“The significance of the Heiner Affair to the rule of law in Queensland”
Address by Kevin Lindeberg to the 2010 Annual General Meeting of
Australians for Constitutional Monarchy, Toowoomba Branch
Platinum Hotel Toowoomba, 21 February 2010
Mr Chairman, Major-General 'Digger' James, Ladies and Gentlemen
I wish to thank you for extending this opportunity to speak on a topic of considerable public importance and relevance to your interests. In delivering this paper today on "the significance of the Heiner Affair to the rule of law in Queensland", as my fellow Australians, you are entitled to the facts, nothing more and nothing less. You may judge them as you will.
Mr Chairman and guests, with your brief indulgence, I want to first set the constitutional background into which the Heiner Affair sits, and then go into some of its key elements to demonstrate why its proper resolution is so important to upholding constitutional government by the rule of law in 2010 and beyond.
Let me declare from the outset -- by adopting a well known 12th century saying -- I feel like a dwarf who is standing on the shoulders of giants. (1) That is, while I can see further, I could not see at all without the courage and sacrifice of giants who have gone before. These are the giants who first experienced, confronted, and conquered tyranny to establish the principle of constitutional government by the rule of law and not of men.
They challenged "the Divine Right of Kings". They established, even in the face of being hung, drawn and quartered, the democratic principles of equality before the law for all, the supremacy of parliament, limited government, independent judiciary and the right to a fair trial. They pointed the way forward for all of us.
They were not just the memorable, the rich or the privileged. Most importantly, they came from the ranks of ordinary men and women whose common cause was freedom and the protection their homes, families and heritage. They rose up to become giants when standing up to bullies who sought to take away their rights, the very rights we now enjoy because they showed courage when they had to.
Out of great sacrifice over hundreds of years, our system of constitutional monarchy government has evolved. It is arguably the best form of democratic government in the world because, amongst other things, the impartiality of the Crown brings national unity and puts limits on the exercise of power. Put succinctly, the impartial Crown represents the impartial rule of law for all.
Mr Chairman, it is always the truth that matters. While never easy, truth must prevail over any allegiance to a political party or a government which knowingly breaks the law and then seeks to evade responsibility for its own actions because unless truth and the rule of law matter, blind party allegiance, cynicism and sycophancy can and will encourage the covering up of corruption in government.
Cover-ups like Watergate and the Dreyfus Affair can lead to horrendous consequences. Everything can turn toxic, especially public confidence in government. Corruption in government should always be nipped in the bud otherwise it will fester like a boil and spread like septicemia through 'the body politic'. Many now believe that this is what the unresolved Heiner Affair represents for this nation, but especially for unicameral Queensland.
Our greatest national value is equality before the law for all. It keeps us free. This value means that "the governors" and "the governed" shall not be treated any differently at law when the law is breached in materially similar circumstances. (2) If it becomes otherwise, we will no longer have a democracy.
It is in this context that the reserve powers of the Crown can come to the people's rescue from oppressive government, ensuring that constitutional government by the rule of law prevails. The reserve powers are usually triggered only in exceptional circumstances. Hopefully, we should never reach such a crisis, but if so, they are necessary and ought never to be codified so as to cope with every unforeseen circumstance. Their exercise may occur when a government persists in acting outside constitutional constraints, or when it persists in breaking the law and applying the law by self-serving double standards which places "the governors" above the law.
Former Tasmanian Governor and Chief Justice of Tasmania's Supreme Court, and one-time acting Governor-General, Sir Guy Green, in his 1999 Menzies Oration "Governors, Democracy and the Rule Law" (3) declared that upholding the rule of law was a proper and vital function of a Governor-General or Governor under our system of government. It meant, in exceptional circumstances, that they were not obliged to act always on the advice of their chief advisers, namely, the Prime Minister or Premier. Sir Guy said these various relevant points:
"... The rule of law is not merely a political or legal theory. It is an integral part of the substantive law which governs our system. (4) ... (that) everyone including in particular the executive arm of government is subject to the law ... (that) organs of the executive government may not do anything save that which the law has authorised them to do.
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".
The great contract of trust between the Crown and our peoples is based on equality before the law. It has quietly but assuredly sustained the stability of our current system of constitutional monarchy government much more than a republican model could because the impartial Crown is seen by the people to be above politics, whereas, that apex of power in a republic, tends to be politicized with an elected President.
But, Mr Chairman, the inescapable fact is that there are grave dangers lurking in our current system of government. It stems out of the unavoidable imperative of protecting the integrity of the Crown so that is not reduced to irrelevancy or ridicule. Such things must not happen. By logical local consequence, it is equally imperative for us in Australia to always protect the integrity of the Offices of Governor-General and Governor from any adverse taint so that those Offices are not reduced to irrelevancy or and ridicule. This is because those office-holders are our Heads of State (5) with decisive power to be used for our interests, that is, the interests of the people, "the governed".
They are lawfully empowered to exercise the powers of the Crown as Her Majesty's sworn representative in Australia because the Queen cannot do it due to residing thousands of kilometres away in the United Kingdom.
In fact, our famous tyranny of distance from the rest of world, but in particular, London carries with it a hidden heavy price. This price has now come into the cold light of day in the Heiner Affair, and, I respectfully suggest, we ignore it at our peril.
It is critically important that should ever the unhappy situation arise requiring the use of the reserve powers, the people have faith in the impartiality of the Governor-General or Governor so that community peace and harmony may persists should it become necessary to terminate a government's commission and order a general election to resolve the crisis.
In the Heiner Affair's 20-year evolution, particularly between 2007 and 2010, the intermediary role of our Governor-General between our Sovereign and us, that is, "the governed", may, in fact, be a serious flaw because of partisan politics. This is because our Prime Ministers have taken to themselves, in a grand presidential style, the sole nominating discretion on who shall fill this key public post. As you shall soon hear, the Heiner Affair has revealed that any such nominee will be duly accepted by Her Majesty, even, apparently, when due diligence tests concerning 'fit and proper' credentials of the nominee remain open to prima facie doubt sufficient to bring about another unhappy Governor-General Hollingworth resignation scenario and accompanying national turmoil.
In my opinion, the role of our Governors-General and Governors interferes with the vital, live and close daily relationship normally enjoyed, and expected to be enjoyed, between a Sovereign and His or Her people, as exists in Great Britain for example. The strength of a constitutional monarchy system of government is that the Sovereign wears the Crown on behalf of "the governed" not on behalf of "the governors" and, importantly, may not be removed from office by a Prime Minister due to its hereditary character.
However, 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.
Mr Chairman, noted constitutional expert, Dr Nigel Greenwood, a constitutional monarchist himself, author of For the Sovereignty of the People, has also spoken recently about this flaw. In his June 2009 article "For Queen and country" on the ABC's "The Drum Unleashed" webpage, (6) he wrote:
"... At the moment the Australian method of choosing the Governor General is flawed in that it is potentially partisan, but most Australians don't realise that an entire alternative mechanism exists, established by international law and neglected by decades of Australian prime ministers.
... Modern parliamentary democracy is the best system of government in the world, but it is built on fundamental conflicts of interest between politicians and the electorate. The challenge to all of us in every generation is to ensure that conflict of interest is always resolved in favour of the governed, as politicians reach their use-by date. Many current Australian politicians appear keen to dismantle these safeguards, using nationalistic rhetoric to justify their ambitions. We allow them to do so at our own peril.
Or as "Doc" Evatt put it at the end of one of his speeches, "God save the Queen".
Dr Greenwood is a man of great constitutional learning and integrity. He was learnedly suggesting that the safe wider 1930's practice regarding the nomination process of an Australian citizen to the post of Governor-General to ensure its impartiality as now been put aside. This concern first came to life in 1931 when noted Australian jurist, Sir Isaac Isaacs, was nominated by Prime Minister Joseph Scullin to be the first Australian as our Governor-General. King George V was concerned about safeguarding the principle of impartiality hitherto attached to his representatives who came from the United Kingdom.
We now live in danger of this important public office being open to potential abuse more than ever because our Prime Ministers, on both sides of politics, are becoming increasingly presidential. That can lead to a mate being appointed by a mate who may be more interested in protecting the partisan interests of the mate (i.e. the Prime Minister or Premier) than in the interests of upholding government by the rule of law without fear or favour should an exceptional circumstance arise which may require the withdrawal of the mate's commission as Prime Minister or Premier.
This problem needs to be addressed by, at the very least, broadening the nominee process, not say nothing about the 'due diligence" tests for any nominee.
Mr Chairman, the late Senator Eugene Forsey, (7) the great Canadian constitutional expert and constitutional monarchist, described the rule of law in these terms in his highly respected 1980 booklet (8) "How Canadians Govern Themselves". He said:
"... 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 Governor General or any Lieutenant-Governor; not the most powerful bureaucrat; not the armed forces; not Parliament itself, or any provincial legislature. None of these has any powers except those given to it by law. ... If anyone were above the law, none of our liberties would be safe."
May I suggest this truism: If nations and their governments never face up to past embarrassing truths concerning their own conduct, it will encourage lying in public life in the present because politicians and others in positions of public authority will know that truth and accountability don't matter in such a society, either at the time or in the future. Arbitrary government shall prevail over due process. Political spin shall prevail over truth, probity in public office and good public policy.
This is a very slippery downward spiralling slope. It would be a recipe for contempt of parliament, government and our institutions. May I suggest that for the following reasons, through an extraordinary concatenation of events, we now run this risk so long as the Heiner Affair remains unresolved.
Mr Chairman, the Heiner Affair (9) sits on the solid immoveable rock that no one may knowingly destroy any document or thing which is or may be required in court proceedings for the purpose of preventing its use as evidence in those pending, foreshadowed or anticipated court proceedings. It sits on section 129 of the Criminal Code -- destroying evidence -- and, in the alternative, section 132 of the Criminal Code -- conspiracy to defeat justice. These are always serious crimes.
This preservation-of-evidence principle underpins government by the rule of law. It underpins the operation of the due administration of justice. It underpins the independence of the judiciary, individual rights, the right to a fair trial, the discovery/disclosure Rules of the Supreme Court of Australia, and proper recordkeeping. Without proper public recordkeeping, governments can never be held to account.
The Heiner Affair has this solid foundation because, as former Queensland Supreme and Appeal Court Justice the Hon James Thomas advised in 2003, while many laws are arguable, section 129 never was. It has been unequivocal in its wording and intent since 1899 when it became law in Queensland in the famous and enduring Griffith Criminal Code.
In the Heiner Affair, the members of the 5 March 1990 Goss Cabinet and certain of its senior bureaucrats knowingly ordered the destruction of the Heiner Inquiry documents to prevent their known use as evidence in foreshadowed judicial proceedings. As a defence, it was later argued that because those anticipated judicial proceedings had not commenced at the time it ordered and destroyed the evidence, no offence was committed. They were profoundly wrong.
If section 129 permitted such conduct then there would be no evidence left. It would encourage shredding, not discourage it. We would have 'a world without evidence'. The administration of justice would be crippled. Chaos would ensue. I fought against this so-called defence for over 14 years.
At the time, the Queensland Government had been placed on notice by solicitors and two trade unions foreshadowing the commencement of judicial proceedings to gain access to the Heiner Inquiry documents by law. The Queensland Government was told not to destroy the evidence. It was my job as a public sector trade union organizer to protect my member's industrial and legal rights which, in this instance, concerned his lawful access to those public records because they concerned his performance as a public servant. I lost my job while trying to preserve those public records from destruction.
The Heiner Inquiry was lawfully established in October 1989 during the final days of the Cooper National Party Government. It was commissioned to investigate the management of the John Oxley Youth Detention Centre at Wacol and certain complaints laid by staff against the management.
Some 9 years later, on 15 May 1998, the National Party Queensland Government Families Minister, the Hon Beryce Nelson, gave a signed statement for former Queensland Police Commissioner, Noel Newnham, reaffirming what she expected retired Magistrate Noel Heiner to investigate during the course of his inquiry. She said:
... that some boys and girls were being forced into sexual activity against their wishes, for the benefit of others; that illicit drugs and prescribed medications were being brought into the Centre, sometimes by staff and sometimes by detainees who had simply walked out and returned apparently without any permission; that some staff were physically and sexually abusing children in their care." (10)
Admissions, now on the public record, show that at the time when Goss Cabinet ordered the destruction of the Heiner Inquiry records, it was aware that their contents concerned the abuse of children while under the care and protection of the Crown at the Centre. In 2001, we later discovered that the Queensland Government also knew that part of that child abuse was the unresolved pack rape of a 14 year-old indigenous female child by other male inmates during a supervised bush outing to Mt Barney in May 1988. We hold her departmental file obtained under freedom of information. It confirms the assault. It names names. No one has ever been held accountable. The file is now held in the archives of our Federal Parliament.
There is other credible evidence showing that during the course of his inquiry, Mr Heiner took additional evidence from staff members about this unaddressed sexual assault incident before the Goss Government terminated the Heiner inquiry and shredded all its gathered public records. This additional evidence is also held in the archives of our Federal Parliament.
The Heiner Inquiry documents were secretly destroyed on 23 March 1990. They destroyed them while the Queensland Government knew that the parties to foreshadowed litigation were still seeking access to them, by court ruling if necessary, and had been assured by the Queensland Government that the records were safe and that the Government was still awaiting final Crown law advice on their legal claims for access.
In spite of its "model litigant" obligations demanding openness and transparency on the part of the Queensland Government, deceit and delay ruled its conduct. Due process was not respected. Due process was trashed.
I took my public interest disclosure to the new Criminal Justice Commission (CJC) in 1990. I believed that the CJC would act impartially as the law required it to do. The CJC claimed that it investigated my complaint to "the nth degree". Nothing could be further from the truth. It only wrote two letters and interviewed only myself and my union member, the manager of the Centre.
In my opening statement to the Tasmanian Parliament's Joint Select Committee on Ethical Conduct (JSCEC) on 24 November 2008, I put this on the public record about the CJC's investigation. I quote from the Hansard:
"... in its so-called nth degree investigation, the CJC never interviewed any minister or chief of staff. It never interviewed the State Archivist, the departmental CEO, relevant public officials, Crown Law, Mr Heiner or his witnesses, and the list goes on. Only my union member and I were interviewed. It was conducted by a contracted barrister, Mr Noel Nunan. Unbeknown to me at the time he was an ALP member, activist, a former work colleague of Premier Wayne Goss before Mr Goss entered politics. Mr Nunan was a member of the Queensland Association of Labor Lawyers as was the CJC official, Mr Michael Barnes, who recommended him for the review purposes. They were mates investigating a mate. ... In the Heiner affair the prospect of charging an entire cabinet was plainly too horrendous to contemplate by crown decision makers involved. The law was abused and twisted to justify its clearance which then saw an entire system collapsing around a demonstrably flawed clearance just because an integrity tribunal declared what was always wrong to be right. It gave the naked emperor imaginary clothes of legality." (11)
Mr Chairman, I pursued justice through the entire 'Fitzgerald-reformed' public administration where I was led to believe that any smell of corruption would not be tolerated but rooted out. Whistleblowers would be encouraged, welcomed, protected, and not reprised against. I found a very different world. It was one where the public sector was intimidated. As I persisted, I was ridiculed and scorned by the CJC because I would not accept its clearance, a clearance that was not worth the paper it was written on.
Allow me to jump to 2003/2004. In 2004, the Queensland authorities charged a Baptist Pastor over guillotining a girl's diary in which she had recorded abuse by a senior parishioner. The shredding occurred some 6 years before the relevant judicial proceedings took place in 2001. The pastor was charged under section 129 of the Criminal Code. In short, the law was applied to him in a manner which the CJC and the Queensland Government declared it could not be because they claimed judicial proceedings needed to be on foot at the time of the shredding to trigger section 129.
He was found guilty by the District Court and was given a 6-month suspended jail sentence.
Not satisfied with that, the Beattie Government then appealed the sentence. They wanted him sent to jail. The sentence was declared too lenient because of seriousness of the shredding crime. The Appeal Court upheld the conviction. By a 2-1 majority, the sentence stood, although one judge said that such shredding conduct usually meant a term of imprisonment because it was such a serious crime. The Appeal Court emphatically confirmed the correctness of my interpretation of section 129 for which I had being ridiculed by the CJC, ALP politicians and others for years.
Importantly, before the pastor was put on trial, his legal counsel made an application to the Director of Public Prosecutions (DPP) in October 2003 to have his destruction-of-evidence charge under section 129 dropped because of the way it had been interpreted in the Heiner Affair. The DPP refused. She rejected the interpretation which had cleared the alleged wrongdoers in the Heiner Affair, and claimed that it was in the public interest to prosecute him because his conduct struck at the heart of the administration of justice.
So, Mr Chairman, when the Minister of religion -- one of "the governed" -- was charged, prosecuted and found guilty under section 129, the authorities knew that those involved in the Heiner Affair -- that is, the Ministers of the Crown and certain senior bureaucrats, i.e. "the governors" -- had escaped prosecution by section 129 being interpreted not just erroneously, but in a way which was sheer unadulterated nonsense.
As a last resort, I approached Queensland Governor Bryce between 2003 and 2005. Because of the facts and the law, I believed that her Queensland Government was knowingly persisting in applying the criminal law by double standards in its own interests in contravention of all principles of equal justice guaranteed under government by the rule of law.
From 2003 onwards, I fully apprised Governor Bryce of the facts showing systemic corruption in Queensland's 'post-Fitzgerald' era involving the Heiner Affair. That is, the illegal shredding, the cover-up by certain law-enforcement persons in various authorities untenably twisting 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. She was shown supporting opinions in my favour by retired Appeal Court Justice Jim Thomas, the Queensland Appeal Court in R v Ensbey, as well as by the former Chief Justice of the High Court, the late Sir Harry Gibbs. In 2005, I put the ominous predicament she faced when making her decision on those matters in the following words:
"... 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."
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. That any Head of State should have been made to wait for such a long period for a report by a chief adviser on a matter of such seriousness, let alone tolerate such a delay, remains incomprehensible. The report was even delayed for 8 months after R v Ensbey was settled by the Queensland Appeal Court.
Governor Bryce was forewarned by me that the Queensland Government report was likely to be self-serving. She was informed that she was not constrained by it concerning the exercise of her discretion under the Constitution. In April 2005, she took her decision. She decided to do nothing.
Against known facts and the law, it is open to conclude that in upholding government by the rule of law, Her Majesty's representative in Queensland was prepared to accept that her Government could prosecute one of "the governed", to the full extent of the law, see him rightly convicted by applying the law correctly, branded a criminal, lose his job and reputation, while for themselves, i.e. "the governors", that is, Ministers of the Crown and senior bureaucrats, for the same shredding conduct in far more serious and clear circumstances, they could escape prosecution, in the first place, by having the same law incorrectly and untenably interpreted by mates for years, and then later, when their false position was utterly exposed, claim that it was not in the public interest charge them, let alone even review the case.
Mr Chairman, in August 2007 a two-year audit of the Heiner Affair was completed by leading Sydney silk, Mr David Rofe QC, my solicitors and myself. The law was diligently, dispassionately and cautiously applied to the facts on the basis that no one was above the law. It was not a witch hunt. It was not driven by political considerations or vindictiveness. The law only went and was applied where the facts allowed beyond a reasonable doubt. The 9-volume, 3000-page, audit found some 68 alleged prima facie criminal offences capable of being laid against those involved in the initial shredding, and against those who supposedly investigated the allegations and could not find one scintilla of suspected official misconduct.
On St Valentine's Day in 2008, my legal team lodged a complaint with the bipartisan Parliamentary Crime and Misconduct Committee (PCMC) seeking a review of the CJC's known-to-be flawed 20 January 1993 clearance in this matter. Our complaint was accepted. This is what I told a Tasmanian Parliamentary Committee in November 2008 about our PCMC complaint. I quote from Hansard:
"... In the opinion of senior counsel, the issues are very simple if the rule of law is to prevail. On the evidence supplied, there only needs to be found the low threshold of a suspicion of official misconduct to lead to the establishment of a full and an open inquiry to get to the truth. Such an inquiry, however, would not only rock Queensland to its foundations but the nation itself because it is known that the Prime Minister Rudd and Her Excellency Governor-General, Quentin Bryce, are adversely named in the audit. Amongst other things, six serving Queensland judicial officers are adversely named." (12)
In April 2008, an extraordinary twist occurred. It took this Affair to another unprecedented level. Prime Minister Rudd announced that he had decided that Governor Bryce was to become our next Governor-General in September 2008 upon the completion of Governor-General Michael Jeffrey's term.
Immediately, I and others became very concerned that such an appointment should go ahead while the PCMC's investigation into allegations of potential wrongdoing was ongoing, and which could, inter alia, lead to a commission of inquiry or charges being laid. We were concerned about the due diligence test. Out of respect for Her Majesty, we believed that She had a right to know about these things.
After consultation and taking advice, I wrote to Her Majesty and Governor-General Jeffrey on 30 May 2008. My concern was that the Office of Governor-General should be protected from adverse taint, and, importantly, that Her Majesty's signature on Our Sign Manual and Great Seal of Australia, (13) which authorizes the Prime Minister's nominee to act as Her representative, should be free from taint. In my letter, they were informed about the ongoing PCMC investigation, a lawful investigation by the Parliament.
On 10 June 2008, Governor-General Jeffrey wrote to Prime Minister Rudd seeking an investigation and advice on the matters raised. On records provided to me under FOI, Prime Minister Rudd ignored this request.
The authorizing instrument was signed in Balmoral Castle by Her Majesty on 21 August 2008, and the swearing-in took place in the Senate on 5 September while all the relevant players knew that these serious matters were under active investigation and remained unresolved by a 'criminal justice' committee of the Parliament.
Not having received any response from Buckingham Palace, I wrote again on 24 October 2008 seeking further information. On 26 November 2008 I received a letter from Buckingham Palace. The letter said, inter alia, that on Her Majesty's instruction, my material had been forwarded to Premier Anna Bligh so that she might give consideration to the issues raised. Premier Bligh ignored Her Majesty's wishes.
It has since been confirmed in a Question on Notice in the Queensland Parliament, that the Bligh Government ignored Her Majesty's request -- as spelt out in Buckingham Palace's letter to me. Premier Bligh ignored Her Majesty's request because the material was not accompanied by a covering letter, but only had a compliments slip in the envelope from Buckingham Palace.
On 9 January 2009, the bipartisan PCMC handed down a government 'majority' decision not to refer the Rofe Audit and related material to an acting parliamentary commissioner for independent examination. Instead, its 'majority' ALP/PCMC members dismissed our complaint in a 6-page report which failed to address the substantive allegations, again running the discredited line that a competent lawyer may advise a client to destroy all the evidence before court proceedings commence without giving rise to dishonesty or negligence.
Those same ALP/PCMC members had just 6 weeks earlier publicly assured the same Tasmanian Parliamentary Committee which I also appeared before on 24 November 2008, that the PCMC could not make 'majority decisions'. And yet, Mr Chairman, they did precisely that when deciding the fate of the Heiner Affair allegations on 7 January 2009. Might I suggest that their hypocrisy was utterly breathtaking.
At law, for such a decision to be treated as finality -- functus officio -- it must be bipartisan. That is, the 'majority' decision must have at least one vote from the non-government side inside the PCMC. The non-government PCMC members wanted an independent examination into this matter. On senior counsel's advice, the 'majority' ALP/PCMC decision is a 'legal nullity'. However, by presenting the 'majority' ALP/PCMC decision as finality, it is open to be seen as a serious abuse of power, yet another in a very long list which has kept a lid on this scandal for 20 years.
So, Mr Chairman and guests, the Heiner Affair stands at gridlock. It is undoubtedly at tipping point. It now reaches from the pack rape of an aboriginal female child deep in the Australian bush, to George Street Brisbane, Canberra and London. It cries out for justice and resolution if government by the rule of law is to prevail in Australia, but Queensland in particular. Ideally, it must get into a court setting and the Rofe Audit being made a public document. These things cost money which those who oppose me know I do not have.
To conclude, I submit that this generation must not allow itself to be intimidated and dwarfed by the challenges of abuse of power that confront us in the Heiner Affair. We should all become giants in our different ways. We should ensure that those who have dared to sneer at or show contempt for government by the rule of law are brought to account no matter how high their public office.
In becoming giants ourselves, we shall allow those who follow us to stand on our shoulders and, while looking forward to their particular challenges, look back and be inspired at our victories in upholding government by the rule of law when the heavy duty fell on us in the Heiner Affair.
To those past giants, to our children and to theirs, to our nation, and to ourselves, we owe an enduring duty. It is a stoic duty. When our precious rule-of-law principles are challenged by abuse of power, we cannot and dare not stand idly by. Those principles must prevail no matter the length of the struggle or personal cost. As Sir Winston Churchill put it in 1941:
"... Never give in, never give in, never; never; never; never -- in nothing, great or small, large or petty -- never give in except to convictions of honor and good sense."
Mr Chairman and guests, I thank you for your patience and listening to me today. Let me finish on this upbeat declaration. In keeping with the sentiments expressed by of one of Australia's greatest constitutional lawyers, Doctor H.V. Evatt, a constitutional monarchist, and cited by Dr Nigel Greenwood in his June 2009 ABC "The Drum Unleashed" article "For Queen and country", let me repeat Dr Evatt's words again today: "God save the Queen."
1. Nanos gigantium humeris insidentes means "One who develops future intellectual pursuits by understanding the research and works created by notable thinkers of the past". It was first attributed to Bernard of Chartres and was famously used by seventeenth-century scientist Isaac Newton.
4. Walker Geoffrey de Q., The Rule of Law -- Foundation of Constitutional Democracy ch.1; Lumb, Australian Constitutionalism p.3; Dixon Sir Owen, Jesting Pilate, p.101; Australian Communist Party v. Commonwealth (1951) 83 CLR 1 at 193.
5. R v Governor of South Australia  HCA 31; (1907) 4 CLR 1497 (8 August 1907)
7. The Honourable 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.
11. Parliament of Tasmania, Joint Select Committee on Ethical Conduct. (2008, November 24). Hansard (p.57).
12. Parliament of Tasmania, Joint Select Committee on Ethical Conduct. (2008, November 24). Hansard (p.57).