QUEENSLAND: by staff writersNews Weekly
Heiner affair: is Cabinet above the rule of law?
, February 2, 2013
A decades-long controversy in Queensland, known as the “Heiner affair”, concerning the alleged sexual abuse of a teenage girl in state care, is currently the subject of a special review by the Queensland Child Protection Commission of Inquiry (QCPCI).
Not since the abolition in March 1922 of Queensland’s parliamentary house of review has the state’s system of single-chamber government been subject to such public scrutiny. The proper resolution of the Heiner affair is bound to have national repercussions, because certain former Queensland public officials who were involved at the time have since held high public office federally.
On May 24, 1988, a 14-year-old indigenous girl from the John Oxley Youth Centre was allegedly raped by two other teenage inmates as two other boys watched on during a supervised bushwalking excursion to Mount Barney.
During December 3-14, 2012, in evidence adduced from former youth workers at the John Oxley Youth Centre, it was clearly established that, between late 1989 and early 1990, a government inquiry, headed by retired magistrate Noel Heiner, was informed about the alleged rape.
However, documents containing this important public interest disclosure information were shredded, and no review occurred at the time.
Instead, the response by the then Goss Labor government was to close the inquiry, shred these public records (when they were known to be required in foreshadowed judicial proceedings), relocate the youth detention centre manager and later pay him an ex gratia special payment on the proviso that both parties would never publish or disclose anything about “the events”.
The alleged rape victim herself was paid some $140,000 around May/June 2010 by the Bligh Labor government on the proviso of her silence. She later informed the media that she considered this to be “yucky dirty” hush-hush money (The Australian, August 11, 2012).
Detailed evidence set out in the 10-volume Rofe QC Audit of the Heiner inquiry implies that the document-shredding was the beginning of an unprecedented systemic cover-up of some 23 years’ duration.
Along with a raft of eminent jurists, the Rofe QC Audit suggests that the order to shred these public records, to prevent their being used as evidence in judicial proceedings, was an alleged prima facie serious criminal offence. (The Rofe QC Audit is a public exhibit before the current commission of inquiry and can be downloaded via www.heineraffair.info).
On January 21, 2013, the QCPCI reconvened its review of the Heiner affair in Court 17 in the Magistrates Court Building, Brisbane. The inquiry, which is headed by the Hon. Tim Carmody SC, has indicated that its next task is to investigate the document-shredding and its legality. Former state Cabinet ministers are to be called and cross-examined.
Under Term of Reference 3(e), Commissioner Carmody is obliged to make full and careful inquiry into “the adequacy of and response or action by government to allegations of child sexual abuse in youth detention centres”.
Over many years, the authorities saw nothing wrong with shredding documents. This appears to have been done on the basis of a certain interpretation of the relevant section of the Criminal Code.
Many eminent jurists, however, have argued that the relevant provision of the Criminal Code was erroneously interpreted.
Furthermore, these jurists’ views were at all material times known to the Queensland government. In spite of this, the government acted on the belief that shredding various documents used in the inquiry was not a breach of the Criminal Code.
The government held that if Cabinet acted on legal advice it received, even when the advice was wrong at law, no wrongdoing could be found.
The law at issue (section 129 of the Criminal Code on destroying evidence) is absolutely fundamental to the proper administration of justice. It guarantees a fair trial. It means that governments can be held to account for their actions.
However, the Queensland government’s controversial shredding of evidence used in the Heiner inquiry has undermined public trust in the integrity of government during the past 23 years.
Democracy depends upon the principle of equality before the law.
Another related principle is that no one, especially not the government, can claim ignorance of the law as an excuse for breaking the law, particularly criminal law. So, as the Carmody inquiry reconvenes, major democratic principles are at stake.
If substance is found in the alleged wrongdoing set out in the Rofe QC Audit, no one should forget that any breakdown in government adherence to the rule of law took place after Queensland’s famous Fitzgerald Inquiry (1987-89), whose findings directly caused the fall from power of the National Party, which had governed the state for the previous 32 years.
From that time onwards, Queenslanders were constantly reassured by politicians, the media and the state’s Criminal Justice Commission (CJC) and Crime and Misconduct Commission (CMC) that corruption in Queensland was “a thing of the past”.