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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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He went on:

“ I t is certainly the case t h a t if one h a s regard to the principles of responsible government alone it can be persuasively argued that a Governor m u s t a l w a y s f o l l o w t h e a d v i c e o f t h e M i n i s t r y. B u t t h e a p p l i c a t i o n of t h e principles of the rule of law leads to a different conclusion. The rule of law also imposes an obligation upon a Governor to see that the processes of the Executive Council and the action being taken are lawful and to refuse to act when they are not. That duty is not confined to refusing to be a party to an action which is unlawful in the sense of being contrary to say the criminal law but includes a c t s which are beyond power or a c t s which are w i t h i n power but are being exercised i r r e g u l a r l y a s was the case f o r e x a m p l e i n FAI v. Winneke”.

In my view, pursuant to the sworn duty of h e r M i n i s t e r s of the Crown t o uphold Queensland law, which includes the Crime and Misconduct Act 2 0 0 2, i n which exists a body of conduct described as “suspected official misconduct”, Her Excellency need only s a t i s f y herself t h a t suspected official misconduct e x i s t s which is not being addressed equally and properly by her government, thereby placing itself beyond the reach of the law by self-serving abuse of office, and that may trigger her discretionary reserve powers.

After receiving my first letter of 13 October, 2003, Her Excellency requested a r e p o r t f r o m t h e P r e m i e r on t h e H e i n e r a f f a i r on 21 October, 2003. As of 29 M a r c h, 2 0 0 5, a l m o s t 1 8 m o n t h s l a t e r, Her Excellency was s t i l l w a i t i n g f o r t h e report, which h a d been purportedly delayed by the Queensland Government wanting to wait until the Ensbey c a s e w a s s e t t l e d. 40 T h a t c a s e w a s s e t t l e d o n 1 7 September, 2004 by the Queensland Court of Appeal. No appeal was taken on its verdict. I simply ask, why the delay still?

I also p u t t h e s e l e g a l / c o n s t i t u t i o n a l issues to the Queensland Premier by letters d a t e d 15 October and 22 November, 2004. I requested t h a t a Special Prosecutor be appointed because the CMC and police were tainted and not free of real or apprehended b i a s. 41 Premier B e a t t i e refused. He claimed t h a t my allegations h a d been “exhaustively investigated” – a c l a i m which is simply untrue, and arguably self-serving.

On 23 M a r c h, 2005, in a f u r t h e r letter to Her Excellency, I p u t t h e

significance of the Heiner affair in these terms:

“The c r i m i n a l law only c a r r i e s a m o r a l and c o n s t i t u t i o n a l basis of authority and respect in a democracy if it is applied equally by government a g a i n s t a l l c i t i z e n s who t r a n s g r e s s i t. T h a t i s government by the rule of law. If, however, the law becomes an instrument of sectional application by government for government, such conduct is unfair and oppressive and sets government in conflict with democracy itself and the rule of law. T h a t i s tyranny”.

In m y l a s t letter of 3 April, 2005 to Her Excellency I suggested t h a t her government’s only weapon of defence now was delay in providing the requested report.

On 6 April, 2005 I gained access to a s u b m i s s i o n f a x e d to the Queensland Director of Public Prosecutions on 13 September, 2003 from Pastor Ensbey’s legal t e a m. They cited the former DPP’s i n t e r p r e t a t i o n o f s. 129 a s applied in t h e H e i n e r a f f a i r a s reason not to proceed w i t h the charge under s. 129 a g a i n s t t h e i r c l i e n t in the D i s t r i c t Court. The submission was handed to me by M r Ensbey. He had been sacked as a pastor of the Baptist Church in the wake of his conviction and was earning a living as a truck driver. He also made available the response, dated 6 November, 2 0 0 3, f r o m t h e c u r r e n t DPP, Ms Leanne Clare, in w h i c h s h e r e j e c t e d t h e e a r l i e r i n t e r p r e t a t i o n a n d advised t h a t t h e p r o s e c u t i o n against Pastor Ensbey was in the public interest and would proceed. 42 Consequently i t may be s a i d w i t h c e r t a i n t y t h a t when the S t a t e of Queensland prosecuted one of i t s citizens, namely P a s t o r Douglas Ensbey, t h e State knew that its Ministers of the Crown and senior bureaucrats escaped the s a m e f a t e for the same destruction-of-evidence conduct by the same c r i m i n a l provision (i.e., s. 129) being interpreted differently.

No statute of limitations applies in regard to these alleged offences under the Criminal Code, and they may therefore still be addressed.

Issues of concern In regard to the a d m i n i s t r a t i o n of the c r i m i n a l law in Queensland, i t s governance and the conduct of certain legal practitioners, i t is now reasonably

open to conclude that:

1. Certain Queensland public officials (i.e., Ministers of the Crown, MLAs and public servants) collectively have themselves m i s i n t e r p r e t e d and/or know t h a t the c r i m i n a l law (i.e., s. 129 of the C r i m i n a l Code) h a s been erroneously interpreted in t h e H e i n e r a f f a i r, w h i c h h a s h a d the effect of preventing serious c r i m i n a l and/or disciplinary charges being b r o u g h t a g a i n s t c e r t a i n o f them for their destruction-of-evidence conduct. Yet, in the case of a p r i v a t e citizen (i.e., P a s t o r Ensbey), some of those s a m e public officials have knowingly applied and/or now know t h a t the s a m e provision was applied correctly to the full extent of the law for the citizen’s similar destruction-of-evidence conduct and seen him found guilty.

2. Certain Queensland public officials (i.e., Ministers of the Crown, MLAs and public servants) in respect of Point 1 have abused and continue t o

–  –  –

A Crown Prosecutor’s duty The law says that a Crown Prosecutor’s duty is to act “fairly and impartially, and to assist the court to arrive at the truth”, and in respect of any decision to prosecute or not to prosecute, it must be based upon the evidence, the law and

prosecuting guidelines, and must never be influenced by:

“ ( a ) race, religion, sex, national origin or political views;

(b) personal feelings of the prosecutor concerning the offender or t h e victim;

(c) possible political advantage or disadvantage to the government or any political group or party; or ( d ) the possible effect of the decision on the personal or professional circumstances of those responsible for the prosecution”. 43 I submit that prosecuting duty in Queensland is in doubt in respect of the Heiner affair.

Conclusion The rule of law requires respect for due process over expediency, p o l i t i c a l or otherwise.

Those with a sworn duty to uphold the law and our Constitution o u g h t n o t allow t h i s m a t t e r to r e m a i n unresolved. To do so i m p e r i l s our d e m o c r a t i c heritage.

The law m u s t not be brought into derision by government, or anyone, p a r t i c u l a r l y the c r i m i n a l law and our C o n s t i t u t i o n. This m a t t e r m u s t be properly addressed to restore public confidence and t r u s t in Queensland’s impartial administration of justice and public administration.


1. Section 13 of the Public Service Management and Employment Act 1988. See Crown Law advice dated 19 January, 1990 to M s R u t h M a t c h e t t, Acting Director-General, D e p a r t m e n t of Family Services and Aboriginal a n d Islander A f f a i r s – Volume 1, Queensland Government – Submissions, Supplementary Submissions and Other Written M a t e r i a l A u t h o r i s e d t o be Published – 1995 Senate Select C o m m i t t e e on Unresolved Whistleblower Cases.

2. See pp. 66-67, The Heiner Affair – The Destruction of Evidence, August, 2004 Report of the House of Representatives S t a n d i n g C o m m i t t e e o n L e g a l a n d C o n s t i t u t i o n a l A f f a i r s, Goss Cabinet awareness of child abuse at JOYC [John Oxley Youth Centre].

3. Crime Commission Act 1997: Section 6 (1) states:

“ ‘ C r i m i n a l paedophilia’ means a c t i v i t i e s involving ( a ) offences of a sexual n a t u r e c o m m i t t e d in relation to children; or (b) offences relating to obscene material depicting children”.

4. See pp. 45-46, points 2.179–2.180, The Heiner Affair – The Destruction of Evidence, op. cit..

5. Queensland Professional Officers’ Association and Queensland Teachers’ Union.

6. See Sankey v. Whitlam (1978) 142 CLR 1, at 38-45, 68-69.

7. This opens up interesting McCabe-related questions of deliberate “warehousing” of discoverable records “off shore”, that is, transferring the records f r o m t h e F a m i l i e s D e p a r t m e n t into the hoped-for security of t h e Cabinet room to avoid discovery/disclosure. Also, certain of those p a r t i e s knew t h a t the records contained probative contemporaneous evidence concerning the known or suspected abuse of children in care, which on any reasonable view ought to have been referred to the police or C r i m i n a l J u s t i c e C o m m i s s i o n a s a m a t t e r of legal obligation to be independently investigated.

8. Criminal Code, P a r t 3, Offences Against t h e A d m i n i s t r a t i o n of Law and Justice and Against Public Authority, Chapter 16, Offences Relating to the Administration of Justice.

9. Established on 2 September, 1993 and chaired by Tasmanian Senator Jocelyn Newman.

10. See Point 1.13, In The Public Interest, Report of the Senate Select Committee on Public Interest Whistleblowing, August, 1994.

11. CJC Chief C o m p l a i n t s Officer M r Michael Barnes, Senate Hansard, 23 February, 1995, pp. 104-105.

12. See Volume 1, Queensland Government – Submissions, Supplementary Submissions and Other Written Material Authorised to be Published, 1995 – Senate Select Committee on Unresolved Whistleblower Cases..

13. In R v. Cunliffe [2004] QCA 293, M c M u r d o P, McPherson JA, Mackenzie J

state this:

“ M i s i n t e r p r e t a t i o n o f t h e l a w e q u a t e s t o i g n o r a n c e o f t h e l a w and i s not an excuse: See Ostrowski v. Palmer and see also Olsen & Anor v. The Grain Sorghum Marketing Board ; ex parte Olsen & Anor”.

14. Ostrowski v. Palmer [2004] HCA 30.

15. http://www.mybestdocs.com/hurley-c-lucas-reprise-0408.htm ; also see http://www.mybestdocs.com/hurley-c-rk-des-law-0309.htm.

16. S e e U n i t e d S t a t e s a r c h i v e s a c a d e m i c book Archives and t h e Public Good:

Accountability and Records in Modern Society, Quorum Books, Westport, Connecticut & London, July, 2002, edited by Professor R i c h a r d Cox of t h e University of P i t t s b u r g h and A s s i s t a n t Professor David Wallace of t h e

–  –  –

Australia is called the Lucky Country, but luck has played only a small p a r t i n the country’s success. The conversion of resources into wealth requires c a p i t a l, technology, enterprise and h a r d w o r k. People do not invest in wealth c r e a t i n g activity when the risks are too high and the returns too low. Risks increase when the law is unpredictable and property rights are insecure.

The success of A u s t r a l i a ’ s p r i m a r y industry sector owes much to t h e r e l a t i v e s t a b i l i t y o f p r o p e r t y r i g h t s a n d c o n t r a c t u a l certainty secured by w h a t the great Scottish philosopher David Hume called the “three fundamental laws concerning the s t a b i l i t y of possessions, t r a n s l a t i o n by consent and t h e performance of p r o m i s e s ”. 1 These l a w s a r e m a i n t a i n e d by the s t r e n g t h of t h e Constitution and the eternal vigilance of the people.

This essay discusses a new t h r e a t to c o n s t i t u t i o n a l government a n d property rights in Australia that has arisen out of what is in principle a worthy and necessary p r o g r a m i n public policy, namely environmental protection. The t h r e a t a r i s e s n o t f r o m t h e a i m i t s e l f, but from the flawed processes by which environmental policies and laws are determined and implemented. These processes not only subvert constitutional principles but also admit bad science.

It is impossible to survey within a brief essay the complex and ever growing environmental regulatory regime in Australia. Hence I will focus my attention on one piece of legislation t h a t typifies all t h a t is wrong and dangerous a b o u t recent trends in environmental protection law in this country. The l e g i s l a t i o n I examine is Queensland’s Vegetation Management Act 1999 (VMA ) w h i c h a p p l i e s to all freehold and non-freehold lands in Queensland. This law reflects a r e g u l a t o r y m o d e l t h a t i s b e c o m i n g t h e s t a n d a r d in A u s t r a l i a. In searching f o r an i l l u s t r a t i v e case of a s t a t u t e t h a t comprehensively defeats the values of constitutional government, in p a r t i c u l a r t h e r u l e of law, d e m o c r a t i c principle and the basic requirements of natural justice, one need look no further than this Act. I will consider the constitutionality of some aspects of this legislation and the prospects for a successful challenge to its provisions.

Before I discuss the impact of this Act on constitutional government, it is necessary to make some explanatory observations about this form of government and its vulnerabilities.

What is a Constitution and what is constitutional government?

C o n s t i t u t i o n a l government, or government under law, is a r e m a r k a b l e achievement of modern c i v i l i z a t i o n, but i t h a s been gained a t a g r e a t price.

C o n s t i t u t i o n a l government enthrones the rule of law in the sense of t h e supremacy of known, general and impersonal laws over rulers and subjects alike.

Millions of people around the world have died in the establishment and defence of constitutional government. This is not an exaggeration when the human cost of the 17 th Century constitutional struggles in England, the American Revolution, the Civil War, the two World Wars, the uprisings a g a i n s t F a s c i s t a n d

–  –  –

restrictive laws are likely to be kept in place only by derogations from the rule of law in other respects. Typically, prohibition laws are maintained by privileging certain religious or moral opinions as against others.

I t is also claimed t h a t abhorrent i n s t i t u t i o n s such a s a p a r t h e i d a n d slavery can be implemented consistently with the rule of law, provided that the d i s a b i l i t i e s they impose are not the result of a r b i t r a r y discretions of authorities. This claim is much more problematic. In such cases, the legislators themselves are a c t i n g a r b i t r a r i l y in both establishing and m a i n t a i n i n g t h e institutions.

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