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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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129, 132 and/or 140, 192 and 204, including official misconduct. They recommended the immediate establishment of a public inquiry, stating that it w a s w a r r a n t e d b e c a u s e t h e p o t e n t i a l offences, carrying penalties ranging f r o m one to seven years i m p r i s o n m e n t, were f a r more serious t h a n those which brought the Fitzgerald Inquiry into being in 1987.

Messrs Morris, QC and Howard suggested t h a t s. 129 h a d been breached.

They cogently argued that it did not require a judicial proceeding to be on foot t o t r i g g e r i t, a n d t h a t t h e F o r m o f t h e I n d i c t m e n t S c h e d u l e ( N o. 83) could not dictate the meaning of the Code. 25 They roundly criticized the conduct of the CJC, suggesting that its investigation was not thorough or independent.

The Borbidge Government, instead of establishing a public inquiry, sent the report to the Office of the Director of Public Prosecutions (DPP) to be advised ( a ) a s t o t h e c o r r e c t i n t e r p r e t a t i o n o f s. 129; (b) of whether charges could be brought a g a i n s t those named; and (c) of whether a public inquiry should be held.

A f t e r a 6 - m o n t h delay, the Borbidge Government made an announcement that the DPP had advised (a) that it was not in the public interest to hold an inquiry; (b) that certain officials could be charged, but it was not in the public interest to do so. There was, however, no announcement about the proper interpretation of s. 129.

I now w a n t t o introduce the contents of a “ h i g h l y p r o t e c t e d internal CJC

m e m o r a n d u m ” 26 dated 11 November, 1996, written by then CJC Chief Complaints Officer Mr Michael Barnes, to his superiors (i.e., Messrs Frank Clair and M a r k Le Grand) in response to the findings of the Morris/Howard Report. It says this

at page 4:

–  –  –

The smoking gun – the January, 1997 DPP’s advice Now let me return to the DPP’s advice to the Borbidge Government on t h e findings and recommendations of the Morris/Howard report.

That advice currently remains hidden from public scrutiny. I, however, have the advantage of h a v i n g r e a d i t. O n 2 3 September, 2003 I was given access t o this 6 January, 1997, 23-page advice by the Leader of the Queensland Opposition, in whose possession i t rests. I can say w i t h c e r t a i n t y t h a t i t erroneously interprets s. 129. It claims that a judicial proceeding must be on foot before it can be t r i g g e r e d. 28 I t is therefore open to conclude t h a t t h i s erroneous i n t e r p r e t a t i o n h a d t h e e f f e c t o f preventing serious criminal charges being laid against those involved in the shredding of the Heiner Inquiry documents.

I now turn to two further events which ran almost parallel in time.

–  –  –

Double standards on public display The second event was t h e c h a r g i n g o f a Queensland citizen, a P a s t o r Douglas Ensbey, by the police and DPP with the offence of destroying evidence required for a j u d i c i a l proceeding. The guillotined d i a r y of the girl involved in the case contained evidence about her being abused by a parishioner. The p a s t o r w a s committed and ordered to stand trial on 13 March, 2003 pursuant to s. 129, or i n t h e a l t e r n a t e, s. 1 4 0 ( a t t e m p t i n g t o o b s t r u c t j u s t i c e ) of t h e C r i m i n a l C o d e.

The relevance of this to t h e H e i n e r a f f a i r was that the destruction-of-evidence conduct occurred some five to six years before the relevant j u d i c i a l proceeding commenced. Yet, according to the same law-enforcement a u t h o r i t i e s, such action could not apply in Heiner because t h e a n t i c i p a t e d proceedings h a d not commenced.

I witnessed this shredding trial throughout, accompanied for much of the time by Mr Grundy. Within five minutes of the District Court trial commencing, the court ruled that s. 129 did not require a judicial proceeding to be on foot to trigger the provision. We saw the criminal law being applied by the State by selfserving double standards. On 11 March, 2004, Pastor Ensbey was found guilty of breaching s. 129. And then, on 25 March, 2004, Queensland’s Chief Law Officer, the Attorney-General and Minister for Justice, appealed the leniency of sentence to the Queensland Court of Appeal because of the seriousness of t h e c r i m e, i n doing so using my interpretation of s. 129. On 17 September, 2004 the Court of Appeal upheld that interpretation of s. 129, and the conviction, but rejected any increase in sentence.

Unarguable criminal provision The central structure for confirming the conviction in Ensbey 29 by their Honours

Davies, Williams and Jerrard JJA in respect of s. 129 was put in these terms:

“It was not necessary that the appellant knew that the diary notes would be used in a legal proceeding or that a legal proceeding be in existence or even a likely occurrence at the time the offence was committed. It was sufficient t h a t the appellant believed t h a t the d i a r y notes m i g h t be required in evidence in a possible future proceeding against B, that he wilfully rendered them illegible or indecipherable and t h a t h i s i n t e n t was to prevent t h e m being used for that purpose”.





Their Honours confirmed the legal correctness of Judge Samios’ direction to

the District Court jury, which was as follows:

“Now, here, members of the jury, the words, ‘ m i g h t be required’, those w o r d s m e a n a r e a l i s t i c p o s s i b i l i t y. A l s o, m e m b e r s o f t h e j u r y, I d i r e c t you there does not have to be a judicial proceeding actually on foot for a person to be guilty of this offence. There does not have to be something going on in t h i s courtroom for someone to be guilty of t h i s offence. If there is a realistic possibility evidence might be required in a judicial proceeding, if the other elements are made out to your satisfaction, then a person can be guilty of that offence”.

I t is highly relevant to note J e r r a r d JA’s reasoning in Ensbey on t h e definition of “judicial proceeding”. He demonstrated i t s u n f e t t e r e d m e a n i n g b y its plain reading and application to the offence of perjury (i.e., s. 123). In short, it could not be plainly “unfettered” in perjury, but “fettered” when dealing with t h e d e s t r u c t i o n of evidence. Consistency and p r e d i c t a b i l i t y m u s t apply under statutory interpretative principles.

I may add that in April/May, 2003, well before Ensbey w a s s e t t l e d, r e t i r e d former Appeal and Supreme Court of Queensland Justice the Hon James Thomas advised The Independent Monthly on s. 129. He advised t h a t w h i l e many l a w s were indeed arguable, s. 129 was not. It plainly included a proceeding not yet on foot but one within contemplation of the doer. He suggested that those involved in any breach may still be open to charges.

In short, i t is my contention t ha t t he e rrone ous i n t e r p r e t a t i o n of s. 129 used to t h w a r t m y p u r s u i t of j u s t i c e, was one which should never have been involved.

Put simply, this rule by Executive decree is totally unacceptable if the rule of law matters in Queensland.

–  –  –

“ T h e b a s i s i n principle of the discretion lies in the inherent or i m p l i e d powers of our c o u r t s t o protect t h e i n t e g r i t y o f their processes. In cases where i t is exercised to exclude evidence on public policy grounds, i t i s because, in all the circumstances of the p a r t i c u l a r case, applicable considerations of ‘high public policy’ relating to the a d m i n i s t r a t i o n of criminal justice outweigh the legitimate public interest in the conviction of the guilty”.

Courts need evidence to do j u s t i c e in a d j u d i c a t i n g d i s p u t e s. 30 This i s commonly known and accepted. Proper public record keeping also plays a n essential role in the administration of justice.

Concerning the protection of evidence, its admissibility and d i s c o v e r y / d i s c l o s u r e, i t i s u l t i m a t e l y f o r t h e c o u r t s, i n a d e m o c r a c y, t o decide what is and what is not admissible in evidence in a judicial proceeding. 31 It does not fall on the p a r t i e s to decide unilaterally for themselves to a d v a n t a g e themselves.

More especially, i t does not fall on the executive a r m of government t o decide for itself what is or is not required, and be p e r m i t t e d t o embark on a reckless or deliberate u n i l a t e r a l destruction-of-evidence exercise when party t o litigation. To do so would be to seriously and unacceptably breach the doctrine of the separation of powers. It would see the Executive capable of t h r u s t i n g a dagger into the h e a r t of the independence of the j u d i c i a r y for self-serving purposes, by denying the judicial arm of government its constitutional right to fact-find, truth-seek, decision-make and to do justice according to law without fear or favour, based on all available evidence relevant to a pending or anticipated judicial proceeding.

Another foundation stone on which t h i s paper is based a r e t h e w o r d s of

Gibbs C J in FAI Ltd v. Winneke, 32 namely:

“I can see no reason in principle why the rules of natural justice should not apply to an exercise of power by the Governor in Council, who is of course not above the law…”.

I am also fortified by Deane J in A v. Hayden, 33 wherein he said:

“…neither the Crown nor the Executive has any common law right or power to dispense with the observance of the law or to authorise illegality”.

Chief Justice Gleeson, in his speech to the Family Court Conference in Sydney

in 2001, said:

“The importance of the a d m i n i s t r a t i o n of c r i m i n a l j u s t i c e, not only t o public safety and security, but also to the decency of a society, and i t s respect for h u m a n dignity and r i g h t s, is too obvious to require elaboration”. 34 While I agree with Chief Justice Gleeson, from my experience in the Heiner affair with Queensland’s criminal justice system and its public administration, I suggest t h a t i t s i m p o r t a n c e needs a dose of elaboration from north of t h e Tweed, where our unicameral system of government reigns supreme.

Power corrupts, absolute power c o r r u p t s absolutely. I believe t h a t there must be limits placed on power and its exercise through checks and balances.

The great contract of trust Our system of government works on the g r e a t c o n t r a c t of t r u s t between t h e Crown – on behalf of the people – and/or the Crown’s representative, i t s Ministers of State and the people’s elected representatives that in all things, at all t i m e s, for all p a r t i e s, the law and C o n s t i t u t i o n shall be respected a n d upheld. Before power can be exercised over the people, the governed and the law demand that the governors and/or administrators seal this great contract by a sworn Oath of Office. 35 Under t h i s g r e a t c o n t r a c t, a l l a r e p u b l i c l y c o m m i t t e d t o the rule of l a w because the law binds us all, accepting that we are all equal before the law.

However, when and if the Crown’s M i n i s t e r s place themselves beyond t h e law and c o n s t i t u t i o n a l c u s t o m, t h e u l t i m a t e g u a r d i a n is the Crown itself. In A u s t r a l i a ’ s c o n s t i t u t i o n a l m o n a r c h y s y s t e m, t h e r o l e o f the Governor-General or State Governor must be, in the last resort, to invoke the Crown’s d i s c r e t i o n a r y reserve powers in order to ensure compliance w i t h the general law and t h e effective working of parliamentary democracy.

In my opinion, we may have such an extraordinary circumstance now in the shape of the Heiner affair.

I t is well settled t h a t neither Sovereign, Head of S t a t e, President nor executive government should be above t h e l a w in societies which c l a i m to be governed by the rule of law, any more than you or I are above t h e l a w. 36 T h i s d e m o c r a t i c principle engenders public confidence and t r u s t in government. A t another level in our system, our Constitution p r o v i d e s t h e p o w e r a n d a u t h o r i t y to an independent judiciary to act as a bulwark against abuse by the executive government, and requires the j u d i c i a r y to do j u s t i c e w i t h o u t fear or favour according to law. When necessary, if the Executive and l e g i s l a t u r e e x c e e d t h e i r c o n s t i t u t i o n a l l i m i t s, a s in C o m m u n i s t P a r t y Dissolution Act 1951, 37 our H i g h Court may strike down laws or actions by the Executive and the l e g i s l a t u r e which are found to be u n c o n s t i t u t i o n a l or illegal, even in the face of t h e popularity of those laws or those actions.

I am also reminded of the warning issued by Thomas Jefferson:

“The two enemies of the people are criminals and government, so let us tie the second down with the chains of the Constitution so the second will not become the legalized version of the first”.

Non-negotiable values Even after 14 years struggling for justice in respect of the Heiner affair, I hold f i r m to the notion of equality before the law for all, especially expecting government to act lawfully in all things and at all times. It is a non-negotiable value of this nation. It sustains our freedom.

Notwithstanding Voltaire’s warning that it is dangerous to be right when the government is wrong, if freedom m a t t e r s, o p p r e s s i o n a n d abuse of power simply must be resisted because one person’s stand can make a difference. There is a need to e n s u r e t h a t t h i s generation leaves t h e n e x t w i t h the u n d a m a g e d legacy of a decent free society, and to see t h a t w h a t a p p l i e s to t h e l o w e s t i n society applies to the highest at law, especially the criminal law.

I p u t t h e t e s t in these t e r m s to the House of Representatives S t a n d i n g Committee on Legal and C o n s t i t u t i o n a l A f f a i r s d u r i n g i t s i n v e s t i g a t i o n o f t h e Heiner affair as part of its national inquiry into crime in the community. In my

opening statement on 16 March, 2004 in Brisbane, I said :

“…the resignation or jailing of a Minister, and perhaps even, the jailing of an entire Cabinet and senior public officials involved in a serious cover-up, a l t h o u g h painful to see, will better secure our d e m o c r a t i c f u t u r e a n d stability in the long run than turning a blind eye to high level corruption in the short run because it sends the message to all that no one is above t h e law”.

If and when the law is breached by government, i t h a s the c a p a c i t y t o wreak untold havoc on the peace, order and good government of any n a t i o n o r State.

Invoking the State Governor’s discretionary reserve powers On 13 October, 2003 and a g a i n on 20 September, 2004 I placed these m a t t e r s before Her Excellency the State Governor, because I believed that her government was placing itself beyond the reach of the criminal law by abuse of power. I held t h a t such a circumstance may give rise to the need for her to invoke her discretionary reserve powers wherein, if s a t i s f i e d t h a t the allegation be well made, and i t is not being properly addressed because of abuse of power, Her Excellency could “encourage” her government to appoint a Special Prosecutor to f i n a l l y r e s o l v e t h e m a t t e r, or take other necessary measures w i t h i n her legal discretion, 38 in order to restore public confidence in government.

In his 1999 Sir Robert Menzies Oration entitled Governors, Democracy and t h e R u l e o f L a w, 39 f o r m e r T a s m a n i a n C h i e f J u s t i c e a n d T a s m a n i a n G o v e r n o r t h e

Hon Sir Guy Green said this:

“The principle of responsible government is not the sole or even t h e m a i n principle upon which our system is founded. An even more i m p o r t a n t principle is the rule of law”.



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