Two decades on and search for justice in the Heiner Affair continues
- PIERS AKERMAN From: The Australian August 11, 2012 12:00AM
AN extraordinary document has been lodged with Queensland's Child Protection Commission of Inquiry and released to the public. In support of an application for the Commissioner to recuse himself, it includes unsubstantiated claims that there may be sufficient cause for the conduct of the Governor-General Quentin Bryce and six serving Queensland judicial officers to be investigated for possible breaches of Section 87 of the Queensland Criminal Code, relating to official corruption.
The claims against the Governor-General and Appeals Court Judge Catherine Holmes, Acting Supreme Court Justice Julie Dick, District Court Judge Leanne Clare, Chief Magistrate Brendan Butler, Magistrate Noel Nunan and State Coroner Michael Barnes are part of the 10-volume report prepared by senior Sydney QC David Rofe and running to 2693 pages which was used in support of the application. The document does not claim wrongdoing on the part of the named individuals, but calls for examination of the matter.
The report also makes similar claims against Commissioner Tim Carmody SC, a former Commissioner of the Queensland Crime Commission and many other senior figures in the Queensland legal and public service establishment.
Rofe's "audit" of the so-called Heiner Affair was prepared for his former client, Kevin Lindeberg.
The Heiner Affair is focused on the decision by the Goss Labor government to shut down former Magistrate Noel Heiner's inquiry into child abuse 22 years ago, and to shred evidence of the pack rape of an Aboriginal teenager in care of the John Oxley Youth Centre, as well as of other incidents of child abuse. Those public records were known to be wanted by a number of public servants in foreshadowed judicial proceedings (alleged by the report to be a breach of Section 129 of the Queensland Criminal Code, which relates to the destruction of evidence).
The Child Protection Commission was appointed by Premier Campbell Newman as the fulfillment of a pre-election promise.
At its initial hearing on July 17, Commissioner Carmody was asked to recuse himself by Lindeberg's lawyer, Michael Bosscher, and former journalist Bruce Grundy on the grounds that he had failed to act after extensive coverage in The Courier-Mail of the abuse, and an official complaint lodged with the QCC when he was commissioner in 2001.
The Commission itself defined the particular incident at that time as possible "criminal paedophila" for which it had a standing reference to act on immediately. Instead, it is alleged that it did nothing.
Commissioner Carmody decided not to step aside, ruling that the QCC was not a part of the Queensland government, which he interpreted as "the political executive; that is, the Premier and Cabinet".
This narrow interpretation is at odds with the definition set out in the Australian Policy Handbook, the standard operating manual for public servants throughout the commonwealth, authored by Catherine Althaus, Peter Bridgman and Glyn Davis.
It notes that government is compromised of "departments and statutory authorities" and states that "public servants are part of the executive arm of government".
An appeal against Commissioner Carmody's ruling is being considered.
Mention Heiner to some people in the media and politics and their eyes glaze over. Their standard response, echoed by former Queensland Labor premiers Peter Beattie and Anna Bligh is that all the material has been exhaustively examined and dealt with.
This is simply not true.
Others say that Lindeberg is an obsessive and should be sympathetically ignored.
Heiner is about an injustice, compounded by a cover-up which remains unexplored.
The first inquiry by the Criminal Justice Commission in 1993 allegedly misinterpreted S129 to suggest the law authorised the destruction of known and foreseeable evidence before anticipated/foreshadowed judicial proceedings commenced; it also allegedly misquoted and misinterpreted a key "access" regulation (Public Service Management and Employment Regulation 65); and is accused in the Rofe report to have incorrectly regarding the "ex gratia/special" payment made to the former Centre Manager under the then Financial Administration and Audit Act 1977.
The report of the 1993/1994 Senate Select Committee on Public Interest Whistleblowing, In the Public Interest, chaired by Senator Jocelyn Newman, Premier Newman's mother, unanimously recommended that "the Lindeberg allegation" be reviewed by the Goss government.
In 1996, a report by Tony Morris QC and Edward Howard found "on the papers" numerous prima facie criminal and/or official misconduct offences having been committed by various public officials and recommended an immediate public inquiry.
Their inquiry was denied access to relevant February/March 1990 cabinet submissions by then opposition leader Peter Beattie. It did not look at the child abuse.
Those submissions are now publicly held and appear to show that all members of the Goss cabinet on March 5, 1990, and certain public officials knew that the "public records" were required as evidence when they ordered and carried out their secret shredding on March 23, 1990.
(It is relevant to note that with such knowledge, and to a lesser degree, and having attempted to destroy an abuse victim's diary in 1996, Pastor Douglas Ensbey was charged, tried and found guilty first in the Queensland District Court in March, 2004, and, then again, by an appeal by the Beattie government in the Queensland Court of Appeal in September 2004, on the basis that his crime was a serious assault on the administration of justice and he deserved to go to jail. Clearly, lapse of time was no barrier to Queensland justice in the Ensbey case.)
The House of Representatives Standing Committee on Legal and Constitutional Affairs in its 2003/2004 national investigation into "Crime in the Community; victims, offenders and fear of crime" recommended that all members of the March 5, 1990 Goss cabinet be charged under S129, and S132 - conspiracy to defeat justice - and that S140 - attempt to defeat justice - of the Criminal Code might arise.
It also recommended a special prosecutor be appointed to investigate all aspects of the Heiner Affair, as well as allegations of abuse at John Oxley Youth Centre that may not have been aired as part of the Heiner inquiry and may not have been considered by former Queensland government governor Leneen Forde's inquiry into child abuse in 1998/1999 or other inquiries; and that all available evidence be provided including, inter alia, all cabinet documents and advices tendered to government (including the DPP's January 1997 advice to the Borbidge government which interpreted section 129 incorrectly).
In 2005, the Queensland Crime and Misconduct Commission dismissed a request by then opposition leader Lawrence Springborg to examine the Heiner Affair in light of the Ensbey prosecution.
The QCMC dismissed the request citing, inter alia, "staleness" and saying it was not in the "public interest".
It did, however, attract the interest of former High Court Chief Justice Harry Gibbs, who advised on April 15, 2005, that the reported facts of the Heiner Affair represented, at least, a prima facie offence under S129.
It also triggered a statement from an impressive roster of retired judges in August 2007, including a former Chief Justice of WA, a former Chief Judge of the NSW Compensation Court, and former justices of the Supreme and Appeal Court of NSW and a former Commissioner of the NSW Independent Commission Against Corruption.
They supported Gibbs's view and, addressing the "staleness" point, said: "Under the circumstances, we suggest that any claim of 'staleness' or 'lack of public interest' which may be mounted now by Queensland authorities not to revisit this matter ought to fail.
"Neither the facts, the law nor the public interest offer support in that regard. However, should such a claim be mounted, we suggest that it would tend to be self-serving and undermine public confidence in the administration of justice and in government itself knowing that the 2004 Ensbey conviction, taken by the same Queensland Crown, did not occur until some 9 years after the relevant destruction-of-evidence incident."
Annette McIntosh, the young rape victim at the sad heart of this matter, still wants justice.
She was awarded approximately $140,000 in a hush-hush ex gratia payment or possibly compensation in June, 2010, by the Bligh Labor government.
Despite the gag order attached, she told the Brisbane Times the payment was "yucky dirty money" and said she still wanted the case tried in a criminal court.
The Heiner Affair is now taught to Queensland Education's senior students sitting their university entrance exams in legal studies and business, communications and new technologies and sound public record keeping.
It is the subject of study internationally by those interested in government accountability.
Last June, an attempt to investigate the Heiner Affair was sunk in the Senate when former Family First senator Steve Fielding voted with Labor and the Greens to prevent a private members bill introduced by Senator Nick Xenophon from proceeding.
The Child Protection Commission has been deluged with requests for the Rofe Audit, Exhibit 5 (attachment 2) and has asked that callers use its website email@example.com when seeking a copy.
The commission will send a disc with the material to those whose internet cannot handle the huge file.
For McIntosh, a 14-year-old at the time of the attack, the cover-up and the injustice has continued long enough.