Clowns Heiner affair

Continued from Part 2

Stephen Sondheim’s hit song “Send in the Clowns” is tailor-made as an overture for Part III of this Heiner affair series.

It addresses the magnitude of the misinterpretation of section 129 of the Criminal Code 1899 (Qld) – destroying evidence.

‘The System’, (in particular Queensland’s new integrity authority, the Criminal Justice Commission or CJC), determinedly relied on this misinterpretation for years to dismiss the 1990 public interest disclosure of serious wrongdoing which I filed. 

At the time of the shredding of the Heiner Inquiry documents in early 1990 section 129 of the Criminal Code 1899 (Qld) stated: (Quote)

“Any person who, knowing that any book, document, or other thing of any kind, is or may be required in evidence in a judicial proceeding, wilfully destroys it or renders it illegible or undecipherable or incapable of identification, with intent thereby to prevent it from being used in evidence, is guilty of a misdemeanour, and is liable to imprisonment with hard labour for three years.”

(Underlining added)

This section has remained unchanged since 1899.

In their wisdom, however, the Queensland authorities declared that this law could only be triggered if, and when a relevant judicial proceeding was on foot.

This was a nonsense. The law did not say this at all.

On this occasion, officials were officially placed on notice by lawyers about a future court proceeding. Even after being instructed by the lawyers not to destroy the identified evidence, they went ahead and did so.

It is important for readers to fully comprehend the seriousness of my initial 1990 disclosure and, how that initial shredding crime has evolved into a crisis of unprecedented proportions in Australian political history This was due to ‘the system’s’ prolonged cover-up involving massive abuse of office. Whilst it affects all of Australia, it is especially damning for unicameral Queensland [lacking an upper house of Parliament].

So, some 3 decades later, the cover-up virus is so widespread and deeply entangled within the three arms of government that its resolution appears to be too daunting for the ‘politico-governor elites’. They are hoping that people will either not notice, or else they will not fully comprehend what is really going on.

The point of decision has finally been reached where these elites are either damned if they act or damned if they don’t act.

That is, if they continue to run away from their responsibilities they will be damned and shamed when the inescapable parliamentary tribunal is established under section 61 of the Constitution of Queensland 2001. This will be required to be presided over by three senior interstate judges. When this happens, they will have to explain under oath, how, when, where and why so much wrongdoing went unresolved and so horribly wrong, so often, and for so long.

For now, behind the scenes, this affair is forcing many high ranking appointed and elected public officials to look to their own consciences in respect of their handling of its various elements of misconduct, particularly since the 2012/13 Carmody Commission of Inquiry.

These are the public officials who investigate whistle-blowers’ complaints. It cannot be said that this matter was not of their business or trivial in character. Unpleasant though it may have been, it was always the bread-and-butter of their business.

Risk-taking whistle-blowers are always assured that these qualified decision-makers can be completely trusted to investigate their disclosures with the utmost integrity and professionalism. The seriousness of the affair is not supposed to matter. Neither should it matter, who the alleged wrongdoer/s may be.


The interpretation of section 129 of the Criminal Code 1899 (Qld) by these people created ‘a lawless void in the administration of justice’ – a black hole. It not only permitted, but actually encouraged,

It has created an open season on all known and foreseeable evidence. In effect, the right to shred evidence without a licence. Think about that.

This affair has opened the way for lawyers and barristers to advise their clients to deliberately destroy any and all known and foreseeable evidence without a legal worry in the world for either themselves (as sworn ‘officers of the court’) or their clients. In the instance of the Heiner affair it was the all-powerful State Government. Think about that too.

One didn’t need to be a legal genius to appreciate that this ‘lawless void’ creation was a killer blow to constitutional functionality of the Judiciary.

It undermined the court’s essential ability to deliver justice according to law because it left the gate wide open to have all relevant evidence deliberately destroyed.

This ‘lawless void’ self-evidently affronted all notions of democratic accountability and the Rule of Law.

A more shameless attack on the separation of powers and associated discovery/disclosures Rules of the Supreme Court as a central part of due process could hardly be imagined.

When it came to the Queensland State Archivist’s role in appraising a public document for disposal or retention, the only consideration according to the CJC was whether or not the record had any ‘historical’ value.

Its legal value – and being held safely for impending judicial proceedings – was none of the State Archivist’s statutory concern according to the CJC.

Such wholesale shredding of evidence could apparently be carried out either in secret or in public.

The CJC’s misrepresentation of their vital accountability role outraged the Australian and international community of archivists and public recordkeepers.

As if all that wasn’t bad enough, the shredding could now be done while deceiving the other side (in the related foreshadowed litigation) into believing that all the identified evidence was safe and being held in readiness for the Discovery/Disclosures Supreme Court Rules to kick in once the anticipated writ was served. Hallelujah!

In practical terms, this void had a name: “A world without evidence”.

I was expected to accept this world as defined by the CJC. but I said, “No!”  I would not bow to it then, now, or ever.