Re: Heiner Affair Flares Again in Queensland

Kevin Lindeberg writes to the Archivists Association about the PCMC ruling.

Dear Readers/Archivists

While there may appeared to been relative quiet on "the (Heiner) western front" in recent years, the exact opposite has been true.

The PCMC "majority" 7 January 2009 6-page decision is not yet available. It purports to address the 3000 pages 9 Volume Rofe QC Audit of the Heiner affair which discovered some 68 prima facie criminal offences capable of being made out against certain persons, or, at the very least, requiring independent investigation.

Because an element of it must impinge on the role of archivists, this professional recordkeeping listing might like to know in the public interest, in general terms, one of the propositions used by the "majority" ALP Government PCMC members to dismiss our application for review regarding the Criminal Justice/Crime and Misconduct Commission's handling of my 1990 public interest disclosure concerning the shredding of the Heiner Inquiry documents.

It is relevant to note that in the material submitted was also the August 2007 public Statement of Concern on the Heiner Affair by a number of retired superior court judges, including the former Chief Justice of WA, the Hon David Malcolm, calling for the appointment of a Special Prosecutor to examine the whole affair. By "majority" decision, the PCMC resolved not to refer our material to an independent barrister to examine.

The relevant proposition concerns the infamous section 129 of the Criminal Code (1899) - destroying evidence. Such that it needed settling before it was properly understood, it was emphatically done so in R v Ensbey in 2004.

It has been our consistent position that the provision was unambiguous in its intent and wording since 1899. It did not need a court case to understand what it meant. Relevant case law goes back to at least 1891.

This provision was certainly not introduced by the Queensland Parliament (under the authority of one of Australia's greatest jurist, Sir Samuel Griffith) in 1899 to knowingly and wilfully "encourage" the destruction of known/foreseeable evidence before judicial proceedings commenced otherwise, as Professor Camille Cameron of the Law School of the University of Melbourne once advised the ASA, it could lead to a "world without evidence."

The "majority" PCMC members put forward a proposition that, notwithstanding the incorrectness of the interpretation of section 129 adopted over many years (which was vigorously challenged by myself, eminent jurists and others constantly), there is no indication that this incorrect interpretation was done either dishonestly, contrary to the public interest or so negligently as to give rise to a suspicion of official misconduct, let alone criminal conduct.

Let's leave aside just for a moment the important principle of ignorance of the law not being an excuse, and that acting on erroneous advice affords no protection from prosecution for the breach.

The proposition advanced must mean that all the triggering elements of section 129 may be present (i.e. the document or thing is held by a party, the party knows that the document or thing is required as evidence in foreshadowed judicial proceedings, and the party then destroys the document or thing to prevent its use in those known proceedings), but that a lawyer/barrister - as a sworn officer of the court and bound by profession obligations to respect and preserve the administration of justice as a paramount duty - without giving rise to the existence of dishonestly or negligence on the his/her part, may (purportedly) competently advise the client to destroy everything before and up to the expected writ being to lodged and served to prevent its use as evidence.

This interesting question must logically follow for archivists. If the aforesaid state of knowledge existed in the mind of an qualified archivists/recordkeeper during an appraisal process, would the profession view an approval to destroy such a record or thing as acceptable, either professionally or otherwise?

If it's good enough for a Crown lawyer to engage in such shredding conduct, why ought it not be good enough for an archivist - or is something else going on here?

Kevin Lindeberg

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