2012 SPECIAL COMMENTARY BY WHISTLEBLOWER KEVIN LINDEBERG
Over a long period this webpage has independently drawn together all material available on the public record which goes to making up what is now commonly known across Australia and around the world as “the Heiner Affair.”
The whistleblower, Kevin Lindeberg, is not responsible for its content although it contains most of what he has written about his public interest disclosures. He has never directly made a comment on this webpage.
However, due to recent dramatic events, he was approached with a series of relevant questions, and his response is now published here.
MOVING TOWARDS THE ENDGAME
Before doing so, it is appropriate that the setting be laid out for visitors to this webpage which is dedicated to arguably Australia’s greatest unresolved scandal in public administration.
On 24 March 2012, the Newman/LNP Government was elected to power with a majority unprecedented in Queensland’s political history. This change of government took place after some 22 years of almost continuous ALP Governments during which time the alleged Heiner Affair cover-up persisted. During the election campaign, the LNP, under the new leadership of Campbell Newman, made an election promise to review the Heiner Affair.
On the afternoon of 3 April 2012, immediately following the Newman Ministry being sworn in by the Queensland Governor, the Hon Penny Wensley AC, Premier Newman informed the public that he intended to review the Heiner Affair. In that regard, the Newman Government is to be commended.
On 4BC Radio, during an interview with presenter Greg Cary on 10 April 2012, new Attorney-General, the Hon Jarrod Bleijie, reaffirmed this commitment. He said that the Newman Government was prepared to look at “fresh” and “old” evidence pertaining to the Heiner Affair. It was not limited in any way.
Then, on 29 June 2012, the Newman/LNP Queensland Government announced the establishment of the Queensland Child Protection Commission of Inquiry (QCPCI), chaired by former Queensland Crime Commissioner, the Hon Tim Carmody SC. It was to report back to the Queensland Government by 30 April 2013.
Additional to looking into child protection measures, Term of Reference 3(e) was accepted as being sufficiently wide to cover an investigation into the Heiner Affair. Commissioner Carmody assured the public that he could come to the issue as “…a complete blank sheet.”
Term of Reference 3(e) says:
“reviewing the adequacy and appropriateness of any response of, and action taken by, government to allegations, including any allegations of criminal conduct associated with government responses, into historic child sexual abuse in youth detention centres.”
A MAJOR CONFLICT OF INTEREST
On 3 July 2012, Daily Telegraph journalist Piers Akerman, in his article entitled “Conflict looms for Heiner Inquiry”, pointed out that Commissioner Carmody may not be the “complete clean sheet” he claimed to be.
This was because he was involved in the Heiner Affair when he was the Crime Commissioner in November-December 2001. The public record shows that Lindeberg met with him in December 2001 regarding
- the alleged pack rape of an indigenous 14-year-old female inmate during a supervised bush outing on 24 May 1988; and
- the associated shredding of relevant Heiner Inquiry evidence and related matters (which a Youth Worker, in November 2001, had publicly told ABC presenter Stephen Austin that he had been interrogated about this alleged pack rape when appearing as a witness during the Heiner Inquiry. One of Heiner’s secretaries witnessed the Youth Worker appearing before Heiner).
The Queensland Crime Commission (QCC) informed Lindeberg, after his meeting with Commissioner Carmody, that the sexual assault brought to its attention by him, was not only a ‘major crime’ but a potential incident of “criminal paedophila” under the Crime Commission Act 1997, for which the Commission had a standing reference to investigate. That is, the QCC was obliged to act, and could instantly act, without going to its Reference Committee, when any such incident came to public knowledge of which it was aware. An investigation did not ensue at the time, let alone earlier in November 2001 when this incident of prima facie criminal paedophlia was first reported in The Courier-Mail on 3 November 2001 in an article written by Associate Professor Bruce Grundy, and even when he (Grundy) subsequently contacted the QCC about his article several days later on 5 November2001.
So, on 17 July 2012, when the QCPCI held its directions hearing, Lindeberg’s counsel signalled that an application would be made for Commissioner Carmody to disqualify himself from hearing the Heiner Affair pursuant to Term of Reference 3(e). This was done because he would be called on to investigate himself and judge in his own cause; a matter at law which is strictly prohibited. It was Lindeberg’s desire to protect the integrity of the Inquiry’s processes and findings. It was to ensure that justice was not only done, but seen to be done by the decision-maker (i.e. Commissioner Carmody) without any personal interest in his decision outcome. Grundy joined Lindeberg in the recusal application.
On 20 July 2012, probably one of the most important days in this long-running scandal’s history occurred. Lindeberg delivered to the QCPCI his recusal application papers.
In effect, he delivered “the Heiner Affair Papers” which included the 10-Volume Rofe QC Audit of the Heiner Affair. Inescapably, the QCPCI could not then “un-know” what it knew about the wide scale systemic corruption caught up in the Heiner Affair.
This Audit is widely reported as containing a detailed examination of the particular acts and acts of omission of the original alleged wrongdoing by certain elected and appointed parties, and how certain public officials in “the instrumentalities of the State government” subsequently handled Lindeberg’s allegations when approached by him over a protracted period and could not find any wrongdoing in the shredding and related matters, which have been widely described as “the systemic cover-up.”
The Audit has been publicly reported in the media to have found sufficient evidence to find 68 alleged prima facie criminal offences capable of being made out against certain (elected and appointed) public officials.
NOW AVAILABLE TO THE PUBLIC
“The Heiner Affair Papers” were accepted into evidence by the QCPCI on 24 July 2012.
They have been called Exhibit 5 of the Recusal Hearing. They are now publicly available. http://www.childprotectioninquiry.qld.gov.au/__data/assets/pdf_file/0007/159685/QCPCI_Recusal_Exhibit_5_-_Application_by_Kevin_Lindeberg_re_recusal.pdf
To obtain a copy of the Rofe QC Audit (probably in a redacted form on a posted CD), one is required to contact the QCPCI and request it because it is too large to upload. It is Attachment 2 to Exhibit 5.
Phone Number 1300 505 903 email@example.com
On 24 July 2012, counsel for the various parties presented their oral submissions as why Commissioner Carmody should or should not stand aside. It is strongly recommended that what was said is read carefully.
The issue of recusal turned on what the word “government” meant in Term of Reference 3(e). Lindeberg’s counsel argued that it had to be interpreted in the “broad” sense, as in “whole of government” as to mean “the instrumentalities of government” like the Department of Families, Police Department, CJC/CMC, DPP, etc, including the Queensland Crime Commission which Commissioner Carmody headed at the relevant time. Under these circumstances, Commissioner Carmody would be ‘party and judge.’
The other recusal applicant, Bruce Grundy, argued that the reasonable person on the Clapham Omnibus – in this case the St Lucia Omnibus – acquainted with the facts would believe that “government” was to be understood in the “broad”, and hence Commissioner Carmody should recuse himself because he could not investigate himself, no matter whether he thought he had previously acted appropriately.
In argument, it was accepted that the interpretation of “government” in the broad sense also included the Office of the State Governor.
Oddly, against earlier public comment by the Newman Government regarding the breadth of the promised Inquiry (i.e. it would look at unfettered “new” and “old” evidence), the transcript reveals that Ian Hanger QC, counsel for the Newman Government and Michael Copley SC, counsel assisting the QCPCI, argued for a “narrow” interpretation, as to mean just “...the Premier and Cabinet Ministers.”
In his 24 July 2012 Recusal Ruling, Commissioner Carmody adopted the “narrow” interpretation of “government” to mean only “...the Premier and Cabinet Ministers.”
When doing so, he had possession of and had read “the Heiner Affair Papers” and ruled out looking into the conduct of the CJC, CMC, DPP, Queensland Police Service, Department of Families etc, including the Queensland Crime Commission of which he was the head at the relevant time in November-December 2001.
On 25 July 2012, Daily Telegraph journalist Piers Akerman accused Commissioner Carmody of choking the Inquiry which the Newman Government had established to investigate the Heiner Affair.
On 26 July 2012, during a talkback interview on radio 4BC, Premier Newman was challenged about this extraordinary Ruling by a person who had witnessed the Hearing. Premier Newman indicated that he firmly believed that “anyone with any evidence” about the Heiner Affair was open to go to the Carmody Inquiry to have their evidence reviewed.
Hence, we have a serious disconnect between the QPCCI, Newman Government and its 2012 election promise to the Queensland people to review the Heiner Affair.
On the question of whose interpretation of “government” is right, that is, Commissioner Carmody SC, Premier Newman, Attorney-General Bleijie, Hanger QC, Copley SC or Lindeberg and Grundy, hangs a great deal concerning the governance of Queensland and, for that matter, Australia in respect of whether this scandal is going to be properly investigated.
It’s against this extraordinary backdrop that the following questions were put to whistleblower Kevin Lindeberg.
Q1. Mr Lindeberg, what are the various implications flowing from this 24 July 2012 Recusal Ruling if it stands and if the Newman Government does not now broaden the definition of “government”, as to mean “whole of government”, that is, Executive Cabinet (i.e the Premier and Cabinet Ministers) and “the instrumentalities of the State”?
A1. This narrow Ruling effectively politicises the Heiner Affair. That’s not good. This Inquiry has ruled that it will only look at what the politicians have and haven’t done at particular times, and presumably whether their acts or acts of omission may have breached the law.
The principles at stake in the Heiner Affair are above party politics. They’re about government by the rule of law. It has never been about any party political witch-hunt.
The simple truth is that Cabinet simply doesn’t act in a vacuum by its own collective wisdom or by Ministers gathering facts by themselves. The public service advises Cabinet and public servants act on Cabinet decisions, as in implementing policies. Government cannot function without this interchange of information. It’s a two-way street. Cabinet acts on advice in respect of most of its deliberations. That advice comes in the main from the public service.
One of the issues in the Heiner Affair is whether or not those acts were lawful when involving the Cabinet, in particular the shredding. It would be unfair and unjust to ignore what the associated public officials did regarding those same acts. They work in concert.
The major public concern over the Heiner Affair is whether or not there’s been a systemic cover-up after the initial decision to destroy the evidence. Since 1899, section 129 of the Criminal Code declared it unlawful to destroy any document or thing when known to be required as evidence in judicial proceedings.
Eminent retired judges have suggested that there may have been illegal conduct. The Rofe QC Audit supports that view. As with all great political scandals, it’s the cover-up that finally undoes it. Insofar as the issues can be contained to just the Cabinet by the Carmody Inquiry, which many doubt, this Ruling effectively turns a blind eye to what “the instrumentalities of the State” did and didn’t do. It’s going to ignore the main source of the alleged serious criminal cover-up, as well as the associated child abuse.
Public officials working in various instrumentalities apply and enforce the law, not politicians. Politicians don’t investigate child abuse or crime. Public officials do that. To suggest otherwise is to ignore administrative and political reality. There is a separation of powers within the overall “doctrine of the separation of powers.” This ruling, handed down by a quasi-judicial proceeding, has dangerously blurred this separation of powers. It has taken the “doctrine of ministerial responsibility” to an impractical and dangerous level. Ministers cannot be reasonably held responsible for any and every element of wrongdoing inside their departments, but in some cases, where a clear linkage exists, they should be. In the Heiner Affair, the linkage is indisputable.
Government by the rule of law certainly means that politicians should be held to account for their actions at law, but so too should public officials. Public servants are specifically obliged at law to always act honestly, impartially and in the public interest. It’s the alleged breaches of this important obligation by certain public officials which lies at the heart of the Heiner Affair, not so much what the politicians did or didn’t do. This Ruling has turned its back on this conduct. It did so even when evidence in its possession at the time of the decision suggested that many public officials may have broken the law to aid in the cover-up which protected the Cabinet from facing the legal consequences of its actions.
My pursuit of justice over 22 years has never been just about politicians who may have done wrong. It’s been more about restoring integrity to our system of government, of which politicians are only one part. It’s about no one being above the law, citizen, politician or public official, no matter how high the office.
If there is no public trust in government to deliver justice, people may seek it by other unlawful means, and that must be avoided at all costs. It’s the shortcut to anarchy. This “narrow” Ruling does nothing to persuade aggrieved people, including abused children, to put their faith in the machinery of government if its failures are to escape scrutiny.
I strongly urge people to download Exhibit 5. Read the recusal pleading and especially Attachment 1, the abridged Chronology of Events. They should contact the Inquiry and request a copy of the Rofe Audit, Attachment 2. Once they have become better acquainted with the facts, they will understand why we made our recusal application, and just how vast the alleged systemic cover-up has been.
Q2. What do you recommend anyone interested in having the matter resolved should do after the read Exhibit 5?
A2. Generally speaking, I let each person decide what is right for him or her. It’s really a question about whether one believes in government by the rule of law, or one side of politics taking its turn in government and to hell with the consequences. It’s called “Now it’s our turn!” If the law doesn’t apply to those in power, then I believe that’s a form of fascism/totalitarianism which I deeply abhor. It’s equality before the law which keeps us free, not any allegiance to one political party over another. Complying with, or fawning to the notion of my political party right or wrong is the highway to hell. Abuse of power must be resisted otherwise we can too easily slip into tyranny. What should one do? Agitate the Newman Government, your local MP and the media for the truth to come out and let the law takes its course, no matter how high the office holder.
Q3. Mr. Lindeberg, earlier this year every Senator in the Australian Senate was given a copy of the Rofe Audit on Australia Day 2012. Can you tell us what brought that about and what feedback you had from the Senate Leaders or individual Senators?
A3. “The Heiner Affair Papers” went to the Senate under Standing Order 81 showing each Senator where the Senate may have been previously misled regarding material evidence provided by the (then) Queensland Government and the CJC/CMC to certain Senate Select Committees when they heard the Heiner Affair. In particular, the untenable interpretation of section 129 of the Criminal Code put forward by them.
The interpretation was an utter absurdity and never properly open to be put.
If people read Attachment 1 to Exhibit 5, the Abridged Chronology of Events, they will read why it was put to each Senator, and what legal/ethical obligation they face given what each now knows regarding what is in the Rofe QC Audit. Just as the QCPCI cannot un-know what it now knows, neither can the Senate.
It gives rise to very serious, unprecedented constitutional questions which each Senator knows about, but, to date, has done nothing about. What they know in respect of this matter I strongly believe that each Australian should know about.
So, it remains unfinished business with the Australian Senate, and, for that matter, the House of Representatives.
Q4. In March 2012 you addressed the Australians for Constitutional Monarchy Conference in Toowoomba. How is a Constitutional Monarchy affected by a matter like the Heiner Affair if allowed to go unchecked or unresolved?
A4. Those who are interested should first read my address. http://www.ourconstitution.org/kevin-lindeberg-tba-address-03-12.php There is a fundamental issue at stake in the Heiner Affair, possibly a pinnacle issue brought about by circumstances beyond my control between 2003 and 2008. It’s whether the Governor/ Governor-General is above the law in carrying out his or her constitutional function when it comes to deciding whether or not a government may be persisting in acting above the criminal law.
If a Governor decides to do nothing, does the law remain silent in respect of the Governor’s decision? Is a Governor always obliged to follow the advice of the Government of the day?
We say that the law doesn’t remain silent, because, in exceptional circumstances, the final decision rests with the Governor and because he or she is not always bound by what the government of the day advises.
Put simply, it’s the law that binds us all in a democracy.
Since 1688, the foundation stone of a properly functioning constitutional monarchy system of government is that no one is above the law, including our Monarch. What occurred between 2003 and 2008 in the Heiner Affair has brought into sharp focus, the issue of how our Governors and Governors-General are appointed, and whether or not Her Majesty, based in London, really has any say in who will exercise the reserve powers of the Crown in Australia, which, in times of national crisis, can be absolutely vital to preserving our rights and freedoms.
For Australia, it may be sheer distance from our Monarch which finally cripples our relationship. I’m not certain it does, however the question has undoubtedly arisen, and can’t be ignored.
Like all Australians, I believe that we need to be absolutely assured in the appointment process of the integrity of our Monarch’s representatives here in Australia. Why? It’s because they can be called on to exercise all the powers of the Crown in times of national crisis when a government may seek to persist in unlawful conduct. It’s an awesome responsibility but one which cannot be avoided if the office holder takes their oath of office seriously.
As all the cards have fallen, most of them beyond my control, the facts of the Heiner Affair have made this a necessary national debate, possibly never more so since Federation.
We must have the courage to face these matters if we believe in the rule of law and if we want a better understanding of what our system of government can and can’t do. Those who have gone before and those who are yet to come would surely expect nothing less of us as living Australians now.
Inevitably, because 6 sitting Queensland judicial officers are involved in this Affair, a properly constituted parliamentary commission of inquiry into the Heiner Affair and Related matters, established by an Act of Parliament and headed by three interstate senior judges, will also have to look at this element.
Q5. Can you confirm that the Heiner Affair is now taught to senior secondary school students in Queensland Education in two OP streams? If this is correct, don’t you find it amazing that there has never been a court appearance or a trial about the illegal shredding of the Heiner Inquiry documents yet it is now part of legal studies?
A5. It’s true that since 2009, it’s been taught in the Business, Communications and New Technology syllabus, and since 2012, in the Legal Studies syllabus. It’s been independently assessed and considered appropriate to study in our schools as a serious topic.
It doesn’t surprise anyone that it is taught in schools because it encompasses all the great democratic and legal values-cum-principles. Proper recordkeeping and protection of evidence are fundamental building blocks in all civilized societies.
I have regularly lectured senior students on the Heiner Affair by invitation in secondary schools. I simply recount the facts. I stay absolutely away from party politics. I regularly lecture local and international post graduate students at the Queensland University in the area of governance and whistleblowing using the lessons of the Heiner Affair.
I know that it is written about in text books for archives studies around the world. It is the subject of lectures in universities and international forums around the world, including China, Japan, Canada United Kingdom and the United States. We’ve come a long way since my dismissal in 1990 when trying to preserve these public records.
You ask about the absence of prosecutions. After 22 years, nothing surprises anymore. In 2007 The Australian ridiculed and accused me of being driven by right-wing extremists, associated with the League of Rights, and being the Pied Piper of Conspiracy Theorists. I’m none of those things. I have nothing whatsoever to do with so-called right wing extremists. I abhor anti-Semitism. I run my own race. I stick rigidly to the facts.
It’s not remarkable that no one has been put before the courts when one realizes what abuse of power has been occurring in Queensland for the last 20 odd years. The system has failed. In 2004, the same authorities charged a Baptist Pastor over his destruction-of-evidence conduct, and he was found guilty when section 129 was applied correctly. When he was successfully prosecuted the authorities knew that those involved in the Heiner Affair shredding had that same law applied differently and incorrectly, and in a manner for which Parliament and the Code’s eminent drafter, Sir Samuel Griffith, never intended.
Applying the criminal law by double standards to knowingly advantage “the governors” over “the governed” is tyranny. People who care about freedom and democracy should resist such abuse of power.
The Senate should face up to its responsibility. It has a duty to protect its privileges. Turning a blind eye to the Australia Day Delivery of “the Heiner Affair Papers” will only bring that institution into disrepute. The Senate should look again at whether or not it was previously knowingly misled over key elements in the Heiner Affair, especially regarding section 129.
In Queensland, the Newman Government should be pressed to finally resolve this great injustice. It should do so not just because of the victims involved but so that our kids and their kids can instead of reading about this matter remaining unresolved, read about justice being done so that they can start believing in government by the rule of law, and not by a network of mates looking after mates.