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:




  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 

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 

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

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 

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 
-- Retired Chief Judge at Common Law Supreme Court of New South Wales
Dr Frank McGrath 
-- Retired Chief Judge Compensation Court of New South Wales
Alastair MacAdam 
Senior Lecturer, Law Faculty, QUT Brisbane, and Barrister-at-law
The Hon R P Meagher QC 
- Retired Justice of the Supreme and Appeal Court of New South Wales
The Hon Barry O'Keefe AM QC 
Retired Justice of the Supreme Court of NSW, former ICAC Commissioner
Mr Alex Shand QC
The Hon David K Malcolm AC CitWA 
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
Naremco Services Inc.
60 East 42nd Street
New York, NY 10165

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

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