“The Heiner Affair & The Indivisibility of Our Nation under Law”
Keynote Address by Kevin Lindeberg
at the 2012 Annual General Meeting of
Australians for Constitutional Monarchy, Toowoomba Branch,
St John's Lutheran Church Hall, Toowoomba on
Sunday 4 March 2012.
Mr. Chairman, Major-General 'Digger' James, Ladies and Gentlemen
Sixty years ago, on 8th February 1952, at St James' Palace, the Accession to the throne of Queen Elizabeth the Second was proclaimed to the world. These words were declared: ”By the grace of God, Queen of [Her] Realm and of all Her other realms and territories, Head of the Commonwealth, and Defender of the Faith”.
It is only right and proper that today in making this speech concerning our constitutional monarchy system of government in Australia that I pay public tribute to Her Majesty, Sovereign of Australia. Throughout her long reign, she has graced Her Office with dignity, integrity, resolution and exemplary service.
May I once again thank the Toowoomba Branch of Australians for Constitutional Monarchy for this kind invitation. You have demonstrated an openness of mind to hear my words, and for that I thank you. This is the second in my series on the Heiner Affair and its implications for the good governance of our nation. I have new things to say.
Today, I speak to you as an Australian to Australians about our nation, Australia. I come before you with no advantage over any of you. I am the son of a Queensland butcher and a Wondai-born farmer's daughter. My allegiance is to Australia first, last and always. If I have one characteristic it's that I abhor bullies and abuse of power in any setting. I have no disaffection or ill-will towards the United Kingdom or our shared Monarch. But, my friends, I live, breathe and think as an Australian of the 21st century and I stand resolutely for the principle of Australia being governed by the rule of law, not of men.
We have a vibrant economy in a population of around 23 million; we don't have uncontrollable street warfare from roaming thugs; our police force is generally reliable; our judiciary is independent; and our politics, while robust, is generally civil and free from violence. Importantly, we are one of the world's longest continuously uninterrupted functioning democracies. Australia is arguably the best nation in which to live, to earn a decent living, to educate one's children and to raise a family with hope in the future, while breathing the air of freedom.
My friends, it's because we have so much to be proud of that we have so much to defend. So let me tent-peg today's speech with Thomas Jefferson's warning to his 18th century American compatriots which we should still heed in the 21st century:
“… The two enemies of the people are criminals and government, so let us tie the second down with the chains of the Constitution so the second will not become the legalized version of the first.”
I wish to speak candidly and openly today about major issues which confront our nation as I speak. They're disturbing due to their unresolved state. They cannot remain so.
Former Chief Justice of Australia, the Hon Murray Gleeson in the ABC's 2000 Boyer Lecture entitled The Rule of Law and the Constitution, said this:
“… most Australians share a belief that all persons are equal, and they're right. This is because the proposition that people are equal isn't a statement about a fact. It's an expression of an ethical principle. It reflects a value, not an observation. The source of that ethical principle may be a matter of disagreement. For some people it's based on a religious conviction that humankind was created in the image and likeness of God. For some, it's derived from an ethical system that is independent of any religious notions. For others, it's purely intuitive. Whatever the source, the value of equality before the law is deeply ingrained in our legal system and in the constitution.” (1) (Bold and underlining added)
I respectfully say that if this generation wishes to be honest to itself, wishes to be faithful to our forebears and to their sacrifices in achieving, upholding and protecting government by the rule of law, and wishes to be ever mindful of its duty to hand on to its children and grandchildren these things which we hold to be true, then this generation must respect facts over wishful thinking, law over personal desire, and truth over political advantage, disadvantage, sycophancy, spin and empty rhetoric. We must start and finish from on the premise that ”Great is Truth and Mighty Above All Things.”
To start, the esteemed Canadian constitutional authority, the Hon Eugene Forsey, (2) in his book ”The Present Position of the Reserve Powers of the Crown” at page 17 relevantly said this:
“… The danger of royal absolutism is past; but the danger of Cabinet absolutism, even of Prime Ministerial absolutism, is present and growing. Against that danger the reserve power of the Crown, and especially the power to force or refuse dissolution, is in some instances the only constitutional safeguard. The Crown is more than a quaint survival, a social ornament, a symbol, an automaton, with no public will of its own. It is an absolutely essential part of the parliamentary system. In certain circumstances, the Crown alone can preserve the Constitution, or ensure that if it is to be changed it shall be only by the deliberate will of the people.”
In his related 1980 book, entitled ”How Canadians Govern Themselves” [5th Edition], he answered the question about what the rule of law means under a constitutional monarchy system of government. Forsey said at page 32:
“… It means that everyone is subject to the law; that no one, no matter how important or powerful, is above the law - not the government, not the Prime Minister, or any other Minister; not the Queen or the Lieutenant-Governor; not the most powerful bureaucrat; not the armed forces; not the Parliament itself, or any provincial legislature ... ... If anyone were above the law, none of our liberties would be safe.” (Bolding and underlining added)
This is the reason why I called my paper “… the Indivisibility of our Nation under Law.”
There is no question that a constitutional monarchy system of government works well. Indeed, some say that it's the best system of government in the world. Our particular model, based on the Westminster system, limits the exercise of executive power under our Constitution. Important royal prerogatives exist in our system.
Our Governors-General and Governors have the right “… to be informed, to encourage, and to warn” and may, in exceptional circumstances, actually curtail persistent unlawful and unconstitutional government conduct by intervening and dismissing it.
You may recall that in my February 2010 speech to this ACM Branch, because of the sheer distance between Australia and its Monarch who resides in the United Kingdom, I said that a dangerous fault line had emerged since the 1930 Imperial Convention. Our Monarch obviously cannot be here all the time. He or she cannot physically be in two places at once. Our Sovereign needs a representative here in Australia. No longer a member of the Royal Family, this person exercises critical powers in the Constitution and the reserve powers of the Australian Crown itself.
Since 1931, this person, now irrevocably an Australian, is nominated solely by the Australian Prime Minister of the day in consultation with our Sovereign. But, to all intents and purposes, our Head of State, (3) the Governor-General or Governor, is presented to us, the people, by the discretion of one person, the Prime Minister or Premier.
Recently, in The Sydney Morning Herald on 13 February 2012, former Howard Government Minister, the Hon Amanda Vanstone, looked at this arrangement in her article entitled ”PM's unchecked privilege must be challenged.” (4) She argued that the post must not become the Prime Minister's plaything. She wrote in part:
“… The appointment is Her Majesty's. But the nomination to her of a candidate for the governor-general's position should no longer be the plaything of the PM. It is a symbolic position and important for all of us …”
Clearly this process must be broadened. It must, at the very least, be non-partisan and as widely approved of as is practical without undermining the supremacy of our parliamentary representative democracy.
My friends, since my February 2010 speech, but particularly because of unprecedented developments in the Heiner Affair on Australia Day 2012 involving each one of our 76 Senators in the Australian Senate, which I shall address soon, this fault line, I believe, has become more pronounced and more perilous. Since Australia Day 2012 we have entered uncharted and dangerous waters.
This fault line may prove fatal to the preservation of our nation's indivisibility under the rule of law under the Australian Crown unless we take remedial action to ensure its proper functioning. This essential indivisibility under the rule of law is now under threat as never before because the Australian Crown, as the final bulwark to persistent unlawful and unconstitutional government, has been neutralized by government failure to act according to the rule of law in the Heiner Affair.
This failure was made manifest in 2005 when then Queensland Governor Bryce decided not to act to restore the rule of law principle of equality before the law.
My friends, let me repeat, many believe that now we stand at a critical juncture in our nation's constitutional history. Why is?
It's because we now face the unacceptable prospect of the post of Governor-General being not just the plaything of the Prime Minister but of the Federal Parliament to the grave detriment of the Australian people and the integrity of the Australian Crown, leaving us - that is, we the people vulnerable to tyrannical government.
THE PECULARITIES OF AUSTRALIA'S CONSTITUTIONAL MONARCHY SYSTEM OF GOVERNMENT
Let me remind you of what I said in February 2010:
“… in exceptional times of constitutional crisis in Australia, we live with the danger of who might sack who first, Prime Minister or Governor-General. However real or unreal, this was a concern in 1975 in Australia with Prime Minister Gough Whitlam and Governor-General Sir John Kerr. Australia lives with the doubt as to whether or not the dismissal of a government, when justified, may even occur. This is because a confidence within a government may exist that no action shall ever occur, no matter how bad things get for ”the governed”, because the Governor-General or Governor is ”the Prime Minister and/or the Premier's man or woman.”
The Crown is supposed to limit the power exercised by politicians and public officials as a final 'check and balance' in our system of government. When all roles are properly fulfilled and respected, I believe that it is a legitimate form of government in the 21st century, however, when those roles are not fulfilled or respected, then I believe that we have a major problem on our hands.”
My friends, the price we must pay if we wish to retain Australia as a constitutional monarchy nation state, is to be eternally vigilant.
In the United Kingdom, Her Majesty reigns daily and directly over her British peoples by heredity right under the British Crown. That's its distinct characteristic. But in Australia, it is either the Governor-General or the Governor who exercises the reserve powers of the Australian Crown. That's our distinct characteristic.
Consequently, if and when doubt ever emerges about the integrity of the Office Holder, who only comes to the Office by routine occasional nomination and appointment involving partisanship and not by birthright, that doubt must not be allowed to fester unchecked. The longer the doubt remains, the greater will be the perception that the Australian Crown is not impartial at all but has become merely a tool in the hands of the Prime Minister/Premier and either a willing, indifferent or frightened Parliament.
To counteract this threat to the Crown's impartiality, now made manifest in the Heiner Affair, it's absolutely necessary that if and when questions of probity arise concerning alleged possible misconduct and/or misbehaviour impacting on the holder's ”fit and proper test” capacity to be impartial and to unite the nation, then those questions should not only be resolved urgently but also not concealed from the Australian people by informed Members of Parliament.
As with our Sovereign, the prime role of our Governor-General or Governor is first and foremost to serve and protect we, the people. Neither Sovereign, Governor-General nor Governor must ever become the plaything of our politicians.
I repeat, matters of alleged impropriety by governments should be dealt with expeditiously, thoroughly, independently and openly. This is the overriding obligation which attaches to the highest public office holder in Australia. Like Caesar's wife, she (or he) must be above suspicion. We should not only be fully informed about this office holder's virtues but also about any matter which might taint her (or him). The office holder and office itself are so important, that the close scrutiny of any Governor-General or Governor ought to echo Oliver Cromwell's famous alleged command when rejecting a painting of himself by painter Sir Peter Lely and ordering him to do it again because it was too flattering, that is:
“… Paint me as I am. Warts and all!”
Nothing which has the capacity to compromise the Governor-General's duty to always render impartial decisions should be concealed from the public because it is imperative that the general public always have confidence in government and especially in the integrity of the Office of Governor-General. The holder of this Office must be seen to be above party politics at all times lest Australia's version of a constitutional monarchy be nothing more than a poor and shallow imitation of the United Kingdom original.
In my opinion, in a constitutional monarchy system of government such as Australia's, the constant assurance and reassurance of the integrity of the ”temporary non-heredity” holder of Office of the Governor-General is as precious and central a commodity for our nation to protect as is the constant assurance that the Crown Jewels in the Tower of London in the United Kingdom are protected so that the ”permanent heredity” Sovereign may wear them on State Occasions to symbolize, by necessary visible display, the Sovereign's full Majesty of authority and of national unity to her loyal subjects, to the world at large, and to those enemies-cum-terrorists who might dare seek to harm the nation.
Our Governors-General or Governors cannot wear a Crown of Office so how then can they adequately engender public confidence in the impartial exercise of the powers and authority of the Monarch whose representatives they are?
The only Crown that our Governors-General and Governors can wear is the Crown of their own character. Our Crown is not one of physical gold, diamonds and sapphires: it's one of character. A person's character can be assessed by prior deeds and decisions springing from a fixed set of values, by a proven ability to maintain integrity even in the most adverse circumstances, and by a demonstrable and profound awareness of the high obligations commensurate with high office. Only when these criteria have been fully satisfied in an open and accountable manner can we place our trust in the Governor-General or Governor to make impartial decisions based on the facts of any matter and in accordance with the rule of law.
Do I have good and just cause for concern about these matters? Let me set the context.
Firstly, I am assuming that this audience already has some knowledge of what the Heiner Affair is essentially all about, and that I don't have to recount everything now. I invite you to read my February 2010 speech to this Branch. (5) However, I think that a few of its basic elements drawn out of the many gathered during its 22-year lifespan need to be restated.
THE EPICENTRE OF THE HEINER AFFAIR
The epicentre of the Heiner Affair is simple yet profoundly important to good government and the rule of law. It's about the destruction of evidence to defeat justice.
The alleged basic wrongdoing was in the deliberate destruction of public records to prevent their use as evidence in foreshadowed judicial proceedings. This act of destruction of evidence was ordered by the members of 5 March 1990 Queensland Cabinet, with the assistance of certain senior bureaucrats who shared the same state of knowledge as the Cabinet Ministers.
It was subsequently discovered that at the time this decision was made, those involved also knew that the evidence, lawfully gathered by the Heiner Inquiry, concerned the unresolved abuse of children at the John Oxley Youth Detention Centre which the inquiry was set up to investigate along with other written complaints against its management.
In recent years, other evidence surfaced showing that during the course of his inquiry, retired Magistrate Noel Heiner, asked questions about the unresolved sexual assault of a 14-year-old Aboriginal girl by other male inmates on a government supervised bush outing to Mt Barney on 24 May 1988.
At least one of several Youth Worker whistleblowers at the Centre believed that this alleged pack rape of a minor was being covered up. (6) Despite Heiner's 2004 denial, other compelling evidence shows the assault was indeed raised and became part of his gathered evidence which went through the shredder to prevent its use in foreshadowed and foreseeable judicial proceedings.
Relevantly, the victim was recently paid some $140,000 in compensation by the Bligh Government around May/June 2010 with a gagging provision which she instantly described as ”yucky, dirty hush money.” No one has been held to account over this sexual assault of a minor while in the care and protection of the Queensland Government, and the victim is still seeking justice.
It was my job as a public sector trade union organizer to protect the legal and industrial interests of my members among whom were the John Oxley Youth Detention Centre Manager and Deputy Manager. They, and at least two others, namely, the Centre's school teacher and its psychologist - both of whom (as I later found out) were the supervisors on the 24 May 1988 fateful bush outing - wanted to access the Heiner Inquiry documents. The law gave them that right.
The Queensland Government was served with notice by solicitors and two trade unions of foreshadowed judicial proceedings to gain access to these ”public records”. (7) The Queensland Government was instructed not to shred the evidence.
The Goss Cabinet and senior bureaucrats knew that the Heiner Inquiry documents were being sought as evidence in foreshadowed judicial proceedings but that the anticipated writ hadn't yet been served. There is no doubt about their state of knowledge at the time because we now hold the relevant Cabinet February/March 1990 submissions.
We, that is, the would-be plaintiffs, were then deceived by the Queensland Government. We were deceived into believing that the evidence was safe and sound. It wasn't.
Behind the scene, instead of the evidence being preserved as promised, it was secretly destroyed on 23 March 1990 to prevent its use as evidence. One of the public servants who secretly shredded the evidence had been told personally by the lawyers not to shred the evidence because it was wanted for court.
I challenged this shredding act when I inadvertently learned about it from the Private Secretary to the Minister for Family Services. I was then subsequently sacked by my union employer because I allegedly upset the Minister and, apparently, also certain senior bureaucrats, by challenging the shredding.
My dismissal cast me onto this long, dusty and twisting road which is now called the Heiner Affair. It's been a 22-year journey seeking justice. In the world archives community, it is now considered to be one of the great shredding scandals of the world. Since 2009, this scandal has become part of Queensland Education's Year 11 and 12 study syllabus.
In 1990, I blew the whistle to the new corruption watchdog, the Criminal Justice Commission (”CJC”). The Commission cleared the Queensland Cabinet of any wrongdoing. Its 23 January 1993 clearance was and remains a complete and utter farce. It got the facts and law wrong; and even misquoted one law and then misinterpreted it in finding no wrongdoing.
In particular, the CJC misinterpreted section 129 of the Criminal Code - destroying evidence. (8) Its interpretation completely negated the law's purpose. It claimed that section 129 could only be triggered when the relevant judicial proceedings were actually on foot. In other words, any and all evidence could be deliberately destroyed just so long as anticipated court proceedings hadn't commenced, that is, the expected writ had not yet been lodged and served, and done for the express purpose of prevent its use as evidence in those proceedings. This interpretation made a mockery of section 129 which was formulated to protect and serve the administration of justice and to prevent the very same action now advocated by the CJC.
My friends, are you surprised that I objected? If the CJC's interpretation was allowed to stand, then no evidence was sacrosanct. No evidence would ever be available to serve the ends of justice.
After the CJC's ludicrous declaration, Queensland's so-called clean ”post-Fitzgerald system of government” went into systemic cover-up mode as I searched for justice or, as might be said, I became a modern day Diogenes, I searched the streets of Brisbane for one honest man.
The powerful intimidating CJC had spoken, and no one dared to challenge its palpable nonsense afterwards. The further I delved, the more nonsense was piled upon nonsense. Our system of government could not face the horrendous prospect that perhaps the entire Goss Cabinet and certain senior bureaucrats may be in serious prima facie breach of a fundamental law which underpins the right to a fair trial, the administration of justice, open and accountable government, and the ability of the Judiciary to perform its independent constitutional function.
In 2004, the Queensland Government and law enforcement authorities prosecuted Baptist Pastor Douglas Ensbey for shredding a teenage girl's diary in which she recounted being abused by an adult. They applied section 129 of the Criminal Code against him. They wanted him jailed for his heinous shredding offence. This section of the Criminal Code which had previously been misinterpreted to favour the government and public officials in the Heiner Affair was now properly interpreted and applied with full force against an ordinary citizen.
In September 2004, Ensbey was found guilty by the Queensland Court of Appeal. In the Court's binding and comprehensive judgement, it was made emphatically clear that it was simply impossible to have interpreted section 129 as it had been by the CJC, the former DPP and the Queensland Government in the Heiner Affair. The court cited case law going back to 1891.
Pastor Ensbey's case is a crystal clear example, the like of which has perhaps never been seen before in Australian political and legal history, of the criminal law being applied by double standards to the known advantage of ”the governors” while one of ”the governed” was branded a criminal for the rest of his life for similar conduct in materially similar circumstances.
My journey inevitably led me to the doors of Queensland's Government House. Its custodian was Her Excellency, the Hon Quentin Bryce. Our system of government by the rule of law had demonstrably failed and I believed that the Governor was the final bulwark against unlawful government.
Governor Bryce was given a fully documented account of the Heiner Affair. She was given information about the illegal shredding, the cover-up by certain law-enforcement persons in various authorities untenably twisting section 129 of the Criminal Code to protect the Executive Government and certain civil servants from charges, mates protecting mates, gross conflicts of interest, dissembling, delay, unresolved child abuse, including the unresolved pack rape of the 14 year-old indigenous female child, and the illegal payment of hush money to the Centre Manager. She was shown supporting opinions by retired Appeal Court Justice the Hon Jim Thomas in 2003, the Queensland Appeal Court in R v Ensbey in 2004, as well as by the former Chief Justice of the High Court, the late, the Hon Sir Harry Gibbs in 2005. I fully apprised her of all these facts which demonstrated systemic corruption in Queensland's 'post-Fitzgerald era'. In early 2005, I put into words the ominous predicament Governor Bryce faced when making her decision on these matters:
“… The criminal law only carries a moral and constitutional basis of authority and respect in a democracy if it is applied equally by government against all citizens who transgress it. That is government by the rule of law. If, however, the law becomes an instrument of sectional application by government for government, such conduct is unfair and oppressive and sets government in conflict with democracy itself and the rule of law. That is tyranny.”
As a matter of record, all this material was tabled in the Queensland Parliament on 24 May 2006. (9) It is freely accessible under privilege to all. To my knowledge, the material has never been examined by our other so-called faithful watchdog against wrongdoing in governments: the media.
After Governor Bryce requested a report on the Heiner Affair in October 2003 from the Beattie Government, she was made to wait for some 18 months before it arrived in April 2005. Such a delay I find wholly incomprehensible.
The report was even delayed for 8 months after the Baptist Pastor case was settled by the Queensland Appeal Court in September 2004, which ruling merely confirmed my longstanding interpretation of section 129. It is a law which could not have been interpreted as the CJC did in the Heiner Affair without completely negating the administration of justice.
On the facts, the Beattie Government report could only conclude, after years of denial based on an incontestably incorrect interpretation of the law, that 'yes' the criminal law had been breached in respect of the shredding, but that it could claim ignorance of the law as an excuse and that it was not in the public interest to act against the perpetrators, that is, ”the governors.” In April 2005, Governor Bryce took her decision. She decided to do nothing.
My friends, between 2005 and 2007, this same material and other related material was critically examined by Sydney senior counsel David F Rofe QC. The law was applied to the various acts and acts of omission of relevant public officials based on hard evidence. This 9-volume Rofe QC Audit of the Heiner Affair found that it may be possible to make out some 68 alleged serious prima facie criminal charges against these public officials.
This Audit is, in effect, a blueprint for a Royal Commission. Of necessity, any inquiry may need to be established by Act of Parliament in either Canberra or Brisbane because of the identities of those adversely named in it. It is, to all intents and purposes, an audit of 22 years of ALP Government in Queensland.
THE INVOLVEMENT OF THE AUSTRALIAN SENATE
Now we move to recent events in the Australian Senate. May I firstly remind you of what former Clerk of the Senate, Mr. Harry Evans, said in an address to the Australasian Study of Parliament Group in Parliament House Melbourne (11-12 October 2002) in respect of parliamentary inquiries:
“… In Australia, the system of government is waiting for a Watergate, that is, waiting for an issue of government malfeasance and concealment sufficiently serious to prompt the Senate to use its legal and/or political powers to their full extent. Such a case will probably sooner or later arise, given the hubris to which Australian governments and ministers are prone. It is hoped that such an occasion would result in a victory for parliamentary accountability and a lesson to all future ministries. Australian governments have not obliged by producing a full-scale Watergate, only a series of small-to-medium Watergates which do not sufficiently arouse the public (who are anyway not so easily aroused) …”
Australian constitutional authority and former Tasmanian Chief Justice and Tasmanian Governor and acting-Governor-General, the Hon Sir Guy Green, in his 1999 Sir Robert Menzies Oration entitled ”Governors, Democracy and the Rule of Law”, (10) said this about what a constitutional monarchy system of government means here in Australia:
“… the principle of responsible government is not the sole or even the main principle upon which our system is founded. An even more important principle is the rule of law.”
Sir Guy went on to say:
“… It is certainly the case that if one has regard to the principles of responsible government alone it can be persuasively argued that a Governor must always follow the advice of the Ministry. But the application of the principles of the rule of law leads to a different conclusion. The rule of law also imposes an obligation upon a Governor to see that the processes of the Executive Council and the action being taken are lawful and to refuse to act when they are not. That duty is not confined to refusing to be a party to an action which is unlawful in the sense of being contrary to say the criminal law but includes acts which are beyond power or acts which are within power but are being exercised irregularly as was the case for example in FAI v. Winneke” (Bold and underlining added)
EQUALITY BEFORE THE LAW OUR GREATEST NATIONAL VALUE
Ladies and gentlemen, I hold that our greatest national value is equality before the law. It means that ”the governors” and ”the governed” shall not be treated any differently at law when the law is breached in materially similar circumstances. If it were otherwise, we would not have a democracy.
It's in this context that the Australian Crown's reserve powers can come to the people's rescue and ensure that constitutional government by the rule of law prevails over oppressive and unlawful government actions if and when they occur. These are called ”exceptional circumstances”.
Law not enforced makes it meaningless; law enforced arbitrarily and inequitably makes it tyrannical. Honest law enforcement by officers of the Crown protects the Crown's integrity and respects Parliamentary democracy by and through which laws are enacted on behalf of the people. It is a perfect democratic model; it unites us all around the central combined point of Crown/Parliament/Law.
My friends, when our system is functioning properly according to law, an 'exceptional circumstance' ought not to arise. Consequently, in the best of circumstances, it should not become necessary for the Monarch - in Australia, the Governor-General or Governor - to have to make a critical decision about upholding the rule of law. However, in the worst of circumstances, knowing that power corrupts, and absolute power corrupts absolutely, and that politicians can be corrupted by a mixture of human frailty, unbridled ambition and hubris if left to themselves, a Governor-General or Governor may have to make decisions in his/her own right to preserve the integrity of our institutions and our liberties. In those circumstances, the Governor-General or Governor's probity and commitment to the principle of equality before the law becomes our only safeguard against anarchy and tyranny.
It ought never to be forgotten that this scandal was spawned in the hothouse of Queensland's unicameral system of government which is a bastardized form of the normally bicameral Westminster system. In unicameral Queensland, the power and desire of the Executive overrides everything. It's a winner take all political environment. When the CJC was confronted with the allegation of probable wrongdoing by the entire Goss Cabinet and certain senior bureaucrats in the Heiner matter in 1992, it echoed that position by its words:
“… There'll be absolutely no solace in this for you and Mr Lindeberg. This is a complaint against the Cabinet.” (11)
My friends, it must follow therefore that if, in all circumstances, the principle that advice offered by government must be followed by the Governor-General or Governor, then sooner or later it will cripple the integrity of the Crown and related Oaths of office to uphold the law and reduce them to meaningless concepts. The Governor-General or Governor will function as nothing more than a mere rubber stamp, even in exceptional circumstances: even when overwhelming evidence demonstrates that a government is acting in abuse of power and outside rule-of-law principles for its own advantage, just as in the Heiner Affair.
Our Governors-General and Governors were never intended to be mere rubber stamps. Their offices exist to protect us from the excesses of government and to ensure that the rule of law prevails, but a discipline over the exercise of their power is the law itself. It's a two-edged sword. It addresses not just acts, but acts of omission and requires any sworn decision-maker not to knowingly advantage another.
That rule of law insists that be they ever so high, the law is above all, - even a Governor or Governor-General: even Quentin Bryce when she made the April 2005 decision to do nothing at all about the inequitable application of criminal law so amply demonstrated in the Heiner documents. I suggest that if her decision to do nothing does not cause the law to speak adversely then we have echoes of President Richard Nixon's excuse in the Watergate Affair, which he put forward during his interview with David Frost on 20 May 1977:
”When the President does it, it means it's not illegal.”
President Nixon was profoundly wrong. He was reverting to the divine right of kings. He found out that he was not above the law. He was kicked out of office. At the end of the day, it is the rule of law which keeps us free, and nothing else, save the Grace of Almighty God.
THE AUSTRALIA DAY 2012 DELIVERY TO THE SENATE
Now, my friends, I'll bring these matters together to reveal the current dramatic state of affairs.
In May 2011, I placed a major submission before the Senate Privileges Committee on Guidance for officers giving evidence and providing information. (12) I genuinely believed that my submission addressed a relevant issue within the terms of reference, that is, the protection of whistleblowers appearing before Senate Inquiries. I used the Heiner Affair as the reference point. Legitimately attached to my submission was the 9-volume Rofe QC Audit of the Heiner Affair. This correspondence was opened and examined in Parliament House Canberra for the first time around May/June 2011.
The Senate Privileges Committee sought advice from the Clerk of the Senate, Dr Rosemary Laing who examined the Heiner documentation. I remind you that all these people are sworn public office holders at law.
In June 2011, the Clerk issued her Advice No 47. (13) It is now publicly available. Notwithstanding that she found that my submission ”problematically” fell outside the particular terms of reference and should therefore not be received, of even greater relevance she declared that “… There is no doubt that the subject matter is very serious.” The ”subject matter” was ”the Heiner Affair”. She also advised that there may be matter in the material where the Senate had been previously misled which might need to be reviewed pursuant to Standing Order 81.
On the most eminent of advice, I was informed that if the Clerk's Advice No 47 was being made public, then ”the source documentation” which generated the advice should also be made public. Indeed, all previous 46 Clerk's advices had their respective 'source documentation” made public. Public access to ”the Heiner Affair source documentation” was needed to understand the soundness or otherwise of the Clerk's Advice No 47.
I made this request for public access to the 'source documentation', and also told the Committee that it would be ”unthinkable” if it were not to disclose what it knew, not just to the Senate as a whole, but to the people of Australia because of adverse allegations concerning persons holding high public office. The Committee refused.
Out of this process concerning matters relating to whether or not the Senate had been previously misled, the Committee advised me on 24 November 2011, after the Senate rose for 2011, that I could approach: (quote)
“… any senator to raise the matter with the President in accordance with standing order 81 and for the Senate to determine whether a further reference on these matters is warranted.”
My friends, I took the most respected of advice regarding this directive. Because these matters concerned the integrity of the Senate itself, and others in high national public office, I resolved not to approach just one Senator but each and every one of them. I would not play partisan politics. On Australia Day 2012, via e-mail, every Senator in the Australian Senate received a covering letter headed ”The Heiner Affair - A Matter of Privilege Pursuant to Standing Order 81” setting out reasons for urgent action on the matters of privilege and on the extraordinary constitutional problem which now confronted them having been made aware of the facts.
The opening paragraph of my 26 January 2012 letter to each Senator said this: (quote)
“… .I have resolved to take the unprecedented course of approaching every Senator to action this matter of privilege because the Heiner Affair, now in 2012, raises important issues far beyond partisan political advantage or disadvantage. These issues include maintaining respect for and protecting the integrity of the Senate and the Office of Governor-General, public confidence in government by the rule of law under the Constitution, and the handling of relevant evidence regarding unresolved abuse of children while in the care and protection of the Crown.”
An electronic attachment of the Heiner Affair Papers was secured in cyberspace. Access via a confidential password was only known to each Senator.
The Papers consisted of a detailed submission-in-chief setting out where the Senate had been previously misled on the proper interpretation of section 129, on the full extent of the Queensland Government and CJC's knowledge about the child abuse at the Centre, and on the proper role of the State Archivist. The Rofe Audit was the key supporting item of evidence, and its contents could not be redacted given that the Senate Privileges Committee and Clerk of the Senate had already examined it in toto. I remind you that I enjoy the public support of some of this nation's most respected jurists.
No one expected me to take this audacious step in the national interest. I don't regret it. I took it after eminent advice and after serious thought on my part. I believed that I had a duty to do it because I am a democrat, I care about our nation, and I believe in the rule of law. This matter is above party politics, and therefore, every Senator needed to be informed irrespective of his/her personal politics because it's about government by the rule of law and protecting the integrity of our democratic institutions.
By means unknown to me, Daily Telegraph journalist, Piers Akerman, has now accessed the Heiner Affair Papers. He reported on their Australia Day 2012 Delivery to every Senator in his 6 February 2012 column, (14) and, in particular, its constitutional significance to the Governor-General, Her Excellency Quentin Bryce. His relevant points were:
- All senators could now not 'un-know' what they now knew about the Heiner Affair;
- The material contained allegations of serious misconduct against many senior public officers, including Governor-General Bryce, (then) Foreign Minister Kevin Rudd and a raft of Queensland jurists;
- The Governor-General herself could seek a copy;
- A ”message” from the Senate to the House of Representatives had to be sent because of an adverse allegation against a Member, namely Mr Kevin Rudd; and
- The matters were being looked at in similar terms to allegations brought against former High Court Justice Lionel Murphy in 1986.
Alan Jones, the 2GB national broadcaster with Australia's greatest number of listeners, has also seen the material and, in a 2GB interview with Mr Akerman on 14 February 2012, (15) spoke publicly about the constitutional implications of the material now with every Senator.
Other mainstream media outlets are undoubtedly aware of this historic delivery to our national Parliament but, to date, have not seen fit to provide coverage. I suggest it raises serious questions about media bias in this country, especially in the Canberra Press Gallery.
Regardless of the view each Senator may have concerning (then) Governor Bryce's conduct, it is imperative that the Australian people be fully informed because we are dealing with the integrity of our guardian, our Sovereign's representative here in Australia, whose overriding task, in exceptional circumstances, is to protect the people from tyrannical government.
I repeat what the Daily Telegraph said: What each Senator, as a sworn public official, now knows, he or she cannot 'un-know'. We must now know what they know.
My friends, we now stand at this crossroad in our political history. If the Senate now refuses to disclose to the people of Australia what it knows about Ms Bryce's conduct when handling the Heiner Affair allegations, it will turn who is accountable to whom in our constitutional monarchy system on its head. It will make the Governor-General beholden to our politicians. This would be unthinkable. We would be looking at a politician's republic in all but name.
I remind you that certain politicians and the media were only too happy and anxious to apply ”the people's right to know” when it concerned matters of probity relating to former Governor-General Rvd Dr Hollingworth which arose in 2003. Indeed, Premier Peter Beattie tabled in the Queensland Parliament in May 2003, in the public interest, a report critical of Dr Hollingworth's conduct in handling child abuse allegations when Archbishop of Brisbane around 1990.
My friends, you also need to recall that when then Prime Minister Kevin Rudd nominated Governor Bryce to become our 24th Governor-General, I wrote to Her Majesty on 30 May 2008 and informed her that the Heiner Affair, including the Rofe QC Audit, was under lawful review by the Queensland Parliament's Parliamentary Crime and Misconduct Committee. I wanted to protect the integrity of her Signature, the Crown and the Office of Governor-General. In essence, I forewarned Her Majesty of this crisis which now besets us.
I provided a copy of my letter to the Queen to then Governor-General His Excellency Major-General Jeffrey who subsequently, on 10 June 2008, requested an investigation into these matters by Prime Minister Rudd and advice by return. Prime Minister Rudd ignored this request. There is no evidence currently to hand that it was ever followed up by the Governor-General.
With these serious matters unattended to in Canberra, and while the Heiner Affair was also known to be under active lawful investigation by the Queensland Parliamentary Crime and Misconduct Committee, Ms Bryce was sworn in as Governor-General on 5 September 2008 with all due pomp in the Senate, At the ceremony, it was declared that Her Majesty's authorizing signature to Our Sign Manual and the Great Seal of Australia was carried out on 21 August 2008 in Balmoral Castle.
Now, my friends, if the Federal Parliament refuses to act on what it knows, and refuses to tell you what it knows about the conduct of the current holder of the highest public office in the land as set out in the Heiner Affair Papers, the gravity of the consequences cannot be overstated. As a people, we have already taken a few steps along that well-worn historic path to anarchy and tyranny. We must now redouble our efforts to halt that fateful journey.
Every Australian should write to his/her local Member of Parliament, to every Senator, and the media insisting on their right to know what's in the Heiner Affair Papers. They should be tabled in Federal Parliament in the national interest. They should request that urgent action is taken to resolve this long-running scandal which, on eminent advice, should be via a Parliamentary Commission of Inquiry established either in Canberra or in Brisbane due to the public positions held by certain persons involved in the matter.
In closing, I hope and pray that our honourable politicians, as well as the mainstream media, will do the right thing. I hope and pray that they will hold fast and true to the democratic principle that no one in our nation is above the law and, in so doing, secure the indivisibility of our nation under law, in which a constitutional monarchy can be an essential safeguard, but only if the Governor-General or Governor is not above the law.
Let us remember the opening words in our Constitution so that we all hold them firm and true “… Whereas the people of New South Wales, Victoria, South Australia, Queensland and Tasmania, humbly relying on the blessings of Almighty God, have agreed to unite in one indissoluble Federal Commonwealth under the Crown.”
My fellow Australians, insofar as our Monarch and her Australian representatives are concerned, let us hold firm and true to this great principle: “… the King is under no man, but the King is not above God or the law.”
2. The Hon Senator Eugene Alfred Forsey, P.C., C.C., B.A., M.A., Ph.D., LL.D., D.Litt., D.C.L., F.R.S.C (May 29 1904 - February 20 1991) served in the Canadian Senate from 1970 to 1979. His publication How Canadians Govern Themselves is his most enduring legacy, being a simple yet comprehensive guide to Canadian government.
3. R v Governor of South Australia  HCA 31; (1907) 4 CLR 1497 (8 August 1907)
6. Legislative Assembly of Queensland, Parliamentary Debates. (1998, June 27). Hansard (p. 1872). Retrieved December 7, 2009, from http://www.parliament.qld.gov.au/view/historical/hansard.asp
7. Pursuant to Public Service Management and Employment Act 1988 - Regulation 65.
8. Section 129 of the Criminal Code (Qld) 1899 states: ”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, intentionally destroys it or renders it illegible or undecipherable or incapable of identification, with intent thereby to prevent it from being used in evidence, shall be guilty of an offence. Penalty: Imprisonment for 3 years.”
11. See Senate Select Committee on Unresolved Whistleblower Cases Hansard p548 5 May 1995