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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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• The Upper House would just be an “echo chamber” of, or alternatively an obstruction to the will of, the Assembly. (A House of Review does not necessarily mean either of those things. I t can j u s t a s easily be a valuable steadying hand on t h e o p e r a t i o n s o f the Lower House, and a significant contributor in determining the content of legislation.)

• A referendum to get the people’s view would be too expensive. (Getting the people’s view on how they might be better governed, once in 88 years, does not seem a great burden.)

• Independents or minority groups could hold the Lower House to r a n s o m or f r u s t r a t e i t. (True. I t does happen. Compromise is not always a n evil.)

• Party politics makes such a Chamber redundant – Councillors would vote along p a r t y lines a s happens in the Lower House. ( T h a t would likely depend on the voting system used. And we are all aware that Senators in the federal Parliament take themselves and their role very seriously.)

• A committee system operating within the Lower House m a k e s a n U p p e r House redundant. (Not so. The government h a s a m a j o r i t y on t h e c o m m i t t e e s, and the performance of such c o m m i t t e e s m i r r o r s t h e actions and views of the government on the floor of the u n i c a m e r a l Parliament. More on the committees later.) In favour of the proposal, an Upper House could offer a d d i t i o n a l advantages, apart from providing the obvious – an opportunity for more debate,

consultation, consideration, analysis, and so on:

• An Upper House could only be a vast improvement on the current Lower House committee system. Upper Houses are bound to have more influence than committees.

• Overall, the past 80 years have consistently shown t h a t t h e r e a r e g r e a t dangers and shortcomings in unfettered government (of whatever complexion) in a unicameral environment.

• Councillors are normally elected for longer terms, providing an overlap w i t h the t e r m s of MLAs in the Lower House. This can a s s i s t t h e consideration and consultation processes of the Lower House.

The Courier-Mail in its editorial of 6 December, 1994 said:

“... provided an upper house is representative, popularly elected, s t r i c t l y l i m i t e d in w h a t i t can do to o b s t r u c t a government, but equipped w i t h extensive powers to review procedures and monitor executive performance, the people are likely to be better served than in a system where Cabinet rule effectively has overcome opposition ”. ( e m p h a s i s a d d e d ) The unicameral Parliament – a performance review I acknowledge t h a t the chance of an Upper House being reintroduced in Queensland is probably somewhere between nil and negligible.

Nevertheless, in 1992 the Electoral and Administrative Review Commission (the establishment of which was recommended by Commissioner Fitzgerald), in carrying out a review of parliamentary committees, said that the absence of an

Upper House in Queensland had had:

“…..a profound effect on the ability of the Queensland Parliament to carry o u t i t s f u n c t i o n s u n d e r t h e C o n s t i t u t i o n a n d conventions which r e q u i r e i t to a c t responsibly and review t h e a c t i v i t i e s of t h e executive a r m of government”. 17 ( e m p h a s i s a d d e d ) I t is t r i t e, but necessary, to point out t h a t a modern democracy is not defined by the mere existence of a P a r l i a m e n t (be i t one House or two) a n d elections for such a Parliament every so often (three years or four or whatever).

A modern democracy is much more than that, including, not in priority order:

• an understanding by all of, and an adherence by all ( p a r t i c u l a r l y t h e government) to, the notion of the rule of law;

• an independent and arms-length bureaucracy;

• independent, arms-length, watchdog agencies;

• vigilant, forthright professional bodies;

• vigilant, forthright academics and commentators;

• a vibrant fourth estate;

• a P a r l i a m e n t, including p a r l i a m e n t a r i a n s and a p a r l i a m e n t a r y committee system, that work/s.

In Queensland much/most of the above is found to be wanting.

And the single most significant reason for Queensland’s poor performance against the check list above, the one that creates and then pervades the rest, is the brute force, the power, the authority, the control, of a government operating in a single Chamber environment.

So I admit that, while there is no guarantee that an appropriately elected Upper House in this State would make the rivers run with milk and honey a n d pave the streets with gold, it would be a welcome addition to what we have at present.

An example E a r l y i n 2 0 0 3, a f t e r a B a p t i s t m i n i s t e r w a s c o m m i t t e d t o s t a n d t r i a l u n d e r s.

129 of the C r i m i n a l Code (destroying evidence) or alternatively s. 140 (attempting to pervert the course of justice), a group of students with whom I was working under t h e u m b r e l l a o f The J u s t i c e P r o j e c t 18 ( w h o s e a c t i v i t i e s a r e reported on the internet), sent a letter to each of the State’s 89 MLAs.

The letter pointed out t h a t a f o r m e r D i r e c t o r o f Public Prosecutions and the Criminal Justice Commission had said (many times in the case of the CJC) t h a t a c h a r g e u n d e r s. 1 2 9 could only be s u s t a i n e d if a c o u r t a c t i o n h a d been under way at the time of the alleged offence; and that no such action was under way in the case of t h e B a p t i s t m i n i s t e r. We included quotes from High Court Chief Justice M u r r a y Gleeson and New South Wales Chief Justice J a m e s Spigelman that the rule of law required the “governors as well as the governed” to be treated equally before the law, and asked four questions. Summarised, they


• Do you have any comment on the situation in which a court action does not have to have been under way in one case (the Baptist minister), but does have to have been in another (the shredding of the Heiner documents)?;

• Do you support the view that the law should be applied equally to all?;

• Do you support the view that the law should be applied consistently and not arbitrarily?;

• What, if anything, do you intend to do about the matter?

In many cases the fax, email and postal services between St Lucia and the far end of George Street collapsed. The Members never got our letters. We sent more. Some never got them. In all only 30-odd responded. Only one answered a l l the questions.

Some said they were not legally qualified and could not offer any comment on our questions; some s a i d such m a t t e r s were the responsibility of t h e Attorney; some s a i d they could not give legal advice. M o s t chose not to say anything – not to commit themselves on whether they believed in the rule of law!

The Attorney’s response said, in essence, that the DPP was an independent statutory authority and the government did not interfere with its decisions. He

went on to say:

“The Heiner Inquiry was i n s t i t u t e d w i t h inadequate powers to t a k e protected evidence, and t h e L a b o r government which inherited t h e f l a w e d arrangements acted in good faith and on legal advice”. 19 Any reading of the documents Kevin Lindeberg h a s uncovered from t h a t time reveals an absence of g o o d f a i t h. For example, the government h a d been advised not to shred the documents. I t shredded them. People were told t h e i r access to those documents was still being considered, when the documents had in fact already been destroyed! And acting on bad legal advice may be convenient, but it does not absolve a person who a c t s on i t from any responsibility in t h e eyes of the law.

T h a t l a t t e r is not a new concept. If i t were otherwise there would be no need for courts. We would all seek bad advice and that would be the end of t h e m a t t e r. A West A u s t r a l i a n c r a y f i s h e r m a n took the advice he was given by a government d e p a r t m e n t. I t was wrong. The High Court s a i d i t m i g h t be a shame, but he broke the law. 20 End of story.

The response from the Opposition was extraordinary. They said there was no credible evidence to support the laying of charges in the Heiner m a t t e r _ despite t h e f a c t t h a t the offence h a d been a d m i t t e d for over a decade! And Cabinet records reveal that those involved knew the documents were required by a firm of lawyers for potential legal action. In addition, the Morris and Howard r e p o r t 21 into the shredding s a i d t h e r e w a s p r i m a facie evidence of numerous breaches of the criminal law!

We had occasion to write to the Premier separately on the matter a little while later. His Chief of Staff, Rob Whiddon, replied. The response included the


“… problems arising as a result of the way the Heiner Inquiry was initially established by t h e N a t i o n a l P a r t y government of t h e d a y, were subject of Crown Law advice and canvassed in the Morris/Howard report to which you refer. The information is not new and has been well documented”. 22 The writer neglected to say that Morris and Howard absolutely rejected the basis of the Crown Law advice involved (and w h a t the advice was is of no consequence anyway). He also failed to mention t h a t M o r r i s a n d Howard s a i d t h e r e w a s p r i m a f a c i e evidence t h a t t h e s h r e d d i n g matter involved numerous breaches of the criminal law. 23 The Premier’s Chief of Staff also pointed out the independent nature of the

operation of the Office of DPP, and then concluded thus:

“Finally, I must object to the suggestion in your letter t h a t t h e r e i s some sort of cover up of child abuse in relation to the Heiner documents. T h i s m a t t e r h a s b e e n t h e s u b j e c t o f review and report on numerous occasions.

The M o r r i s / H o w a r d report, to which you refer, was provided to t h e Coalition government of t h e d a y, who decided to take no f u r t h e r a c t i o n.

This Government has made every effort to be open about this matter, to the extent t h a t in July, 1998, the Premier took the unprecedented step of tabling all relevant documents and other correspondence in P a r l i a m e n t.

This is consistent w i t h the Government’s action in tabling the Anglican Church’s report”. 24 The government has not, however, tabled the DPP’s advice that resulted in the Coalition taking no further action on the M o r r i s / H o w a r d report, despite a r e c o m m e n d a t i o n t h a t i t do so by the House of Representatives C o m m i t t e e of Inquiry into Crime in t h e Community report into the shredding m a t t e r l a s t year. 25 We know, however, w h a t t h a t advice s a i d, a t least according to Kevin Lindeberg who h a s seen i t, a n d w h a t i t s a i d w a s a r e h a s h o f t h e d i s c r e d i t e d v i e w t h a t a c o u r t a c t i o n h a d to be under way before the offence of destroying evidence could be sustained. 26 That issue is covered at length on the front page of the April, 2005 edition of the newspaper I now edit, The Independent Monthly.

The current DPP (in the context of the case a g a i n s t the B a p t i s t m i n i s t e r ) completely rejected her predecessor’s (and the CJC’s) view.

The unicameral Parliament’s procedures Questions: On two occasions in recent months quite serious matters going to the very h e a r t of responsible and accountable government were the subject of Questions on Notice in the Queensland Parliament. One concerned some questions The Independent Monthly h a d been asking the government regularly for s i x months, and which it simply would not answer. The questions h a d to d o w i t h t h e a c c u r a c y o f a s t a t e m e n t made by a f o r m e r M i n i s t e r to The Courier-Mail newspaper in 1989, about the identity of a girl pack-raped on an excursion from the John Oxley Youth Detention Centre a year before the infamous shredding took place.

The second related to a matter of the Governor seeking a response from the government about a citizen being charged w i t h a serious offence while politicians and bureaucrats were not.

The Members who asked those questions had to wait 28 days for answers, the contents of which could have been provided within a matter of hours in the latter case and perhaps a day in the former case.

(For the record, the answer to the f i r s t question revealed, finally, t h a t w h a t a M i n i s t e r o f the Crown h a d told the public of Queensland through t h e pages of The Courier-Mail in 1989 was untrue. The victim of a pack rape was not 17 years of age, as t h e M i n i s t e r h a d c l a i m e d, b u t 14, and h e r i d e n t i t y m e a n t t h a t w h a t e l s e t h e M i n i s t e r h a d s a i d a b o u t h e r i n t h e n e w s p a p e r w a s also not true.

The answer to the second question revealed that, despite the passage of 18 months, the S t a t e government h a d not yet responded to a request f o r information on this issue from the Governor.) In relation to the issue of accountability, prior to 1995 Questions on Notice h a d to be answered w i t h i n 24 hours. T h a t period was extended by the then Labor government to 28 days – in the interests of good government, the Speaker of the day told the paper I edited at the time. 27 If there were another Chamber where s u c h i m p o r t a n t questions could be raised, it wouldn’t matter quite so much.

Sitting days: Between 1970 and 1981 (in the d a r k days of Premier Johannes Bjelke-Petersen, when all manner of commentators and academics complained of a lack of government accountability and a lack of democracy in Queensland), the P ar liam en t sat for 50 days or more e a c h y e a r – s om e y e a rs m ore t ha n 6 0, s ome m o r e t h a n 7 0. 28 T h i s y e a r i t w i l l s i t f o r 4 4. ( I n d a y s l o n g gone it s a t f o r m a n y more. During the years of the seventh Parliament, the Assembly managed a total of 339 days and the Council, 198). 29

–  –  –

sweeping reform recommendations that eventually will make Queensland a better place? Or did a t least one group have a controversial proposal adopted because it convinced the Government it was the right thing to do?

Of course not …”.

Wardill concluded:

“ U n t i l t h e c o m m i t t e e s y s t e m i s reformed and given more teeth, the ‘open and accountable’ mantra this Government likes to tout can only be met with derision”.

The “alternative Upper House” M r B e a t t i e h a s c l a i m e d Q u e e n s l a n d h a s n o need of an Upper House because i t h a s the C r i m i n a l Justice Commission or, now, the Crime and M i s c o n d u c t Commission.

At the outset one can but point out the obvious, namely that such a body is n o t a s u b s t i t u t e f o r a n U p p e r House. I t does not provide an opportunity f o r debate; it does not provide a c o n d u i t f o r c o m m u n i t y r e a c t i o n t o issues of t h e day; it has no say in what a government decides or does not decide to do; it does n o t a s k q u e s t i o n s, i n i t i a t e M a t t e r s o f P u b l i c I m p o r t a n c e o r Grievance Debates;

and it does not do a host of other things.

B u t s i n c e t h e P r e m i e r t h i n k s t h e C J C (and presumably t h e C M C ) provides such an alternative, let us look at how well we have been served by those bodies.

When we wrote to our State MLAs about the rule of law, and a citizen being charged with a criminal offence while others who did much worse were excused, we subsequently sought the views of the then Chair of the CMC on these matters.

We also sought the views of the Police Commissioner. We faxed our l e t t e r s t o both. Two y e a r s l a t e r t h e P o l i c e Commissioner h a s yet to respond. B u t then, when you think about it, what could he possibly say? So he says nothing.

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