THE HEINER AFFAIR

The following Statement of Concern II on the Heiner Affair was delivered on 22 June 2010:

 

21 June 2010

 

The Hon Anna Bligh MLA                                                                      

Queensland Premier and Minister for the Arts

Executive Building

80 George Street

BRISBANE QLD 4000

 

Mr John-Paul Langbroek MLA

Leader of the Opposition

Parliament House

George Street

BRISBANE QLD 4000

 

Dear Premier and Opposition Leader

THE HEINER AFFAIR - ANOTHER MATTER OF CONCERN

We, the undersigned, being former judges, legal practitioners, academics, professional archivists and records managers, and concerned citizens feel it necessary to issue a public Statement of Concern to supplement the original statement issued in August 2007. This is due to a new development in the as-yet unresolved Heiner Affair.

We reaffirm the fundamental principle expressed in the 2007 Statement that it is the democratic right of every Australian to have the criminal law applied equitably to all in materially similar circumstances by law-enforcement authorities throughout the Commonwealth of Australia. That is at the heart of the Rule of Law. We reaffirm that an action by Executive Government which may have breached the law ought not be immune from criminal prosecution where and when the evidence satisfies the relevant elements of the offence. To act otherwise undermines the Rule of Law and thus confidence in government because it places the Executive Government above the law.

A Parliamentary oversight committee, such as the Queensland Parliamentary Crime and Misconduct Committee (PCMC) watching over an integrity tribunal like the Crime and Misconduct Commission (CMC), must act consistently, predictably and equally in materially similar circumstances when dealing with breaches of the law just as all Crown decision-makers in the Judiciary or Executive Branch of Government (e.g. judges, police officers, prosecutors and others) are sworn to do.

Our most recent concern has arisen as a result of the manner in which the majority PCMC government members handled the Heiner Affair within their ‘legislative framework’ under s 295 of the Crime and Misconduct Act 2001 (Qld). That provision imposes an obligation on the PCMC for its decision outcomes to be bipartisan in resolving complaints against the CMC.

In their 7 January 2009 decision, the majority (government) PCMC members decided not to refer certain allegations in the Rofe QC Audit of the Heiner Affair to an acting Parliamentary Commissioner for independent review and report. This majority decision has been erroneously presented as functus officio i.e. as meaning that the PCMC had completed its task. We submit that a cogent argument exists that such a non bipartisan majority PCMC decision is a nullity at law, and therefore, cannot be considered as a decision at all.

If this law is interpreted otherwise, a serious mischief arises which is too significant to ignore. This is because the mischief defeats the purpose of the Crime and Misconduct Act 2001 (Qld), in particular, the key bipartisan watchdog role of the PCMC as the pinnacle accountability organ of the Fitzgerald Reform Process.  Indeed, we submit that this misinterpretation of s 295 of the Crime and Misconduct Act 2001 (Qld), as applied in the Heiner Affair, is so serious that the proper functioning of the Fitzgerald Reform Process may be crippled in the longer term unless it is remedied. 

We accept that a majority of the PCMC may honestly arrive at a decision on a complaint. However, given that s 295(3) of the Crime and Misconduct Act 2001 (Qld) requires bipartisanship in relation to a decision "to refer" or "not refer", a majority PCMC decision that is entirely partisan in its makeup cannot be regarded as anything other than a legal nullity.

In such a circumstance, being a decision-making committee acting on behalf of the Parliament, the PCMC should have reported the position that had arisen to Parliament for further consideration rather than present it as a decision of the PCMC. This may have resulted in the PCMC being required to reconsider the matter, or for it to take another appropriate course, such as was suggested in the August 2007 Judges’ Statement of Concern on the Heiner Affair namely that an independent Special Prosecutor be appointed to investigate the whole affair.

It concerns us that s 129 of the Criminal Code (Qld) regarding destruction of evidence could have ever been so erroneously interpreted in the first instance by the CJC, and never remedied afterwards when this serious flaw was pointed out first by highly respected senior counsel from as early as 1995 as well as subsequently, as authoritatively occurred in the Queensland Appeal Court in R v Ensbey; ex parte A-G (Qld) [2004] QCA 335.

These serious questions require answers because they impinge on the public's confidence in the administration of justice and in government itself. If, as a non bipartisan majority of the PCMC has determined, these matters are outside its jurisdiction, then the importance of the questions necessitates a need for another forum to consider them.

Accordingly, this further public Statement of Concern urges that the serious questions concerning the proper interpretation and application of s 295(3) of the Crime and Misconduct Act 2001 (Qld) by the majority PCMC government members in handling the Heiner Affair be addressed urgently by the appointment of an independent Special Prosecutor or equivalent.      

*SIGNATORIES TO THE HEINER AFFAIR

 - ANOTHER MATTER OF CONCERN

*All original signatures are held in the possession and control of Mr. David F Rofe QC in his Sydney Chambers, 12th Floor, 180 Phillip Street, Sydney NSW 2000

............................................................................

The Hon R P Meagher QC - Retired Justice of the Supreme and Appeal Court of New South Wales

............................................................................

The Hon David K Malcolm AC CitWA, former Chief Justice of Western Australia

............................................................................

The Hon Barry O’Keefe AM QC, Retired Justice of the Supreme Court of NSW,  former ICAC Commissioner

............................................................................

Associate Professor David Field, Law Faculty, Bond University

............................................................................

Alastair MacAdam, Senior Lecturer, Law Faculty, QUT Brisbane, and Barrister-at-law

............................................................................

Gordon Harris, Solicitor – President, Whistleblowers Action Group, Qld Inc 

............................................................................

Greg McMahon – National Director, Whistleblowers Australia 

............................................................................

Professor Kenneth Wiltshire AO – J.D. Story Professor of Public Administration

 University of Queensland Business School  

...........................................................................

 Jeffrey Phillips SC (NSW)

............................................................................

The Hon Ray Halligan, former Chairman of the Parliamentary Corruption and Crime Committee, Parliament of Western Australia 

............................................................................

Jackie Bettington – President – Australian Society of Archivists

............................................................................

Kate Walker - Chief Executive Officer - RMAA - Records Management Association of Australasia

............................................................................

Dr Frank McGrath – Retired Chief Judge Compensation Court of New South Wales

CC:   Her Excellency the Governor of Queensland, the Hon Penelope Wensley AO;

         The Honourable Paul de Jersey, AC, QC, Chief Justice of the Queensland Supreme Court;

         The President of the Queensland Bar Association; and

         The President of the Queensland Law Society.


 

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