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“Power is the pivot on which everything hinges. He who has the power is always right; the weaker is always wrong”  Niccolo Machiavelli

I had much cause to reflect on the issue of power whilst holding senior rank as a woman in Australasian policing. Power and relationships, and knowing how to play the game, unfortunately underpin so much in our society. The saying “It’s not what you know, but who you know!” has never been more evident for me, now that I am living in a small Island State! Conflict of interest issues also become much more apparent.

In my new role, it is clear that the balance of power in possible miscarriage of justice matters is heavily weighted towards the State. Firstly, how does the average person actually afford to take on the criminal justice system? If the person does not qualify for legal aid or have solid financial or asset backing, the task would be impossible, unless some form of pro bono legal assistance were forthcoming. Also, there are the difficulties in mounting your legal challenge whilst on remand or incarcerated because your resources are very much limited and your physical and mental well-being and motivation severely impacted. Further, there is the difficulty for the support team of accessing information and challenging the way an investigation was conducted, supervised and led. Certainly, the law/obligation of disclosure is critical but there appears to be a lack of clarity in the relevant legislation and policies. There also appear to be ways around the system. For instance, if police know that they are obliged to disclose all witness statements in a matter, one tactic may be to not actually document what is told to them by a potential witness when what that person has to say does not suit the police case. The person seeking justice or his/her representative also has to understand the somewhat foreign and closed system (and language!) of policing to simply know what to ask for! In reviewing the material disclosed, you not only need to absorb and analyse what has been provided, you have to realise what vital information might be missing and may well have been held back. The Right to Information legislation appears to be a valuable tool and I am currently in the process of testing its fairness and efficacy! There is also the sheer volume of material that is provided to the Defence at different points in time. It is therefore difficult to get a handle on exactly what useful and relevant material might not have been collected or disclosed.

The person challenging the system, who often has little knowledge about the law, also has to place his or her trust in the legal team they have engaged to develop the best possible Defence strategy for the case.

The time taken to resolve legal issues and matters also adds another layer of frustration for those seeking justice.

In a small and close-knit society, there is also a strong reluctance to “rock the boat” and “take on” practices and individuals. Aspects of the environment here in Tasmania seem far too controlled to enable the questioning and challenging that must occur if justice is to prevail.

Lastly, there are possible contempt of court issues which may mean that a person is left to fight a possible injustice, with his/her hands tied behind their back! (It is pleasing to see that the Tasmanian Law Reform Institute is currently examining this important issue, hopefully with a view to achieving greater clarity about relevant boundaries and ensuring adequate transparency and accountability in matters of significant public interest). Police also usually have established relationships with the media and are able to feed information to them far more easily than the member of the community seeking justice. People who are unskilled in strategic communications, suddenly need to become adept at strategic networking, community engagement and media management.

Law and procedural reform, as well as possible organisational and professional cultural reform, will be important in addressing this current imbalance of power. An Innocence Project based in Tasmania, which can provide a clear focal point and act as a centre of excellence (or referral point) for the diverse skills required to mount an effective and timely campaign, may well be of assistance.

First published on Barbara Etter’s website:
http://www.betterconsult.com.au/blog/an-imbalance-of-power/

*Barbara Etter, APM is currently the Principal of BEtter Consulting where she is breaking new ground as an integrity and justice consultant. Barbara was formerly the inaugural CEO of the Tasmanian Integrity Commission. Barbara holds tertiary qualifications in science, law and business administration. She had a 30 year distinguished career in policing and was awarded the Australian Police Medal in the Australia Day Honours list in 2008. In 2006, Barbara won the WA Telstra Business Woman of the Year award. Barbara is also an Adjunct Associate Professor at the School of Law and Justice at Edith Cowan University in Perth, WA.

First published: 2012-02-23 06:00 AM

• Examiner, Friday:  Etter takes a shot at state justice system

THE former head of the Integrity Commission who is suing the state government has called for an ``innocence project’’ to be established in Tasmania.

Barbara Etter has set up a consultancy firm following her sudden departure from the corruption watchdog last year.

Mrs Etter is taking legal action against the government, her former employer, claiming she was repeatedly undermined and forced to resign.

In a blog post on her website, Mrs Etter details a litany of problems with the state’s justice system and recommends setting up a ``centre of excellence’‘, dedicated to assisting convicted criminals who believe they are innocent, based on the Innocence Project in Western Australia.

``I do not know how many miscarriage of justice cases there might be in Tassie. But a project like this may well flush any out,’’ she said.

Mrs Etter has already been hired by the family of Susan Neill-Fraser, who is appealing against her conviction for murdering long-time partner Bob Chappell.

The former West Australian assistant police commissioner also takes aim at a culture of ``it’s not what you know, but who you know’’ which she says is prevalent in such a small island state.

``In a small and close-knit society, there is also a strong reluctance to `rock the boat’ and `take on’ practices and individuals. Aspects of the environment here in Tasmania seem far too controlled to enable the questioning and challenging that must occur if justice is to prevail.’‘

She later said the comments were based on her experiences as chief executive officer of the Integrity Commission.

More, Examiner here