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Email 27/5/07 +

Email 27 May 2007

Mr Greg Chamberlin,
c/- Courier Mail

Red Herrings and the Heiner Documents: More on 'Official Misconduct the Fitzgerald Inquiry Missed'

My email of 23 May 2007 ('Official Misconduct the Fitzgerald Inquiry Missed') included comment on the destruction of the Heiner documents, because an anonymous article apparently defending their destruction had appeared next to your comments on the background to the Fitzgerald Inquiry in The Courier Mail of 19-20/5/07.

While I understand from your earlier response that you did not write the anonymous article, I would appreciate advice as to how to communicate with that person - because a former Queensland Police Commissioner responded to a copy of my email by suggesting that the arguments being used to justify destruction of those documents was nothing but a red herring.

Email Received from Mr Noel Newnham (25/5/07) - Reproduced with Permission

"I have had forwarded to me a copy of the ... email you sent. I merely wanted to comment on one aspect - the matter of whether the Heiner inquiry was properly set up or not. This is a gigantic red herring. It has absolutely no relevance to the issues. It may have had some relevance to whether or not those providing evidence to Heiner were protected against claims of libel or slander, but of course there is a defence of limited liability in the case of people making legitimate reports of suspected criminality to those in authority. If this were not so nobody would be allowed to report offences to the police!!! And in any case, Cabinet had agreed to indemnify those people giving information, before ever deciding to terminate the inquiry - the individuals already had all the protection they could have asked for!!!! And in any case, those people were all employees of the Minister giving information to a person nominated by the Minister (under whatever conditions those might have been) - information that prima facie they were not only entitled to but actually obliged to provide to the Minister or her various representatives at various levels. Heiner was merely a temporary representative, not a permanent officer of the department!!!!

Tied to the bogus issue of the propriety of Heiner's appointment was the claim made by Goss that the termination and destruction were necessary to protect the careers of public servants. He never said which public servants. There could only be 2 groups of public servants - those who were providing information against (allegedly) offenders and those who were (allegedly) offenders. The former group did not need "protection" if they were acting honestly and in good faith, but only they were acting from mala fides - in that case why was Goss trying to protect them? The latter group did not need "protection" unless the information showed they were (apparently) guilty of impropriety - in that case why was Goss trying to protect them?

Analysis of the red herring destroys it."


John Craig

Response from Mr Kevin Lindeberg

Email received from Mr Kevin Lindeberg (5/6/07)
Reproduced with permission

Dear Mr Craig

Response to Email on the "Newnham Red Herring Heiner affair Statement"

"Thank you for the copy of the email you sent to Mr Chamberlain of The Courier-Mail on 27 May 2007. It contained an opinion by former Queensland Police Commissioner Noel Newnham challenging some of the "red herring" reasons used by the Queensland Government to justify the destruction of the Heiner Inquiry documents, all of which emanated from a public comment by former key Fitzgerald Inquiry whistleblower Mr. Colin Dillon in The Courier-Mail on 19 May 2007 in which he suggested that the Heiner affair represents all the worst forms of unaddressed corruption in "post-Fitzgerald" Queensland.

The email was very much on the mark I suggest.

In good faith and in the public interest, you might appreciate an additional important dimension to the shredding which underpins what Mr Newnham had to say in his "red herring" statement. The Queensland Government was advised by Crown Law before the order to destroy the evidence took place that the Heiner Inquiry witnesses were covered by qualified privilege. The Goss Queensland Government indemnified the Heiner Inquiry witnesses [and Mr Heiner] but only insofar as their evidence was truthful or genuinely believed to be so. Crown employees are obliged to tell the truth and to obey the law at all times. They are not permitted to commit a crime, or to cover it up once becoming aware of it or holding suspicions of it. Mr Heiner was lawfully appointed to conduct his inquiry into the Centre's management. He was entitled to take evidence/submissions on behalf of the Crown, and to be told the truth and not be misled.

So long as the witnesses told the truth, or what they genuinely believed to be the truth, they were indemnified. It is recorded that they were informed accordingly at a meeting on 13 February 1990 at the Centre by the Department of Families acting Director-General. She assured all the witnesses that the Crown “...will accept full responsibility for all [legal] claims arising out of a Crown employee’s due performance of his/her duties provided these duties have been carried out conscientiously and diligently.

Such a position reflected long-held Government policy. It came into force under the Bjelke-Petersen regime years earlier. It was correct at law, let alone being a morally correct policy position. In short, the witnesses had nothing to fear in any defamation action; and the party which would have been the real respondent in any such action was the Queensland Government itself because of [a] Government policy; and [b] undertakings given on 13 February 1990 to the Heiner Inquiry witnesses. In other words, the Goss Queensland Government, as it would otherwise wish the public to believe, was never a disinterested party to any prospective action in defamation and just trying to do the right thing by the witnesses - now commonly called "whistleblowers" by the Queensland Government - but deeply involved.

This is but another example of the gross deception constantly used in this affair to keep a lid on it.

That aside for the moment, the [alleged exculpatory] notion that the Queensland Government was simply destroying the evidence to prevent people suing each other for defamation - as if to suggest that it was doing everyone a favour by interferring with their democratic rights - holds no weight at law. When access to or use of evidence held by a party to litigation is under contest by the parties, including documents covered by claims of "Crown privilege", it is for the court to decide, not for one of the parties to decide for itself unilaterally to its own advantage. [See Sankey v Whitlam].

Any such conduct which wilfully interferes with the administration of justice by any party, including the Executive Government, was outlawed in Queensland in its Criminal Code since 1899.

The foreshadowed court proceedings to be undertaken by two public servants at the Centre and two trade unions at the time, and unquestionably known about by the Queensland Government having been placed on notice by phone, letters and meetings, concerned access to certain extracts of the Heiner Inquiry documents and original complaints pursuant to an access regulation. The course of justice being undertaken was known to be wholly dependent on the continuing existence of the said public records. Once they were destroyed, there was no point in commencing a judicial proceeding to access documents which no longer existed. In short, the shredding of the known evidence utterly and knowingly obstructed justice, including the known scandalisation of the discovery / disclosure Rules of the Supreme Court of Queensland rightfully to be enjoyed by the litigants and the court.

To enliven section 132 of the Criminal Code - conspiracy to defeat justice - such an act, entered into by two or more, only has to have a tendency to obstruct. In R v Rogerson and Ors (1992) 66 ALJR 500, inter alia, Mason CJ at p.502 said: " is enough that an act has a tendency to deflect or frustrate a prosecution or disciplinary proceedings before a judicial tribunal which the accused contemplates may possibly be implemented..." In regard to those witnesses who [may have] maliciously lied to Mr Heiner in their evidence either to advantage themselves or to disadvantage another, they would not, indeed could not, lawfully enjoy that indemnity at Crown expense once their lies were discovered upon examination of the evidence. It follows that in the destroying the gathered evidence, the Queensland Cabinet was effectively protecting liar/s from the full force of the law, including an action in defamation by anyone injured by their malicious broadcast/s.

Not only did the Goss Cabinet admit to destroying the documents to prevent their use as evidence in a known foreshadowed judicial proceeding, undoubtedly a prima facie offence under section 129 of Criminal Code [see R v Murphy, R v Vreones, R v Rogerson and R v Ensbey], but another stated reason was to prevent the contents of the gathered evidence being used against the careers of the JOYC staff, including the manager. [See the 1998/1999 Forde Commission of Inquiry into the Abuse of Children in Queensland Institutions Report pp170-175].

There were the potentially explosive relevant questions which always demanded answers at all times which the authorities dared not face, and still want to sweep under the carpet in terms of the legal ramifications following therefrom: What was the character of the alleged defamatory broadcasts uttered by the "whistleblowers" at the Centre? Did it concern abuse of children touching on performance / duty of care of certain public officials? Why wasn't it addressed at the time?

We now know that at the time the Goss Cabinet ordered the destruction of those public records on 5 March 1990, it was aware that evidence of child abuse was in their contents. For years, they denied any such knowledge, and even called it just "a spat between public servants" when knowing that allegations of child abuse were involved.

Plainly, such material, when known or suspected to be about abuse of children held in the care and protection of the Crown, ought to have been preserved and sent to the police or CJC for independent assessment. Instead it was wilfully destroyed. It is open to conclude that such an act, with such a state of knowledge, may have tended to obstruct justice [see R v Rogerson and R v Ensbey].

The deeply concerning thing about the Heiner affair is not just about (a) the shredding and related matters of January-March 1990 through to February 1991, and (b) the unaddressed sexual assault incident of a female indigenous minor [14 years and 4 months of age] at the Lower Portals Mt Barney on 24 May 1988 while on a supervised bush outing from the Centre, but the systemic cover-up over the years which continues to this day involving unprecedented prima facie abuse of power by many organs of and public officials in government.

Mr. Beattie's constant claim that the "Lindeberg allegations" have been investigated more times than he has had "hot dinners" is a self-serving myth. It is simply untrue and he knows it. The media knows this also but constantly fails to challenge him over this seriously misleading claim.

The CJC / CMC's conduct in this matter must come under review as the August 2004 Report by the House of Representatives Standing Committee on Legal and Constitutional Affairs into "Crime in the community, victims, offenders, fear of crime" recommended. The CMC is a protagonist in this matter. At law, it is incapable of coming to the matter with an impartial mind and yet it would have the public believe otherwise.

It is beyond doubt that the law-enforcement authorities, and the Queensland media, are aware that the criminal law in "post-Fitzgerald" Queensland has been knowingly applied by double standards to advantage the Executive Government of Queensland and certain public officials in this matter while a citizen, for similar 1996 destruction-of-evidence conduct, has had section 129 of the Criminal Code properly applied against him by those same authorities to its full extent all the way to the Queensland Court of Appeal in 2004, found guilty, and branded a criminal for his serious destruction-of-evidence conduct for the rest of his life. [See R v Ensbey]

Any claim that the Queensland Government was acting on Crown Law advice [which, at the very least here, was erroneous] and therefore may be afforded protection from the full force of the law for its prima facie breach of section 129 and/or section 132 of the Criminal Code holds no weight at law. Moreover, any such claim would tend to undermine respect for the rule of law. It is long settled that mistake of law equates to ignorance of law which is no excuse. In Ostrowski, the High Court ruled “…A mockery would be made of the criminal law if accused persons could rely on, for example, erroneous legal advice, or their own often self-serving understanding of the law as an excuse for breaking it…”

At all stages, members of Queensland Cabinet of 5 March 1990, and certain public officials, knew what they were doing, and, on the face of compelling evidence and admissions, the actions have satisfied, at the very least, the triggering elements of section 129 of the Criminal Code. [See 2005 Opinion by former Chief Justice of the High Court, the Right Honourable Sir Harry Gibbs, GCMG, AC, KBE, as President of The Samuel Griffith Society, on the Heiner affair]

If democratic government means anything then it is equality before the law. Government by the rule of law demands nothing less. Executive Government is not above the law. [See A v Hayden and FAI v Winneke]

No wonder many believe, like former key Fitzgerald Inquiry whistleblower and former Police Inspector Colin Dillon, that Queensland has learnt nothing since the 1987/89 Fitzgerald Inquiry and that this matter represents all that is still bad in the conduct of Queensland's public administration and warrants a comprehensive independent open inquiry.

Unfortunately, and sadly, the truth is not being told to the people of Queensland.

Kevin Lindeberg"

Follow-up 5/6/07

Email 5 June 2007

Mr Greg Chamberlin
c/- Courier Mail

More on 'Red Herrings and the Heiner Documents'

Further to my email of 27/5/07, I acknowledge your advice that the Courier Mail article of 19-20/5/07 which mentioned Col Dillion's forthcoming book about the Heiner inquiry was simply compiled from file documents - and did not imply any defence of the destruction of the Heiner documents by the Goss Government.

I should also like, through you, to draw the attention of the author of that article to a response that has been received to my email - which had contained a former Police Commissioner's view that concern about whether the Heiner inquiry was properly set up was simply a 'red herring'.

That response, by Mr Kevin Lindeberg, is reproduced on my web-site with his permission. In brief it seems to suggest that:

  • the Queensland Government had been advised before it ordered the documents destroyed that innocent Heiner Inquiry witnesses were protected;
  • in matters dealt with by the Heiner Inquiry, the Goss Government was not a disinterested party just trying to do the right thing by witnesses;
  • when there is dispute about documents during litigation, it is up to the courts to decide how they should be dealt with - and the parties involved (even the state) can't unilaterally interfere with them. Doing so contravenes the Criminal Code;
  • there are unanswered questions about the nature of the allegedly defamatory claims to the Heiner Inquiry by 'whistleblowers' at the John Oxley Centre. The issue is not simply the 1988 sexual assault on a female indigenous minor near Mt Barney while on a supervised outing from the Centre, but the systematic cover-up of this over many years. Despite claims to the contrary the Goss Government was aware that allegation of child sex abuse were involved (not just a spat between public servants);
  • despite claims by the current Premier, the matter has not been properly investigated. For example, the CJC / CMC is a protagonist in this matter - and not an independent party as claimed;
  • in "post Fitzgerald" Queensland, the criminal justice system has knowingly been used to give special privileges to Executive Government and certain public officials; and
  • Queensland has learnt nothing since the Fitzgerald Inquiry. This matter represents all that is still bad in public administration and warrants an open inquiry.

While I have no way to verify Mr Lindeberg's claims, for reasons outlined in my earlier email of 23 May 2007, it seems to be likely that efforts to rebuild Queensland's institutions after the Fitzgerald inquiry may have been undermined by types of abuse of power that his inquiry had not addressed.



John Craig

Follow-up 6/6/07

Email sent 6 June 2007

Mr Tony Koch,
c/- The Australian

RE: More on 'Red Herrings and the Heiner Documents'

I refer to your response to my email of 5/7/06 concerning the Heiner documents controversy in which you suggested that: (a) this matter has been investigated by many inquiries that came up with nothing; (b) there is no doubt that the Heiner documents should not have been shredded; (c) the newly elected Goss Government did things that a more experienced government might not have done; (d) Heiner has the ability to 'put the issue finally to bed', and should do so; and (e) experienced journalists now see the matter as a 'big yawn'.

From where I sit you are probably right that the destruction of the Heiner documents primarily reflected the Goss Government's 'inexperience', and that Heiner must carry a lot of responsibility for the ongoing controversy because he won't say anything. However:

  • various 'legal eagles' have apparently expressed the view that what was done was illegal - and, moreover, a serious challenge to the integrity of the judicial system. [Comment added later: If this was done purely out of 'inexperience', it reveals a lack of understanding of the separation of powers like that for which an earlier premier had been ridiculed];
  • child sex abuse seems to be a serious problem in the community that is subject to a widespread cover-up (see Child Sex Abuse), and there have been rumours of a paedophile network in Queensland agencies dealing with children. Thus, while 'inexperience' may explain what the Goss Government as a whole did, some of those involved may not have been merely 'inexperienced';
  • there seem to be many indicators of abuses of power that have arisen in post-Fitzgerald Queensland - of which the Heiner inquiry controversy is only one;
  • the actions of the 'inexperienced' Goss Government did a massive amount of damage to the effectiveness of public administration (see Queensland's Worst Government?) - a fact which has yet to receive any real public recognition. For example, the current water supply crisis in SE Queensland is not only linked to that Government's decision not to build the Wolffdene Dam, but also to the fact that the ineffectual machinery of government it created was unable to recover from that setback (see Structural Incompetence and SE Queensland's Water Crisis); and
  • 'inexperienced' government is part of the phenomenon of political populism which poses a current threat to Australia's system of government generally (see On Populism in 2007). The phenomenon involves gaining electoral support for overly simplistic policy options - whose defects can't be identified without a depth of knowledge that is beyond Queensland's / Australia's civil institutions, and which can't be implemented competently by political cronies and 'yes men' in the absence of a professional public service. Unless such defects are remedied, 'inexperience' like that that led to destruction of the Heiner documents will continue to lead to numerous other government failures in future.

Unless you have any objection, I intend to add a complete copy of your email of 6 June 2007 to my web-site. [Comment added later: Mr Koch refused permission to reproduce his email in detail]


John Craig