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«Upholding the Australian Constitution Volume Seventeen Proceedings of the Seventeenth Conference of The Samuel Griffith Society Greenmount Beach Resort, ...»

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7. W H Burrows, B K Henry, P V Back, M B Hoffmann, L J Tait, E R Anderson, N Menke, T Danaher, J O Carter and G M McKeon, (2002), Growth and carbon stock change in eucalypt woodlands in northeast Australia: Ecological and greenhouse sink implications, in 2002:8 Global Change Biology, 769-784.

8. Pyne, SJ (1991), Burning Bush. A Fire History of Australia, New York: Henry Holt & Co.

9. Bill Burrows (2004), unpublished speech to the 2004 conference of Property Rights Australia.

10. J M a r o h a s y (2004), T i m e t o Re-define Environmentalism, in I n s t i t u t e of Public Affairs Review, 56:4, 29-32 at 29-30.

11. L e g i s l a t i v e S t a n d a r d s A c t 1992, s. 4(2) and (3).

12. Vegetation Management Act 1999, s. 11(2).

13. Ibid., s. 10(7).

14. Ibid., ss. 17(6) and 18(4).

15. Under s.49 of the S t a t u t o r y I n s t r u m e n t s Act 1 9 9 2, s u b o r d i n a t e legislation must be tabled in Parliament, and under s. 50 may be disallowed.

16. Maximum penalty 1,665 penalty units ($124,875): s. 55 of the Act.

17. Section 118B of the Penalties and Sentences Act 1992.

18. Vegetation Management Act 1999, s. 55(1).

19. Ibid., s. 62.

20. (1995) 183 CLR 245.

21. Theophanous v. Herald & Weekly Times Ltd (1994) 182 CLR 104.

22. Stephens v. West Australian Newspapers Ltd (1994) 184 CLR 211.

23. Lange v. Australian Broadcasting Corporation (1997) 189 CLR 520.

24. Kable v. Director of Public Prosecutions (1995-1996) 189 CLR 51.

25. Ibid., at 108.

26. Vegetation Management Act 1999, s. 67B.

27. Commonwealth v. Tasmania (1983) 158 CLR 1.

28. Ibid., at 286-7.

29. Commonwealth v. Western Australia (1999) 196 CLR 392.

30. Ibid., at 488.

31. Pye v. Renshaw (1951) 84 CLR 58, 83.

32. The author gratefully acknowledges the comments of Dr Jennifer Marohasy, Director of the Environment Unit of the Institute of Public Affairs.

–  –  –

Much of the argument that follows flows from the experiences and observations of the author in reporting and investigating a serious offence and its associated cover-up.

That offence was committed by members of the Cabinet of one of the States of the A u s t r a l i a n federation. W h a t they did h a s gone unpunished. W h a t a citizen of that State subsequently did (which involved the same point of law but was much less serious) attracted the full force of the law. The law had not been changed in the interval between the two events.

The S t a t e concerned, Queensland, is the only member of the A u s t r a l i a n f e d e r a t i o n t o operate a u n i c a m e r a l p a r l i a m e n t a r y system – the Upper House having been abolished over three-quarters of a century ago. For much of t h a t time, the State has been notable for poor public administration, dubious regard for democratic values, and corruption. 1 T h i s p a p e r notes, on t h e b a s i s o f the evidence i t c o n t a i n s, t h a t p o l i t i c a l r e f o r m a t t e m p t e d a d e c a d e a g o f o l l o w i n g a t u m u l t u o u s R o y a l Commission h a s failed to produce the good government and strong democratic society hoped for at that time. It therefore contends that a new attempt should be made to bring that about – based on t h e r e i n t r o d u c t i o n o f a House of Review into t h e S t a t e Parliament.

Background Following the efforts of two journalists, Phil Dickie of The Courier-Mail 2 a n d t h e A u s t r a l i a n B r o a d c a s t i n g Corporation’s Chris M a s t e r s, 3 which revealed t h e existence of extensive corruption a s s o c i a t e d w i t h police-franchised a n d protected brothels, illegal casinos and other strange things, a Royal Commission 4 w a s e s t a b l i s h e d t o l o o k i n t o t h e m a t t e r s raised. The i n q u i r y w a s conducted by a returned-to-the-Bar former judge, Mr GE (Tony) Fitzgerald, QC.

As a result of his investigations, more t h a n 200 people eventually faced t h e c o u r t s, 5 including the Premier of the day (no verdict, a h u n g j u r y ) a n d several Ministers (who went to jail).

In his report in July, 1989, M r F i t z g e r a l d made a variety of recommendations designed to provide better and more accountable government in his home State.

T h e S t a t e P r e m i e r w h o a c c e p t e d h i s r e p o r t, M i k e A h e r n, s a i d, e v e n before they were delivered, t h a t M r Fit z ge ra ld’s recommendations would be implemented “lock, stock and barrel”. 6 He did not, however, get the chance t o implement them. In the first place, dwindling opinion poll results in the wake of the F i t z g e r a l d Inquiry’s revelations saw M r Ahern replaced by his p a r t y colleague, Russell Cooper. In the second place, t h e N a t i o n a l s w e r e t h r a s h e d a t the elections in December, 1989, and the government fell to Labor, led by a n energetic young lawyer, Wayne Goss.

Goss was supported by the king-making i n d u s t r i a l t r a d e union, t h e Australian Workers Union, from which the Labor Party h a d s p r u n g t o w a r d t h e end of the previous century, and which dominated Labor politics in Queensland thereafter.





Within days of coming to power (Labor had been out of office for almost a generation), the Goss Government d e m o n s t r a t e d t h a t, despite the F i t z g e r a l d process and its fallout, a government in unicameral Queensland could do what it liked, ignoring both good government and proper public administration.

It shut down an inquiry (the Heiner Inquiry, set up during the last days of the Cooper Government) into the running of the John Oxley Detention Centre, a Brisbane youth detention centre; and shortly after, with the knowledge that the m a t e r i a l c o l l e c t e d b y t h a t i n q u i r y w a s being sought, properly and legally, by a firm of lawyers, it ordered the destruction of all the material involved. 7 The a u t h o r, via s u s t a i n e d coverage in the newspapers produced by University of Queensland’s Journalism school, The Weekend Independent and The Independent Monthly, and some articles in The Courier-Mail, has reported on the matter for over a decade.

These efforts, and those of Mr Kevin Lindeberg detailed in C h a p t e r One in

this volume, have led us to the point where it is beyond question that:

• the shredding of the Heiner Inquiry documents was a criminal offence;

• the shredding covered up the serious abuse of children in the care of the State;

• the shredding allowed a c l i m a t e to p e r s i s t t h a t p e r m i t t e d f u r t h e r serious such abuses of children (not to mention public administration!) to occur; and finally, and most seriously,

• t w o s t a n d a r d s o f l a w o p e r a t e in t h e S t a t e of Queensland – one for the ordinary citizen, against whom the full force of the law is applied, and one for the powerful, against whom the law is not applied at all.

Since the efforts of a decade cannot be compressed into the space available f o r t h i s p a p e r, i n w h a t f o l l o w s t h e a r g u m e n t will be based principally on t h e l a s t m a t t e r r a i s e d above, i.e., an all-powerful government in a u n i c a m e r a l P a r l i a m e n t, c l e a r l y w i t h n o s a t i s f a c t o r y c h e c k s a n d b a l a n c e s i n place, a l l o w s a system of “one law for us and one for them” to operate.

In approaching the matter, recall at the outset the expectations that arose in the community from the Fitzgerald process at the end of the 1980s and from

the reforms he recommended. The following quotes provide a snapshot:

“I well remember t h e e x c i t e m e n t w i t h which so many of us greeted t h e election in 1989. There was dancing in the streets! A new age was dawning.

The P a r l i a m e n t and the government were to become accountable. Civil liberties were to be assured and there would be broad c o m m u n i t y consultation about proposed reforms.

“No longer would the Parliament and the government be dominated by one conservative and omnipotent man. The days of the personality cult were over.

“ P o l i t i c a l a p p o i n t m e n t s would d i s a p p e a r from the Public Service a n d citizens who openly disagreed with the government in power would not be disadvantaged.

“There would be effective Freedom of I n f o r m a t i o n legislation which would render MLAs, Ministers and the Executive truly accountable”. 8 The writer then went on to analyse what had happened in the intervening years.

She concluded her appraisal thus:

“So, nothing much has changed. There a r e p o l i t i c i a n s o f t h e r u l i n g p a r t y behaving in much the same way as those who were previously in power. Lip service is given to parliamentary and criminal justice reforms, but in many ways we seem to be going backwards. T h i s w a s not w h a t the F i t z g e r a l d process was meant to achieve”.

T h a t p i e c e w a s w r i t t e n a l m o s t e x a c t l y t e n y e a r s a g o and only five years after the Goss Government c a m e t o power. Imagine w h a t t h e w r i t e r, D r J a n e t Irwin (former Director of Health Services at the University of Queensland, a n d one-time part-time Criminal Justice Commissioner), would say today. I suspect she would be absolutely lost for words.

A n d j u s t i n c a s e r e a d e r s s h o u l d t h i n k Dr Irwin b i t t e r and twisted, one of those who organised an all-too-short series of s e m i n a r s on p o s t - F i t z g e r a l d

reform in the early 1990s 9 wrote this:

“The … government has initiated many changes proposed by Fitzgerald, but as is evidenced by the continued lack of genuine parliamentary reform, lack of resources to the Opposition, the hypersensitivity to criticism, the subtle p o l i t i c i s a t i o n of the public service, one must really question whether t h e s p i r i t of real, open, d e m o c r a t i c government h a s really come t o Queensland”. 10 That too was written ten years ago. It is a pity that its author, Dr Scott Prasser, hadn’t continued to run his conferences. B u t people probably wouldn’t come. What would be the point? After all, it has all got much worse since those pieces were written.

The unicameral Parliament – a brief history M a r c h 2 3 i s a f a t e f u l d a t e i n t h e h i s t o r y o f Queensland. T h a t w a s t h e d a y in 1990 when the government of the day broke the law, and set in train the events that have brought the law in this State, and our respect for it, and our respect for our i n s t i t u t i o n s of government from the Governor down, into d i s r e p u t e.

Strange t h a t t h i s presentation should also be predicated on the actions of another Labor government on March 23, which also profoundly affected the kind of government we get in Queensland … not to mention our respect for it.

March 23 was the date on which legislation was proclaimed that abolished t h e S t a t e ’ s L e g i s l a t i v e C o u n c i l in 1922. 11 I t is conceded at t h e o u t s e t t h a t t h e composition of the Legislative Council a t the t i m e h a d but a p a s s i n g acquaintance with any notion of democracy at work. The members of the Council were all appointed by the government, t h r o u g h the Governor, for life. L i t t l e w o n d e r a f r u s t r a t e d g o v e r n m e n t facing a non-elected “slaughterhouse”, a s t h e then Upper House has been called, 12 would w a n t i t gone. And i t was eventually done, against the express wish of the people, a referendum only four years before (in 1917) to abolish the Legislative Council having been soundly defeated.

L a t e r t h e Constitution Amendment Bill of 1934 was passed. I t established that an Upper House in Queensland may only be introduced by a referendum of the people. It was not abolished by a referendum of the people, but can only be re-created by such a vote – a vote the Labor P a r t y h a s made clear i t would oppose, regardless of the proposed composition and role of a resurrected Upper House.

The case for an Upper House D u r i n g t h e d a y s t h a t e v e n t u a l l y saw the return of a Coalition government in Queensland in the mid-’90s, both the Nationals and Liberals a g r e e d t h a t t h e r e should be such a referendum. During the 1995 election c a m p a i g n, Opposition

leader Borbidge was reported as saying:

“At present the P a r l i a m e n t is a joke. I t is not working properly. The committee system is not working properly and accountability is a charade.

It might not be this way if there was a House of Review”. 13 He pledged that if elected there would be a referendum. Money was set aside in the budget for it.

The Greens and the Democrats were in favour. But the idea was stillborn. It w a s c l e a r t h e L a b o r Opposition would n o t s u p p o r t such a move, and w i t h o u t bipartisan support, a referendum was unlikely to succeed. The proposal did not even get to the stage of the Borbidge Government setting out a model, although

some suggestions were considered. These included:

• Reduce the numbers in the Assembly to a c c o m m o d a t e the number of Legislative Councillors that would be elected (to counter the suggestion t h a t no one would buy an Upper House t h a t would mean more politicians);

• Some form of proportional representation to elect them; and

• Perhaps t h e c r e a t i o n o f three provinces or d i s t r i c t s, Northern, C e n t r a l and Southern, to provide for representation across the state. 14 B u t there was never any serious work done on the proposal, and t h e Coalition proceeded to implode. That was the end of that.

–  –  –

Queensland vis-a-vis the other States T h e f e d e r a l P a r l i a m e n t and every other S t a t e in A u s t r a l i a e a c h h a s an Upper House. Despite c o m p l a i n t s from governments, and despite changes in representation in some of those Houses from non-aligned individuals to p a r t y adherents ( i n m o s t cases), none of those Chambers h a s yet been abolished – although some States, including Tasmania, with a population less than that of Brisbane, have thought about it.

I t is said by opponents of t h e i d e a t h a t the Northern Territory and t h e Australian Capital Territory do not have Upper Houses, which is true. And that means that Queensland places i t s e l f i n the company of the T e r r i t o r i e s r a t h e r than the States. And even the Territories have a House of Review. It is called the f e d e r a l P a r l i a m e n t. No better e x a m p l e e x i s t s t h a n D r Nitschke’s a t t e m p t s t o have legislation legalising e u t h a n a s i a introduced in t h e N o r t h e r n T e r r i t o r y. I t was introduced, but it was overridden by the federal Parliament.

A n d r e m e m b e r t o o, i t i s e x p e c t e d t h a t t h e S t a t e w i t h o u t an Upper House will be the second most populous State in the Commonwealth in another decade or so.

The “Yes” and “No” cases The arguments for and against reintroducing an Upper House in Queensland are well known, and are only s u m m a r i s e d here, a s i t is the performance of t h e unicameral Queensland system on which I wish to concentrate.

The usual a r g u m e n t s a g a i n s t an Upper House (together w i t h brief

rejoinders to them) are:

• No one wants more p o l i t i c i a n s. (The size of the Legislative Assembly could be reduced to accommodate the number in the Upper House. The overall numbers would not need to change much.)

• But that would mean a reduction in each citizen’s access to his/her local Lower House member. ( B u t he/she could have two avenues of representation – depending on the role chosen for the Upper House.)

• The cost (last estimated at $25 million) is too high. (It’s a small price to pay to get better, or even half-decent, government.)



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