Elder John Jones: Fraser Island - Hansard: Crime in the community

COMMONWEALTH OF AUSTRALIA

Proof Committee Hansard

HOUSE OF REPRESENTATIVES

STANDING COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS

Reference: Crime in the community
MONDAY, 27 OCTOBER 2003
BRISBANE

CONDITIONS OF DISTRIBUTION
This is an uncorrected proof of evidence taken before the committee. It is made available under the
condition that it is recognised as such.
BY AUTHORITY OF THE HOUSE OF REPRESENTATIVES

[PROOF COPY]

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HOUSE OF REPRESENTATIVES
STANDING COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
Monday, 27 October 2003

Members: Mrs Bronwyn Bishop (Chair), Mr Murphy (Deputy Chair), Ms Julie Bishop, Mr Cadman,
Mr Kerr, Mr McClelland, Ms Panopoulos, Mr Sciacca, Mr Secker and Dr Washer
Members in attendance: Mrs Bronwyn Bishop, Mr Kerr, Mr McClelland, Mr Sciacca and Dr Washer
Terms of reference for the inquiry:
To inquire into and report on:
The extent and impact of crime and fear of crime within the Australian community and effective measures for the Commonwealth in countering and preventing crime. The Committee's inquiry shall consider but not be limited to:
a) the types of crimes committed against Australians
b) perpetrators of crime and motives
c) fear of crime in the community
d) the impact of being a victim of crime and fear of crime
e) strategies to support victims and reduce crime
f) apprehension rates
g) effectiveness of sentencing
h) community safety and policing

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WITNESSES

GRUNDY, Mr Grahame, Bruce, (Private Capacity) .........1382
LINDEBERG, Mr Kevin, (Private capacity) ...................1354 .... 1437
MacADAM, Mr Alastair Ian, Senior Lecturer in Law, Law School, Queensland University of
Technology ...........1416

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Monday, 27 October 2003 .......... REPS .......... LCA 1353

Subcommittee met at 9.03 a.m.

CHAIR—I declare open this public hearing of the House of Representatives Standing
Committee on Legal and Constitutional Affairs inquiry into 'crime in the community: victims,
offenders and fear of crime'. Throughout the course of its inquiry, this committee has heard
some serious allegations of mismanagement and corruption among high-level public officials.
Today we are inquiring into evidence provided by Mr Lindeberg concerning a matter known as
the 'Heiner affair'. The facts are well established: documents containing allegations of abuse of
children in government care were shredded by senior public officials on the orders of the Goss
cabinet, of which the current Deputy Premier, Mr Mackenroth, and the environment minister, Mr
Dean Wells, who was Attorney-General at the time, were members some 13 years ago. The issue
has never been resolved, although there have been a number of inquiries and referrals, such as
the Forde inquiry, to deal with this matter.
However, today, the issue has taken on a new character since Pastor Douglas Ensbey has been
committed for trial for guillotining evidence of child abuse in very similar circumstances—that
is where no legal proceedings which required the evidence were actually on foot, although in the
case of the Heiner affair there were, I think, 13 instances of the government knowing that
evidence was to be required. Since Pastor Ensbey has been committed for trial, we seem to have
two standards of justice. There seems to be one standard for Pastor Ensbey, who is just an
ordinary member of the community, while we have a different standard for members of the Goss
cabinet.
Today we will hear from Kevin Lindeberg, a citizen who has tirelessly pursued this issue. Mr
Lindeberg's appearance will be followed by that of well-known journalist Bruce Grundy who,
together with his journalism students at the University of Queensland, has made further inroads
into uncovering the whole story. Mr Grundy and his students have called their collection of
material the Justice Project. Further explanation on legal concepts involved in the Heiner affair
will be provided by legal academic Alastair MacAdam. The committee has invited Mr Lindeberg
back later this afternoon for some final comments. I might add that there is a definite federal
connection, aside from the terms of reference, in that Mr Kevin Rudd, at the time of the
destruction of the documents, was chief of staff to the then Premier, Mr Goss.

LEGAL AND CONSTITUTIONAL AFFAIRS

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LCA 1354 .......... REPS .......... Monday, 27 October 2003
[9.07 a.m.]

LINDEBERG, Mr Kevin, (Private capacity)

CHAIR—We have received a lot of material from you. We have received a submission and
additional backup documents. You have already indicated to me that you wish to make an
opening statement.

Mr Lindeberg—To deliberately destroy evidence known to be required in a pending or
anticipated judicial proceeding, or known to contain proof of a crime which has been perpetrated
in the past, to prevent its use by police or by court is clearly a criminal act. When those in the
highest office in the state commit the crime of deliberate evidence destruction and then pervert
the interpretation of the law to avoid penalty or censure, this is, at best, evidence of a corrupt
coterie of self-serving individuals. At worst, it is evidence of ingrained systemic corruption that
acts against justice for the reasonable person. This conduct undermines good government and the
central trust that citizens in a democracy must have in those entrusted to govern them and make
laws. When the law-makers act illegally, then all citizens are, de facto, given a licence to act in a
criminal way.
The Heiner affair—or 'Shreddergate', as it is commonly known around the world, to
Queensland's shame—is about high-level, unresolved, systemic corrupt conduct by the whole of
government in Queensland, attacking matters of legal and democratic principle critical to the
administration of justice, the right to a fair trial, judicial and parliamentary propriety, public
sector governance, impartial law enforcement by state authorities, public record keeping,
protection of children in the care of the state, the role of the media and the protection of
whistleblowers.
Heiner is wholly documented. It remains unresolved and the cover-up continues as I speak.
We see mates looking after mates at the highest levels of government, abusing public trust and
the rule of law, reaching well beyond the borders of the Department of Families, where it began.
The tentacles are everywhere. Put bluntly, Heiner has caused the system to collapse—it is in
gridlock. I shall elaborate on that later on, if allowed, for my two public submissions. Heiner is
the black hole into which the aforesaid agencies have collapsed, either through complicity to
avoid, or inaction to avoid, what the law required—indeed what the law demanded. They could
not face the horrendous prospect that perhaps an entire cabinet should be criminally charged,
literally within days of winning office in December 1989, after being in the political wilderness
for 32 years.
Heiner still has the capacity to create a constitutional crisis in Queensland. In Heiner we have
the state acting in the same manner as churches over allegations of child sexual abuse. That is,
those in authority have turned every which way but loose to cover up the known crime of child
abuse and not be accountable. If matters in Heiner—the shredding of public records required for
judicial proceedings and known to contain evidence of child abuse; the pack rape of an
indigenous minor while in state care; double standards in the application of criminal law; the
dispersion of thousands of taxpayers' dollars as hush money; and the mysterious circumstances
surrounding the 1990 shotgun killing in Newmarket, Brisbane—do not stir government and its

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Monday, 27 October 2003 .......... REPS .......... LCA 1355

agencies into action, then Queensland with its unicameral system of government is terminally
sick and in need of radical surgery, which now can only be performed under the authority of a
special prosecutor working outside the system to clean it up.
In this matter the Crime and Misconduct Commission is now a protagonist. Its obligation to be
independent and impartial is shot to pieces. Its own conduct should come under review. As far as
I and others are concerned, the CMC cannot be trusted and has acted corruptly in Heiner. In
Queensland's administration of justice, it is a blockage and not a facilitator.
The Heiner affair asks this simple question: are we, the people, governed by equality before
the law or by double standards? That is, is there one law for politicians, public officials and wellconnected
mates and another for the rest of us? It is not a revolutionary question. But if the
answer is yes, there are two laws, then you may well get a revolution. Whether we are all equal
before the law is the first principle which free men and women everywhere want answered
before bowing to those in positions of authority over their lives and liberty who administer the
law entrusted to them either through the ballot box or by appointment. It is the ultimate contract
of truth in any democracy. But it has limits, because we know that power corrupts and absolute
power corrupts absolutely. If this trust is breached, it has the potential to tear society apart. The
aggrieved citizen may see the state as the criminal; fear of going to and hatred of the police will
exist and the citizen, in seeking justice, may take the law into his own hands—and that is not on.
I want to believe in the integrity of law enforcement authorities as the instruments of law and
order in our society and I expect them to do their duty. With that belief, I put my life in their
hands. I approached these instrumentalities with my disclosure only to be dismissed and
ridiculed and have the law twisted and misquoted and the evidence tampered with. I experienced
dissembling, conflicts of interest were engaged in by decision makers, legal duties were avoided,
lies were told to state parliament, the Senate was misled and I suffered personal threats and saw
my family's welfare placed in great jeopardy.
I alert you to the Justice Project and the relevant point of law, where former Supreme Court
and appeal court justice James Thomas QC advised in 2003 that section 129 of the Criminal
Code was never open to the interpretation that evidence could be deliberately shredded before
proceedings came on foot and, for that matter, when those involved were still open to being
charged. From day one, I refused to accept that cabinet or a government minister was above the
law. To do otherwise is to accept rule by executive decree—and that is totalitarianism, and that I
shall never do. I knew that known evidence had to be protected otherwise our courts could not
function.
Queensland is now seen as an international joke and a rogue state in its public record keeping
and matters of due process of law. Heiner is now taught in universities throughout the world as a
classic example of how not to practise public record keeping. From the famous University of
Salamanca in Spain, Manitoba University in Canada, Liverpool in England, the universities of
Michigan and Pittsburgh and elsewhere, Heiner speaks authoritatively to students. Other
disciplines like law and journalism also cite Heiner. Yet Mr Beattie, himself a lawyer, claims that
because prior approval to shred was obtained from the state archivist it made the shredding
lawful. What legal nonsense. He conveniently forgets to tell us all that the archivist was
deliberately misled by cabinet and that archives' law does not and cannot ever override the
Criminal Code or the discovery rules of the Supreme Court.

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LCA 1356 .......... REPS .......... Monday, 27 October 2003

I am happy to rest in the view that it is the rule of law which keeps us free as a nation and not
the earnest assurances of smiling media-smart politicians who may claim to be as honest as the
day is long and who would never engage in covering up crime or child abuse. Getting away with
misleading parliament is easy when you have the numbers, but it is a very different matter under
oath before a special prosecutor. If Heiner stands unchallenged, The Queensland executive is
saying to the judiciary, the legal fraternity and the business community—in fact, all people—that
it will wilfully and deliberately destroy public records in its possession and control known to be
required in evidence in a judicial proceedings and discoverable under the rules of court up to the
moment of an anticipated writ being filed and served; and it will even do so when it knows the
material contains evidence about the abuse of children in state care. Not only is that contempt of
the judiciary and a major breach of the doctrine of the separation of powers but inescapably
Heiner means this: a world without evidence—and that cannot stand.
I conclude on this point. Mr Beattie has publicly declared that no litigation had commenced at
the time of the shredding, while knowing and accepting that the government was well and truly
on notice not to shred any of the Heiner material because it was required in anticipated judicial
proceedings. With that state of knowledge and the intent to prevent their use in those
proceedings, on cabinet order the records were secretly and deliberately shredded on 23 March
1990. Those elements would normally trigger section 129 of the Criminal Code. Instead, the law
was and has been for over a decade twisted for an improper purpose by certain public officials,
including the then DPP, Mr Miller QC, suggesting that it could only be triggered when a
proceeding was on foot.
In the last few days I have accessed the DPP's indictment for a Queensland citizen who has
been ordered to stand trial under section 129—and, in the alternative, section 140—for
destroying a record which contained evidence of child abuse some five or six years before court
proceedings commenced. The indictment is signed by legal officer Mr Richard Pointing. This
gentleman confirmed my long-held view of section 129, which is shared by eminent jurors like
High Court Justice Ian Callanan, retired Queensland Supreme Court Justice Thomas, Mr Tony
Morris and the late Mr Bob Greenwood QC and others—and let us not forget Sir Samuel Griffith
himself.
That same public official handled my complaint at the CJC over a decade ago. Unquestionably
the same shredding elements present in the aforesaid case were present in my case against the
Goss cabinet and others from day one except that in Heiner it is far clearer—it is unequivocal. In
1991 and 1992, Mr Pointing dismissed my claim and, on one of my letters in which I pointed out
these facts, wrote that 'this man is irrational and nothing which this commission can do or say
will satisfy him; I recommend that no reply to his letter be sent as it will only be an
encouragement for further unnecessary correspondence to him'. Before our eyes, we see an
ordinary citizen being charged and put before the courts—but not a cabinet. For my trouble, I
have been demonised as being irrational by the same public official who has put his signature to
an indictment on an interpretation of section 129 which I have stood for for 13 years in seeking
justice.
The view taken by The Queensland government and its law enforcement agencies in Heiner is
an affront to decent people who believe in the rule of law and who obey it. It is an affront to
courageous law enforcement officers who put their lives on the line every day to uphold our
justice system. Now the worm has turned, and I say this to those who mistakenly believed that I

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Monday, 27 October 2003.......... REPS .......... LCA 1357

would throw in the towel and not challenge this giant and who have taken the cover-up route for
political and personal advantage or out of sheer fear of executive government over what the law
always required: they must now answer for their unacceptable criminal conduct. My final
message to those people is this: the game is up. I seek leave to table this indictment.

Dr WASHER—I move that it be taken as an exhibit.

CHAIR—We will take that as an exhibit. Mr Lindeberg, you have stated in your opening
remarks that you have pursued this matter for 13 years. The Queensland Premier, Mr Beattie, has
chosen to make the question of child abuse a high priority. He chose to attack the then Governor-
General 'viciously'—some people might say—and, in choosing to table the report in the
parliament, acted very politically. Why do you think he covers this up?

Mr KERR—Madam Chair, in looking at particular matters can you please avoid making
those kinds of remarks? I appreciate the high-minded tone you are seeking to take, but it is
extremely political and not appropriate for this examination.

CHAIR—It cannot not be political when politicians are involved.

Mr KERR—Ask the questions you wish, Madam Chair; I do not need to indulge your political campaign.

CHAIR—Mr Lindeberg, why do you think? Please answer.

Mr Lindeberg—With great respect, the trouble with Heiner is that it was political from day
one. With great respect, Mr Kerr, to suggest that you can take politics out of Heiner is just not
on. With due deference to you, it is a very relevant point that Madam Chairman makes.
Everyone knows—and I do not really want to go into the Anglican Church and court as such—
there were certain principles at stake here, and I think that is what you are on about: we do not
want people in public office to engage in double standards. Mr Beattie tabled a private report
brought together by the Anglican Church, which had some concern about whether or not people
would be sued for defamation. With the Heiner report we are talking about public records and a
lawful inquiry, established under the Public Service Management and Employment Act, where
public servants were obliged to disclose misconduct. They were covered by qualified privilege,
they had a duty to do what they did and, instead of tabling the documents, they shredded them.
In this whole thing it becomes quite clear that the current government is quite happy to see the
dirt going on behind the churches, but it has never been prepared to let the public see what was
going on behind the walls of the John Oxley Youth Detention Centre and so it shredded the
documents to protect various people.

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