represented by counsel, but do not have to be.
A royal commission is not a court. It has nothing to do with the legal process or the administration of justice.
Its role is not to arrive at a verdict. There is no dispute to resolve and no defendant to try. The rules of sub judice do not usually apply and it is possible for there to be open community discussion of the proceedings of a royal commission.
A royal commission can only be set up by the government, otherwise known as the executive. Its terms of reference (what it is to investigate) are laid out in general terms in the act of parliament which instituted it. Its particular powers and immunities are given it by this act of parliament.
Royal commissions frequently investigate suspected corruption, illegality, mal-administration or incompetence, but it is possible for them to investigate other matters.
Should the Easton Royal Commission have been set up?
On September 5, 1995, commissioner Kenneth Marks released 12 issues which will be investigated by the Easton Royal Commission.
The issues related to Dr Carmen Lawrence and what has come to be known as the `Easton affair'.
Commissioner Marks issued this list in response to challenges from Dr Lawrence's counsel that she was entitled to know in what precise areas her conduct was being scrutinised.
Mr Marks was originally reluctant to specify and that led to criticisms of the Royal Commission being made in the House of Representatives by the Prime Minister, Mr Keating.
After Mr Marks released his list of issues to be investigated the Royal Commission has been further criticised because it has been claimed none of the issues is legitimate grounds for a Royal Commission to be held.
Background
On November 9, 1992, a Western Australian lawyer, Ms Penny Easton, committed suicide.
Ms Easton had been in the middle of a drawn out dispute over the property settlement resulting from her divorce. Ms Easton had been married to a senior public servant, Mr Brian Easton. They had been divorced in 1988 and their property settlement was still not finalised by the end of 1992.
Four days before Ms Easton's suicide, on November 5, 1992, a petition claiming that Ms Easton and members of her family had perjured themselves in the Family Court was tabled in the Western Australian Parliament by Labor MLC, John Halden.
The petition was tabled on behalf of Ms Easton's former husband, Mr Brian Easton.
The petition also alleged that Mr Richard Court, then a Western Australian Liberal MLA, had leaked official documents to Penny Easton in an attempt to assist her before the Family Court.
After Ms Easton's death, Western Australian Labor Premier, Carmen Lawrence told the Western Australian Parliament that she had had no detailed prior knowledge of the contents of the petition tabled by Mr Halden.
In February, 1993, the Lawrence Government lost the Western Australian state elections and a Liberal government took office, with Richard Court as premier. Carmen Lawrence remained as leader of the WA Opposition.
In March, 1994, Dr Carmen Lawrence entered Federal Parliament and was appointed Minister for Health.
After Ms Easton's death there was some speculation that Carmen Lawrence had known more about the nature of the Easton petition than she later claimed.
This speculation was strengthened when Mr Keith Wilson, a former Cabinet minister in Carmen Lawrence's Western Australian Government, claimed that Dr Lawrence had discussed the propriety of tabling the petition during a Cabinet meeting held on November 2, 1992, three days before the petition was presented in Parliament.
Mr Wilson has claimed that he and some other Cabinet ministers had argued that it was not appropriate to table a petition dealing with a matter before the Family Court.
In May, 1995, Western Australian Premier, Richard Court, set up a Royal Commission to investigate the circumstances surrounding the tabling of the Easton petition and the suicide of Penny Easton.
The Commission was headed by Kenneth Marks, QC.
It was titled, a `Royal Commission into use of executive power' and the implication was that it would investigate whether, in allowing the Easton petition to go before the WA Parliament, Carmen Lawrence had abused executive power to achieve political ends.
What appeared to be at issue was whether Dr Lawrence had abused one of the provisions of the Western Australian Parliament (the introduction of a private petition) to discredit her political opponents.
(Popularly, there also seemed to be the general perception that the Royal Commission would investigate whether Dr Lawrence had mislead Parliament in denying detailed prior knowledge of the petition's contents.)
However, neither Dr Lawrence nor Mr Halden was referred to directly in the Royal Commission's terms of reference.
The supposed vagueness of the Royal Commission's terms of reference was challenged in early September, 1995, by Dr Lawrence's lawyer, Mr Roger Gyles, QC.
On September 6, after the commission and the commissioner had been criticised in Federal Parliament by the Prime Minister, Mr Keating, Commissioner Kenneth Marks released a 12 point list of issues, relating to Dr Lawrence, which the Royal Commission would investigate.
The commissioner also sought to have the Royal Commission extended through to December, 1995. This was an extension of a further six weeks beyond its original term of five months. Mr Court has agreed to this request.
Arguments against the establishment of the Easton Royal Commission
A general criticism offered of the Western Australian Easton Royal Commission is that it was called for political reasons and that there are no genuine grounds for having established it or for continuing it.
According to this line of argument, the current Liberal Western Australian premier, Mr Richard Court, set up the Easton Royal Commission with the sole aim of damaging Dr Lawrence, a former State political rival, who had gone on to become a prominent member of the Federal Labor Government.
This point has been made repeatedly by both Dr Lawrence and the Prime Minister, Mr Keating.
Mr Keating has alleged that the Royal Commission is a `kangaroo court', that is, one from which Dr Lawrence cannot hope to receive justice.
Mr Keating has further claimed that the commissioner, Mr Kenneth Marks, QC, is a `catspaw' of the Western Australian premier, Mr Court. This is suggesting that the commissioner is merely being used by Mr Court for political purposes.
Critics of the Easton Royal Commission also claim that after the commissioner, Mr Kenneth Marks, had been challenged to detail the precise allegations against Dr Lawrence that the Commission was investigating, the list produced contained no allegations that warranted the calling of a Royal Commission.
The Federal Attorney-General, Mr Lavarch, has claimed, `There's nothing in what the commissioner has outlined yesterday which goes to corruption, or mal-administration or illegality or unlawful behaviour.
None of those are present in this case and that merely confirms what the Government has been saying - that the Western Australian Government, in setting up this royal commission, has very much stepped over the line.'
Mr Lavarch is highlighting the fact that most royal commissions investigate corruption, incompetent administration or illegal actions.
Mr Lavarch is claiming that as none of these appear to have been present in the matters before the Easton Royal Commission, then the Royal Commission should not have been established and should now be wound up.
It has further been claimed that the establishment of the Easton Royal Commission by the Western Australian Government in June of 1995 undermines a number of important principles of Westminster Government.
One of these principles is that the discussions that take place within Cabinet should remain confidential.
A Westminster Government's Cabinet is a group of senior ministers which, in conjunction with the Prime Minister, helps determine the development and implementation of Government policy.
(A government minister is an elected member of parliament who has been given a special responsibility within the Government. For example, it is possible to be the Minister for Education or the Minister for the Environment.)
It has traditionally been argued that the deliberations of Cabinet should remain confidential.
Dr Carmen Lawrence sought to have the Commission halted because, she claimed, it poses a threat to the `very ancient principles of Cabinet confidentiality.'
According to this line of argument a Government can only function effectively if its Cabinet decisions remain confidential until that Government judges it appropriate to have them made public.
It has also been claimed that some Cabinet discussions should never be made public.
Some of the reasons given for the importance of confidentiality include that Cabinet should be able to conduct free and vigours debate of policy issues without fear that premature release of its deliberations will influence events or damage it politically.
According to this line of argument, Cabinet debate would be damaging curtailed if those taking part believed it was likely that their remarks would become public.
It is further claimed that Cabinet deliberations with the potential to affect national security and/or international relations or to give particular individuals commercial gain should also remain confidential.
For example, Australia's relations with another nation might be damaged if the opinions of various Cabinet ministers about that nation were made public. Or, some individuals might make improper profits on the stock market if details of Cabinet plans to support particular commercial developments were released selectively and prematurely.
Dr Lawrence has claimed that the Easton Royal Commission, in interviewing many of her former Cabinet colleagues about their recollections of the November 2, 1992, Cabinet meeting, is encouraging a breach of Cabinet confidentiality.
Another of the principles claimed to be threatened by the Easton Royal Commission is that of parliamentary privilege.
The principle of parliamentary privilege was established in 1689, under the British Bill of Rights.
Article 9 of the Bill of Rights specifies that parliamentary proceedings should not be questioned in any court or any other place outside Parliament.
This principle is intended to promote effective government by giving to the people's elected representatives the right to raise, within Parliament, any matter without the fear of legal or other action being taken against them.
It has been claimed that if parliamentarians feared prosecution as a result of issues they presented to the Parliament, this would result in much less vigourous and wide-ranging parliamentary debate and many issues that should be aired within Parliament would not be.
Parliamentary privilege is generally regarded as an important element of an effective parliamentary democracy and an important guarantee of freedom of speech.
Thus, for example, as a consequence of parliamentary privilege, libel action cannot be taken against a parliamentarian in respect of any claim he or she may have made within Parliament.
Dr Lawrence has claimed that the statements she has made before both the Western Australian and Federal Parliaments regarding her involvement in the so-called Easton affair are protected by parliamentary privilege and thus cannot and should not be investigated by a Royal Commission.
Arguments supporting the establishment of the Easton Royal Commission
Most supporters of the Easton Royal Commission appear to acknowledge that it was set up in part for political reasons, however, they claim, this does not invalidate either the Commission or its findings, whatever they might be.
Royal commissions are always set up by the Government of the day. Only a government, either state or federal, can call a royal commission.
According to this line of argument, any government's motives for establishing a commission are likely to be in part political, however, the commissioner and the commission he or she heads remains independent, and, provided proper procedures are followed, then the commission's findings should be valid.
This point has been put by former Royal Commissioner, Sir Laurence Street, who has stated, `More often than not there's a political background at least that leads to a royal commission being established. But that doesn't necessarily taint the usefulness of the process in appropriate cases.'
On the question of whether the actions of a previous government and in particular, its Cabinet, should be scrutinised, those who favour the Easton Royal Commission maintain that this could be a desirable thing.
According to this line of argument the primary reason for Cabinet confidentiality is not better government in any objective sense, but government solidarity.
What is meant by this is that it is in the best interests of a particular government to present a united front, thus all discussion tends to take place within the privacy of Cabinet and once a decision has been made then all members of Cabinet are expected to adhere to it. Dissenting views are not made public.
This, it is maintained, is primarily so the Opposition is not able to exploit any potential division within the Government on a particular issue.
The Western Australian standing Commission on Government has stated that the `real usefulness (of Cabinet confidentiality and collective ministerial responsibility) is as a tool of political discipline. Accordingly ... only the minimum of secrecy as is necessary to preserve the convention should be afforded.'
The only bases on which it has been claimed it might be argued that Cabinet confidentiality should apply are where national security or international relations are at issue, or where there is the possibility of private financial gain.
Justice Kenneth Marks claimed that he could see no such justification for secrecy in the Easton case.
Justice Marks noted that the alleged Cabinet discussions did not appear to involve matters of government policy or administration and had already been widely publicised in the media.
A similar point has been put by Age columnist Padraic McGuinness who has claimed, `The principle of Cabinet secrecy should have only short-term applicability at best, and surely not in matters when no issues of national security, personal privacy or commercial confidence are involved.'
Mr McGuinness has gone on to claim that not only is Cabinet secrecy not always necessary, but that it is often undesirable.
Mr McGuinness has claimed that most government records, including most Cabinet deliberations, should be able to be made public. `It would be an excellent principle to throw the Cabinet records of all governments, after loss of power, open to public inspection.'
Mr McGuinness has argued that if it were to become common practice for an in-coming government to have the behaviour of the previous government publicly examined then it is likely that there would be a significant improvement in the standard of government.
Mr McGuinness has suggested, `The commission is in effect a method of forcing a great improvement in the standards of public life and responsibility of governments to the electorate.'
On the question of whether the Easton Royal Commission represents a breach of parliamentary privilege it has been noted that Justice Marks has been careful to stress that it is not the business of the Royal Commission to investigate whether Dr Lawrence mislead Parliament.
The 12 issues that Justice Marks has listed to be investigated relate to Dr Lawrence motives and behaviour, but where Dr Lawrence's behaviour is specified it is tied to her actions within Cabinet and to `statements made by Dr Lawrence outside Parliament about her prior knowledge ... of the petition'.
Justice Marks has explicitly defined the Commission's task as investigating whether Dr Lawrence has made misleading statements `outside Parliament'. While this may incidentally indicate that statements made by Dr Lawrence to Parliament were also misleading, this is not the declared intention of the Commission.
Because the Commission is not claiming to be investigating Dr Lawrence's behaviour within Parliament it has been argued that it is not in breach of parliamentary privilege.
Finally it has been argued that it is in the public interest to investigate the propriety of Dr Lawrence's actions.
This claim has been made because Dr Lawrence is currently a member of the federal Labor Cabinet and that government's Minister for Health.
According to this line of argument it is the right of the general public to be informed of the appropriateness of the actions of a prominent and influential federal politician.
Further implications
The further implications of this issue are enormous.
On a purely party political level there are those who argue that whatever the Royal Commission's findings the political career of Dr Carmen Lawrence is unlikely to fully recover.
It has been suggested that Dr Lawrence as a possible future Federal Labor Party leader and Prime Minister is no longer a serious proposition.
It has also been suggested that the allegations being made about Dr Lawrence and the parliamentary wrangling over the propriety of the Royal Commission may both be politically damaging for the Labor Party, whatever the findings of the Commission.
The Commission is now likely to wind up in mid-December, shortly before a Federal election now believed likely to be held in February.
There will be relatively little time for the electorate to have put aside whatever negative perceptions it may have formed during the Commission.
It has also been suggested that the Royal Commission may have negative political consequences for the Western Australian Liberal Party. The Commission is widely believed to have been set up for the political advantage of Richard Court's Government and there are those who see this as an abuse of the executive's power to establish royal commissions.
It is also possible that Mr Court may become more personally embroiled in the Royal Commission, particularly if Carmen Lawrence's counsel continues to push for its terms of reference to include investigation of Mr Court's supposed supply of documents to Penny Easton.
Looked at more widely it has also been suggested that the treatment Dr Lawrence has received and the probable damage to her political future have seriously undermined the place of women in Australian politics.
Prior to the controversy surrounding the Easton Royal Commission, Dr Lawrence was being seriously discussed as likely to be Australia's first woman Prime Minster and the first woman to head one of the two major parties in Australia.
The damage being done to Dr Lawrence's political standing is also seen by many as damage done to the standing of women in politics in Australia.
It has also been claimed that the Easton Royal Commission has harmed more than popular perceptions of Carmen Lawrence, the Federal Labor Party and women in politics.
It is now being commonly argued in the media and elsewhere that the controversy surrounding the Easton Royal Commission has brought Australian politicians into further disrepute.
A recent Morgan poll, published in The Bulletin, reveals that 91% of voters believe that members of parliament distort the truth to suit their own arguments.
The poll also suggests that this is a general perception and not one influenced by the electorate's party loyalties.
In other words, the electorate would appear to believe that all politicians lie, irrespective of the party to which they belong.
The same poll also found that 56% of those surveyed claimed to have lost faith in the federal political process.
Not only has it been suggested that the Easton Royal Commission may have helped to bring politicians into disrepute, there are those who have argued that this Royal Commission may have cast doubt on the value of all future royal commissions in Australia.
Mr Justice Marks, the commissioner heading this inquiry, has suggested that popular concern about the commission's political origins may mean that its findings will be distrusted, whatever they might be.
More generally, Justice Marks appears to believe that the future of Royal Commissions as a form of public inquiry may be in doubt.
According to this line of argument, royal commissions, established by governments, have now become tainted as merely a means of extending a particular government's party political ends.
They have also become the subject of damaging debate in the Federal Parliament.
Commenting on these developments, Justice Marks has claimed, `The sooner this commission comes to an end the better. I think that the experience here has demonstrated that the usefulness of royal commissions is fast receding.'
On the other hand there are those who argue that the Easton Royal Commission has significantly extended the areas that can now be investigated by royal commissions.
It has been claimed that the Easton Royal Commission breaks new ground in more directly examining the behaviour of a previous government, without the justification of probable corruption, mal-administration or illegality.
If this precedent is continued it would seem to allow for a more minute examination of the ethics of a government's behaviour than had previously been considered possible.
However, there are those who believe that this is a dangerous trend. It has been claimed that the grounds on which Dr Lawrence's behaviour is being investigated are still so general and so unrelated to any offence in law as to be improper.
If this style of commission where to become common, some fear that it would result in periodic witch-hunts, with each outgoing government being subjected to unwarranted investigation.
Finally it has been suggested that some elements of Australia's legal process have damaged in the furore surrounding the Easton Royal Commission.
Evidence from the Easton Royal Commission has been quoted in Federal Parliament.
The Law Society of Australia and the federal Opposition have criticised the Speaker of the House of Representatives, Mr Stephen Martin, for allowing Mr Keating to quote evidence from the Commission in an attack on the Commission.
The Opposition leader, Mr Howard has claimed that this has damaged the sub judice principle.
Under the sub judice rule the substance of criminal and civil cases currently being tried or about to be tried should not be debated in the media or parliament.
The reason for this is to avoid prejudicing the decisions of either a judge or jury, or in other ways influencing the conduct and outcome of the case.
Though a Royal Commission is not a court, the sub judice rule has been applied to some royal commissions.
The Speaker of the House of Representatives has claimed that each royal commission has to be considered individually and a decision then made by the Speaker as to what is allowable.
In the case of the Easton Royal Commission, Mr Martin has claimed there has been so much publicity that nothing that was said in Parliament was likely to influence the commissioner.
Others have claimed, however, that this interpretation damages the sub judice principle as applied to royal commissions and has the capacity to undermine its application in civil and criminal cases.
With its extension of time, the Easton Royal Commission is now likely to be receiving media attention into December of this year. The various ramifications of this Commission are likely to be felt for much longer.
Sources
The Age
1/9/95 page 3 news item by Innes Willox and Duncan Graham, `Inquiry out of control: Keating'
1/9/95 page 12 comment by Padraic McGuinness, `Politics always a tough game for key players'
2/9/95 page 23 editorial, `Dangerous tactics'
2/9/95 page 23 comment by Padraic McGuinness, `Nasty echo of 1975 in Prime Minister's verbal hysteria'
6/9/95 page 3 news item by Duncan Graham and Innes Willox, `Inquiry head will question Lawrence'
6/9/95 page 3 comment by Michelle Grattan, `List of "issues" raises stakes in Easton affair'
8/9/95 page 12 comment by Padraic McGuinness, `For Lawrence, a dose of the same medicine'
The Australian
1/9/95 page 1 and 2 news item by Lenore Taylor, `Easton inquiry a kangaroo court: Keating'
1/9/95 page 2 news item by Mark Irving, `Act let Court off: Easton'
1/9/95 page 2 analysis by Michael Gordon, `Keating risks all to save Carmen'
4/9/95 page 11 comment and analysis by Mike Steketee, `Labor's mask of hypocrisy'
6/9/95 page 1 news item by Mark Irving and Michael Gordon, `Marks judges Lawrence on motives, honesty and obligations'
7/9/95 page 2 news item by Michael Gordon, `List reveals political motives: Lavarch'
6/9/95 page 2 news item, `Marks lists grounds for possible adverse findings'
6/9/95 page 2 news item by Lenore Taylor, `Speaker to defend sub judice move'
7/9/95 page 10 editorial, `WA commission losing its way'
7/9/95 page 11 comment and analysis by Michael Gordon, `Marks sets Lawrence an impossible test'
The Herald Sun
1/9/95 page 2 news item by Michael Harvey, `Probe like Fawlty Towers, says PM'
1/9/95 page 2 news item by Mark Russell, `Lawrence probably knew, says ex-minister'
3/9/95 page 41 and 80 comment and analysis by Peter Coster, `Bitter-sweet battle'
4/9/95 page 8 news item by Phillip Hudson, `PM hit for probe slur'
Quotes:
`There's nothing ... which goes to corruption, or mal-administration or illegality or unlawful
behaviour.
None of those are present in this case and that merely confirms ...
that the Western Australian Government, in setting up this royal commission,
has very much stepped over the line'
Federal Attorney-General, Mr Lavarch
`It's all about getting the facts out in relation to the events surrounding the tabling
of the Easton petition and the Labor Party should have nothing to fear from
the truth coming out'
Western Australian Premier, Richard Court