Call for charges over Heiner affair
Senator Barnaby Joyce
17/9/07 - ADJOURNMENT SPEECH - Heiner Affair and Lindeberg Grievance
Senator JOYCE (Queensland) (9.50 p.m.)—
I would like to read two letters onto the record tonight. The first letter is from the Hon. Jack Lee AO QC, Retired Chief Judge at Common Law Supreme Court of New South Wales; co-signed by Dr Frank McGrath, Retired Chief Judge, Compensation Court of New South Wales; co-signed by Alastair MacAdam, Senior Lecturer in Arts Law, Law Faculty, QUT Brisbane, and Barrister-at-Law; co-signed by the Hon. Justice RP Meagher QC, former Justice of the Appeal Court of New South Wales; co-signed by Alex Shand QC, leading QC in Australia; and also co-signed by Barry O’Keefe, former Chief Judge, Commercial Division, Supreme Court of New South Wales and former Commissioner of the Independent Commission against Corruption in New South Wales. It is addressed to the Hon. Peter Beattie MLA:
THE HEINER AFFAIR - A MATTER OF CONCERN
We, the undersigned legal practitioners formerly on the Bench, currently at the Bar or in legal practice, seek to re-affirm our sworn duty to uphold the rule of law throughout the Commonwealth of Australia and to indicate our deep concern about its undermining as the unresolved Heiner affair reveals.
We believe that it is the democratic right of every Australian to expect that the criminal law shall be applied consistently, predictably and equally by law-enforcement authorities throughout the Commonwealth of Australia in materially similar circumstances. We believe that any 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 provision.
To do otherwise. we suggest would undermine the rule of law and confidence in government. It would tend to place Executive Government above the law.
At issue is the order by the Queensland Cabinet of 5 March 1990 to destroy the Heiner Inquiry documents to prevent their use as evidence in an anticipated judicial proceeding, made worse because the Queensland Government knew the evidence concerned abuse of children in a State youth detention centre, including the alleged unresolved pack rape of an indigenous female child by other male inmates.
The affair exposes an unacceptable application of the criminal law by prima facie double standards by Queensland law-enforcement authorities in initiating a successful proceedings against an Australian citizen, namely Mr. Douglas Ensbey, but not against members of the Executive Government and certain civil servants for similar destruction-of-evidence conduct. Compelling evidence suggests that the erroneous interpretation of section 129 of the Criminal Code (Qld) used by those authorities to justify the shredding of the Heiner Inquiry documents may have knowingly advantaged Executive Government and certain civil servants.
This serious inconsistency in the administration of Queensland’s Criminal Code touching on the fundamental principle of respect for the administration of justice by proper preservation of evidence concerns us because this principle is found in all jurisdictions within in the Commonwealth as it sustains the rule of law generally.
The Queensland Court of Appeal’s binding September 2004 interpretation of section 129 in R v Ensbey; ex parte A-G (Qld)  QCA 335 exposed the erroneous interpretation that the (anticipated/imminent) judicial proceeding had to be on foot before section 129 could be triggered.
We are acquainted with the affair* and specifically note, and concur with, (the late) the Right Honourable Sir Harry Gibbs GCMG, AC, KBE, as President of The Samuel Griffith Society, who advised that the reported facts represent, at least, a prima facie offence under section 129 of the Criminal Code (Qld) concerning destruction of evidence.
In respect of the erroneous interpretation of section 129 adopted by Queensland authorities, we also concur with the earlier 2003 opinion of former Queensland Supreme and Appeal Court Justice, the Hon James Thomas AM, that while many laws are indeed arguable, section 129 was never open to that interpretation.
Section 129 of the Criminal Code (Qld)—destruction of evidence—provides that:
“Any person who, knowing that any book, document, or other thing of any kind, is or may be required in evidence in a judicial proceeding, wilfully destroys it or renders it illegible or undecipherable or incapable of identification, with intent thereby to prevent it from being used in evidence, is guilty of a misdemeanour, and is liable to imprisonment with hard labour for three years.” (Underlining added).
It concerns us that such an erroneous view of section 129 was persisted with for well over a decade despite the complainant, supported by eminent lawyers, pointing out the gravity of their error consistently since 1990 when knowing its wording and intent were so unambiguous, with authoritative case law available for citing dating back as far as 1891 in R v Vreones.
Evidence adduced also reveals that the Queensland Government and Office of Crown Law knew, at the time, that the records would be discoverable under the Rules of the Supreme Court of Queensland once the expected writ/plaint was filed or served. With this knowledge, the Queensland Government ordered the destruction of these public records before the expected writ/plaint was filed or served to prevent their use as evidence.
Such scandalizing of these disclosure/discovery Rules by the Executive also concerns us. So fundamentally important is respect for these Rules that the Judiciary’s independent constitutional functionality depends on it.
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.
Senator George Campbell—Mr President, I rise on a point of order. I am not trying to restrict Senator Joyce from reading what he is reading, but if this is a public document then why are we going through the process of reading it into the transcript when it is already on the public record? If it is not, what is the purpose of this?
The PRESIDENT—There is no point of order, Senator Campbell. If Senator Joyce wants to read something already on the public record into the Hansard, he is quite entitled to.
Senator JOYCE—I will continue. The letter says:
This affair encompasses all the essential democratic ideals. The right to a fair trial without interference by government and the right to impartial law-enforcement, to say nothing of respecting the rule of law itself rest at its core. Respecting the doctrine of the separation of powers and our constitutional monarchy system of democratic government are involved.
We believe that the issues at stake are too compelling to ignore.
We suggest that if the Heiner affair remains in its current unresolved state, it would give reasonable cause for ordinary citizens, especially Queenslanders, to believe that there is one law for them, and another for Executive Government and civil servants.
We find such a prospect unacceptable.
We urge the Queensland Government to appoint an independent Special Prosecutor as recommended by the House of Representatives Standing Committee on Legal and Constitutional Affairs in its August 2004 Report (Volume Two—Recommendation 3) following its investigation into the affair as part of its national inquiry into “Crime in the community: victims, offenders and fear of crime”.
Such an independent transparent process we believe will restore public confidence in the administration of justice throughout the Commonwealth of Australia, more especially in Queensland.
I turn now to another document that I table. It is from Ryan & Bosscher Lawyers. It says:
Dear Mr Beattie,
RE: THE “HEINER AFFAIR”
We act on behalf of Mr Kevin Lindeberg in relation to a series of events and allegations referred to commonly as the Heiner Affair.
A leading Sydney Queens Counsel, Mr David Rofe QC, assisted by our client, has prepared over the last two years a detailed chronology of matters and events commencing with the alleged pack rape of a fourteen year old Aboriginal female inmate from the John Oxley Youth Detention Centre (“JOYC”) in late May 1988; the setting up by the Cooper Government of a Departmental Inquiry presided over by retired Magistrate Noel Heiner in November 1989; the extraordinary and unexplained destruction of documents said to be Cabinet documents during February and March 1990 by the new Goss Government; together with ancillary conduct which appears to have been a “cover up” of the above events by the Goss Government’s Cabinet, certain ministerial staff and public servants holding senior positions in the Queensland Public Service.
It is the case, despite all of the information available, that the alleged rapists of the fourteen year old inmate are still at large and have never been charged with this offence.
Mr Rofe QC, as a result of Mr Lindeberg’s efforts in collecting and collating relevant material over many years, had been able to identify no less than 67 prima facie cases of alleged breaches of the Criminal Code, and other statutes by members of the Goss Cabinet, other ministerial staff, senior public servants and other persons all of whom have been complicit in the destruction of the Heiner documents and the apparent suppression and cover up of these activities.
I note that you are on record in the Parliament stating that if politicians and/or public servants are reasonably suspected of being involved in possible breaches of the criminal laws of this State, whether they be of your political persuasion or otherwise, you would do nothing to stand in the way of ensuring that they are bought to account before our Courts.
Mr Rofe believes that there is prima facie evidence that members of the Goss Cabinet, certain of their staff and certain public officials in March 1990 illegally authorised, and/or were complicit in, causing the destruction of the Heiner documents knowing that they were evidence realistically required for a judicial proceeding (inter alia litigation involving Mr Coyne and the physical and sexual abuse of children held in care and custody of the State of Queensland at the JOYC).
It is Mr Lindeberg’s view, and that view is shared by this office and Mr Rofe, that neither the former CJC, the Queensland Police Service or the Crime and Misconduct Commission (or any other body for that matter) has ever conducted a full and proper investigation/enquiry investigating this matter to completion.
The purported “exoneration” of relevant persons by the CJC in January of 1993 has clearly been discredited by the material collated by Mr Lindeberg and the review conducted by Mr Rofe. We note it is on the public record, at an earlier time when considering the same facts, that other eminent jurists such as Mr Ian D F Callinan QC (as he was then) in 1995, and former Chief Justice of the High Court, the late Hon Sir Harry Gibbs GCMG AG KBE in 2005, have also discredited the CJC’s January 1993 “exoneration.”
On the material available, combined with the relevant law, it is our opinion that the conduct of these arms of Government in the handling of this matter over the years demands a full and open investigation by an independent examiner for justice to be afforded not only to our client but to the citizens of the State of Queensland. It is clearly in the broad public interest for such an inquiry to occur due to the conduct having involved so many persons in senior positions in various arms of Government over many years in this State.
The PRESIDENT—Order! Senator Joyce, your time has expired.
Senator JOYCE—I seek leave to have the remainder of the speech incorporated in Hansard.
Leave not granted.
Senator Heffernan—Just show it to them.
Senator George Campbell—On a point of order, Mr President, Senator Heffernan is not sitting in his seat. He is interjecting. He is trying to direct the chamber. If he wants to make a point, he should go back to his chair and make it from there. We are not granting leave until we see what Senator Joyce wants to table.
The PRESIDENT—Senator Heffernan, you are not in your seat and you are not entitled to interject when you are not in your seat.