It’s nearly Heiner noon

Piers Akerman

Monday, March 10, 2008 at 06:02pm

LIKE the ticking crocodile that relentlessly pursued Captain Hook, the unresolved Heiner affair continues to tick along behind Prime Minister Kevin Rudd.

Tomorrow, the Queensland Parliamentary Crime and Misconduct Committee (PCMC) will consider a review of the Criminal Justice Commission’s (CJC) and the Crime and Misconduct Commission’s (CMC) handling of the matter.

On Valentine’s Day last month, the committee was served with legal documents relating to the illegal shredding in 1990 of documents generated by the enquiry into events, including child abuse, which allegedly took place at Queensland’s John Oxley Youth Detention Centre.

Material received by the committee included a six-page letter from a leading Australian criminal law firm, Ryan and Bosscher, and a 55-page application, together with 10 volumes of the thorough audit of the matter prepared by David Rofe QC, one of Australia’s foremost barristers.

While it is scandalous that one of the child victims of gang rape committed while she was in the care of the Queensland Government has still not had her day in court - despite an agreement begrudgingly forced upon the Queensland police last year to examine the file, which includes confessions from some of those involved - it remains that an equally heinous crime was probably committed by those members of the Goss government and their support staff of bureaucrats who ensured the Heiner documents were destroyed.

Rudd, who was premier Wayne Goss’s chief of staff at the time, is one of those whose role in the destruction of material known to be needed as evidence must be questioned.

Rudd has said he knew of the decision only after it had been taken by cabinet but the matter came before the cabinet three times in all and his former associates say that in his role as the premier’s gatekeeper it would have been impossible for him not to have been aware of the nature of the matter and the discussion before the decision was taken to shred the material.

As Rofe has said in a letter to a number of Opposition senators: “The rule of law can only survive in our democracy if it can be seen that all persons are treated equally by it.

In the Heiner case and the more recent Ensbey case, it can be seen citizens are not treated equally by the law when the citizen Ensbey ends up charged and convicted of the destruction of an inconsequential diary some six to seven years after any third-party judicial proceedings were first contemplated, yet a group of state cabinet ministers and high public servants were party to the destruction of Heiner Inquiry documents in circumstances where it was known to some if not all cabinet ministers that third-party judicial proceedings were threatened if the Heiner documents were not made available immediately to the third party.

“Added to the situation was the fact that the destruction of these documents took place secretly, the third party being lied to, by being told the matter was still under consideration by the Crown Law office, and was only told of the destruction some two months after the event when it was a ‘done deed’,” Rofe said.

Ensbey got a six-month suspended jail sentence for his crime and his life, profession and reputation as a Baptist minister has been destroyed.

Those Queensland ministers and senior public servants who participated in the decision to shred the Heiner documents remain unpunished even after the Ensbey decision.

Rudd, former premiers Goss and Beattie and now Premier Anna Bligh, have all relied on an interpretation of Section 129 of the Criminal Code that is so fundamentally flawed that it begs the question how experienced lawyers could have ignored the suspicion that it may have been provided to prevent criminal charges being laid against members of the Executive Government and certain senior bureaucrats?

Since 1899 in Queensland there was never a time when it was either “probably correct or incorrect” to deliberately destroy a document or thing (especially including a ‘public record’ when it was known, or even “realistically known” to be required in evidence for judicial proceedings, pending,anticipated or foreshadowed.

It was always illegal to do such an act against the administration of justice with such a state of knowledge.

No question, the Queensland PCMC should review the matter, but there is a grave concern that partisan politics will ensure that every attempt is made to block any inquiry.

The current Parliamentary Commissioner was involved in a previous inquiry shut down by the Goss government, and the Queensland legal system is compromised by the refusal of the Queensland Bar Association to release the findings of either of its two inquiries, the most recent taking place five months ago. This is a test for justice, in Queensland and the nation, and the clock keeps ticking.

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