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RECMGMT-L  September 2008, Week 1

RECMGMT-L September 2008, Week 1

Subject:

Update: Heiner Affair - Australia

From:

Alan A Andolsen CMC CRM <[log in to unmask]>

Reply-To:

[log in to unmask]

Date:

Tue, 2 Sep 2008 09:31:15 -0400

Content-Type:

text/plain

Parts/Attachments:

Parts/Attachments

text/plain (318 lines)

In the Sep/Oct 2006 Information Management Journal, I referenced the
Heiner Affair in an article on ethics and RIM. I received the following
this morning concerning further developments.

For those not familiar with the case, documents had been collected
during an investigation into claims of sexual abuse at a Brisbane
detention center. The investigation, directed by former magistrate Noel
Heiner and launched by the Cooper National Party government, was shut
down by the Goss government when it came to power. The Goss cabinet
ordered the shredding of all the documents collected by Heiner.

Further information is available at:

http://www.heineraffair.info/

Al

-------------------------------------------------------------------------


  THE [Sydney] SUNDAY TELEGRAPH


  Heiner affair shadows Bryce


      Piers Akerman

Saturday, August 09, 2008 at 07:03pm
 

 
SERIOUS allegations concerning the integrity of Governor-General
designate Quentin Bryce and her role in the unresolved Heiner affair are
being investigated by staff of Governor-General Major-General Michael
Jeffery.

The investigation threatens plans to swear in Ms Bryce as the nation's
25th Governor-General, and the first woman to occupy the post, on
September 5.

The allegations about Ms Bryce's fitness to hold the position as the
Queen's representative were sent to Buckingham Palace, with a copy to
Major-General Jeffery, on May 30 by Kevin Lindeberg, the whistle blower
in the long-running Heiner affair.

On June 10, the deputy official secretary to the Governor-General, Brian
Hallett, wrote to Mr Lindeberg, assuring him that "the issues raised in
your letter are being investigated''.

One of Australia's most senior judicial figures, with a record of
service at a vice-regal level, says that he has examined much of the
Heiner affair material and "there is certainly a case to answer''.

The Heiner affair concerns the illegal shredding by the Goss Cabinet of
documents relating to investigations into child abuse at a Brisbane
detention centre that were wanted for evidence, and the cover-up of that
action.

In his letter to Buckingham Palace, Mr Lindeberg mentioned the audit
prepared by Sydney QC David Rofe, and The Sunday Telegraph and The Daily
Telegraph's coverage of the Heiner affair.

The audit details 68 unresolved alleged prima facie criminal charges
which Rofe QC believes are capable of being brought against current and
former public officials in respect of their handling of the Heiner matter.

Mr Lindeberg referred to reports in this column that Prime Minister Rudd
and former Governor of Queensland Ms Bryce were among the officials
associated with alleged prima facie charges by the audit.

He told the Queen that documents including the Rofe audit, an
application for review and the statement of concern sent by a number of
legal figures to then Queensland Premier Beattie and current Premier
Anna Bligh, were lodged with the Queensland Parliamentary Crime and
Misconduct Committee, in an application for a review under the
Queensland Crime and Misconduct Act. The PCMC is investigating the matter.

Ms Bryce sought a report on the Heiner affair from Premier Beattie in
2003, received it, but neither she nor Mr Beattie ever made it public.

Mr Lindeberg said in his letter that the Australian Constitution vested
reserve powers in the Governor-General, including the right to dismiss a
prime minister or minister who acts unlawfully.

He said those holding the office of Governor-General must do so without
any suspicion that their integrity might be in doubt as sufficing to
impinge on their capacity to exercise those reserve powers impartially.

The exercise of those reserve powers may be brought into jeopardy after
September 5, he claimed, unless the Heiner affair is properly resolved.

A spokesman for the Governor-General would not tell The Sunday Telegraph
how the investigation into the Heiner affair was being conducted.

The treatment of Ms Bryce is in stark contrast to the very public
populist witch hunt launched after it was alleged former
Governor-General Peter Hollingworth had failed to act and had
participated in a cover-up when allegations of sexual abuse were made
against church officers while he was Anglican Archbishop of Brisbane.

Then Premier Beattie made public a private Anglican Church report into
abuse by tabling it in the Queensland Parliament before Mr Hollingworth
resigned as Governor-General.

The then Opposition leader Simon Crean had made the point that you
cannot have people in authority who have covered up for child sex abuse
and failed to act.

The allegations of prima facie criminal conduct made against Ms Bryce
and several other senior Queensland politicians and judicial officers
echo the point made by Mr Crean: they were made aware of allegations and
failed to act.

The Governor-General's office must now demonstrate that it is conducting
a thorough examination of the matters raised by Mr Lindeberg but it is
impossible to see how it can come to any conclusion before Ms Bryce is
due to take up her new appointment.

Prime Minister Rudd has delivered a useless fuel inquiry, an impotent
Murray-Darling investigation and a meaningless grocery inquiry.

He must ensure that the Governor-General's office is given every
assistance to conduct a meaningful Heiner inquiry, or put at risk public
trust in the highest office.

------------------------------------------------------------------------


      August 2007 Judges' Statement of Concern


        The complete letter sent to Premier Beattie. 16.08.2007

The Hon Peter Beattie MLA
Queensland Premier
Executive Building
80 George Street
BRISBANE QLD 4000

Dear Premier

We, the undersigned legal practitioners formerly on the Bench, currently
at the Bar or in legal practice, seek to re-affirm our sworn duty to
uphold the rule of law throughout the Commonwealth of Australia and to
indicate our deep concern about its undermining as the unresolved Heiner
affair reveals.

We believe that it is the democratic right of every Australian to expect
that the criminal law shall be applied consistently, predictably and
equally by law-enforcement authorities throughout the Commonwealth of
Australia in materially similar circumstances. We believe that any
action by Executive Government which may have breached the law ought not
be immune from criminal prosecution where and when the evidence
satisfies the relevant provision.

To do otherwise, we suggest would undermine the rule of law and
confidence in government. It would tend to place Executive Government
above the law.

At issue is the order by the Queensland Cabinet of 5 March 1990 to
destroy the Heiner Inquiry documents to prevent their use as evidence in
an anticipated judicial proceeding, made worse because the Queensland
Government knew the evidence concerned abuse of children in a State
youth detention centre, including the alleged unresolved pack rape of an
indigenous female child by other male inmates.

The affair exposes an unacceptable application of the criminal law by
prima facie double standards by Queensland law-enforcement authorities
in initiating a successful proceedings against an Australian citizen,
namely Mr. Douglas Ensbey, but not against members of the Executive
Government and certain civil servants for similar
destruction-of-evidence conduct. Compelling evidence suggests that the
erroneous interpretation of section 129 of the Criminal Code (Qld) used
by those authorities to justify the shredding of the Heiner Inquiry
documents may have knowingly advantaged Executive Government and certain
civil servants.

This serious inconsistency in the administration of Queensland's
Criminal Code touching on the fundamental principle of respect for the
administration of justice by proper preservation of evidence concerns us
because this principle is found in all jurisdictions within in the
Commonwealth as it sustains the rule of law generally.

Queensland Court of Appeal's binding September 2004 interpretation of
section 129 in R v Ensbey; ex parte A-G (Qld) [2004] QCA 335 exposed the
erroneous interpretation that the (anticipated/imminent) judicial
proceeding had to be on foot before section 129 could be triggered.

We are acquainted with the affair* and specifically note, and concur
with, (the late) the Right Honourable Sir Harry Gibbs GCMG, AC, KBE, as
President of The Samuel Griffith Society, who advised that the reported
facts represent, at least, a prima facie offence under section 129 of
the Criminal Code (Qld) concerning destruction of evidence.

In respect of the erroneous interpretation of section 129 adopted by
Queensland authorities, we also concur with the earlier 2003 opinion of
former Queensland Supreme and Appeal Court Justice, the Hon James Thomas
AM, that while many laws are indeed arguable, section 129 was never open
to that interpretation.

Section 129 of the Criminal Code (Qld) -- destruction of evidence --
provides that:

"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." (Underlining added).

It concerns us that such an erroneous view of section 129 was persisted
with for well over a decade despite the complainant, supported by
eminent lawyers, pointing out the gravity of their error consistently
since 1990 when knowing its wording and intent were so unambiguous, with
authoritative case law available for citing dating back as far as 1891
in R v Vreones.

Evidence adduced also reveals that the Queensland Government and Office
of Crown Law knew, at the time, that the records would be discoverable
under the Rules of the Supreme Court of Queensland once the expected
writ/plaint was filed or served. With this knowledge, the Queensland
Government ordered the destruction of these public records before the
expected writ/plaint was filed or served to prevent their use as evidence.

Such scandalizing of these disclosure/discovery Rules by the Executive
also concerns us. So fundamentally important is respect for these Rules
that the Judiciary's independent constitutional functionality depends on
it.

Under the circumstances, we suggest that any claim of "staleness" or
"lack of public interest" which may be mounted now by Queensland
authorities not to revisit this matter ought to fail. Neither the facts,
the law nor the public interest offer support in that regard. However,
should such a claim be mounted, we suggest that it would tend to be
self-serving and undermine public confidence in the administration of
justice and in government itself knowing that the 2004 Ensbey
conviction, taken by the same Queensland Crown, did not occur until some
9 years after the relevant destruction-of-evidence incident.

This affair encompasses all the essential democratic ideals. The right
to a fair trial without interference by government and the right to
impartial law-enforcement, to say nothing of respecting the rule of law
itself rest at its core. Respecting the doctrine of the separation of
powers and our constitutional monarchy system of democratic government
are involved.

We believe that the issues at stake are too compelling to ignore.

We suggest that if the Heiner affair remains in its current unresolved
state, it would give reasonable cause for ordinary citizens, especially
Queenslanders, to believe that there is one law for them, and another
for Executive Government and civil servants.

We find such a prospect unacceptable.

We urge the Queensland Government to appoint an independent Special
Prosecutor as recommended by the House of Representatives Standing
Committee on Legal and Constitutional Affairs in its August 2004 Report
(Volume Two - Recommendation 3) following its investigation into the
affair as part of its national inquiry into "Crime in the community:
victims, offenders and fear of crime".

Such an independent transparent process we believe will restore public
confidence in the administration of justice throughout the Commonwealth
of Australia, more especially in Queensland.


          Signatories to the letter;

The Hon Jack Lee AO QC
<mailbox:///C%7C/Data/Profiles/default/vih9za1h.default/Mail/naremco.com/Sent?number=5030957>
-- Retired Chief Judge at Common Law Supreme Court of New South Wales
Dr Frank McGrath
<mailbox:///C%7C/Data/Profiles/default/vih9za1h.default/Mail/naremco.com/Sent?number=5030957>
-- Retired Chief Judge Compensation Court of New South Wales
Alastair MacAdam
<mailbox:///C%7C/Data/Profiles/default/vih9za1h.default/Mail/naremco.com/Sent?number=5030957>,
Senior Lecturer, Law Faculty, QUT Brisbane, and Barrister-at-law
The Hon R P Meagher QC
<mailbox:///C%7C/Data/Profiles/default/vih9za1h.default/Mail/naremco.com/Sent?number=5030957>
- Retired Justice of the Supreme and Appeal Court of New South Wales
The Hon Barry O'Keefe AM QC
<mailbox:///C%7C/Data/Profiles/default/vih9za1h.default/Mail/naremco.com/Sent?number=5030957>,
Retired Justice of the Supreme Court of NSW, former ICAC Commissioner
Mr Alex Shand QC
The Hon David K Malcolm AC CitWA
<mailbox:///C%7C/Data/Profiles/default/vih9za1h.default/Mail/naremco.com/Sent?number=5030957>,
former Chief Justice of Western Australia


          Copies of the advice were sent to the following:

Her Excellency the Honourable Quentin Bryce AC, Governor of Queensland
The Hon Lawrence Springborg MLA, Leader of the Queensland Opposition
The Hon Paul de Jersey AC, Chief Justice of the Supreme Court of Queensland
The President, Queensland Bar Association
The President, Queensland Law Society

--

Alan A Andolsen CMC CRM
President
Naremco Services Inc.
60 East 42nd Street
New York, NY 10165

 Voice: 212-697-0290
   Fax: 212-986-1736

MailTo:[log in to unmask]
   URL: http://www.naremco.com


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