The Brisbane Times
CMC can't probe Heiner affair delays
Queensland’s independent corruption body cannot investigate why it took 23 years to find out why Heiner Inquiry documents - legally requested by a solicitor - were destroyed by state cabinet in 1990, because it “may not be perceived as independent”.
In his July 2013 findings Commissioner Tim Carmody found the inquiry documents, legally requested by Ipswich solicitor Ian Berry in 1989 and 1990, were illegally shredded on March 5, 1990.
Whistleblower Kevin Lindeberg subsequently lodged a request in January for a full investigation into why an inquiry had taken 23 years to find that cabinet shredded the documents when he first asked the Criminal Justice Commission to investigate the claim in 1990.
On May 15 this year, Crime and Misconduct Commissions acting chair Ken Levy wrote back to Mr Lindeberg to explain the CMC could not investigate because it may not be seen as independent.
“The Commission is of the view that, as the matter has been investigated by the former Criminal Justice Commission and reviewed bythe Crime and Misconduct Commission, it may not be perceived as independent to undertake the review sought by you,” Dr Levy writes.
Dr Levy has now returned Mr Lindeberg’s request for a full investigation into why cabinet originally shredded the inquiry documents to Attorney-General, Jarrod Bleijie.
Solicitor Mr Berry is now the Queensland Government’s legal affairs committee chairman.
The two-decade saga became known as the Heiner Affair, because it was triggered by a 1989 inquiry into a Wacol youth detention centre by now-deceased magistrate Noel Heiner.
Now Mr Lindeberg says the CMC’s correct decision to rule itself out means the dispute can now only investigated by a parliamentary inquiry.
“Just because the CMC can’t handle the allegations, doesn’t mean they go away,” Mr Lindberg said.
“They are now staring the Attorney in his face. When the extent of the cover-up is finally exposed, Parliament and the people will be outraged,” he said.
“The initially alleged criminality and the cover-up must be properly and publicly investigated if we really believe in the democratic principle of equality before the law.”
The affair was triggered by the March 1990 cabinet decision to shred inquiry documents when cabinet knew Mr Berry had requested them, Mr Lindeberg says.
However, Mr Bleijie says he is still waiting on a recommendation from the Director of Public Prosecutions whether or not to proceed with charges against former cabinet ministers.
"The government agreed to all of the Inquiry’s recommendations and I am currently considering advice from the Director of Public Prosecutions,” Mr Bleijie said.
He argues the government was sticking to its 2012 promise to “fully investigate” what became known as the Heiner Affair.
Mr Lindeberg argues that because the CMC has ruled itself out of investigating why the probe took 23 years, only a parliamentary inquiry headed by three senior interstate judges can investigate the matter.
He has asked that the Parliamentary (Heiner Affair and Related Matters) Commission of Inquiry be set up urgently.
That would be a similar situation to the 1989 inquiry, headed by Sir Harry Gibbs, which led to former Supreme Court judge Angelo Vasta being removed from the bar.
Mr Carmody in July 2013 made this ruling:
"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," he wrote.
"Therefore, strictly as a matter of law, each of them is at risk of being convicted of an offence against section 129 of the Criminal Code for their role in making Cabinet Decision No. 162 of 1990."
However, Mr Carmody said the DPP must balance that against the likelihood of an appeal. They must also consider if there remains a public interest in the issue.
On February 14, 2013 former public servant Ruth Matchett also told the Carmody inquiry that cabinet ministers in 1990were warned that lawyerswanted to view the files.
In December 1989, Ms Matchettbecame the director-general of the Families Department, which oversaw management of children’s centres.
She told the inquiry she received aletter from then-solicitor Ian Berry, now the state MP for Ipswich, on February 19, 1990 informing her that his law firm Rose, Berry and Jensen's "intention to commence court proceedings".
However, former families minister Anne Warner told the inquiry on February 18, 2013 that cabinetdecided to shred the documentsrequested by Mr Berry and Peter Coyne for “the greater good”.
Mr Berry was representing Mr Coyne, the former manager of the John Oxley Youth Detention centre in 1989 and 1990.
In 1989 Mr Lindeberg was Mr Coyne’s trade union delegate.