THE HEINER AFFAIR
Paper by Kevin Lindeberg
NSW Parliament Theatrette SYDNEY
9 October 2007
Mr. Chairman, distinguished guests, ladies and gentlemen. I am greatly honoured to be invited to deliver this paper in such an historical setting as the NSW Parliament.
I would like to thank NSW’s Shadow Attorney-General Mr. Greg Smith SC for being our host today.
I am pleased to share this dais with journalist Piers Akerman. I hope to answer some questions later where I can properly do so. Unfortunately, because of time constraints, I simply cannot cover every aspect of this affair as it has evolved over the last 17 years.
Much of what I have to say today may be found in my 2005 paper to The Samuel Griffith Society which is available on the Society’s webpage, including the Society former President the Hon Sir Harry Gibb’s April 2005 opinion that a prima facie offence under section 129 of the Criminal Code, at the very least, rests against all members of the Queensland Cabinet of 5 March 1990.
Mr. Chairman, I would like to commence my paper with two quotes. They benchmark this affair.
My first quote comes from Former United States Supreme Court Justice Felix Frankfurter who is credited with having said: [I quote] “…if one man can be allowed to determine for himself what is law, every man can. That means first chaos, then tyranny. Legal process is an essential part of the democratic process.”
My second quote comes from NSW Chief Justice the Honourable James Spigelman speaking at the ICAC/Interpol Conference in Hong Kong on 22 January 2003. Albeit in the abstract, His Honour’s warning may provide an insight into why this matter may have taken so long to be remedied. His Honour said:[I quote] "...Legal institutions are interdependent. In the area of criminal justice, the police force, the prosecution and the judiciary have a symbiotic relationship in which the performance and the functions of each depends to a substantial degree on the capacity and integrity of each of the others. The same kind of relationships exist in other areas of the law, involving the broad range of regulatory authorities and adjudicating bodies, including tribunals. If the powers given to any participant in this process are abused by being exercised improperly e.g. to serve the interests of those who wield the power, the whole system is distorted, indeed perverted."
Mr Chairman, this affair has now taken on a national dimension for unavoidable reasons well beyond my initial imagining. It grew out of a Cabinet decision by the Goss Government within days of taking control in 1990 which now gives rise to serious questions about the constitutional state of affairs in Queensland, potential perversion of justice, probity in high public office, including also how abused children held in the care and custody of the Crown were denied justice.
Heiner affair’s epicentre
The decision, to which I refer, was the order by the Queensland Cabinet to deliberately destroy the Heiner Inquiry documents to prevent their foreshadowed use as evidence in an anticipated judicial proceeding, and to prevent the contents of the gathered public records being used against the careers of the public servants involved. These public records were gathered during the course of a lawful inquiry into the management of the John Oxley Youth Detention Centre conducted by retired Stipendiary Magistrate Noel Heiner in late 1989/early January 1990, from whom the affair’s name is derived.
The Heiner Inquiry was lawfully established in the final days of the Cooper National Party Government by Families Minister Beryce Nelson. Within weeks of the Goss Government coming to power, the inquiry was shut down. All its gathered evidence was secretly disposed of on 23 March, with copies of original complaints secretly disposed of on 22 May, and photocopies of the complaints secretly disposed of on 23 May 1990.
Let me present some key facts bearing in mind there is a lot more to tell over this 17-year quest for justice.
Due Process Commenced
In January and February 1990, my union member, the Centre manager, sought to access the Heiner Inquiry documents, as was his right under a public service “access” law. He also indicated that he may take defamation action. As his union organizer, I was required to protect his industrial interests which centred on gaining access to the documents, not to concern myself about what was in them, or whether he should or shouldn’t take an action in defamation to defend his reputation. That was his business.
His solicitors and two trade unions placed the Government on notice of foreshadowed court proceedings in which the Heiner Inquiry documents and original complaints were the central items of evidence. It was done by letter, phone call and meeting on 8, 14, 15, 23 February and 1 March 1990. The Queensland Government was told not to destroy the evidence.
The evidence always fell within the definition of “departmental/public records” under the Libraries and Archives Act 1988 and the Public Service Management and Employment Act 1988. That definition became the insurmountable problem for the Queensland Government in this affair.
The Government was told that if access was not granted “out of court”, then the matter would be settled “in court.” Unbeknown to us, the Families Department had meanwhile transferred the documents to the Office of Cabinet around 11 February 1990 in an apparent effort to gain exemption under “Cabinet confidentiality” or “Crown privilege.” That transfer ultimately became an incurable infection for the entire system of government.
The relevant February/March 1990 Cabinet submissions - which were released in July 1998 - show that all Cabinet members in attendance, and certain bureaucrats who were part of the Cabinet process, were aware that the documents were required as evidence in a foreshadowed judicial proceeding.
The Crown Law advice of 16 February 1990 reveals that the Cabinet, and Crown Law, knew that the records would be discoverable pursuant to the discovery/disclosure Rules of the Supreme Court once the expected writ arrived.
By other evidence spoken in the media, we know that at least one Minister, if not all members of the Cabinet, were aware that those public records contained evidence about the known or suspected abuse of children at the Centre. As recently as 25 May 2006 in the Queensland Parliament, another former Minister confirmed such a state of knowledge existed.
As each layer of cover-up has been peeled away, the presence of child abuse at the Centre surfaced after being concealed for years. It was primarily through the investigative skills of Mr. Bruce Grundy, of the University of Queensland’s School of Journalism, that the horrible truth of child abuse became known. The abuse went from physical assault, deprivation of liberty, psychological abuse to the offence of criminal paedophilia involving the sexual assault of a 14-year-old female indigenous minor in the lead up to the Inquiry. The sexual assault was described as “criminal paedophilia” by the Queensland Crime Commission in writing to me in December 2001. It is beyond dispute that certain public officials knew of such things at all relevant times, and did nothing about it. Some are still working in government.
It is clear that law-enforcement authorities could not face the horrendous political/legal/constitutional prospect that perhaps all members of the Queensland Cabinet of 5 March 1990, and certain bureaucrats, may be in serious breach of Criminal Code of Queensland.
As I worked my way through the system seeking justice, instead of upholding the law, all relevant law-enforcement and accountability arms of government collapsed in around the Cabinet’s shredding desire by declaring it perfectly legal when the law, properly applied, suggested otherwise.
Foreshadowed Judicial Proceedings Known
Mr. Chairman, having placed the Queensland Government on notice, we were told by the Government that Crown Law was considering our access request. We were told that once the advice was received, we would be told. That stayed our hand because we trusted government to act honourably.
Unbeknown to us, the Queensland Government meanwhile had secretly sought urgent approval from the State Archivist on 23 February 1990 to have the records destroyed pursuant to the Libraries and Archives Act 1988. Her approval was obtained on the same day. However, Cabinet’s letter failed to inform the State Archivist that the records were required for the foreshadowed judicial proceeding.
She was told in the Cabinet letter that the records were“…no longer required or pertinent to the public record” at the very time the Queensland Government knew otherwise, and at a time when it knew its contents concerned abuse of children in State care.
Claims that the Queensland Government was acting in good faith to deal with a difficult legal situation are untrue. Deception pervaded everything.
Just one of many available examples, the public official who took the notice of court proceedings from the solicitors on 14 February 1990 actually assisted putting the evidence through the shredder on 23 March 1990 after telling Mr Coyne the day before that the Government was still waiting for advice and the evidence was secure. Public officials generally don’t take such risks unless they know they have protection from on high.
In early March 1990, I was inadvertently told of the shredding plans or act-of-shredding by the Minister’s Private Secretary. I immediately challenged the slip causing the phone call to end abruptly, and I was told the next day that the Minister would no longer deal with me, and insisted on the union’s General Secretary and/or his Assistant taking over the case. That happened. I briefed my boss. Then several weeks later, I was summarily dismissed. My handling of this case was used as one of the excuses to dismiss me, alleging that I had threatened the Minister and senior departmental officers and had acted in a manner that was inappropriate and overly-confrontationalist. I never threatened anyone, but in the light of what we know now, it is open to suggest that I knew too much, and once I uttered the challenge, I could not be trusted. I denied the charge, and fought back.
Before I was finally dismissed in August 1990, the union Executive was told in writing by me on 12 June 1990 that the shredding of the Heiner records represented a potential serious breach of the criminal law which could involve the entire Cabinet, the Minister, or the Departmental Director-General. It did not move them.
The Criminal Justice Commission and the Administration of Justice
In December 1990, I took my dismissal to the new Criminal Justice Commission (CJC).
This journey took me into the bowels of Queensland’s criminal justice system and public administration. Both were found wanting. I was confronted with conduct open to be seen as dissembling and delay, double standards, misleading of Parliament, conflicts of interest, errors and omissions, lost documents, failure to refer suspected official misconduct, tampered tapes, intimidation, threats, misquoting and misinterpreting the law by bodies like the CJC, police, and other accountability arms of government.
I suggested that to the CJC that section 129 of the Griffith Criminal Code may have been breached. Section 129 of the Criminal Code – destruction of evidence – provides for: "Any person who, knowing that any book, document, or other thing of any kind, is or may be required in evidence in a judicial proceeding, wilfully destroys it or renders it illegible or undecipherable or incapable of identification, with intent thereby to prevent it from being used in evidence, is guilty of a misdemeanour, and is liable to imprisonment with hard labour for three years."
Section 119 of the Criminal Code, dealing with the definition of “judicial proceeding”, reads as follows: “In this chapter – ‘judicial proceeding’ includes any proceeding had or taken in or before any tribunal, or person, in which the evidence may be taken on oath.”
The CJC held that the term “judicial proceeding” was strictly limited. It held that section 129 could only be triggered once a judicial proceeding was on foot.
So, even in the wake of High Court case of R v Rogerson which ruled ruled that a conspiracy to pervert the course of justice could occur before court proceedings commenced, and it only needed to be “a tendency” to obstruct, the CJC, in its 20 January 1993 clearance letter, in effect, considered it was a perfectly legal for any lawyer to advise a client to get in quick and shred all the known or suspected evidence before the expected writ arrived.
During the course of my interview at the CJC on 11 August 1992, the contracted barrister, when confronted with the facts asked me: “…What do you want to me do, charge the entire Cabinet with criminal conspiracy to pervert the course of justice.” I replied if that was what the law required. So let there be no mistake, the CJC knew what it faced at all relevant times, as did the police in 1994-96, and as did others. It was always high stakes.
I challenged the CJC’s view from the outset.
Under elementary statutory interpretation rules, the operative word in section 119 of the Criminal Code regarding the definition of “judicial proceedings” is “includes”. The definition was “unfettered” “inclusive”, “not limited” – but more of that later.
In 1993 the Senate Select Committee on Public Interest Whistleblowing commenced work. Its task was to aid the federal government in formulating national whistleblower protection legislation. My submission used this affair as the vehicle to address its terms of reference in the public interest. In its August 1994 report, the Committee, was so concerned about what it read and heard, it unanimously recommended that the Goss Government review this case, and 8 other “unresolved” Queensland cases.
Due to Goss Government refusal, in December 1994, the Senate Select Committee on Unresolved Whistleblower Cases was set up in which the Heiner affair was a specific term of reference. This Committee took evidence throughout 1995. I was represented by leading Australian senior counsel, Mr Ian Callinan QC.
Mr. Callinan, advised the Committee on 23 February 1995 in Brisbane, for anyone to destroy known evidence which is or may be required in judicial proceedings was an “unthinkable” act - and more serious when done by a government.
He also advised the Committee on 7 August 1995 that the CJC’s strict, narrow interpretation of judicial proceedings was “…too significant to ignore”. Because of certain admissions made by the CJC official to the Senate, Mr Callinan advised section 129 may have been breached, or section 132 of the Criminal Code – conspiracy to pervert the course of justice - in the alternative. He cited R v Rogerson. His advice was ignored. Instead the Committee described the shredding as “…an exercise in poor judgement” .
In evidence to the Senate, a CJC official and lawyer, who had prime carriage of my complaint - and who described Mr Callinan’s advice as just any lawyer expressing an opinion – put forward the CJC’s understanding about due process concerning the protection of evidence: “…What you do with your own property before litigation is commenced, I suggest, is quite different from what you do with it after it is commenced.”
The Queensland Government claimed that it acted on legal advice when ordering the destruction of the evidence, and pointed to advice of 23 January 1990 which relevantly said: “…this advice is predicated on the fact that no legal action has been commenced which requires the production of those files…”
The CJC claimed that so long as the Queensland Government acted on legal advice, it could not be established that it was acting dishonestly. The CJC said that it wasn’t its duty to adjudicate between competing advices on the same legal point – that is, section 129 – but rather, so long as advice existed and had been acted upon – in effect any advice, including wrong advice - that was sufficient to give the clearance to those involved in the shredding. In this case, it just so happened to be the entire Cabinet and certain senior bureaucrats.
In my view, that was, and remains, a profoundly disturbing approach to government by the rule of law by any law-enforcement authority. It put rogue advice, including erroneous Crown Law advice, above the law properly expressed and applied.
If we may dwell on this for a moment. They were claiming that all the triggering elements of section 129 could be present and met, that is, a party, holding the document or thing, could be placed on notice by solicitors of a judicial proceeding about to be commenced by their client on the following day or week, in which the document or thing was to be the central item of evidence, but could then, immediately, destroy that document or thing for the express purpose of preventing that document or thing being used in evidence, and such conduct could be perfectly legal just so long as the writ/plaint had not been served.
A moment’s reflection exposes its absurdity. Firstly, it would positively encourage the destruction of all known or reasonably suspected evidence up to the very second in time of an excepted writ being served.
Secondly, the interpretation would undermine the right to a fair trial, and it would undermine the sister crimes of attempting to defeat justice and conspiracy to defeat justice in the Criminal Code. Section 129 was there to discourage the destruction of evidence, not to encourage it.
In dealing with this aspect that no wrongdoing should to be found if a party acts in good faith even erroneous legal advice, I point to Ostrowski, whereinCallinan and Heydon JJ, in 2004, in finding a guilty verdict against Mr. Palmer, a crayfisherman from Western Australia who obtained Crown legal advice before acting on it which happened to be wrong at law, said: “…A mockery would be made of the criminal law if accused persons could rely on, for example, erroneous legal advice, or their own often self-serving understanding of the law as an excuse for breaking it…”
The Role of the State Archivist in the Administration of Justice
The Queensland Government has also claimed that it acted under the authority of the Libraries and Archives Act 1988. If this were correct at law, it would permit the power under archives law to intervene unilaterally in the administration of justice and override section 129 of the Criminal Code or the discovery/disclosure Rules of the Supreme Court.
Archives law does not permit the destruction of records when known to have legal value. The CJC even claimed that the State Archivist’s public duty only concerned preserving documents with “historical value”, while records having “legal value” were not the Archivist’s concern. This outraged the archives community across the world – and still does.
The October 1996 Morris/Howard Report
In May 1996, the Borbidge Queensland Government appointed two independent barristers Messrs. Anthony Morris QC and Edward Howard to investigate my allegations “on the papers” and to recommend whether or not an open inquiry should be held.
In their October 1996 report, they found that it was open to conclude that numerous criminal offences may have been committed, that is, breaches of section 129, 132 and/or 140, 92 and 204 of the Criminal Code, including official misconduct. They recommended the immediate establishment of a public inquiry. They found that the serious prima facie offences unearthed were at least as serious as the offences which brought the famous Fitzgerald Inquiry into being in 1987. They roundly criticized the conduct of the CJC and suggested that its investigation was neither thorough, exhaustive, nor independent.
Morris QC and Howard correctly interpreted section 129.
Instead of establishing a public inquiry, the Borbidge Government sent their Report to the DPP to be advised on (a) the correct interpretation of section 129; (b) whether charges could be brought against those named; and (c) whether a public inquiry should be held.
After a 6-month delay, the Borbidge Government announced in June 1997 that the DPP had advised that (a) it was not in the public interest to pursue the matter further; (b) a certain official could be charged but it was not in the public interest to do so. There was, however, no announcement about the sought-after proper interpretation of section 129.
The Smoking Gun – The 7 January 1997 DPP’s Advice
Let me turn to the DPP’s advice to the Borbidge Queensland Government. It remains hidden from public scrutiny. It is, in my view, a “smoking gun.” Why? I have read it.
On 23 September 2003 I was given access to the advice then Leader of the Queensland Opposition. It misinterprets section 129 as a starting point. It is flawed in other passages. It arguably prevented an inquiry in 1997. It ought to be made public but the Queensland Government refuses to do so. And I shall return to this later on.
Federal Government Intervention
Mr Chairman, two other events converged in this journey around 2003 and 2004.
The first event was the reference given to the Federal Government’s Standing Committee on Legal and Constitutional Affairs by then Justice Minister, Senator the Hon Chris Ellison in May 2002 to hold a national inquiry into “crime in the community: victims, offenders and fear of crime.” This Committee was chaired by the Hon Bronwyn Bishop MP.
Mr. Grundy and I placed the Heiner affair before it during 2003 and 2004. It was not done for any “political stunt” purposes.
By 2003, I, and others like Mr Grundy and former Queensland Police Commissioner Noel Newnham, had discovered the child abuse element of the Heiner affair of which we had no knowledge at the beginning. In 1998, we had discovered the abuse of handcuffing children to outside fences and grates through the night, and chaining them to beds. We had seen the Forde Inquiry established by the Beattie Government in August 1998 due to our efforts in the media. There is no doubt whatsoever that this child abuse material went to Mr Heiner because we now hold a summary of the complaints he was commissioned to investigate. This handcuffing conduct was found to be illegal by the Forde Inquiry.
However, Premier Beattie [with five prima facie shredding Ministers in his Cabinet] had instructed the Forde Inquiry that the shredding of evidence of the child abuse the Forde Inquiry was to investigate, was out of bounds despite the fact that the destruction of that evidence had been done for the specific purpose in March 1990 so that it could not be used against the JOYC staff, some of whom the Forde Inquiry had in the witness box under oath facing potential criminal/disciplinary charges due to their 1989 abuse-of-children conduct.
In my rejected September 1998 submission to the Forde Inquiry, I said this: “…It is respectfully submitted that it would not be in the public interest or in the interest of truth if this Commission of Inquiry could only investigate and make recommendations on the substance or otherwise of "shredded JOYC child abuse allegations" and not concern itself with the far greater offence that such evidence in the possession of the Crown at the time was deliberately destroyed by order of the Goss Cabinet (in the name of the Crown) to obstruct justice and to cover up unacceptable suspected child abuse against children in the care and protection of the Crown.”
It needs also to be said that in late December 1994/early January 1995, the CJC became aware of this same child abuse when carrying out an undisclosed visit to the Department of Families. Not only did the CJC turn a blind eye to it, it failed to inform the Senate of this information when appearing before it in 1995. It took myself and Mr Grundy another 4 years to unearth this unresolved abuse which the CJC and Queensland Government always knew of but kept hidden.
By 2004, Mr Grundy had also discovered “Annette” – who was raped on 24 May 1988 when a 14 year-old child at the Centre. She was discovered in mid-2001. He also had found a Heiner Inquiry witness who told him, and later told ABC-Radio, that Mr. Heiner had asked him questions about the rape during the course of his inquiry.
In a signed statement dated 15 May 1998, witnessed by former Queensland Police Commissioner Noel Newnham, former Families Minister Mrs Nelson said that she anticipated the following known and/or suspected concerns would be investigated by Mr Heiner: I quote: "…that some boys and girls were being forced into sexual activity against their wishes, for the benefit of others; that illicit drugs and prescribed medications were being brought into the Centre, sometimes by staff and sometimes by detainees who had simply walked out and returned apparently without any permission; that some staff were physically and sexually abusing children in their care…" Mrs. Nelson has never retracted that statement.
We now hold “Annette’s” departmental file on the incident, and relevant newspaper cuttings.
Putting the pieces together, there is no doubt “Annette” was sexually assaulted; there is no doubt the authorities knew who did it; there is no doubt she wanted them charged; there is no doubt the police failed in their duty at the time; there is no doubt it was covered up by the Department; there is no doubt that a Youth Worker was declaring it “a cover up”; there is no doubt that a line of compelling evidence exists showing that concern was expressed to The Courier-Mail in March 1989, and that Mr Heiner examined the matter during his inquiry with a Youth Worker; there is no doubt one of the boys involved in the incident later shot dead person by a point-blank shotgun blast in October 1990 in Brisbane when he might have been otherwise locked away; there is no doubt no coronial inquest into the shotgun shooting took place; and there is no doubt that the boy later handed himself into the police in January 2002 and confessed to the crime just weeks after Mr Grundy’s article appeared in The Courier-Mail in November 2001 about the rape; and there is no doubt that he was subsequently jailed for manslaughter after plea-bargaining over a charge of murder.
In August 2004, the Bishop Committee handed down its report into the Heiner affair. It recommended:
- That the Queensland Government publicly release the 1997 DPP’s advice on the Morris/Howard Report;
- That all members of the Goss Cabinet be charged pursuant to section 129 of the Criminal Code over their involvement in the order to destroy the Heiner Inquiry documents, and that other offences under sections 132 and 140 of the Criminal Code and official misconduct may also arise;
- That the Queensland Government appoint a Special Prosecutor to investigate all aspects of the Heiner affair.
Double Standards on Public Display
We now come to the famous Pastor Ensbey shredding case. [R v Ensbey; ex parte A-G (Qld)  QCA 335 of 17 September 2004]. He was charged and prosecuted for the offence of destroying evidence required for a judicial proceeding. He guillotined a girl’s diary in 1995/96, and returned the strips to the girl’s parents. The girl’s diary contained evidence about an inappropriate relationship between herself and a parishioner. In fact, the material was not required at the later trial because the accused admitted his guilt. The police, when they later discovered the guillotined diary, decided to charge the Baptist Pastor with an attempt to obstruct justice.
The pastor was committed and ordered to stand trial on 13 March 2003 pursuant to section 129, or in the alternate, section 140 (attempting to obstruct justice).
Its relevance the Heiner affair was that Pastor Ensbey’s destruction-of-evidence conduct occurred some 5 to 6 years before the relevant judicial proceeding commenced.
On 11 March 2004, Pastor Ensbey was found guilty of breaching section 129. And then, on 25 March 2004, Queensland’s Attorney-General, appealed the leniency of 6-month fully suspended jail sentence to the Queensland Court of Appeal because of the seriousness of the crime, and, in doing so, used my interpretation of section 129, which had been laughed at for years by the Queensland Government and its agencies.
On 17 September 2004, the Court of Appeal reaffirmed the District Court interpretation of section 129, and the conviction. The court ruled that the word “knowing” in section 129 meant “a realistic possibility” of a future judicial proceeding. In the Heiner affair, that threshold has been satisfied far beyond a reasonable doubt.
In short, it is my contention that the erroneous interpretation of section 129 used to thwart my pursuit of justice for years, should never have occurred. In their August 2007 Statement of Concern, the eminent jurists suggested that it may have been “knowingly” misinterpreted to advantage the Executive. A more serious statement of concern is hard to imagine in a democracy I suggest.
Under the rule of law, the Executive may not unilaterally decide for itself what is or is not required and be permitted to embark on a unilateral destruction-of-evidence exercise when party to litigation. To do so would be to seriously and unacceptably breach the doctrine of the separation of powers. The Crown should also act as “the model litigant.”
Mr Chairman, the claim that the Heiner Inquiry was incorrectly established leaving the witnesses vulnerable to suit in defamation is untrue. Crown Law advised the Queensland Government that the Inquiry was lawfully established. Crown Law advised that the witnesses were covered by “qualified privilege.” To ensure no legal liability existed against the Heiner witnesses, the Queensland Government nevertheless indemnified them and Mr Heiner himself around 11 February 1990, well before the evidence was destroyed. And yet the Queensland Government, some media outlets, still claim that the shredding was necessary to prevent the witnesses facing heavy legal expenses in any defamation or other legal action. This self-serving myth is just another piece in the deception peddled by the Queensland Government and others in the media who are only too happy to swallow “the spin”, just as they swallow “the spin” that this matter has been exhaustively investigated.
However, there was a rider to the indemnity. The witnesses had to have told Mr Heiner the truth.
So when the Queensland Government destroyed the documents, it was acting in its own interests, not in the interests of the honest “whistleblowers” because they were absolutely protected.
In reality, the shredding knowingly afforded public officials who may have lied to Mr. Heiner unwarranted protection from the consequences of their lies – from the consequences of their defamation of another, and it denied the abused children and police a source of potentially probative evidence of illegal conduct.
The Great Contract of Trust
Our Australian system of government works on the great contract of trust between the Crown - on behalf of the people - and/or the Crown’s representative, its Ministers of Crown, the people’s elected representatives, and public servants, that in all things, at all times, for all parties, the law and Constitutionshall be respected and upheld. It is a contract, if fractured, can cause great harm.
It is well settled that neither Sovereign, Head of State, President nor executive government should be above the law in societies which claim to be governed by the rule of law, any more than you or I are above the law. This democratic principle instills public confidence and trust in government.
Famous US constitutionalist, Thomas Jefferson said: “…The two enemies of the people are criminals and government, so let us tie the second down with the chains of the Constitution so the second will not become the legalized version of the first."
When Ministers of the Crown and public officials place themselves beyond the law and constitutional custom, the ultimate guardian is the Crown itself. In Australia’s constitutional monarchy system, the role of the Governor-General or State Governor is a very important one. They must be, in the last resort, able to invoke the Crown’s discretionary reserve powers in order to ensure compliance with the general law and the effective working of parliamentary democracy.
The Crown ought not be brought into such controversies when a government has an opportunity, if not a sworn duty, to resolve a matter like this through the appointment of a Special Prosecutor, and then, where warranted on the evidence, have it settled in our independent courts.
It ought not be left to an individual like me to see that the rule of law is respected by launching a court action when government or law-enforcement authorities have sworn duties to do so. I am merely a powerless whistleblower with a message.
The Crime and Misconduct Commission (CMC) and the then Beattie Queensland Government have now acknowledged that section 129 was breached. R v Ensbey gave them no choice. After the Police Commissioner told the Queensland Opposition of 25 May 2005 that this matter may have to revisited because of Ensbey exposing the incorrectness of section 129’s interpretation, the CMC and the Queensland Government took the view that it was not in the public interest to revisit my allegations or put the breach before the court.
The Queensland Government and CMC have embraced the prosecutorial discretion exercised by the former DPP in January 1997 to the findings of the 1996 Morris/Howard Report. The Morris/Howard Report did not know [a] about the child abuse; [b] did not have access to the relevant February/March 1990 Cabinet submissions; and [c] it was not a brief.
The January 1997 former DPP’s discretion to do nothing has been unilaterally imposed – without the permission of the current DPP - on the findings of the 2004 Bishop Report which had the advantage of considering the “added/fresh” incriminating evidence in the February/March 1990 Cabinet submissions as well as the serious aspect of shredding evidence of child abuse.
In other words, to escape culpability, the law-enforcement authorities and Queensland Government are knowingly judging the “2004/05 Heiner oranges” with the “1996 Heiner apples” in a self-serving manner. They are doing this in the full knowledge that Pastor Ensbey has been charged to the full extent of the law, and branded a criminal for life.
In my opinion, it is an abuse of power of the highest order.
It should be known that the Ensbey legal team put a submission to the current DPP, Ms Leanne Clare, on 13 October 2003 before the District Court trial commenced. They cited the former DPP’s interpretation of section 129 as used in the Heiner affair as a reason not to charge their client under section 129. They also said that it was not in the public interest to charge him. The current DPP declined both applications. She rejected what the former DPP said about section 129. She said the section 129’s ambit was wide enough to encompass a future proceeding. She cited R v Rogersonjust as Callinan QC had done back in 1995.She declared that it was in the public interest to prosecute Pastor Ensbey some 8 years after the event. The rest is history.
So, Mr. Chairman, when the State of Queensland prosecuted to the full extent its criminal justice system allowed one of its citizen’s in 2004 over his destruction-of-evidence conduct, which took place some 9 years earlier, it unquestionably knew that Queensland Ministers of the Crown and senior bureaucrats who had engaged in the same shredding conduct - if not worse conduct - were not charged because the same law was interpreted incorrectly.
A Crown Prosecutor’s Duty
The law says that a Crown prosecutor’s duty must never be influenced by, amongst other considerations, the possible political advantage or disadvantage to the government or any political group or party.
In one of my last letters to the authorities in Queensland, I said this: “…The criminal law only carries a moral and constitutional basis of authority and respect in a democracy if it is applied equally by government against all citizens who transgress it. That is government by the rule of law. If, however, the law becomes an instrument of sectional application by government for government, such conduct is unfair and oppressive and sets government in conflict with democracy itself and the rule of law. That is tyranny.”
I hold firm to the principle of equality before the law for all. To me, it is a non-negotiable value of this nation because it underpins our freedom. I will hold firm to that principle irrespective of time in the political election cycles or person involved.
The right to a fair trial and the right to equality before the law are perhaps our greatest democratic values. They are at risk here. Expediency has overridden due process.
While I am a proud Queenslander, I am an Australian first and why should my rights, or “Annette’s” rights, as Queenslanders, under the Australian Constitution, be less than my fellow Australians who live in New South Wales, Western Australia or elsewhere within the Commonwealth?
To that end, I want to publicly acknowledge the Honourable Judges, Mr. Shand QC and Mr. MacAdam for courageously standing up for those enduring values, and calling for an inquiry into this long-running affair to restore public confidence in government and in the administration of justice.
And so, Mr Chairman, by extraordinary circumstances, always well beyond my control or others, this important question of whether Executive Government is above the law now faces the nation. It’s a question which I believe must be answered for the long-term democratic health of this great nation.
REFERENCES – The Heiner Affair
Section 13 of the Public Service Management and Employment Act 1988 – See Crown Law advice dated 19 January 1990 to Ms. Ruth Matchett, Acting Director-General, Department of Family Services and Aboriginal and Islander Affairs – Volume 1 Queensland Government – Submissions, supplementary Submissions and other Written Material Authorised to be Published – 1995 Senate Select Committee on Unresolved Whistleblower Cases.
Crime Commission Act 1997: Section 6 (1) states: “Criminal paedophilia” means activities involving – (a) offences of a sexual nature committed in relation to children; or (b) offences relating to obscene material depicting children.
R v Rogerson and Ors (1992) 66 ALJR 500 Mason CJ at p.502 says: "...it is enough that an act has a tendency to deflect or frustrate a prosecution or disciplinary proceedings before a judicial tribunal which the accused contemplates may possibly be implemented..."
In R v Cunliffe  QCA 293, McMurdo P, McPherson JA, Mackenzie J state this: “…Misinterpretation of the law equates to ignorance of the law and is not an excuse: See Ostrowski v Palmer and see also Olsen & Anor v The Grain Sorghum Marketing Board; ex parte Olsen & Anor.”
See pp203-205 Morris/Howard Report to The Hon The Premier of Queensland and Queensland Cabinet of “An Investigation into the Allegations by Mr. Kevin Lindeberg and Allegations by Mr. Gordon Harris and Mr. John Reynolds.”
Mason CJ in Walker v New South Wales (1994) 182 CLR 45, 49-50: “…It is a basic principle that all people should stand equal before the law ... the general rule is that an enactment applies to all persons and matters within the territory to which it extends, but not to any other persons or matters … And just as all persons in the country enjoy the benefits of domestic laws from which they are not expressly excluded, so also must they accept the burdens those laws impose.”
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