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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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Mr Butler, the Chairman of the CMC, however, did respond. He said:

“I refer to your letter in which you request a response... in r e g a r d t o t h e interpretation of section 129 of the Criminal Code.

“I wish to advise that the CMC is not prepared to proffer an opinion on the interpretation of section 129 of the Criminal Code in a vacuum. Whether a particular complaint requires the CMC to consider the interpretation of a s t a t u t e, t h e C M C w i l l do so i n s o f a r a s i t is necessary f o r i t to f u l f i l i t s statutory requirements with respect to the facts of the complaint.

“In the past, in order to satisfy its statutory obligations, the CJC may have had an opinion as to the interpretation of section 129 of the Criminal Code.

However, I would expect that any such opinion would have been provided in the context of a particular fact situation. It may well be that in the future a d i f f e r e n t f a c t s i t u a t i o n a r i s e s a n d t h e C M C w i l l b e required to consider the application of section 129 in respect of those new facts.

“I hope this helps you understand the CMC’s position in relation to t h i s m a t t e r ”. 31 Well, it didn’t. The law is the law. If the facts fit, you have an offence.

W h a t else did we get from the “ a l t e r n a t i v e Upper House”? We got, consistently from the CJC, in the face of R v R o g e r s o n, 32 t h a t a c o u r t a c t i o n h a d to be under way before s. 129 of the Criminal Code could be triggered – a view which Kevin Lindeberg and I and others, including Ian (now Mr Justice) Callinan, QC, Bob Greenwood, QC and A l a s t a i r M a c A d a m, Senior Lecturer in Law a t Queensland University of Technology, have said all along was simply not so.

This nonsense view has been provided, supported, or never repudiated by no less t h a n three C h a i r s of the CJC/CMC, by i t s one-time Senior C o m p l a i n t s Officer, now S t a t e Coroner, and by a former consultant, now a serving m a g i s t r a t e. I t w a s n e v e r q u e s t i o n e d, a s f a r a s we know, by i t s p a r l i a m e n t a r y c o m m i t t e e, one c h a i r of which described the efforts of those exposing t h e shredding matter as “a looney tune conspiracy”. 33 The “ a l t e r n a t i v e Upper House” also got the f a c t s of the shredding case w r o n g a n d m i s l e d i t s p a r l i a m e n t a r y c o m m i t t e e. 34 A t a p e i n the safekeeping of the “ a l t e r n a t i v e Upper House” mysteriously erased itself – a 2500 to 1 eventuality according to one expert. 35 I have heard the t a p e a n d can say, a f t e r long years working in r a d i o, t h a t i t was erased by human hands.

The “alternative Upper House” rewrote the wording of the law (Regulation 65 of the Public Service Management and Employment Act) and were then able to i n t e r p r e t t h a t r e g u l a t i o n t o g e t i t t o s a y w h a t i t d i d n o t s a y. 36 The “ a l t e r n a t i v e Upper House” s a i d the shredding m a t t e r h a d been investigated to “the nth degree”, 37 when it had never been investigated at all.

The “alternative Upper House” objected strenuously that the setting up of an investigation into the paper t r a i l involved in the shredding m a t t e r ( t h e M o r r i s / H o w a r d Inquiry) was a “waste of resources”. 38 Given t h a t the two b a r r i s t e r s involved found w h a t t h e “ a l t e r n a t i v e Upper House” could not find, i.e., p r i m a f a c i e evidence of serious breaches of the criminal law, it is, perhaps, little wonder that the “alternative Upper House” should object so vociferously to the establishment of that inquiry.

Much more could be s a i d about the suggestion t h a t a CJC/CMC is a substitute for an Upper House, but that may be enough for present purposes.

The “independent” bureaucracy Throughout the last fifteen years the entire relevant bureaucracy, in all manner of manifestations, has participated in the covering-up of the circumstances of the shredding of the Heiner Inquiry papers, including blatantly lying to Kevin Lindeberg and to me. That is demonstrable. We have the documents.

The lies and cover-up do not just involve public servants in the department at the centre of this scandal. They extend even into t h e a d m i n i s t r a t i o n of our courts. In simply seeking access to court records I have been lied to and misled by court officials. I have the correspondence. When I complained to the DirectorGen er al o f the D epartment of Ju s t ic e a t t h e t i m e, he s a i d h e didn’t think any good purpose would be served by pursuing the matter. I happen to disagree.

Access to records has been improperly (read illegally) denied to us (and at least one other person) by Freedom of I n f o r m a t i o n officers. As well, m a t e r i a l that should not have been blanked out on pages has been blanked out, in clear contravention of the rules. Note t h a t the improper blanking-out a s s i s t e d in covering-up the circumstances surrounding the pack-rape of a girl in the custody of the State!

Every public servant in the Queensland bureaucracy knows where t h e i r bread is b u t t e r e d w h e n i t comes to anything t h a t m i g h t remotely touch t h e Heiner matter. It’s the culture, the same one Fitzgerald spoke about in relation to the police brotherhood 39 when he conducted his inquiry. You protect, or you h a d better protect, anyone involved in t h i s m a t t e r. The brotherhood a n d sisterhood are alive in Queensland today.

–  –  –

Freedom of Information Fitzgerald specifically recommended the introduction of Freedom of Information l e g i s l a t i o n. I t w a s i n t r o d u c e d a n d s i n c e t h a t t i m e h a s been w h i t t l e d a w a y, t o the point where it is now derided and scorned as a joke by all.

Former FOI Commissioner Fred Albeitz said in one of his annual reports to


“My primary concern is that the FOI Act is in danger of dying the death of a thousand cuts unless the recent trend towards more and more exclusions of p a r t i c u l a r bodies, or p a r t i c u l a r functions or classes of documents in respect of particular bodies, is not arrested and, preferably, reversed”. 42 That was written ten years ago, just three years after the legislation was introduced; and it has all been downhill since then. Have you seen a n y t h i n g i n the news media lately about a successor to the position Mr Albeitz held?

It has now reached the stage where everyone quite openly describes FOI in Queensland as a joke. For example, Malcolm Cole, reporting for The Courier-Mail

earlier this year, said in part:

“So as they sat around the Cabinet table, the men and women who occupy offices of great privilege in t h i s s t a t e, laughed about their secrecy, t h e i r lack of accountability. Because they know the murky and confusing world of freedom of information will not change votes they can afford to laugh.

“Because the power of this government is virtually unlimited, and because it has no fear of losing office any time soon, the people in charge can make jokes about their contempt for basic democratic principles.

“In a previous era the same sentiment would have been expressed a s :

‘Accountability? Don’t you worry about that!’ ”. 43 At the same time I have to acknowledge that, while FOI has been slow and sometimes improperly handled by those responsible (to the point where material that legally should have been released was withheld), we did get access to some documents that have advanced the battle against the Heiner affair cover-up.

Other matters There are other ingredients in a v i b r a n t d e m o c r a c y t h a t have been missing in action t h r o u g h o u t the course of t h i s m a t t e r. The deliberations of an Upper House, if we had had one, might, just might, have given some of those concerned some courage.

The professional bodies and the academy: With some exceptions, t h e performance of the professional bodies, the legal community and those involved in relevant disciplines in our institutions, in the face of t h i s b l a t a n t abuse of power, has been disgraceful. I p a r t i c u l a r l y exclude A l a s t a i r M a c A d a m of QUT and David Field of Bond University.

And I would suggest, if the boot were on the other foot, if it were Johannes Bjelke-Petersen who had been in charge during the travesties of the last 15 years, the people referred to above would have been howling in the streets. But we get silence, thunderous silence.

L a s t year The Independent Monthly canvassed the views of some of t h e professional bodies and a c a d e m i c s involved in relation to the u n f o r t u n a t e citizen who had to face the music that others had escaped. What we were told

is a very sad tale. The story said in part:

“The Queensland legal fraternity h a s declined to comment on the double standards involved in a case to come before t h e D i s t r i c t Court in M a r c h.

Last month an international authority on archives practice, Professor Terry Cook told The Independent Monthly the case exposed ‘the two-faced hypocrisy’ of Queensland authorities. This was because a citizen was facing trial for destroying records that could reasonably have been expected to be used as evidence in court proceedings, but p o l i t i c i a n s and senior public servants who did the same thing (in connection with the destruction of the Heiner Inquiry documents) were officially excused. When T I M invited numerous legal and civil liberties bodies to respond to the situation facing the citizen, all declined to comment”. 44 The watchdog media: Despite the revelations of numerous rapes, death threats, lies, cheating and deceit, and even connections to shotgun deaths in the streets, a House of Representatives Inquiry into the m a t t e r, the M o r r i s and H o w a r d report, the Governor being required to w a i t 18 months for a reply from t h e government, the DPP r e j e c t i n g t h e s t a n c e o f her predecessor and the CJC, t h e s t o r y h a s either never, or a l m o s t never, been covered by ABC News, the 7.30 R e p o r t, Stateline, A M, P M or The World Today. I t did make A u s t r a l i a n S t o r y, and the Conversation Hour on ABC R a d i o (but note t h a t y o u cannot access a transcript of that interview, unlike others conducted for that program).

The Courier-Mail ( w h i c h h a s t w i c e c r i t i c i s e d my coverage of t h i s s t o r y i n i t s f e a t u r e pages in recent years) covered the B a p t i s t p a s t o r ’ s t r i a l and i t s outcome, but has never made any connection between what happened to him and what happened (more precisely, did not happen) to those who destroyed t h e Heiner documents. The failure of the media generally to apply normal standards in relation to t h i s case is a m a t t e r o f serious concern. I t is the e x a c t s a m e circumstance that existed in the days when Bjelke-Petersen “fed the chooks”.

The Courier-Mail c a n d o i t s o w n t h i n g. T h a t i s t h e r e a l i t y w i t h a p r i v a t e commercial enterprise. But the problem with the ABC is serious. The ABC is not funded by the Queensland taxpayer; it is funded by the Australian taxpayer, and its failure in this matter ought to be investigated.

Conclusion Queensland today is as feeble a democracy as it ever was. The extent to which an Upper House would fix it, would depend on how i t was elected, t h e q u a l i t y o f those elected, and the role it was given or allowed. It could not make things any w o r s e. I t w o u l d a l m o s t c e r t a i n l y m a k e t h i n g s b e t t e r. B u t will i t be allowed t o happen?

In the meantime, we go on lapping up our Fourex and our sunshine and not giving a damn. Good old Queensland.


1. See, for instance: Whitton, Evan (1993), The Hillbilly D i c t a t o r : A u s t r a l i a ’ s Police State, Sydney, ABC Books; Dickie, Phil (1989), T h e R o a d t o F i t z g e r a l d and Beyond, S t Lucia, Queensland University Press; Dempster, Quentin (1986), The Sunshine S y s t e m, Brisbane, Australian Broadcasting Corporation (video).

2. A Y e a r A f t e r S t u r g e s s, S e x - f o r - S a l e B u s i n e s s T h r i v e s Unchallenged, in The Courier-Mail, 12 January, 1987; Organised Crime Group R e v o l u t i o n i s e s t h e Sex-for-Sale Industry, in The Courier-Mail, 18 April, 1987.

3. T h e M o o n l i g h t S t a t e (1987), ABC, Four Corners.

4. Commission of Inquiry into Possible Illegal Activities and Associated Police Misconduct (The Fitzgerald Inquiry). See report: Fitzgerald, Gerald Edward (1989), Brisbane, Queensland Government Printer.

5. Whitton, E, The Hillbilly Dictator, op. cit., p. 180.

6. Reynolds, Paul (2002), Lock, S t o c k and Barrel, S t Lucia, University of Queensland Press, p. 183.

7. For more detail, see Chapter One in this volume by Mr Kevin Lindeberg. See also Report of the House of Representatives Legal and C o n s t i t u t i o n a l A f f a i r s C o m m i t t e e of Inquiry into Crime in t h e Community, Volume II, 2004, and An Investigation into Allegations by M r Kevin Lindeberg, Tony M o r r i s, Q C a n d E d w a r d H o w a r d (1996), Brisbane, Queensland Government Printer.

8. Irwin, Janet (1995), P r o m i s e o f a N e w D e a l N o t Delivered, in The Weekend Independent, Brisbane, The University of Queensland, 30 June, 1995: 4.

9. The s e m i n a r co-organisers were John Nethercote and Rae Wear; see C o r r u p t i o n a n d R e f o r m : t h e F i t z g e r a l d V i s i o n ( 1 9 9 0 ), S t L u c i a, University of Queensland Press; and Andrew Hede and M a r k Neylan, Keeping T h e m Honest: Democratic R e f o r m in Queensland ( 1 9 9 2 ), S t Lucia, University of Queensland Press.

10. P r a s s e r, S c o t t (1995), Goss A d o p t s a M o d e r a t e Line, in The Weekend Independent, Brisbane, The University of Queensland, 30 June, 1995: 4.

11. F a c t Sheet 39, Abolition of t h e U p p e r House, P a r l i a m e n t a r y E d u c a t i o n Services, Queensland Parliament, 2001.

12. For details of the events surrounding the abolition, see: Murphy DJ and RB Joyce (1978), Queensland Political P o r t r a i t s 1859-1952, S t L u c i a, Queensland University Press; and Fitzgerald, Ross (1994), R e d T e d : T h e L i f e of EG Theodore, St Lucia, Queensland University Press.

13. Borbidge, Rob, as quoted in The Courier-Mail, 6 July, 1995: 13.

14. From conversation between the author and former Attorney-General, Denver Beanland, March, 2005.

15. Beattie, Peter, reported in The Weekend Independent, November, 1996:11.

16. Borbidge, Rob, reported in The Weekend Independent, November, 1996:11.

17. Fact Sheet 39, o p. c i t..

18. See www.justiceproject.net.

19. Welford, Rod, in c o r r e s p o n d e n c e w i t h t h e a u t h o r a n d The J u s t i c e P r o j e c t,

–  –  –

Smoking Gun: 74, and 203:5.3 and 204:8.1.

41. See: http://www.justiceproject.net/content/AccessToTruth Denied.asp.

42. Albeitz, Fred, reported in The Weekend Independent, 1 December, 1995.

43. Cole, Malcolm, H y p o c r i t e s M a k e N o S e c r e t o f H i l a r i t y, in The Courier-Mail, 19 February, 2005.

44. The Independent Monthly, March, 2005: 3

–  –  –

In December, 2001, barely one month a f t e r the general elections of November, 2 0 0 1, i t was r e p o r t e d t h a t D u n c a n Kerr, member for Denison in the House of Representatives since 1987, and Minister for Justice in t h e K e a t i n g Government (1993–96), was thinking of resigning to contest a seat in the Tasmanian House of Assembly. He had recently lost his place on the Labor P a r t y front bench a n d claimed to be disheartened by Opposition. He apparently h a d hopes of appointment to a ministry in the State Labor government should it be returned.

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