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Due process commenced In January and February, 1990 my union member, the manager of the Detention Centre, sought to access the Heiner Inquiry documents, insofar a s they were about h i m, under a public service “access” regulation, namely Public Service Management and Employment Regulation 65. He also i n d i c a t e d t h a t h e m i g h t t a k e d e f a m a t i o n a c t i o n. A s his union organizer, I w a s required to protect h i s industrial interests.
His solicitors and two t r a d e unions placed the Government on notice of foreshadowed court proceedings. T h a t was done by letter, phone call a n d meeting. The Queensland Government was told not to destroy the evidence, and that if access was not granted “out of court”, then the matter would be settled “in court”. Unbeknown to us, the F a m i l i e s D e p a r t m e n t h a d meanwhile t r a n s f e r r e d t h e d o c u m e n t s t o the Office of Cabinet in a d e s i r e to gain access exemption under “Cabinet confidentiality” or “Crown privilege”.
The relevant February/March, 1990 Cabinet submissions, copies of which we now hold, divulge that all Cabinet members in attendance were aware t h a t t h e documents were likely to be required a s evidence in a foreshadowed j u d i c i a l proceeding. Crown Law advice, which we also now hold, reveals that the Cabinet, and Crown Law, knew that the records would be discoverable upon the serving of the anticipated writ. By other evidence spoken in t h e m e d i a, w e k n o w t h a t a t l e a s t o n e M i n i s t e r, if n o t a l l, w e r e a w a r e t h a t t h o s e public records contained evidence about the known or suspected abuse of children at the Centre. 2 As each layer of cover-up has been peeled away, the presence of child abuse at the Centre surfaced after being concealed for years. It was primarily through the investigative skills of M r Bruce Grundy t h a t the horrible t r u t h became known. The abuse went from physical, psychological abuse to the offence of c r i m i n a l p a e d o p h i l i a, 3 involving the sexual a s s a u l t of a 14-year-old female indigenous minor in t h e l e a d u p t o the Heiner Inquiry. Worse, those working within government knew of s u c h t h i n g s a t all relevant t i m e s, a n d did nothing about it, and some are still working in government.
The gravest legal and constitutional ramifications flow from the shredding of the evidence and the a s s a u l t a g a i n s t the female minor in S t a t e care a s handled by our law-enforcement authorities. It is clear that those authorities, including the Cabinet and the legislature, could not face the horrendous p o l i t i c a l, legal, and c o n s t i t u t i o n a l p r o s p e c t t h a t p e r h a p s all members of t h e Queensland Cabinet of 5 March, 1990 might be in serious breach of the Criminal Code of Queensland.
In a n u t s h e l l, i n s t e a d of upholding t h e l a w, all relevant law-enforcement and accountability a r m s of government collapsed in around the Cabinet’s shredding desire by declaring it perfectly legal 4 when the law, properly applied, suggested otherwise.
Foreshadowed judicial proceedings known It was known and acknowledged by the Government that court proceedings h a d been foreshadowed by a firm of solicitors (officers of the court) and two t r a d e unions, 5 and that the Heiner Inquiry records w e r e t h e c e n t r a l i t e m o f evidence.
We were told by the Queensland Government that Crown Law was considering our access request, and once its advice was received, we would be informed.
Unbeknown to us, the Queensland Government meanwhile h a d secretly s o u g h t u r g e n t a p p r o v a l f r o m t h e S t a t e Archivist on 23 February, 1990 to have the records destroyed p u r s u a n t to the L i b r a r i e s and Archives Act 1988, a n d secured her approval on the same day.
However, in Cabinet’s letter to the State Archivist, it failed to inform her of the known evidentiary value of the records for the foreshadowed j u d i c i a l proceeding. She was told that the records were, in the Cabinet’s view, “no longer required or pertinent to the public record”. At t h i s very t i m e the Queensland Cabinet, Department of Families and Crown Law knew that (a) the records were c r i t i c a l l y relevant evidence for the a n t i c i p a t e d j u d i c i a l proceeding; (b) they would be discoverable pursuant to the discovery/disclosure rules of the Supreme Court of Queensland; and (c) any c l a i m of “Crown privilege/Cabinet c o n f i d e n t i a l i t y ” 6 would f a i l once the expected w r i t arrived and discovery procedures commenced, because the records were not created for a Cabinet purpose. 7 So while we were waiting p a t i e n t l y f o r t h e C r o w n Solicitor’s final advice regarding access or non-access, on the assurance that we were dealing with “the Crown” – the so-called “model litigant” – and t h a t the records were safe, on 5 March, 1990 the Queensland Cabinet ordered the destruction of the evidence. The order was secretly carried out on 23 M a r c h, 1 9 9 0. O f f i c i a l n o t i f i c a t i o n on t h e “access issue” – the issue to be l i t i g a t e d – d i d not come from the Government until 22 May, 1990, weeks a f t e r all the sought-after records had been destroyed.
We were given no opportunity to seek injunctive relief from the courts.
In t h i s early M a r c h, 1990 period, when discussing the m a t t e r w i t h t h e Family Services M i n i s t e r ’ s P r i v a t e Secretary, I was inadvertently told of t h e shredding plans or act-of-shredding. I i m m e d i a t e l y challenged the proposed action, only to be told the next day that the Minister would no longer deal with me. The Minister insisted on my union’s General Secretary a n d / o r h i s A s s i s t a n t t a k i n g over the case, which happened, and then several weeks l a t e r, I w a s s u m m a r i l y d i s m i s s e d. M y h a n d l i n g o f t h i s c a s e w a s u s e d a s o n e o f the excuses to dismiss me.
Before I was finally dismiss e d, I inform e d m y union’s Executive t h a t t h e shredding of the records represented a potential serious breach of the criminal law which could involve the entire Cabinet. It did not move them, other than to remove me.
The Criminal Justice Commission: administration of justice In December, 1990 I took my dismissal to the new Criminal Justice Commission (CJC). It indicated that it could look into the matter because it involved a unit of public administration.
This journey went into the very bowels of Queensland’s c r i m i n a l j u s t i c e s y s t e m a n d p u b l i c a d m i n i s t r a t i o n. B o t h w e r e f o u n d w a n t i n g. I w a s confronted with dissembling, delay, double standards, misleading of P a r l i a m e n t, conflicts of i n t e r e s t, e r r o r s and omissions, lost documents, f a i l u r e to refer, t a m p e r e d tapes, intimidation, threats, misquoting and misinterpreting the law.
The alleged offence, which I p u t to the CJC a s f i t t i n g t h e d e s t r u c t i o n - o f evidence conduct by the Queensland Cabinet, was s. 129 of the Criminal Code Act 1899 (hereinafter “the Criminal Code”).
perfectly reasonable view for competent lawyers to hold.
I c h a l l e n g e d t h e C J C ’ s v i e w f r o m t h e o u t s e t, s u g g e s t i n g t h a t i t was legal nonsense. I also suggested t h a t the a l t e r n a t i v e s of a t t e m p t i n g to o b s t r u c t justice, or a conspiracy to pervert the course of justice, may be available on the facts.
U n d e r e l e m e n t a r y s t a t u t o r y i n t e r p r e t a t i o n r u l e s, the operative word in s.
119 is “includes”. In other words, the t e r m “ j u d i c i a l proceeding” w a s “unfettered” – but more of that later.
In 1993 the Senate established the Senate Select C o m m i t t e e on Public I n t e r e s t Whistleblowing 9 a s p a r t of a federal government move to e s t a b l i s h national whistleblower protection legislation. I presented a submission, using the Heiner affair as the vehicle to address its terms of reference. In its August, 1994 report, the C o m m i t t e e unanimously recommended t h a t the Goss Government review this case, and eight other “unresolved” Queensland cases. 10 The Goss Government declined to do so.
In reaction to the Goss Government’s refusal, in December, 1994 the Senate established the Senate Select Committee on Unresolved Whistleblower Cases, in which the Heiner a f f a i r was a specific t e r m of reference. This C o m m i t t e e, chaired by (then) ALP T a s m a n i a n Senator Shayne Murphy, took evidence throughout 1995.
In evidence before this Senate Select Committee, the CJC official and lawyer who h a d h a d prime c a r r i a g e of my c o m p l a i n t made t h i s so-called “legal
declaration” concerning due process touching on the protection of evidence:
“What you do with your own property before l i t i g a t i o n is commenced, I suggest, is quite different from w h a t you do w i t h i t a f t e r i t i s commenced”. 11 The Queensland Government and CJC claimed t h a t the Queensland Government acted on legal advice when ordering the destruction of the evidence,
and pointed to advice of 23 January, 1990 which relevantly said:
“ … t h i s advice is predicated on the f a c t t h a t no legal action h a s been commenced which requires the production of those files…”. 12 The CJC claimed that so long as the Queensland Government acted on legal a d v i c e, i t could not be established t h a t i t was a c t i n g dishonestly; which, in turn, could not enliven the necessary official misconduct provisions of t h e Criminal Justice Act 1989 or, for that matter, the Criminal Code.
The CJC s a i d t h a t i t s duty was not to a d j u d i c a t e between competing advices on the same legal point – that is, s. 129 – but rather, so long as advice existed and had been acted upon – in effect any advice, including wrong advice 13 – t h a t w a s sufficient to give the government clearance to those involved in t h e shredding.
In dealing with the CJC’s understanding of the law, I point to O s t r o w s k i, 14 wherein Callinan and Heydon JJ, in finding a guilty verdict against Mr Palmer, a c r a y f i s h e r m a n from Western A u s t r a l i a who obtained Crown advice which
happened to be erroneous before acting on it, said:
“A mockery would be made of the criminal law if accused persons could rely on, for example, erroneous legal advice, or t h e i r own often self-serving understanding of the law as an excuse for breaking it…”.
The role of the State Archivist in the administration of justice The Queensland Government has also claimed that it acted under the authority of the L i b r a r i e s a n d Archives Act 1988. If t h i s were the end of t h e m a t t e r, i t would permit the power under that Act – now the Public Records Act 2002 – to intervene unilaterally in the administration of justice and override s. 129 of the Criminal Code or the discovery/disclosure Rules of the Supreme Court.
Of course, the correct position is that no archivist would ever a u t h o r i z e, 15 or may legally authorize, the destruction of public records when knowing t h a t they were likely to be evidence f o r a j u d i c i a l proceeding. Yet the CJC c l a i m e d t h a t the “legal value” of public records did not fall w i t h i n the a r c h i v i s t ’ s statutory discretion when appraising them for destruction/retention, as her sole concern was their “historical” value. Out of t h i s a f f a i r, I h a v e s u g g e s t e d t h a t State/federal archivists should be made, by law, officers of the Parliament, just a s Auditors-General are, to a f f o r d t h e m g r e a t e r independence and protection from Executive power when protecting public records in the public interest. 16 I reiterate, openness and transparency were not present at this vital period of February-March, 1990. When we were w a i t i n g for the “ f i n a l ” advice f r o m Crown Law at that time, the Queensland Government had already received it on 23 January, 1990. We were not officially told of t h i s advice, or w h a t t h e government intended to do, in a matter which unquestionably concerned judicial proceedings in which the Heiner Inquiry documents were known to be the central item of evidence. Moreover, we were misled into b e l i e v i n g t h a t t h e f i n a l a d v i c e was s t i l l coming, when the Government already h a d i t, and h a d decided t o destroy the evidence. Official notice only came a f t e r everything h a d been destroyed.
Inviting a world without evidence The CJC’s position on “due process” gave rise to very serious concern. In effect, it invited open slather on the administration of justice by the Executive in terms of destroying evidence, w i t h i t s full backing a s the so-called independent watchdog against government corruption.
It was suggesting that all evidence in the possession or control of a party, including the Queensland Government, could be legally and proactively destroyed up to the moment of the expected writ being filed and/or served. The shredding could be done for the specific purpose of preventing the known evidence being used in those a n t i c i p a t e d proceedings. If t h i s were correct a t law, i t would simply invite a “ w o r l d w i t h o u t evidence”17 – and d a r e I s a y, one of A u s t r a l i a ’ s greatest jurists, Sir Samuel Griffith, was not that silly when drafting s. 129!
This position has not been recanted by the CJC’s successor body, the Crime and Misconduct Commission (CMC), or the Queensland government.
In his oral submission to the Senate Select C o m m i t t e e on Unresolved Whistleblower Cases on 23 February, 1995 in Brisbane, my senior counsel, Mr Ian Callinan, QC 18 s a i d t h i s o n t h e p o i n t of destroying known evidence which is or
may be required in judicial proceedings:
“The real point about the m a t t e r is t h a t i t does not m a t t e r when, in t e c h n i c a l t e r m s, j u s t i c e b e g i n s t o r u n. W h a t i s c r i t i c a l is t h a t a p a r t y in possession of documents knows that those documents might be required for the purposes of litigation and consciously takes a decision to destroy them.
T h a t is unthinkable. If one h a d commercial l i t i g a t i o n between two corporations and i t emerged t h a t one of the corporations knowing or believing t h a t there was even a chance t h a t i t m i g h t be sued, took a decision to destroy evidence, t h a t would be regarded a s conduct of t h e greatest seriousness – and much more serious, might I suggest, if done by a government”. 19 I n A u g u s t, 1 9 9 5, a f t e r c e r t a i n i n c u l p a t o r y a d m i s s i o n s w e r e m a d e by a C J C official to the Senate 20 concerning the s t a t e of knowledge of the members of Queensland Cabinet before the shredding, and the purpose for ordering t h e destruction of the records, Mr Callinan, QC advised the Senate Select Committee t h a t t h e C J C ’ s s t r i c t, n a r r o w i n t e r p r e t a t i o n of j u d i c i a l proceedings was “too significant to ignore”. 21 He went on to advise that s. 129 may have been breached, or s. 132 of the Criminal Code – conspiracy to pervert the course of justice – in t h e a l t e r n a t i v e f o r t h e sake of completeness. He cited R v. Rogerson 22 a s t h e leading authority.
In i t s October, 1995 report the Senate Select C o m m i t t e e described t h e shredding a s “an exercise in poor judgement”, 23 and failed to address M r Callinan’s advice.
The Morris/Howard report In May, 1996, the Borbidge Queensland Government appointed two independent b ar r ist er s, Messrs Anthony M o r r i s, QC and E d w a r d Howard to i n v e s t i g a t e m y allegations “on the papers” and to recommend to Government whether or not an open inquiry should be held. Their report was tabled in October, 1996 w i t h considerable fanfare.
M e s s r s M o r r i s, QC and Howard found t h a t i t was open to c o n c l u d e t h a t numerous criminal offences 24 may have been committed – that is, breaches of ss.