There is another reason why the unresolved status of the Heiner affair has been so concerning to so many, for so long.
Firstly, the absurd meaning of section 129 applied by the authorities in this matter flew in the face of the plain, concise English words used.
Secondly, from the lowest to the highest in the land, from the most ignorant to the most learned, the provisions of the Criminal Code 1899 (Qld) are expected to be known and obeyed by everyone on pain of imprisonment, because ignorance of the law has never been an excuse for breaking it.
As mentioned previously section 129 of the Criminal Code clearly states, in plain English, the following:
“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)
Thirdly, while the law respects no one; no one should be able to disrespect it with impunity. The law occupies the same space in which all activities within our nation take place.
It stands as a commanding majesty, be it when plans are agreed to in a tin shed at the back of Bourke or in the Cabinet room behind locked doors on the top floor of the Executive Building.
Fourthly, whenever the law is abused by its enforcers and applied with double standards, its majesty is reduced to an unacceptable state of derision.
This state of affairs is dangerous beyond words. No sane person should desire this. It follows that whenever and wherever trusted public officials apply the law by double standards to advantage certain parties over others for the same crime, it is a major betrayal of public trust.
It is made even worse if those advantaged happen to be an entire Cabinet ministry. So much so, that ignoring it cannot be an option if men and women truly value their freedom to live in a civil society.
Ideals of peace, order, and good government decree that ignorance of the law is no excuse. We must accept this premise, in order to protect the full commanding majesty of the law.
If it were otherwise, then the law would become meaningless and farcical.
That said, however, before guilt may be properly found, the elements of a particular crime must be present and proven by ‘the Crown’ beyond a reasonable doubt at a fair trial.
Only by doing so, can we afford justice and consolidate peace, harmony, and good government.
Unfortunately, when the conduct of Queensland authorities became the issue, this cardinal principle was tossed overboard quick smart. The Crown, in all its emanations (i.e. Cabinet, Crown Law, DPP, CJC, police), was allowed to claim ignorance of the law as a valid excuse. Think about that.
For example, one of the key 1990’s advocates of the misinterpretation was lawyer Mr Michael Barnes who, at that time, was the CJC Chief Complaints Officer. He told the 2004 Senate Select Committee on the Lindeberg Grievancein his 18 September 2004 submission at Point 6: (Quote)
“It cannot be disputed that the decision to shred the documents was based on advice from the Crown Solicitor. Surely governments must be free to take and act on such advice. Even if Mr Lindbergh’s (sic) claim that the shredding was unlawful has any substance how could action be taken against the Goss Government for acting in accordance with its legal advice?”
When Mr Barnes made this extraordinary public claim, he held the judicial post of a Queensland Magistrate by reason of being Queensland’s State Coroner. Think about that.
These honourable people would have us believe that any person (which included 18 Ministers of a State Cabinet sitting around the Cabinet table) can and should escape scot-free for a breach of the criminal law.
Their rationale for this claim, derives from the fact that their actions were based on legal advice. They insist that this circumstance excuses their crimes, even if the advice was erroneous – and there were lawyers in that Cabinet.
It therefore didn’t matter to the Queensland authorities how erroneous or ludicrous a mistake of law their interpretation was. It mattered not, how absurd or unjust a state of affairs it visited on the administration of justice.
In this case, the guardians of the law permitted and encouraged a situation where not a single shred of evidence was left in existence despite being required for known, impending and realistically possible court proceedings.
From day one, status overrode the law in this matter.
But, what did the High Court of Australia think about Mr Barnes’ assertion as a matter of principle?
In Ostrowski v Palmer,a Western Australian cray-fisherman acted on erroneous government advice and was subsequently charged with an offence.
In that case, the High Court of Australia emphatically rejected the notion that ignorance of the law should be an excuse for breaking the law simply because the defendant was relying on erroneous legal advice.
Their Honours Callinan and Heydon JJ stated in their 16 June 2004 Ostrowski judgement that: (Quote)
“…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.”
How did this apply in the Heiner affair?
On the one hand, the CJC had decided what section 129 meant. It was wrong but this was their version of the truth, and they were going to stick with it come hell or high water.
In other words, everyone should go their separate ways (including the Queensland Government and its Parliament, the DPP, Crown Law, Police, legal fraternity, Queensland people, Australian Senate, media and whistleblowers).
It should be as if nothing of significance was ever in the balance over what was true and what wasn’t regarding section 129 – a law which underpinned the viable operation of the administration of justice.
The thought of anyone daring to believe that such a perversity might have been contrived for an improper purpose to advantage another, or to dare point out its self-evident catastrophic effect on the administration of justice as a matter of rational reasoning, had to be not just ‘a conspiracy theory’, but a ‘barking mad conspiracy theory’.
No greater authority than the former Queensland political luminary Anna Bligh would assert this opinion. She was then the responsible Families Minister and later became State Premier. She made this clear in her address to Parliament on this topic.
It happened some 12 years ago. She has never recanted her words, spoken during a serious debate about the connection between the newly established Forde Inquiry into the Abuse of Children in Queensland Institutions and its connection with the Heiner affair through child abuse and the shredding of evidence.
As a sworn Minister of the Crown, she assured Parliament on 28 August 1998 that: (Quote)
“…The motion before us tonight makes a series of very serious allegations against five of my colleagues, serious allegations that do not bring forward one shred of evidence against these colleagues.
It is time, as the Deputy Premier said, to call a spade a spade. This has not been debated on the facts; this is nothing more than a complicated, convoluted conspiracy theory a totally mad conspiracy theory.
Far be it for me to ruin their grand conspiracy theory with some facts, but I feel I am bound to put them on the record here tonight.
It seems to me that, if one is going to have a conspiracy theory, one ought to do it properly. If one is going to have a conspiracy theory, one really should have a totally mad one.
One should have one that is gloriously mad, one that is grandly, gloriously, barking mad and this one bears all the hallmarks of that. Not only have members opposite come in here and made repugnant and malicious personal slurs on five Ministers, they have made false and disgraceful attacks on current and former officers of my department.
We do not mind so much. We have broad shoulders. We take a lot of flak and we will take a lot more. But who else has been dragged into this barking mad conspiracy?
Who else is being accused of communism, paedophilia and criminal activity? None other than the Crown law office, the Audit Office, the Office of the Information Commissioner, the Director of Public Prosecutions, the Queensland Police Service, the Criminal Justice Commission and the Federal Senate!
I am disappointed here tonight. I had hoped to hear the full extent of this conspiracy.
I was hoping that we would hear tonight of the involvement of the United Nations in this matter; that we would hear tonight about the involvement of the Vatican, the Pope and the entire Catholic Church around the world; that we would know tonight at last the truth about the involvement of the ABC in this; about how Bananas in Pyjamas have figured in this, and the role of the Wiggles in this matter.
But no! What we have had tonight is further nonsense about documents and documents and documents.
While we are on the subject of documents, there is a lot of curiosity from One Nation members about the attendance register from Cabinet.
I am going to let the One Nation members into a secret. Just so that they never know who is there and who makes these dastardly decisions, at the end of every Labor Cabinet meeting right throughout the Goss years and we have restored the tradition the Premier eats the attendance register.
I say to the One Nation members: you will never get it. You can take us to the International Court of Justice and the attendance register will remain in the bowels of former Labor Premiers. It is part of the austerity drive; we do not get lunch.”
So, the secular gods had decreed from on high what was true, and any and all subsequent dissent could be summarily ignored, trivialised or ridiculed including from the floor of the people’s house, the Parliament, under its complete protection.
In essence, this affair became a repeat of Pontius Pilate’s famous eternal question: “What is truth?”
Pilate asked his question when many would say that Truth stood in front of him in Jerusalem some 2000 years ago. But, having asked the question, he didn’t wait around to hear the answer. He left. Probably, not wanting to hear it.
And, for Queensland authorities, the same key question arose when I first lodged my public interest disclosure with the CJC in 1990. But, as with Pilate, did anyone in power ever want to know the truth about the Heiner affair allegations then, or even now in 2020? It seems not.
For my part, I have persisted now for three decades to have the truth fully revealed as well as see the law applied equally, consistently and impartially to restore justice for all. Why?
It’s because in this matter’s uncontested factual context, their version of the truth about section 129 was its polar opposite. By this disgusting lie, they succeeded in corruptly turning the administration of justice into a monstrous fraud against the people.