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THE HEINER AFFAIR... WHAT WAS THE ROLE OF KEVIN
RUDD?
On Thursday, 16 August 2007, Premier Peter Beattie was presented with a letter signed by former Western Australian Chief Justice (David Malcolm), two retired NSW Chief Judges (Jack Lee, now deceased, and Dr Frank McGrath), two retired NSW Supreme Court Justices (Roddy Meagher and Barry O’Keefe), one of Australia’s foremost QCs (Alec Shand) and a legal academic and barrister (Alastair MacAdam) all seeking the appointment of an Independent Special Prosecutor into an unresolved outrageous injustice now known as the Heiner Affair, which has been poisonously suppurating since the days of the Goss government.
A copy of this letter was also received by Queensland’s Governor, Chief Justice, Opposition Leader, Bar Association and Law Society.
It followed the completion of a two-year audit by leading NSW QC, David Rofe, who prepared a
3000-page, nine volume report on the case and concluded there were 67 alleged unaddressed prima facie criminal charges that needed to be urgently addressed.
At the heart of the matter is the order by the Goss Cabinet of March 5, 1990, to destroy all documents relating to an inquiry by retired magistrate Noel Heiner into the management of the John Oxley Youth Detention Centre.
Heiner had been appointed by Premier Wayne Goss’s predecessor, Premier Russell Cooper, in late 1989 to investigate serious allegations of the abuse of children in the state youth detention centre, including the rape of a 14-year-old Aboriginal girl by male inmates in May, 1988, during a supervised bush outing, raised by several youth workers.
Outrageously, this rape is still unresolved.
Youth centre manager Peter Coyne and deputy Anne Dutney called on their senior union organiser, Kevin Lindeberg, of the Queensland Professional Officers Association, to protect their interests. Lindeberg was to become the whistleblower.
Coyne and Dutney, not unreasonably, sought to see the specific complaints laid against them, so they could defend themselves before Heiner. This request was denied them.
Barely a month after the Goss government came to office in December, 1989, it closed down the enquiry and transferred Coyne to other duties. He and Dutney engaged counsel to seek any Heiner material relating to them, while their solicitor placed the Queensland government on notice of the proceedings and instructed the government not to destroy any documents.
The union joined the dispute on March 1 and Lindeberg was assured by the government that the material was safe - but it wasn’t. Cabinet decided to shred the material on March 5 and it was secretly fed through a shredder on March 23.
In early March, Lindeberg inadvertently learnt of the secret shredding by a ministerial staffer, challenged it and was removed from the case at the request of the families minister.
He was sacked by the union six weeks later, one charge being that he had been “inappropriate and over-confrontationalist’’ in “the Coyne case’’.
After an outcry by union members, he was conditionally reinstated, but informed the union executive the shredding was a potential illegal act involving the entire Goss Cabinet, or the families minister or the departmental CEO.
In August, he was again dismissed on challenged grounds under an arbitration forced upon him and subject to a divided union vote.
Since then, Lindeberg has fought for justice. In 1998, he obtained access to the relevant March 5, 1990, Cabinet submission and received advice from senior counsel and Sir Harry Gibbs, a former Chief Justice of the High Court, that it contained sufficient inculpatory evidence to warrant charges under Section 129 of the Queensland Code to be brought against those involved in the shredding decision.
In last Thursday’s letter to Beattie, the legal authorities “indicate our deep concern about its (the law’s) undermining, as the unresolved Heiner Affair reveals’’.
They say that an “unacceptable application of the criminal law by prima facie double standards, by Queensland law-enforcement authorities’’ has been exposed by the successful prosecution of another person, Douglas Ensbey, for destruction of material which may be required as evidence under S129 - 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 S129 of the Code, used by those authorities to justify the shredding of the Heiner inquiry documents, may have knowingly advantaged Executive Government and certain civil servants,’’ they wrote, noting that the Queensland Court of Appeal case in 2004 exposed the erroneous interpretation.
They also said they agreed with the late Sir Harry Gibbs, a former Chief Justice of the High Court, who advised that the reported facts (of the Heiner Affair) represent, “at least, a prima facie offence under S129 concerning destruction of evidence’’.
This may all seem like a dry old argument, but it has enormous relevance right now.
Opposition Leader Kevin Rudd was Goss’s chief of staff at the time of the Heiner Affair and shortly after took on the newly-created position of Director-General of the Cabinet Office.
According to Queensland academic Scott Prasser: “Rudd was the de facto power behind the throne. He was Wayne Goss’s closest adviser and the Premier’s Mr Fixit. He was the key man’’.
Last December, Queensland Aboriginal leader Noel Pearson said: “Rudd’s chief credential for Labor leadership is that he knows power and has exercised it at the highest levels of government. He ran the government of Queensland for six years ...’’’
The Heiner Affair has been put squarely in the public arena by some of the most respected members of the judiciary and the legal fraternity, people not given to demonstrations of public outrage; but who felt that the shredding of evidence by the Goss executive represented a full frontal attack on the separation of powers, on the judiciary’s function.
Given that the matter remains unresolved, there is no guarantee it might not happen again.
These black letter law figures aren’t interested in politics or personalities, but they are gravely concerned about the conduct of the law and, in particular, the manner in which it was applied to a decision of the Queensland government at a time when, as it happens, Rudd held a position of great influence with unhindered access to Cabinet documents.
With the Australian people soon to decide whether Rudd should be the next Prime Minister, it is time the Heiner Affair was thoroughly investigated and justice applied.
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THE CORRESPONDENCE...
The Hon Peter Beattie MLA
Queensland Premier
Executive Building
80 George Street
BRISBANE QLD 4000
Dear Premier
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) [2004] 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.”
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. 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.
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.
SIGNED...
The Hon Jack Lee AO QC – Retired Chief Judge at Common Law Supreme Court of New South Wales
Dr Frank McGrath – Retired Chief Judge Compensation Court of New South Wales
Alastair MacAdam, Senior Lecturer, Law Faculty, QUT Brisbane, and Barrister-at-law
The Hon R P Meagher QC - Retired Justice of the Supreme and Appeal Court of New South Wales
The Hon Barry O’Keefe AM QC, Retired Justice of the Supreme Court of NSW, former ICAC Commissioner
Mr Alex Shand QC
The Hon David K Malcolm AC CitWA, former Chief Justice of Western Australia
For further details see Kevin Lindeberg’s article recently published “Upholding the Australian
Constitution”
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PLEASE
EXPLAIN... MR RUDD!
FEDERAL Opposition leader Kevin Rudd may be called to answer questions relating to the destruction of evidence as a police investigation into the rape of a Queensland girl 19 years ago gains new momentum.
The girl, who we will call Alice, was just 14 at the time and resident at the John Oxley Youth Detention Centre, in the care of the Queensland Government, when she was gang raped by other inmates.
Though some of the rapists confessed, no charges were pressed and the police inquiry at the time was at best belated and perfunctory.
Alice’s tragic story is but one strand of this horror, the other is the Goss ALP government’s attempt to ignore her plight and bury the incident without trace.
That attempt began when an investigation, directed by former magistrate Noel Heiner and launched by the Cooper National Party government, was shut down by the Goss government when it came to power.
The Goss cabinet ordered the shredding of all the documents collected by Heiner and this marked the beginning of the Heiner Affair.
Rudd was Premier Wayne Goss’s chief of staff at the time and subsequently became the director-general of his cabinet office.
It was widely held that nothing took place within cabinet without his knowledge, and he has also claimed his experience running Goss’s cabinet has equipped him to be prime minister of Australia.
Though both Rudd and Queensland Premier Peter Beattie claimed as recently as last week that the shredding of the documents needed no further investigation, it has never been fully examined.
Both Rudd and Beattie also rejected the view of former chief justice of the High Court, Sir Harry Gibbs and an unprecedented plea from a former West Australian chief justice (David Malcolm), two retired NSW chief judges (Jack Lee, now deceased, and Dr Frank McGrath), two retired NSW Supreme Court justices (Roddy Meagher and Barry O’Keefe), one of Australia’s foremost QCs (Alec Shand) and a legal academic and barrister (Alastair MacAdam) that an independent special prosecutor be appointed to examine the matter.
The most thorough inquiry to date was conducted by a House of Representatives committee chaired by federal MP Bronwyn Bishop, which recommended that “members of the Queensland cabinet at the time that the decision was made to shred the documents gathered by the Heiner inquiry be charged for an offence pursuant to Section 129 of the Queensland Criminal Code Act 1899. Charges pursuant to sections 132 and 140 of the Queensland Criminal Code Act 1899 may also arise’’.
Further, a recent two-year audit of the matter by prominent Sydney QC, David Rofe, which ran to 3000 pages contained in nine volumes, concluded there were 67 unaddressed alleged prima facie criminal charges against the cabinet and civil servants that needed to be urgently addressed. Alice still suffers profound psychological problems, exacerbated by repeated charges that she is a liar, but filed a complaint with the Queensland Police Service in March 2006, following the release under Freedom of Information legislation, which included evidence that the rapists had confessed to both a staffer at the youth centre, and the director of the facility, Peter Coyne.
The documents show that not only was she raped, she was also denied her legal rights by the Queensland police - and those entrusted with her care.
Alice has been interviewed by members of the Queensland police taskforce Argos, and a senior detective from Argos last Tuesday sought an interview with another person who has maintained an interest in the matter.
Rudd, who describes himself as a “compassionate Christian’’ has not sought any inquiry into the attacks on the girl and has not offered any explanation of the destruction of the documents, though he had the responsibility for the business of the cabinet.
Whether the Queensland police are now up to fully investigating such a highly charged political matter, given their studious attempts to ignore it, is questionable.
As a number of the nation’s most senior legal figures have pointed out, there is a strong precedent for bringing charges against those who ordered and participated in the shredding of the Heiner material, as shown by the case brought against a Baptist pastor Douglas Ensbey.
Ensbey suspected that a member of a family in his congregation was being abused and, while dealing with the mother, was given pages of notes written by the victim.
The family said they would deal with the issue and asked for the pages back, but Ensbey had guillotined them, making them difficult to read.
The victim , aged 20, went to the police and the then alleged assailant immediately confessed. The police, however, concentrated on the sliced pages and charged Ensbey with the destruction of evidence under S129. He was found guilty by a jury in March 2004, convicted and sentenced to two year’s jail (reduced on appeal to six months, wholly suspended).
The action of the Goss cabinet falls under the same section of the law the police used to pursue Douglas Ensbey.
Many see parallels in the campaign by crusaders against child abuse to hound former governor-general Peter Hollingworth from office, though it was never alleged he was involved in a crime.
Former Opposition leader Simon Crean said: “You cannot have people in authority who have covered up for child sex abuse. It is as simple as that’’.
And it is. But what can be said about an Opposition Leader who may have been complicit in the illegal shredding of evidence?
If the ALP stands by the standards it applied to Hollingsworth, Rudd should resign and answer the questions that the Queensland ALP has worked hard to avoid for 19 years.
If he has a shred of decency, he would consider Alice, and her need for release from the hell she has been forced to live in because of this nauseating
cover-up.
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