Heiner revisited-the battle goes on

Heiner revisited-the battle goes on

By Kevin Lindeberg

Whistleblower Kevin Lindeberg's story on the Heiner affair-or Shreddergate as it has become known-was first reported in IDM in our July/August 2003 issue ("When proof goes missing"). Since then, Lindeberg's struggle for justice has featured on ABC's Australian Story ("Three little words"-May 2004) and two more Federal Government select committees have investigated the affair, with the Senate still taking evidence. Here, Kevin Lindeberg, who has dedicated much of the last 14 years to the case at great personal cost, brings us right up to date with the records management debacle that has attracted worldwide attention.

Members of the Executive Government of Queensland of 5 March 1990 should be charged with the criminal offence of destruction of evidence pursuant to section 129 of the Criminal Code (Qld), and a Special Prosecutor1 should be appointed in Queensland to weed out the corruption associated with the so-called Heiner affair.

So said the House of Representatives' Legal and Constitutional Affairs Committee's reports two and three2, tabled in Federal Parliament on 11 August 2004 by the Hon. Bronwyn Bishop MP in respect of its investigation into the affair as part of its national inquiry into crime in the community.

It appears to be the first time in Australian political history that such a serious finding has been made of one government against another within the Commonwealth of Australia, or elsewhere in the Western world. This is a measure of the legal/constitutional significance of the Heiner affair.At the core of Heiner is the importance of proper recordkeeping in serving the interests of justice and holding governments to account on the premise that all Australians are equal before the law.

In April 2004, the Senate established the Senate Select Committee on the Lindeberg Grievance (SSCLG)3. It is looking into whether or not the Queensland Government and Criminal Justice Commission (CJC)-now the Crime and Misconduct Commission (CMC)-may have committed contempt by deliberately misleading previous Senate Committees looking into Heiner.

The SSCLG evidence to date goes very much to the same evidence considered by the Bishop Committee with additional features concerning possible withholding and tampering with evidence by the Queensland Government to prevent the Senate from making full and proper findings.

The challenge facing the Senate is unprecedented in Australian political history. Possible criminal contempt charges may be open against the Queensland Government and CJC/CMC. The summonising of witnesses and securing relevant documents from a State jurisdiction is also a significant constitutional question, and if contempt is found, how can it be punished.

Heiner turns on an important legal/democratic principle concerning proper recordkeeping. It holds governments to account. It preserves individual rights and freedoms. To prevent that principle functioning properly, either in judicial proceedings or parliament by improper shredding, undermines the rule of law and parliamentary democracy.

Heiner is all the more reprehensible because 'the obstructer' is government itself. And, the State Archivist became a player, not an independent watchdog. We have a government deliberately shredding evidence known to be required in foreshadowed judicial proceedings. It claimed that it had a perfect right to do so because the expected writ had not been filed and served at the time, and because the State Archivist gave prior approval for the destruction.

This 'house of cards' Heiner defence, used by the Queensland Government and endorsed by the CJC and DPP for the life of Heiner, totally collapsed in March 2004 in the Queensland District Court in R v Douglas Roy Ensbey. The accused minister of religion was found guilty of destroying a female minor's diary in which she was known to have recounted being sexually abused by an adult. The act of shredding occurred some five years before the relevant judicial proceeding commenced concerning the girl's assailant. The pastor was charged, found guilty and sentenced to six months jail fully suspended.

He was charged under section 129 of the Criminal Code (Qld) 1899 which says:"Any person who, knowing that any book, document, or other thing of any kind, is or may be required in evidence in a judicial proceeding, wilfully destroys it or renders it illegible or undecipherable or incapable of identification, with intent thereby to prevent it from being used in evidence, is guilty of a misdemeanour, and is liable to imprisonment with hard labour for three years."

This provision was, and remains, central in Heiner. However, when applying it to Heiner, the Queensland law enforcement authorities claimed that the judicial proceeding had to be on foot before it could be triggered. The Ensbey case lays bare the double standards.As if to rub salt in the wound, Queensland's Attorney-General subsequently authorised an appeal against sentence in the Ensbey case to Queensland's Court of Appeal. On 28 June 2004 the case was heard. I witnessed it from a packed public gallery. None of the parties contested the interpretation of section 129, which the Queensland Government and law-enforcement authorities refused to apply in Heiner, and where the provision's triggering elements were far clearer and far more serious than in Ensbey.

In February 1995, my then counsel Mr Ian Callinan QC (now Justice of the High Court of Australia) when appearing before the Senate Select Committee on Unresolved Whistleblower Cases made this submission:
"The course of justice, when it begins to run, is a matter that has been much debated in the court and there is a serious open question about when the course of justice does begin to run in cases. The real point about the matter is that it does not matter when, in technical terms, justice begins to run. What is critical is that a party in possession of documents knows that those documents might be required for the purposes of litigation and consciously takes a decision to destroy them. That is unthinkable.

If one had commercial litigation between two corporations and it emerged that one of the corporations knowing or believing that there was even a chance that it might be sued, took a decision to destroy evidence, that would be regarded as a conduct of the greatest seriousness-and much more serious, might I suggest, if done by a government."4No justice system anywhere in the world can survive or function if a penal provision in offences against the administration of justice positively allows any party to known imminent judicial proceedings to destroy all the relevant evidence in his possession up to the moment the expected writ is filed and served to prevent its use in those expected proceedings. All evidence everywhere could be destroyed. The offence of obstruction of justice could not stand. Justice itself would collapse.

While it is true the State Archivist gave prior approval to destroy the Heiner Inquiry documents-an inquiry which looked into the management of a youth detention centre where abuse of children was claimed to be known by the authorities to have been occurring-the Queensland Cabinet failed to inform the State Archivist that the public records were being sought for court. The State Archivist was given to believe that they were no longer required. Notwithstanding the approval having been obtained (albeit on misleading information), it would not and could not override the Criminal Code, just as acting on legal advice does not afford any protection from prosecution if the advised action is unlawful. It is well settled that ignorance of the law is no excuse.

Heiner stands as a huge hazardous rock in the judicial sea normally kept calm by respect for due process by all who sail on it. The Bishop report has brought this dangerous rock to national attention, but, as of 2004, its perversity still threatens the Senate's privileges and immunities.

So where does all this leave recordkeepers? The Australian Society of Archivists has condemned the CJC's misrepresentation of the State Archivist's role in Heiner, as well as the dangerous practice of ad hoc appraisal in its May 2004 submission to the SSCLG. In 1995 the CJC gave contradictory evidence to the Senate on the role of the State Archivist, particularly by claiming that the archivist's appraisal discretion concerning disposal/retention of records turned solely on their historical value. The CJC claimed that it was none of the archivist's business as to whether or not a legal claim was on the record in question at the time of appraisal.

To suggest that an archivist may remain indifferent to the legal/evidentiary value of records and approve their destruction so long as they have no historical value, endangers the administration of justice and gives the State Archivist greater power than a court of law. In my opinion, the CJC's view is an affront to the profession itself, the Senate and the rule of law.

But more needs to be done by the recordkeeping profession. Its voice must be heard more loudly. Heiner has reached an unprecedented high watermark in the good governance of Australia, particularly in Queensland. The Bishop report stands as a major warning beacon to the way the criminal law is practised in "post-Fitzgerald" Queensland.

It sends a warning siren to the archives profession that Heiner must be faced and corrected if the public is to have confidence in its mission. Accountability is at stake. The profession's credibility is at stake. To remain silent, over and above any submission to the SSCLG, diminishes Australian recordkeeping nationally and internationally.

Proper recordkeeping and respect for the rule of law go hand in glove. They cannot be at loggerheads. Professional standards should mirror others like lawyers and accountants. In my opinion, when this noble profession is corrupted for improper purposes, it must be confronted no matter who the corruptor may be.

The Senate stands on a fresh constitutional threshold in the Lindeberg Grievance. It is yet to be fully tested as to whether or not a finding of criminal contempt can be made out against the Queensland Government and CJC.

If criminal contempt is found, how can or should it be punished to protect the Senate's constitutional function of being entitled to hear the truth when formulating legislation and not to be deliberately misled going to covering up crime?

In my opinion, sadly but yet again, Queensland stands at the one minute to midnight of another Fitzgerald Inquiry period. The 2004 stakes in Heiner are, however, infinitely higher. When a minister of religion has the full weight of the law thrown at him for the serious offence of shredding evidence of child abuse required for a judicial proceeding, but ministers of the Crown engaging in the same conduct are not by applying the same law inconsistently, then something is profoundly wrong.

An independent Special Prosecutor is, in my view, the only way to restore public confidence in Queensland's system of justice and in government. If the wrongs in Heiner remains unchecked and unchallenged, then one State in the Commonwealth of Australia under our constitution is being governed by Executive decree and not equal justice according to law.

References1. Point 3.163 the Bishop Legal and Constitutional Affairs Committee Report2. http://www.aph.gov.au/house/committee/laca/crimeinthecommunity/report.htm3. www.aph.gov.au/senate_lindeberg4. Point 2.100 Bishop LACA Report

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