From: "Chris Hurley" Chris.Hurley@dia.govt.nz
To: aus-archivists@asap.unimelb.edu.au
Message-ID: CC256745.000D4526.00@dia.govt.nz
Date: Wed, 31 Mar 1999 14:25:34 +1200
Subject: Heiner on Sunday - Again
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Last night I saw the tape of the "Sunday" follow-up on Heiner. The allegation now is that the Heiner disposals were not (as I had previously supposed) a one-off event but rather an instance of systematic cover-up involving unauthorised destruction of Queensland official records.
There were, you will recall, three Heiner disposals. The first was a destruction ordered by the Goss Cabinet and approved by the State Archivist. The second and third (one involving a shredding and the other involving a hand over of documents to a union) did not, so far as we know, involve Cabinet or the Archivist. I supposed (and said so in my 1996 Analysis) that the first Heiner disposal was the act of a new and inexperienced Government which didn't know how to properly handle aborted inquiries or the orderly destruction of official records. It is now possible that it was the work of a new and inexperienced Government which didn't know how to properly handle a cover up.
What made the first Heiner disposal unusual, in other words, was that for the first and only time silly politicians who didn't know any better involved the Crown Solicitor and the State Archivist. The ordinary method (it is now being suggested) was to shred them quietly out the back.
The Affair now involves three kinds of "abuse" -
(1) abuse of children in State institutions;
(2) abuse of documents which were being disposed of improperly;
(3) abuse of process which made unauthorised disposal a tool to cover up
child abuse.
Premier Beattie continues to say child abuse is the only issue and that concern with abuse of documents and abuse of process is "paranoia". He will not admit that child abuse is only a symptom of the corruption. It is abuse of documents and abuse of process which is the real corruption and root cause of child abuse because they permit and nurture the cover up which allows and encourages systemic child abuse to occur. Accountable process involving proper regulation of documentation prevents it. When child abuse is the work not of an individual, but of a system, then it becomes impossible to confine an investigation of that abuse to the corruption of the individuals who abuse children. It becomes necessary to consider the corruption of the system which enables them to do it and which covers up their wrong doing.
Confusingly, Beattie also argues that anyone with "evidence" can go to the Forde Inquiry and be heard. But he must know that Forde has already ruled that Heiner is outside her terms of reference. If the gullible Forde continues to support the Beattie Government's line that separates investigation of child abuse (the symptom) from the abuse of documents and the abuse of process (the cause) then the results of her Inquiry will be worthless.
But, having ruled Heiner out of bounds, Forde will be hard put to admit any evidence of similar systematic abuse of documents or abuse of process leading to a cover up of the child abuse she is allegedly investigating. Forde might escape this conundrum by choosing to admit the second and third Heiner disposals (not involving Cabinet or the Archivist) while continuing to refuse to admit the first (which did).
But on what basis?
Perhaps on the argument that the second and third Heiner disposals were self-evidently part of a systematic regime of cover up which she can't ignore while the first Heiner disposal was self-evidently a product of a new Government's ineptitude which is outside her brief.
After all, Beattie and Warner keep on claiming that in 1990 Cabinet didn't know what the Heiner documents contained. This claim is now called into question by the second revelation on last Sunday's programme. Ann Warner was the Family Services Minister responsible for halting the Heiner Inquiry in early 1990. She says the reasons prompting the National Government to set Heiner up in the first place (while Goss and Warner were still in Opposition) remained a mystery to her. It turns out, however, that while she was still in Opposition in late 1989, it was she (Ann Warner) who first leaked to the press the staff allegations of child abuse at John Oxley Centre which became the subject of Heiner's investigation. Does this mean Warner's leak was responsible for setting up the Heiner Inquiry which she herself closed down when she got into Government? How can they still claim they didn't know what was in the documents?
The claim now being put forward that the Heiner disposals were a part of a systematic process of cover-up connects the alleged cover ups inevitably to the first Heiner disposal if Cabinet was aware of the contents of the Heiner documents.
The other defence being used by Beattie to exonerate his colleagues in the Goss Government is the argument that they acted on the Crown Solicitor's "advice" that the documents should be destroyed. The Crown Solicitor did no such thing. Crown Sol advised that Heiner and his informants did not have absolute privilege and immunity from prosecution and that destruction could not occur without the Archivist's approval or, in any case, after legal proceedings were commenced. He did not offer an opinion on whether or not the documents should be destroyed and even advised that an action against Heiner or informants was unlikely to succeed. The decision to destroy lay with politicians and bureaucrats and they were in no reasonable sense of the phrase "acting on legal advice". It was not for Crown Sol to say whether or not the records should be destroyed (only whether or not they could be) and Crown Sol did not, as Beattie is now trying to make out, advise that they should be. Put most simply, it is possible to argue that the Goss Cabinet was "acting on legal advice" when they decided that the Heiner documents could be destroyed. It is simply not true for Beattie or anyone else to say they were "acting on legal advice" when they decided that they should be destroyed.
What are the issues for recordkeepers? I suggest these -
(1) Was there routine destruction of documents by Dept of Family Services unauthorised by State Archives?
(2) Are there grounds to suppose that documents were destroyed (with or without authorisation by the State Archivcist) as part of a systematic attempt within DFS to cover up the existence of child abuse and other malpractice?
(3) If there was systematic cover up involving unauthorised document destruction, is it open to conclude that the abuses now being investigated by Forde were permitted and/or aggravated by the cover ups?
(4) If so, how can the abuses now being investigated by Forde be remedied without doing something to prevent future cover ups involving unauthorised destruction of documents?
(5) If there was systematic cover up involving unauthorised document destruction, who within DFS authorised the destructions and who knew?
(6) If there was systematic cover up involving unauthorised document destruction, who outside of DFS knew and what did they do about it? Note : the second Sunday programme identifies another agency which acknowledged that something was probably wrong inside the State juvenile system but said they could not do anything because there wasn't an "audit trail".
(7) If there was systematic cover up involving unauthorised document destruction, why wasn't action taken to stop it under the Libraries and Archives Act? What needs to be done to ensure that violations of that Act cannot occur in future with impunity?
All the best
Chris Hurley
National Archives of NZ