AND SO IT CAME TO PASS - THE HEINER AFFAIR ENDGAME BEGINS….
On 27 November 2014 Queensland’s most respected long-serving politician, the Independent Member for Gladstone, Mrs Liz Cunningham MP, rose from her seat in parliament and moved her 1st reading speech to establish the Parliamentary (Heiner Affair and Related Matters) Commission of Inquiry Bill 2014 to investigate what might be called the unfinished business of this scandal – its protracted systemic cover-up.
In simple terms, how was it that a demonstrable initial act concerning a very serious prima facie crime, i.e. destroying documents to prevent their known use as evidence (i.e. the Heiner Inquiry documents and tapes), involving the entire 5 March 1990 Queensland Cabinet and others was not found by the various law-enforcement agencies for over two decades despite clear and compelling evidence presented to them by the whistleblower, Kevin Lindeberg, from as early as 1990?
Mrs Cunningham tabled the Bill and the Explanatory Notes as well as necessary supporting material in order for parliament (as well as the public) to fully understand and consider why she had decided to move her Private Member’s Bill.
Her Bill was based on the parliament’s binding legal obligation to act, as final bulwark in our system of government, when matters of potential judicial misbehaviour come to its attention by the establishment of an independent Tribunal headed by three interstate senior judges to investigate such allegations and report to parliament. If the allegations are proven on the balance of probabilities, it may lead to the removal of the judge/s following an address to parliament from the Bar.
This power and obligation is found in section 61 of the Constitution of Queensland 2001. Inter alia, such matters of potential judicial behaviour were tabled on 27 November 2014.
After the tabling, the Speaker of the Queensland Parliament intervened by an extraordinary ‘interim’ ruling that “…the supporting material” be not considered as tabled.
It is understood that the Speaker’s ruling is now being challenged by Mr Lindeberg as being untenable, amongst other reasons being that certain of the material is already in the public domain but particularly because parliament has an unequivocal right to be fully informed of relevant facts and has a sworn high duty to fully inform itself of relevant facts before enacting Bills into law.
Madam Speaker the Hon Fiona Simpson MP
The consequences of the Speaker’s ruling not being overturned are vast and serious. Its practical effect as a precedent will be to cripple parliament’s ability to carry out its constitutional duties on behalf of the people it is elected to serve, to say nothing of its duty to obey the law itself if government by the rule of law is to mean anything.
Readers might like to ask the Queensland Speaker, Premier, the Attorney-General, and their respective elected representative how can parliament do its job properly by being wilfully denied access to this vital material (or turning a blind eye to its known existence) when considering a Bill which, as requirement of the law under which it was brought to parliament for enactment, must reveal allegations of possible judicial misbehaviour?
Further, how can we, the people, be denied our right to know what our parliament is and is not doing in our name, especially concerning an issue as grave as this, to say nothing about what certain judges may or may not have done at particular times in this scandal, whether before or when on the Bench?
These are fundamental questions which go to the very heart of any properly functioning democracy governed by the rule of law where ‘…the right to know and the duty inform’ are absolutely essential for the public to have full confidence in the integrity of their public institutions, none more so than parliament and judiciary.
This scope Bill is therefore unprecedented in Australian political history.
Other disturbing questions might reasonably arise in readers’ minds given that the Bill now sits in parliament. It is a stark staring reality. Where is the main stream media? Where is the ABC? Where is the legal fraternity which constantly reminds us about how important public confidence in the administration of justice is? Where is academia?
Only a fool or knave would believe that by turning a blind eye to this demonstrable unfinished business somehow or other makes it finished business. Mrs Cunningham’s Bill, sitting on the Table of parliament, derides such nonsense, such delusions of claims of being fully ventilated.
Her fearlessness in acting has exposed their fears in not acting.
Perhaps as never before, the Bill enlivens the great questions about our democracy and what we, as a nation, truly value, or, more pertinently, should value and are prepared to stand up for.
For example, such a question going to the heart of public confidence in government and its institutions might be:
- Is political arbitrary convenience permitted and/or expected to prevail over the impartial demands of the law if and when its known proper enforcement may otherwise affect those in positions of power? In short, even in a so-called democracy, does fear of authority to voice dissent when power is abused out of demonstrable self-interest sanction the application of double standards at the highest levels of government?
Awaiting us all in 2015 is a journey into unchartered waters in all its full political/legal/constitutional/social scope.
Similar waters were first traversed in federal politics in the infamous 1985/86 High Court Justice Lionel Murphy experiences and in Queensland politics, in the 1988/89 Mr Justice Angelo Vasta QC and Judge Eric Pratt experiences which saw similar parliamentary tribunals necessarily established in order that the integrity of the judiciary was assured on behalf of the people while carried out in an open and lawful manner which respected the important doctrine of the separation of powers so that the independence of the judiciary in our system of government was safeguarded.
Responsibilities and accountability weren’t shirked by those parliaments.
High Court Justice Lionel Murphy QC
The Heiner Affair is about many things, but it inexorably leads to this end:
If freedom, individual rights and civil society matter, our only reliable guide and security is in the peaceful expectation of the impartial application and compliance with the law by all no matter how politically embarrassing or devastating processes and outcomes may likely be to either side of politics whether in or out of government, or how high the public office holder may be. Otherwise, we have tyranny.
Justice Lord Denning’s words should ring forever loud and clear as the constant guide in all democracies: "…Be you ever so high, the law is above you." (Gouriet v Union of Post Office Workers and Others  CA)
In this matter, justice remains to be done but it must not only be done in an open, transparent and lawful manner but be seen to be done on the democratic principle that no one is above the law, including judges.
FAIRFAX’S - THE BRISBANE TIMES - 27 November 2014.
Independent MP calls for Heiner "cover-up" inquiry
Member for Gladstone Liz Cunningham has urged the Commission of Inquiry. Photo: Harrison Saragossi
Queensland Independent MP Liz Cunningham has asked in State Parliament on Thursday that a special Commission of Inquiry be called to investigate the "cover-up" of the 1990 decision by the Queensland cabinet to shred documents required by a court.
Ms Cunningham does not want another investigation into the shredding of the documents, which has become known as the Heiner Affair.
She instead wants an investigation into why it took from 1990 until July 2013 – 23 years – for a properly-constituted inquiry to find that there was a prima-facie case against the 1990 Queensland Cabinet members for shredding the documents.
Queensland Attorney-General Jarrod Bleijie. Photo: Glenn Hunt
It would be similar to the 1989 Parliamentary Commission of Inquiry that saw Judge Angelo Vasta removed from office.
It is the "Why did it take so long to investigate?" Liz Cunningham wants answered, not the "What happened originally?".
Inquiry driving force Kevin Lindeberg.
The Carmody Inquiry
On July 1, 2013 Commissioner Tim Carmody found a case existed against Goss government cabinet ministers.
He reached the conclusion after spending months on the Child Protection Inquiry, which included investigating the shredding of Magistrate Noel Heiner's inquiry document in 1990.
"The available evidence is legally sufficient, as it stands, for a jury to find that in resolving to hand the Heiner documents over to the state archivist for destruction, the premier and each participating cabinet minister meant to ensure that they could not be used in evidence if required in an anticipated judicial proceeding," Mr Carmody wrote on July 1, 2013.
However the Office of Public Prosecutions found there was "no reasonable prospects of a conviction".
The man behind Ms Cunningham's private member's bill, whistleblower Kevin Lindeberg, accepts there is now no public benefit in pursuing the previous Cabinet MPs.
But Mr Lindeberg,– and now Ms Cunningham – believes there is merit in investigating the "why".
"Why did it take 23 years for a prima-facie case to be established?" Mr Lindeberg asked repeatedly.
"...for our State Attorney to make himself the sole arbitrary decision-maker on the substance or otherwise regarding documented Heiner allegations of possible serious prima facie illegality hanging over the heads of certain known sitting Queensland judges, means, to all intents and purposes, he has usurped the authority, duty and rights of the Parliament to himself".
Attorney-General Jarrod Bleijie told journalists there would be no further inquiry into why it took 23 years to make this finding.
However, Mr Lindeberg and Ms Cunningham believe some members of the Queensland's judiciary have questions to answer and the Attorney-General – as a sole MP – cannot make that decision alone.
That decision has to be made by the 89 members of Queensland's Legislative Assembly, they believe.
Mr Lindeberg says section 61 of the Queensland Constitution provides the legal framework for this.
"A judge's misbehaviour justifying removal from an office is proved only if the Legislative Assembly accepts a finding of a tribunal, stated in a report of the tribunal, that, on the balance of probabilities, the judge has misbehaved in a way that justifies removal from the office."
Queensland's Constitution requires that this inquiry be administered by three retired "judges or justices of a State or Federal superior court in Australia."
That is what Ms Cunningham's private members' bill wants MPs to consider.
'All MPs should decide'
Mr Lindeberg said he has only ever wanted the law to be obeyed.
Mr Lindeberg said each member of Parliament must now decide whether the documented allegations against the key players gave rise to a mere suspicion of possible wrongdoing.
"This is a solemn moral, ethical and legal duty on each politician now that the bill is tabled," Mr Lindeberg said.
"It must be treated above party politics," he said,
"It's a seminal moment in our State's unicameral, political, legal and constitutional history. I hope and pray that the law prevails."
Mr Bleijie wrote to Mr Lindeberg in July 2014 and disagreed the issue needs to be taken to State Parliament.
Seven months earlier, the persistent Mr Lindeberg had taken his request to the then-Crime and Misconduct Commission for a new investigation into why it took 23 years to find a prima-facie case existed.
The CMC told Mr Lindeberg it had a "perception of bias" because it had investigated twice – before Mr Carmody found in 2013 a prima-facie case did exist – and sent it back to the Attorney-General.
In his letter back to Mr Lindeberg on July 11, Mr Bleijie wrote that he had discussed the issue with the-then Queensland Chief Justice Paul de Jersey.
Sharing pleasantries together, new Queensland Governor, His Excellency Paul de Jersey AC and new Queensland Chief Justice The Hon Tim Carmody QC
Allegations have been 'fully ventilated'
"Your allegations have been the subject of numerous reviews and inquiries, most recently the Queensland Child Protection Inquiry, and have been fully ventilated," he wrote.
"I recently announced that that I had received advice from the Office of the Director of Public Prosecutions and will not be referring the matter to the Queensland Police, or issuing any ex-officio indictment in relation to it," he wrote.
"I do not see any reason to instigate any further inquiry."
Whistleblower calls for fresh inquiry
Mr Lindeberg believes most previous inquiries were politically aligned.
He points out the actual terms of reference for Mr Carmody's Inquiry did not allow him to investigate anything after December 31, 1990 - the aftermath of the document shredding in the Heiner Affair.
Mr Lindeberg is the original whistleblower on Cabinet's decision to shred documents in 1990.
The documents related to allegations of abuse and mismanagement at the John Oxley Youth Detention Centre at Wacol in the late 1980s. Magistrate Noel Heiner spearheaded the inquiry.
Ipswich solicitor Ian Berry, who is now a LNP MP, represented the manager of a youth detention centre.
Mr Lindeberg was the centre manager's trade union representative.
A long-time battle waged by one man
Mr Lindeberg is nothing, if not persistent.
He can be pedantic, insistent and at times mildly irritating.
But is passionate, persistent – and given Commissioner Carmody's findings in July 2013 that a prima-facie case existed – to some degree, he has been proven correct.
He is a former trade-union representative, former light opera singer, an aviation and Bert Hinkler enthusiast, and a cartoonist.
Kevin Lindeberg does not know what will happen if 2014's parliamentarians do not ask for an inquiry, in the style of the 1989 Judge Angelo Vasta inquiry.
He says he cannot say if today's action is his final attempt to achieve closure.
"I really can't answer that," he said.
"I expect the law to be complied with.
"In other words, you are saying what will you do if this aspect of the law is not complied with?"
"Well, I just can't answer that."
"Parliament's overriding obligation is to obey the law.
"And, no matter the pain or political embarrassment, to always nip in the bud matters of possible judicial impropriety as Mrs Cunningham's bill and supporting material clearly reveals."
Mr Lindeberg said the need to have faith in the law is why he has persisted for 24 years.
"So that we Queenslanders can have complete confidence in the integrity and independence of the judiciary and never have to live in fear that our freedoms and rights might be lost through arbitrary abuse of power when you least expect it."
Parliamentary Legal Affairs and Community Safety Committee
Mr Ian Berry MP, Chair, Member for Ipswich
Mr Peter Wellington MP, Deputy Chair, Member for Nicklin
Miss Verity Barton MP, Member for Broadwater
Mr Sean Choat MP, Member for Ipswich West
Mrs Yvette D'Ath, Member for Redcliffe
Mr Aaron Dillaway MP, Member for Bulimba
Mr Trevor Watts MP, Member for Toowoomba North
Parliamentary (Heiner Affair and Related Matters) Commission of Inquiry Bill 2014
On 27 November 2014 the Member for Gladstone, Mrs Liz Cunningham MP introduced the Parliamentary (Heiner Affair and Related Matters) Commission of Inquiry Bill 2014 into the Queensland Parliament.
In accordance with Standing Order 131 of the Standing Rules and Orders of the Legislative Assembly, the Bill was referred to the Legal Affairs and Community Safety Committee (the Committee) for detailed consideration. Under Standing Order 136(1), the Committee must report to the Parliament on or before 27 May 2015.
The purpose of this Bill is to:
- create a Commission of Inquiry to examine allegations of possible judicial misbehaviour relating to the handling of the alleged wrongdoing associated with the ‘Heiner Affair’;
- ensure Parliament complies with its constitutional obligation to act and resolve the allegations of potential impropriety in the matter pursuant to Parliament’s obligation under section 61 of the Constitution of Queensland 2001.
The Bill enables Parliament to authorise that the relevant matters prescribed in Clauses 4 and 5 of the Bill of allegations of possible unresolved impropriety against judicial officers and others, shall be properly and thoroughly scrutinised by an independent Parliamentary Tribunal in an open and transparent manner presided over by three retired interstate judges.
The Parliamentary (Heiner Affair and Related Matters) Commission of Inquiry Bill 2014 and Explanatory Notes are available from the Office of the Queensland Parliamentary Counsel at www.legislation.qld.gov.au
The Hansard transcript of the explanatory speech can be accessed here.