The Sunday Telegraph (Sydney, New South Wales)
Long running scandal threatens Rudd - 18th August 2007
by Piers Ackerman
Comment - isn't it interesting that Queensland's only daily newspaper the discredited, Murdoch-owned, Courier-Mail has been left out of the loop when it comes to a major breaking story. Why? Because they cannot be trusted to deal with the story fairly and in a balanced manner.
AT the beginning of last week, the Howard Government’s appointment of Queenslander Susan Kiefel to the highest court in the land embodied the best principles of the administration of the law.
At week’s end, in the same state, the scab was being lifted on one of the gravest legal scandals in the nation.
On Tuesday, Kiefel - a state school drop-out who completed her secondary education at night school while working by day - was appointed on merit in a most public rejection of the Australian Labor Party’s love affair with affirmative action. Ability, not gender, was the key.
On Thursday, Premier Peter Beattie was presented with a letter signed by former Western Australian Chief Justice (David Malcolm), two retired NSW Chief Judges (Jack Lee, now deceased, and Dr Frank McGrath), two retired NSW Supreme Court Justices (Roddy Meagher and Barry O’Keefe), one of Australia’s foremost QCs (Alec Shand) and a legal academic and barrister (Alastair MacAdam) all seeking the appointment of an Independent Special Prosecutor into an unresolved outrageous injustice now known as the Heiner Affair, which has been poisonously suppurating since the days of the Goss government.
A copy of this letter was also received by Queensland’s Governor, Chief Justice, Opposition Leader, Bar Association and Law Society.
It followed the completion of a two-year audit by leading NSW QC, David Rofe, who prepared a 3000-word, nine volume report on the case and concluded there were 67 alleged unaddressed prima facie criminal charges that needed to be urgently addressed.
At the heart of the matter is the order by the Goss Cabinet of March 5, 1990, to destroy all documents relating to an inquiry by retired magistrate Noel Heiner into the management of the John Oxley Youth Detention Centre.
Heiner had been appointed by Premier Wayne Goss’s predecessor, Premier Russell Cooper, in late 1989 to investigate serious allegations of the abuse of children in the state youth detention centre, including the rape of a 14-year-old Aboriginal girl by male inmates in May, 1988, during a supervised bush outing, raised by several youth workers.
Outrageously, this rape is still unresolved.
Youth centre manager Peter Coyne and deputy Anne Dutney called on their senior union organiser, Kevin Lindeberg, of the Queensland Professional Officers Association, to protect their interests. Lindeberg was to become the whistleblower.
Coyne and Dutney, not unreasonably, sought to see the specific complaints laid against them, so they could defend themselves before Heiner. This request was denied them.
Barely a month after the Goss government came to office in December, 1989, it closed down the enquiry and transferred Coyne to other duties. He and Dutney engaged counsel to seek any Heiner material relating to them, while their solicitor placed the Queensland government on notice of the proceedings and instructed the government not to destroy any documents.
The union joined the dispute on March 1 and Lindeberg was assured by the government that the material was safe - but it wasn’t. Cabinet decided to shred the material on March 5 and it was secretly fed through a shredder on March 23.
In early March, Lindeberg inadvertently learnt of the secret shredding by a ministerial staffer, challenged it and was removed from the case at the request of the families minister.
He was sacked by the union six weeks later, one charge being that he had been “inappropriate and over-confrontationalist’’ in “the Coyne case’’.
After an outcry by union members, he was conditionally reinstated, but informed the union executive the shredding was a potential illegal act involving the entire Goss Cabinet, or the families minister or the departmental CEO.
In August, he was again dismissed on challenged grounds under an arbitration forced upon him and subject to a divided union vote.
Since then, Lindeberg has fought for justice. In 1998, he obtained access to the relevant March 5, 1990, Cabinet submission and received advice from senior counsel and Sir Harry Gibbs, a former Chief Justice of the High Court, that it contained sufficient inculpatory evidence to warrant charges under Section 129 of the Queensland Code to be brought against those involved in the shredding decision.
In last Thursday’s letter to Beattie, the legal authorities “indicate our deep concern about its (the law’s) undermining, as the unresolved Heiner Affair reveals’’.
They say that an “unacceptable application of the criminal law by prima facie double standards, by Queensland law-enforcement authorities’’ has been exposed by the successful prosecution of another person, Douglas Ensbey, for destruction of material which may be required as evidence under S129 - 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 S129 of the Code, used by those authorities to justify the shredding of the Heiner inquiry documents, may have knowingly advantaged Executive Government and certain civil servants,’’ they wrote, noting that the Queensland Court of Appeal case in 2004 exposed the erroneous interpretation.
They also said they agreed with the late Sir Harry Gibbs, a former Chief Justice of the High Court, who advised that the reported facts (of the Heiner Affair) represent, “at least, a prima facie offence under S129 concerning destruction of evidence’’.
This may all seem like a dry old argument, but it has enormous relevance right now.
Opposition Leader Kevin Rudd was Goss’s chief of staff at the time of the Heiner Affair and shortly after took on the newly-created position of Director-General of the Cabinet Office.
According to Queensland academic Scott Prasser: “Rudd was the de facto power behind the throne. He was Wayne Goss’s closest adviser and the Premier’s Mr Fixit. He was the key man’’.
Last December, Queensland Aboriginal leader Noel Pearson said: “Rudd’s chief credential for Labor leadership is that he knows power and has exercised it at the highest levels of government. He ran the government of Queensland for six years ...’’’
The Heiner Affair has been put squarely in the public arena by some of the most respected members of the judiciary and the legal fraternity, people not given to demonstrations of public outrage; but who felt that the shredding of evidence by the Goss executive represented a full frontal attack on the separation of powers, on the judiciary’s function.
Given that the matter remains unresolved, there is no guarantee it might not happen again.
These black letter law figures aren’t interested in politics or personalities, but they are gravely concerned about the conduct of the law and, in particular, the manner in which it was applied to a decision of the Queensland government at a time when, as it happens, Rudd held a position of great influence with unhindered access to Cabinet documents.
With the Australian people soon to decide whether Rudd should be the next Prime Minister, it is time the Heiner Affair was thoroughly investigated and justice applied.