Table of Contents TERMS OF REFERENCE ...... 3 RECOMMENDATIONS ...... 4 INTRODUCTION ...... 5 BACKGROUND ...... 6 A Serious Crime Necessitating Jail Time ...... 7 Neither the time nor place for wilful blindness ...... 8 The Importance of Hope ...... 9 A Perpetual Central Blockage Point ...... 10 Waiting for Australia's Watergate ...... 11 The Price of Democracy ...... 12 Respect for the Doctrine of the Separation of Powers ...... 14 NEW DEVELOPMENTS AND EVENTS ...... 16 An Overarching Legal and Moral Obligation ...... 16
The Right to Know vs the Right to Confidentiality/Privacy ...... 19 A Paramount Duty ...... 20
MISCELLANEOUS CONSEQUENCES ASSOCIATED WITH A NATIONAL INTEGRITY COMMISSION ...... 26 Impact on the Exercise of the Reserve Powers of the Crown ...... 26 An Unavoidable Issue Arising ...... 27 INVESTIGATION INTO FEDERAL JUDICIAL MISCONDUCT/MISBEHAVIOR ...... 28
2
TERMS OF REFERENCE
The establishment of a national integrity commission, with particular reference to:
a. the adequacy of the Australian government's legislative, institutional and policy framework in addressing all facets of institutional, organisational, political and electoral, and individual corruption and misconduct, with reference to: i. the effectiveness of the current federal and state/territory agencies and commissions in preventing, investigating and prosecuting corruption and misconduct, ii. the interrelation between federal and state/territory agencies and commissions, and iii. the nature and extent of coercive powers possessed by the various agencies and commissions, and whether those coercive powers are consistent with fundamental democratic principles; b. whether a federal integrity commission should be established to address institutional, organisational, political and electoral, and individual corruption and misconduct, with reference to: i. the scope of coverage by any national integrity commission, ii. the legislative and regulatory powers required by any national integrity commission to enable effective operation, iii. the advantages and disadvantages associated with domestic and international models of integrity and anti-corruption commissions/agencies, iv. whether any national integrity commission should have broader educational powers, v. the necessity of any privacy and/or secrecy provisions, vi. any budgetary and resourcing considerations, and vii. any reporting accountability considerations; and c. any related matters.
COMMITTEE MEMBERSHIP: Senator the Hon Jacinta Collins (Chair), Senator Skye Kakoschke (Deputy Chair), Senator Derryn Hinch, Senator Barry O'Sullivan, Senator Dean Smith, and Senator Murray Watt.
3
RECOMMENDATIONS
RECOMMENDATION 1: That the Commonwealth Government and Parliament ought not to proceed to establish a national integrity commission (in particular if it mirrors Queensland's) until and unless the Heiner affair has been independently and comprehensively examined in public and resolved by an appropriate lawful tribunal (i.e. pursuant to section 61 of the Constitution of Queensland 2001) so that all the lessons flowing therefrom may become known, and appropriately addressed by fresh legislation and structures if and where shown to be deficient in order that such a saga never occurs again anywhere in the Commonwealth of Autralia in respect of public sector governance and the administration of justice more generally.
RECOMMENDATION 2: That in the event a national integrity commission is to be established and oversighted by a bipartisan parliamentary committee, safe and sure reasons must be publicly provided beforehand showing why and where the current system of 'policing' of corruption and official misconduct in public administration has so failed as to warrant this new form of "policing".
RECOMMENDATION 3: That in the event a national integrity commission is established and oversighted by a bipartisan parliamentary committee, its membership should be made up from 4 senators drawn from the two major parties (i.e. Liberals and ALP) so that all majority decision outcomes are bipartisan by denial also of a casting vote by the Chair.
RECOMMENDATION 4: That in the event the bipartisan parliamentary oversight committee cannot reach a majority decision on a matter, its Chair shall report the deadlock to the assembled Parliament by means of a report to (a) the Senate President who in turn, shall make an urgent report to the Senate; and (b) the Speaker of the House of Representatives who in turn shall make a report to the assembled House for their respective consideration and remedy.
RECOMMENDATION 5: That in the event a national integrity commission being established and oversighted by a bipartisan parliamentary committee, a properly constituted expert tribunal of eminently qualified persons and other interested persons drawn from the general community be established to comprehensively investigate all impacts such a national integrity commission and its requisite obligation on principal officers of units public administration (as in the Governor- General of the Office of the Governor-General) to notify all reasonable suspicions of corruption and/or official misconduct which they may become aware of in the perform of their public duty, in particular the exercise of the reserve powers of the Crown.
4
INTRODUCTION
1. On 8 February 2017 the Australian Senate re-established this important Senate Select Committee on the Establishment of a National Integrity Commission ("SSCENIC"). In doing so, it shines the national light on this very important subject again which, since the dissolving of the initial Select Committee on 6 May 2016 when the federal election was granted by His Excellency, the Governor-General, to the present time, coincides simultaneously with a critical time in the governance of Queensland centring around what might be reasonably said to be a conjoined basic question about the true worth of standing integrity commissions.
2. By taking statutory measures to establish an integrity commission to hold governments to account so as to eradicate corrupt conduct in public office, the question has to be asked and convincingly answered if one cannot trust public officials in a 'normal' police force to carry out their sworn duties (i.e. Australian Federal Police, Queensland Police Service et al), why should anyone assume that a standing integrity commission with coercive powers would be any different, particularly against Lord Acton's prescient 1887 warning that power tends to corrupt, absolute power corrupts absolutely?
3. It logically follows what then is the true value of having a standing integrity commission [i.e. the Crime and Corruption Commission ("CCC")] if it cannot be trusted to always act honestly and impartially? And, for that matter, what guarantee is there that the watchdog's parliamentary oversight committee, along with a parliamentary commissioner, will be any better? Another associated question also arises about whether or not there may be a dark anti-democratic side to this form of specialised 21st century public sector administration policing?
4. The answer to these questions, I submit, continues to surface as never before into broad daylight by Queensland's current emerging governance crisis flowing out of "the Heiner affair".1
5. My 20 April 2016 original interim public submission was not published before the Select Committee was dissolved. I resubmit it now for publication by invitation. I respectfully request that with this 21 April 2017 supplementary submission both are accepted into evidence conjointly and made public without redactions by the SSCENIC. Relevantly, I made these final observations at page 13 in my interim submission: (Quote)
"42. It is submitted that if the CCC - the so-called independent watchdog of ethical and lawful conduct in public administration - may knowingly engage in such a fundamental alleged egregious breach of public trust in public office itself with impunity - especially when handling a serious matter like the Heiner affair which touches on the integrity of all three arms of government - then good governance and the rule of law can mean anything at anytime, including nothing. Government by the rule of law is supposed to bring certainty to public and private affairs, not Rafferty's Rules.
43. Relevant to these deliberations is that certainty in ethical, trustworthy conduct in public administration is a fundamental value/operating principle which the
1 http://www.heineraffair.info/
5
general public must be able to reliably enjoy if we wish to remain a stable, harmonious society. Without such conduct, the rule of law itself must fail.
44. This submission shows, I respectfully submit, that even with an integrity commission in place like the CCC is Queensland, what plain words and agreements in public office the CCC commits to can become arbitrarily uncertain and utterly worthless as and when the situation suits at the hand of an integrity commission (i.e. the CCC) itself.
46. As at the time of lodging this submission, these vital issues about public trust in public office remain up in the air."
6. Over the last year certain very significant relevant developments and events have occurred since 20 April 2016 leaving them no longer "...up in the air". Consequently, within the context of this Select Committee's terms of reference, I wish to address these relevant "developments" and "events" out of a legal and moral necessity because:
i. they bring into stark relief just how serious and far-reaching the crisis in Queensland's governance now is due to the improper handling of the allegations in the Heiner papers for close on three decades by the CJC/CMC/CCC and others; and
ii. the SSCENIC is entitled to know and obliged to be told the whole truth of these matters.
BACKGROUND
7. In deciding these key questions outlined in Points 2 and 3, certain material differences arise. Firstly, Queensland's polity, in the wake of the 1987-89 Fitzgerald Commission of Inquiry into Possible Illegal Activities and Associated Police Misconduct2, has had close on three decades of firsthand experience, in particular its local whistleblowers, to decide the validity and veracity of its integrity commission (i.e. CJC/CMC/CCC). Secondly, the CJC was established in late 1989/early 90 against the background of findings by Commissioner Tony Fitzgerald QC of serious organised misconduct in certain areas of Queensland policing, inter alia going to the ultimate jailing of Police Commissioner Terry Lewis for 14 years in 1991 for corruption and forgery. Thirdly, Queensland does not have an Upper House.
8. On the other hand, regarding whether or not the Commonwealth Government and Parliament should go down the same or similar path as Queensland, there is the check and balance on abuse of power by means of the Australian Senate and its strong committee system. In the second instance, (to the best of my knowledge) no egregious examples of systemic dishonesty and deceit in the public domain exist concerning the present federal police/watchdog authorities3 or showing that such offensive conduct in public office is incapable of being eradicated and/or addressed by them.
2 http://www.ccc.qld.gov.au/about-the-ccc/the-fitzgerald-inquiry 3 As a member of Queensland Whistleblowers Action Group, I am aware of the so-called unresolved "Darren Hall" matter which, inter alia, impinges on the integrity of the Australian Federal Police. See PCCC 63-page Report to 55th Parliament 99 16 November 2016 See: http://www.parliament.qld.gov.au/Documents/TableOffice/TabledPapers/2016/5516T2145.pdf
6
9. Although, it must be recorded that the Senate's committee system has left the Heiner affair as 'unfinished business' since first coming to its attention from 1993 to 20124, in particular, credible evidence showing that the CJC/CMC and the Queensland Government may having knowingly misled several select committees when explaining how no illegality was found in handling my PID since first being lodged in December 1990 with the CJC, in particular its profoundly untenable interpretation of section 129 of the Criminal Code 1899 (Qld).
10. It would seem to follow therefore that if the Senate is content to leave as 'unfinished business' so serious a charge (i.e. potential contempt of the Senate) against Queensland's integrity commission, how can anyone be sure that the Senate (as a potential parliamentary watchdog) will treat a national integrity commission any differently if it were to act in a similar way when appearing before the Senate?
11. My tendered submissions, I respectfully submit, clearly demonstrate that unicameral Queensland, with its integrity commission supposedly acting as the independent, honest watchdog for close on three decades, has failed to deliver what was expected by law and Parliament to the people. Instead, as a direct consequence from events et al set out in these submissions, Queensland has been delivered an unprecedented, intolerable crisis concerning its 'whole of government' governance. It is clearly open to conclude this has been directly caused by unfettered systemic abuse of public office within the CJC/CMC/CCC and other accountability authorities5 at various times for the alleged purpose of covering-up the serious prima facie crime of destroying evidence committed by Members of the 5 March 1990 Queensland Cabinet and certain senior bureaucrats within 90 days of the new ALP administration coming to office after some 32 years in the political wilderness.
A Serious Crime Necessitating Jail Time
12. For the record, the prima facie crime was the order to destroy the Heiner Inquiry documents and tapes (i.e. defined as "public records" under the Libraries and Archives Act 1988) to prevent their known/anticipated use as evidence in foreshadowed judicial proceedings. If proven in court, the relevant offence of destroying evidence invited 3 years imprisonment at the time6, while in 2017, the term is 7 years. Plainly, it cannot be reasonably suggested that the offending conduct in public office was not always very serious in the eyes of the law, to say nothing about its adverse impact on public trust in public office and the administration of justice, especially when the alleged offender was prima facie an entire Cabinet.
13. One need not look beyond R v Ensbey; ex parte A-G (Qld) [2004] QCA 335 at 39 to see how serious the courts view the crime of destroying evidence. His Honour Williams JA said: (Quote)
"The destruction of evidence is, in my view, a serious offence which calls for a deterrent sentence and that would usually necessitate the offender serving an actual period in custody".
4 See Attached The Heiner Affair - An Abridged Chronology of Events (24 May 1988 - 23 March 2017) at Points 37-43, and 87-90; and See Attachment No 4: Lindeberg's 11 September 2011 submission to the Senate Privileges Committee and, inter alia, attached letter dated 7 December 2004 to former SSCLG Chair, Senator John Watson. 5 This conduct has been meticulously documented in the 9-volume Rofe QC Audit of the Heiner affair tendered and accepted into evidence on 24 July 2012 at the public Recusal Hearing at the Queensland Child Protection Commission of Inquiry (i.e. the "Carmody Inquiry and/or QCPCI") into term of reference 3(e) (a.k.a. a strictly limited investigation into the Heiner affair between 1 January 1988 to 31 December 1990). The audit was then published to the world unedited by order of Commissioner Tim Carmody QC under the power and authority of the Commissions of Inquiry Act 1950 on 24 July 2012. [See Attachment 2 to Exhibit 5 - http://www.gwb.com.au/gwb/news/goss/rofeaudit.pdf Password: Tsisrep2012]. 6 See section 129 of the Criminal Code 1899 (Qld)
7
14. In the context of Term of Reference a(i), this abuse of power, primarily centred on the protracted misconduct of the CJC/CMC/CCC, has now arguably reached its long-expected climax since the 2012-13 Carmody Commission of Inquiry7 and my recent dealings with the CCC since Australia Day 2014, especially in 2015-16.
15. It is my earnest desire, as an Australian citizen first and foremost, to ensure that my State of Queensland's parlous state of affairs is not be overlooked by the SSCENIC lest imposed on our Commonwealth Government and Parliament out of ignorance or by not being fully informed. The right to know the facts is fundamental to maintaining open and accountable government in any properly functioning democracy. Perhaps as prime example of recognising this high principle with memories of the United States of America's great crisis in its governance, Watergate, one only needs to look at the words published daily under masthead of famous newspaper, The Washington Post - "Democracy dies in darkness".8
16. Accordingly, it is imperative that this authorised activity of fact-cum-truth-gathering by the SSCENIC from the general community (via invited submissions and putative oral evidence) is fully protected from reprisal or intimidation if necessary by not just invoking parliamentary privilege but also "the national interest". This is because any State Parliament, integrity commission or anyone else may otherwise impede remedies or mistakes being thoroughly investigated before the Commonwealth Parliament and Government decide how best to prevent and eradicate corrupt conduct in federal public life (in its three arms of government).
Neither the time nor place for wilful blindness
17. In the aforementioned context, I am mindful of this statement on the SSCENIC's webpage. It warrants a comment:9
"The committee is not in a position to consider or examine individual cases or personal disputes. The inquiry terms of reference require the committee to consider the adequacy of the current integrity arrangements and to ascertain whether a national integrity commission should be established".
18. In my respectful submission, if relevant and credible evidence is presented to the SSCENIC which may assist the Commonwealth Government and Parliament to avoid making grave errors of judgement or to find the best policing processes concerning the governance of Australia then such evidence, in a matter as serious as this with its potential short and long-term consequences, ought not to be the subject of any act of wilful blindness10 by elected representatives whose overriding sworn duty is to serve both the public and national interest.
19. Plainly party political considerations of advantage or disadvantage ought not to be a factor in these special deliberations. Conflicts of interest should be declared. Recusals should occur if and when warranted where the existence of reasonable perception of apprehended bias through previous associations with the Heiner affair is as a consequence of holding public office in Queensland in the recent past. In this regard, Queensland Senator Murray Watt may to be in a
7 http://www.childprotectioninquiry.qld.gov.au/__data/assets/pdf_file/0019/202627/3e-Report-FINAL-for-web.pdf 8 https://www.washingtonpost.com/ 9 http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/National_Integrity_Commission/IntegrityCommissionSen 10 R v Crabbe (1985) 156 CLR 464 at 470, the High Court of Australia observed: (Quote) “…When a person deliberately refrains from making inquiries because he prefers not to have the result, when he wilfully shuts his eyes for fear that he may learn the truth, he may for some purposes be treated as having the knowledge which he deliberately abstained from acquiring".
8
position of potential conflict according to his published biography on his Senate webpage11 due to his particular past Queensland public sector employment.
20. From my personal whistleblowing experience in the Heiner affair (as well as being aware of other Queensland whistleblowers' experiences), there are very compelling reasons why this potential new level of federal 'policing' involving a standing integrity commission should concern every Australian citizen.
21. In the first instance, the Heiner affair is not fiction. Nor is it an academic construction to illustrate some legal/administrative/constitutional point. It's arguably a worst case scenario concerning public administration misconduct. It is fully documented. It tests fundamental personal philosophical beliefs. It test the efficacy of governance concepts in a worst case scenario setting. It sends an ominous warning that far from enhancing the public confidence in government by the rule of law, an unprecedented crisis can engulf an entire system of government when such a powerful integrity commission wilfully betrays the sacred trust and duty bestowed on it by Parliament, the law and the people to act honestly and impartially in all its activities. This situation is then made worse when the outrageous abuses of power of twisting the facts, law and ethical standards continues unabated for decades despite the best efforts of a whistleblower, certain sections of the media, public warnings from eminent jurists and actions by certain politicians (and parliamentary committees) at particular times which were either defeated on the numbers in Parliament, scoffed at, later undermined or ignored.12
The Importance of Hope
22. Hope in the human spirit is a vital positive force for good. People like to hope that despite systemic cover-ups, the truth (of a matter concerning serious wrongdoing) will eventually surface. People like to believe that when truth starts to expose long-standing deceit in public office, justice will prevail if "...good men (and women)"13 do what they legally/ethically and morally ought to do by standing up for the triumph of good over evil in order to live decent and honourable lives for themselves, the general community and to leave a better future and system of government for their children and others.
23. History shows us however that such Hope can too easily become the victim of political expediency and self interest for those in power through betrayals of public trust, especially if and when it (i.e. the evil) concerns misconduct in high public office. When this happens, ordinary citizens see before their very eyes their Hope turned to hopelessness by those whom they are taught to trust and respect in public office. Once public trust is gone, everything is up for grabs, including government by the rule of law.
24. But history can also teach us something else very important. More often than not for truth to prevail, it can take one whistleblower to persist against the odds in conjunction with a courageous journalist coming on the scene, assisted, on occasions, by a courageous politician who is prepared to speak truth to power under the protection of parliamentary privilege, over and above party political considerations.14 In any democracy which values freedom from oppression,
11 http://www.aph.gov.au/Senators_and_Members/Parliamentarian?MPID=245759 12 See: October 1996 Report: Morris QC and Howard Investigation into the Allegations by Mr John Reynolds and Mr Gordon Harris and Allegations by Mr Kevin Lindeberg commissioned by the Borbidge Queensland Government; October 1993 Senate Select Committee on Public Interest Whistleblowing; August 2004 House of Representatives Standing Committee on Legal and Constitutional Affairs - "Crime in the community: victims, offenders and fear of crime" - Volume Two. 13 This is based on Edmund Burke saying: "The only thing necessary for the Triumph of Evil is for good men to do nothing". 14 For example, the former State Member for Burnett, Mr Rob Messenger MP along with whistleblower nurse Ms Toni Hoffman in what became known as Bundaberg Hospital/Dr Patel Affair and forced the Beattie Government to establish a commission of inquiry.
9
the importance of free speech is inestimable in all its manifestations, just as "privilege" is so that Parliaments, courts and tribunals can function.
25. From personal experience, there is another inescapable truth always at play in these situations of exposing and resolving high level corruption in government. It is that nothing is ever easy to achieve. Eventually however, the search for accountability and justice leads us, from all directions and levels, to that ultimate pivotal question which the SSCENIC (and Parliament as a whole) must wrestle with: Who shall guard the guards? Where can trustworthy conduct in 21st century guardians holding public office be found and relied on in confidence no matter the challenge? It is this key question on which our freedom and individual rights ultimately rely otherwise corrosive uncertainty enters daily life and oppressive chaos awaits us all. No one sensibly wants that.
A Perpetual Central Blockage Point
26. This public submission reveals that a national/state integrity commission is by no means the cure-all many might hope for to achieve corruption-free government in 21st century public administration. Indeed, if Queensland is anything to go by, these commissions (i.e. the CJC/CMC/CCC) have the legislative power to intimidate and dominate dissenter by wielding huge, coercive power by access to limitless public monies and resources, and can become ruthless laws unto themselves. They can become active partisan players. They can do so by various means including by outright unconscionable false and deceptive conduct in their own unethical interests, for the benefit of one side of politics, let alone even for both sides. By their legislative centrality as the whole of government watchdog, an integrity commission can be become the perpetual central blockage point in a corrupted and/or corruptible system preventing justice ever being done.
27. Consequently, these deliberations which may lead to a new law enforcement authority being put permanently 'on the national beat' must be publicly available. Secrecy has no place in these deliberations. This is because how we govern ourselves into the 21st century and beyond (as one of the world's great continuous democracies) in a framework of assiduously guarding against corruption and misconduct in government warrants the closest of close public scrutiny both in the immediate and into the future because it concerns maintaining and protecting our foundational democratic values of (inter alia):
equality before the law; respect for the separation of powers; impartial, honest decision-making in judicial/quasi-judicial office; public trust in public office; the right to a fair trial; discovery/disclosure processes; protection of parliamentary, court and tribunal privilege15 [i.e. to be free to speak without fear of reprisal]; free press; and best practice recordkeeping.
15 This value in particular concerns the Executive lawful granting to an appointed commissioner the right to exercise the "privilege" under the Commissions of Inquiry Act 1950 (Qld) in order out the truth on the Executive's behalf and the relevant polity regarding on a matter of public policy or public interest without the fear of reprisal for those who are called to give evidence, provide submissions or assist from the Bar Table (See LSC v Bosscher [2016] QCAT 75)
10
28. Our national polity accepts and values the sensible tradition that corruption and misconduct in the Commonwealth Government of Australia has no place anywhere in its operations, either by any act or act of omission by any elected/appointed public official. Violation of public trust in public office wherever and whenever must always be unacceptable conduct, and the higher up it occurs, the more unacceptable it must always be treated. But, to repeat, the pivotal question at issue here is how best to achieve this objective without fatally jeopardising the vital fabric of public trust in public office as the modus operandi given that without such trust our democratic society cannot remain harmonious, just or civil, let alone survive.
29. In these circumstances, there is too much to gain and lose in this reference from the Senate for anyone who truly cares about how our nation is governed so that our democracy may flourish. It is suggested that any reasonable objective assessment makes my story one which ought to be told and not ignored because, without gainsay, for the ordinary citizen, low to high level public official, politician, judge, Minister of the Crown, Prime Minister and even to Her Majesty's Australian Representative, the Governor-General, in the performance of his/her sworn duties as our Commonwealth Head of State under the Constitution16, my last 27 years of constant struggle with "the system" is relevant.
30. Therefore, I respectfully submit, that for the SSCENIC to knowingly decide either to conceal my submissions' documented concerns by not being published in toto or ruthlessly redacted, or it attempting to remain ignorant of the lessons of "the Heiner affair" before it as if to somehow believe that the parlous state of affairs in post-Fitzgerald Queensland in 2017 is unrelated and simply could not exist with its checks and balances including a proclaimed independent and honest CJC/CMC/CCC in operation since 1990 while being oversighted by a bipartisan parliamentary committee, brings about a great moment in our political history. Many may want, as a type of similar package deal, Queensland's set-up imposed on the Commonwealth Government but would be doing so with an attitude of 'ignorance is bliss'. If this were to occur, it would be, at the very least in my opinion, an act of extreme folly and completely unworthy of the Senate and its committee system, as "the Grand Inquest of the nation".
Waiting for Australia's Watergate
31. In a case like this, the Senate and its committee system should not limit its own undoubted investigative powers but exert them fully in the national interest. This is based on sound advice. It brings to mind the prescient words spoken by former highly respected Clerk of the Senate, (the late) Mr Harry Evans. In a speech to the 11-12 October 2002 conference held by the Australasian Study of Parliament Group in Parliament House, Melbourne, Mr Evans, with the vast experience of the past, looked into the future and prophesied: : (Quote)
"…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
16 R v Governor of South Australia [1907] HCA 31; (1907) 4 CLR 1497 (8 August 1907); See for example, under Division 3 of the Crime and Corruption Act 2001, the State Governor, being the "principal officer" of "a unit of the public administration" - i.e. the Office of the State Governor - is obliged, just as any other principal officer is, such as the Director-General of the Department of Premier and Cabinet et al, to notify all reasonably suspected official corruption of which he/she becomes aware in the performance of his/her public office to the Crime and Corruption Commission upon pain of committing an offence if failing to do so. [Also see: Public Sector Ethics Act 1994, sections 5, 6,9(2)(c) re obligation '...to disclose fraud, corruption and maladministration of which the official becomes aware'.] Section 39 (1)(b) of the Crime and Corruption Act 2001 states that the duty to notify is paramount and overrides any obligations of confidentiality on the relevant official in respect of performing his/her public office out of which the suspicion gave rise to him/her.
11
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 serious of small-to-medium Watergates which do not sufficiently arouse the public (who are anyway not so easily aroused)…"
32. Inter alia, what is at stake is our nation's international standing in the civilised world because my submissions (and attachments) place Australia's commitment to the International Charter on Human Rights17 regarding our adherence to the principles underpinning government by the rule of law and not arbitrary decree under the spotlight at its most fundamental importance. I submit it matters. That is, whether our justice/governance system is always a reliable and consistent model of operation ensuring that in materially similar circumstances when serious wrongdoing occurs, "the governors" and "the governed" are always treated equally before the law.
33. My submissions strongly suggest this is not the case in Queensland's public administration but rather, double standards, unconscionable false and deceptive conduct in handling of the Heiner affair, aided and abetted by the our integrity commission (CJC/CMC/CCC) since its 1989/90 inception to the current time, has become the order of the day in broad daylight.
34. Quite clearly, these deliberations, (in accordance with these terms of reference set by our nation's Senate) cannot be reasonably considered as anything less than being in "the national interest" rather than in "the public interest", as to mean within one State's jurisdiction. These two concepts ought not to be in conflict. That is, where and when both rest on the expected/obligatory impartial and honest application of the relevant state/federal law, under the overarching provisions of our nation's Constitution, and are carried out, inter alia within the operational framework of respect for the doctrine of the separation of powers and no one being above the law, especially the criminal law.
35. I therefore respectfully recommend, out of these immediate deliberations (and report) aided in good faith by myself, other ordinary Australians and interest groups that a safe and sure answer must emerge before the adoption by any Australian Government or the enactment into law by our assembled Commonwealth Parliament of a national integrity commission - if, in fact, it is possible after taking into account the extraordinary state of affairs now at play in the Heiner affair. This also includes its unfinished status before the Senate dating back to the 2004 Senate Select Committee on the Lindeberg Grievance ("SSCLG") whose flawed 15 November 2004 report was unquestionably based on a significant broken promise given to me and other witnesses by the Select Committee when it didn't return to Brisbane so that we could complete our evidence. (Also refer to Point 8)
36. This answer must permit our national polity to rest secure in the knowledge, promise and practice that those who guard the guards - as they may exist in the future - can be relied on to always be incorruptibly trustworthy in the exercise of their respective power (including the relevant parliamentary oversight committee). This reliability must be vouchsafed especially in an unexpected, rare circumstance of serious corruption/criminality at the epic centre of power as happened in the Heiner affair (e.g. the Cabinet), albeit how its resolution is played out in Queensland in the coming weeks and months may settle everything one way or the other.
The Price of Democracy
17 United Nations Human Rights Committee, General Comment No 34 (2011) on Article 19 of the ICCPR on Freedoms of Opinion and Expression (CCPR/C/GC/34) [11].
12
37. Our polity must be convinced that the guards will enforce the law impartially, equally and properly irrespective of an inescapable prospect (as in the Heiner affair) that a short-term governance crisis may simply have to occur in order that respect for and obedience to the law is either restored and prevails across our nation. If State/Federal Cabinets are placed above the law by law enforcement authorities like the CJC/CMC/CCC then we no longer live in a democracy. It's as stark as that.
38. By initiating this debate-cum-community dialogue, the Senate may have given fodder to the minds of some who like to believe that unless an integrity commission is established then open and accountable government cannot be guaranteed by other normal impartial 'policing' means in the 21st century. Such a belief would be a mistake in many ways, especially given the current state of affairs in Queensland.
39. For a whistleblower like myself, who became embroiled in potential serious wrongdoing at the epicentre of power (i.e. the Cabinet) and was then forced to deal with various law enforcement authorities in my quest for justice whose font had been corruptly poisoned by the CJC in its 20 January 1993 untenable clearance and then resolutely refused to correct matters despite some of this nation's most eminent jurists publicly rejecting its clearance from as early as 1995 onwards when Mr Ian Callinan QC appeared before the Senate Select Committee on Unresolved Whistleblower Cases ("SSCUWC") and elsewhere on my behalf,18 this debate is a long undue in the national interest.
40. It is submitted that the dangerous delusion of any such 100% guarantee existing that integrity commissions are the new trustworthy paradigm is laid bare in my public submissions. Serious adverse interrelated alleged consequences are exposed flowing from alleged violations of public trust in public office (past and current) in the CJC/CMC/CCC and other accountability authorities in Queensland at various times, all of which fall under the watchdog's legislative territory, but most especially the recent egregious violation of trust in respect of the CCC's 2 March 2015 written (and verbal) undertaking to me (after consultation and acceptance of legal and ethical binding obligations) that "the allegations in the Heiner affair papers" would be independently reviewed by an interstate senior judge but instead secretly appointed a Queensland senior judge.
41. This evidence, placed before the SSCENIC and public in good faith, shows that when an all- powerful, all-encompassing coercive, publicly-funded, standing royal commission turns partisan and rules its jurisdictional domain through abuse of power, fear and intimidation, potentially even over Parliament, as well as the Crown (see later comment) then government can, in fact, become completely untrustworthy in word and deed, oppressive and totally indifferent to individual rights and liberties, including the right to a fair trial.
42. It simply cannot be ignored that it is the integrity commission, like the CCC, which sets the standard of acceptable ethical conduct in the public affairs of government when established. Its dictates become all pervasive. Therefore, if the CCC can blatantly deceive a whistleblower (who risks everything to act in the public interest to ensure open and accountable government), why
18 In 1995, (then) Mr Ian Callinan QC appeared as my senior counsel before the SSCUWC. In a public statement dated 7 August 1995 lodged with the SSCUWC, Mr Callinan, a renowned expert in criminal law, completely rejected the CJC's interpretation of section 129 of the Criminal Code 1899 (Qld) as being "...too significant to ignore". The CJC, however, dismissed his expert interpretation as nothing more than any lawyer offering an opinion on behalf of his client. The CJC expressed its satisfaction with the interpretation provided by a junior barrister (who just happened to be an ALP activist member, and former work colleague with Mr Wayne Goss as Labor Lawyers associated with the Caxton Street Legal Service). The CJC's interpretation was always deeply flawed and self-evidently incorrect.
13
can't all other organs of government follow its lead, and blatantly lie and cheat when it suits their purpose?
43. The clear warning is that the infection of corruption by such an integrity commission through its influence and standing can ultimately infect the entire body politic. The consequences can be so dire as to ultimately destroy public trust in key democratic institutions and our other key professional organisations like Bar Associations, Law Societies and civil liberty groupings if and when none will dare publicly say that the 'integrity' emperor is not wearing any clothes (of integrity). Unless exposed, it reduces the conduct of government to the unacceptable, untrustworthy status of being unreliable, misleading, if not potentially fraudulent, and threatening. This is not the type of Australia that I want.
44. Accordingly, if such a federal integrity commission were to be established out of ignorance or in full knowledge of the documented lessons of the Heiner affair, and were to mirror the same structure and welcome into the federal arena a similar experience as that imposed by the CJC/CMC/CCC on unicameral Queensland, then, we would be imposing on our national governance a potential blight of extraordinary oppressive dimensions.
45. Out of such a mire comes the harsh reality that the so-called cure may be far worse than the disease itself. Instead, the disease (i.e. allegations of public sector corruption/misconduct) might be better reliably remedied by one politician under parliamentary privilege exposing the alleged wrongdoing from the floor of the Parliament with the aid of a watching, free media - relentlessly if needs be - until and unless a normal impartial 'policing' investigation occurs. In special circumstances, the exposure may force the creation of a temporary royal commission by Executive Government or the Federal Parliament (i.e. Removal of a judge re 1987 Justice Lionel Murphy Incident).19 This cure recognises the worth of traditional remedies, and in doing so do not transgress the vitally important jurisdictional borders of the doctrine of the separation of powers.
Respect for the Doctrine of the Separation of Powers
46. By putting aside traditional remedies to wrongdoing in civil society for a moment, an inescapable adverse consequence immediately arises when Members of Parliament go beyond their traditional elected role of law makers to hands-on administrators and decision-makers regarding what is right and wrong in the area of criminal justice. It's a dangerous line to cross. The doctrine of the separation of powers is fundamentally breached whenever a parliamentary oversight committee becomes the watchdog over any integrity commission which is, by law, (a) an arm of the Executive (albeit claim-wise independent of and from Executive direction), and (b) supposedly an honest, impartial decision-maker in the area of the administration of criminal justice.
47. At its most basic, this new paradigm unacceptably turns 'partisan' elected politicians appointed to this type of special parliamentary oversight committee into decision-makers in law- enforcement. As a committee of the Queensland Parliament, its establishment comes pursuant to a 'foreign' statute outside the precinct of Parliament, namely section 291 of the Crime and Corruption Act 2001 while, at the same time, under section 5(1), the aforesaid Act establishes its main purpose body, the CCC (which as an entity of government falls under the broad umbrella of its Executive arm). On the other hand, all other parliamentary portfolio committees are not
19 http://www.aph gov.au/About_Parliament/Senate/Powers_practice_n_procedures/odgers/chap20
14
created out of such a 'foreign' statute but under its own precincts, namely the Parliament of Queensland (Reform and Modernisation) Amendment Act 2011.20
48. I suggest that impartiality and independence in such decision-making cannot be completely guaranteed, without giving rise to a perception of apprehended of bias being present or perceived. Reliance on such a 'politically constructed' oversight committee when the complaint of wrongdoing at issue may impact adversely on an opposing politician, Minister and associated Departmental official, and indeed, as in the Heiner affair, on an entire Cabinet, throws a reasonable doubt into the equation. In effect, the analogy was that as "...all roads led to Rome" (i.e. the Cabinet), all related conduct could be highly probably tainted and influenced accordingly to prevent 'political' Rome (as the centre of power) from burning to the ground over its serious act of illegality (i.e. the shredding).
49. It is well established and non-controversial for partisan politicians to be elected by the people in a democracy to act in a partisan manner in order to turn their party's (promised) policies into law if and when their party wins sufficient seats to form a government. By so doing, the aforesaid conduct cements public faith in the electoral process. But, it does not stop there. If and when necessary, politicians in the past and can now also ventilate public interest disclosures in good faith on the floor of Parliament without the fear of defamation, notwithstanding this exercise of disclosure of corruption/misconduct in government (as via Matter of Public Importance under Standing Orders) may be more certain, reliable and credible coming from an Independent MP than from one aligned with a major political party because party discipline (on either side of the political divide for politicians in Australia) is virtually unbreakable, career destroying or highly risky if done against respective party leadership instructions.
50. The work and decision-outcomes of these parliamentary oversight committees and parliamentary commissioners, like the PCJC/PCMC/PCCC, are also non-justiciable. This is an important consideration for the SSCENIC. It comes about because of the protections/exemptions under the traditional interpretation of Article 9 of the 1689 Bill of Rights. This 'exemption' shield plainly impacts on normal judicial review rights in the administration of criminal justice matters.21 The deliberations of these oversight committee are normally conducted confidentially under a notice-cum-pain warning of contempt of Parliament if breached (including by the complainant), which, as recent "developments and events" will reveal further on, have come together and conspired in the Heiner affair to create a constitutional flash-point of very serious competing interests concerning the "privileges" of the Queensland and Commonwealth Parliaments, if not for their respective governments also. (See Points 54-63)
51. Finally, these parliamentary committees are mostly majority dominated by members from the party in power (notwithstanding the casting vote of the Chair to break a deadlock). In Western Australia however just two members from the major parties (i.e. Liberal and ALP) in their Legislative Council make up their parliamentary oversight committee. In Western Australia, the law demands that decision outcomes on this committee must be bipartisan. With that even number, it forces a switch (of political sides) to occur to achieve a majority bipartisan decision outcome, which (as some might argue) forces party politics out of the equation if the committee wishes function. Plainly, acting honourably is indispensible.
52. Nevertheless, it is still submitted, from my Queensland experience as well as from a matter principle, that this new paradigm is not only unjust, but undemocratic because inter alia it fundamentally breaches the doctrine of the separation of powers which is, or ought to be, a non-
20 https://www.parliament.qld.gov.au/work-of-committees/introduction/history : See Section 45 - Dictionary 21 Corrigan v Parliamentary Criminal Justice Commission [2000] QSC 096 ; [2001] 2 Qd R 23 (00/2646) Dutney J. 27 April 2000
15
negotiable principle to ensure that any Westminster system of government works as it should to deliver good government in which the general public can have confidence.
53. Some, like former NSW Chief Justice, the Hon James Spigelman, have suggested that a fourth branch of government ought to be created. It is suggested that it should be designed as "the integrity branch".22 However, it is far from certain that another branch would be any better than the current three. This is because all three branches (i.e. the Legislature, Executive and Judiciary) in their various ways at particular times via the various "integrity" checks and balances within them have failed completely in the vital area of trustworthiness. What would make their conduct any different if they were banded together into a separate branch of their own? It therefore follows, in the national interest, the self-evident importance of the unresolved Heiner affair (as it stands in 2017) being fully, openly and properly resolved by a lawful tribunal because all of the so-called "integrity" authorities (which could make up this so-called Fourth Branch) must explain under oath how this dreadful crisis in governance came to be. That said, if one were to introduce a so-called "integrity branch" into the full meaning of 'government' for the 21st century and beyond, we are still faced with the eternal question of who shall guard the (increased) guards?
NEW DEVELOPMENTS AND EVENTS
An Overarching Legal and Moral Obligation
54. A set of circumstances has come together in recent times (NB: Attached Abridge Chronology of Events of the Heiner affair Points 121 to 177) which was beyond my individual control, creation or beyond anyone's imagination. It has have brought about an invidious situation. At first blush, some might see this situation as an constitutional clash between the vital immoveable institutional rights and privileges of Parliament and how best I, as a law abiding citizen, can and must irresistibly respect such 'operational' imperatives of Parliaments both legally and morally as an Australian who happens to reside in the State of Queensland and who happens to be dealing with both Parliaments (i.e. State/Federal) at the same time on the same subject matter of major public/national importance.
55. As our supreme democratic institution, all Parliaments within the Commonwealth of Australia are entitled not to be knowingly misled by anyone, including witnesses who may appear before their committees. That is to say, Parliaments are entitled to know the truth, the whole truth and nothing but the truth in relevant material matters under consideration. In this case, we are dealing with the establishment of a national integrity commission and whether or not they are truly the best and safe solution - as an extra layer of 'policing' - to eradicate corruption and misconduct from public life concerning elected and appointed public officials. Indeed, in Queensland and Western Australia23, so serious is the duty to be truthful when dealing with Parliament and its committees that for anyone to knowingly mislead Parliament may be a breach of their respective Criminal Codes warranting a jail term of 7 years. It may be relevant to note (in the Heiner affair context) that this 7-year term of imprisonment, in Queensland at least, is in line
22 http://www.austlii.edu.au/au/journals/AIAdminLawF/2012/15.pdf For example, in Queensland, "the Integrity Branch" would probably consist of: CCC, Auditor-General, Ombudsman, Information Commissioner, Integrity Commissioner, State Archivist and Public Service Commissioner. 23 See section 57 of the Criminal Code Act Compilation Act 1913 says: "False evidence before Parliament Any person who in the course of an examination before either House of Parliament, or before a committee of either House, or before a joint committee of both Houses, knowingly gives a false answer to any lawful and relevant question put to him in the course of the examination, is guilty of a crime, and is liable to imprisonment for 7 years". And similarly see: section 57 of the Criminal Code 1899 (Qld) - False evidence before parliament.
16
with a proven breach of section 129 of the Criminal Code 1899 (Qld) in respect of destroying evidence which is or may be required in judicial proceedings.
56. After taking advice and on my own personal recognizance, I have resolved that 'the exposure of Truth' and its daily important interface with the law, ethics and morality, must be treated as a supreme duty on me which I cannot put aside.
17
18
The Right to Know vs the Right to Confidentiality/Privacy
71. In stating this concern, no one should assume that I am not aware about associated concerns regarding the protection of reputations per se which are often cited as the reason for confidentiality, especially of private individuals. I assure the SSCENIC that I am abundantly aware of such matters. I do not believe that big intrusive government offers answers to anything expect potential oppression, although I accept that in particular areas dealing with terrorism and external national threats, secrecy reasonably has its place.
19
72. The perpetual tension in a democracy between "the right to know" and "the right to the protection of privacy-cum-reputation" is always highly contentious. So it should be, but it really depends on context. In my opinion, when it concerns issues touching on the integrity of public office, the balance ought to favour "the right to know" to ensure openness and transparency, and protection of the ideal/value of integrity in government by the rule of law. Governments serve the public not vice versa, and the people ought to always know what their servant (i.e. Government) is doing, save in extreme circumstances of national security and the like.
A Paramount Duty
73. Therefore, despite short-term, potentially unavoidable, administrative, constitutional or political upheavals when dealing with allegations of possible wrongdoing involving public officials, I respectfully submit that the paramount duty to uphold must be to the protection of the public's right to have confidence in the public office itself first, and its relevant office holder's rights second, no matter how high the public office/officer.
74. Consequently, by giving supremacy to the need to vouchsafe the integrity of "the public office" by giving supremacy to "the right to know", public confidence in government, irrespective of the public office holder and politics per se, is made more secure. It sends the clear, unambiguous message across the whole community that no one is above the law, and thus instantly lends itself to public confidence in the law and its equal application.
75. For example, the situation of a Minister of the Crown, judge, CCC Chair (mandated to be a legal practitioner) or police commissioner making judgements on the failures of others or their contested rights, while they themselves are having their own potential failures in respect of their own conduct in public office (or conduct elsewhere but which impugns their standing as being "fit and proper" to hold public office) being investigated secretly behind closed doors while they still act as a public decision-maker on others would seem to be a toxic recipe for the significant undermining of public confidence in government (i.e. as in authorised decision-making whose decisions may render a detriment against another including a loss of liberty or property).
76. The late 20th and early 21st century mode of conduct-cum-operation inside public administration, especially for elected public officials, seems to suggest that former honourable practice of standing aside (albeit on full pay) when known to be under investigation in order to protect the integrity of the public office (and its decision outcomes) until all credible allegations have been properly resolved has long past. In my opinion, it should be reversed. It ought to be made a high public principle of honour of temporarily standing aside because it would greatly restore public confidence in government by the rule of law.
77. I submit that His Honour Justice James Allsop, President NSW Court of Appeal, when speaking to the Australian Academy of Law 2009 Symposium Series on 5 May 2009 on “Professionalism and commercialism – conflict or harmony in modern legal practice?” spoke of issues common to all lawyers, and relevant to the SSCENIC's Terms of Reference and why "the Heiner affair" is an appropriate experience to be adduced in evidence for consideration. His Honour said: (Quote)
“….Trust and reliability are everything. They are built incrementally case by case, file by file, generation by generation. They cannot be faked. Trust must come from clients, the public and the state. The state, society and government should all view the profession as one engaged with them in the administration of justice. It is this essential characteristic that gives the state the right of influence over the profession. It is also the reason why the enforcement of the highest ethical and fiduciary
20
standards should be swift and uncompromising. By this means, the protection of the reputation of the profession involves the protection of the administration of justice.”
78. On this issue of "the right to know vs confidentiality/privacy" in the context of SSCENIC's terms of reference and associated trustworthiness of integrity commissions over traditional normal policing, I respectfully remind the SSCENIC that when the CCC Board agreed on 27 February 2015 (and then confirmed same in writing to me on 2 March 2015 under its official letterhead and signed by its acting Chair, Dr Levy) to undertake a preliminary examination of "the allegations in the Heiner affair papers" by commissioning an interstate retired senior judge, I was asked not to disclose this decision to the public. This was a landmark decision with major consequences. I remained silent. I did so because I trusted Dr Levy. Sadly, my trust in him was not reciprocated.
79. Furthermore, when I wanted to know the judge's identity, the CCC refused to tell me on the grounds of "confidentiality". This exchange was recorded on tape inside the CCC's Board room. I accepted this too because I trusted Dr Levy. At no stage, including after "the switch" had occurred, was I given to believe when dealing with Dr Levy and the CCC that this key undertaking, which had been reached on accepted legal and ethical grounds, had been irretrievably and materially breached. After the 12-14 week secret examination (and presumably paid for from the public purse) was concluded sometime in mid-July 2015 and after my pressing the CCC in September and October 2015 to confirm that it had fully honoured its 2 March 2015 written undertaking, (new) CCC Chair, Mr Alan MacSporran QC, without any explanation whatsoever, simply said that the CCC changed its mind and chose a retired senior Queensland judge.
80. By written word and recorded deed, my trust bestowed in the CCC was summarily dismissed as utterly inconsequential. It was not even worthy of an explanation. The report remains sealed inside the CCC archives. On legal advice, it may only be considered as a "nullity at law" because it was knowingly undertaken against the documented background of an act of egregious betrayal of public trust (allegedly) committed by relevant public officials in the form of unconscionable false and deceptive conduct by the CCC against me (as citizen/whistleblower), and for that matter, against the law and the public interest.
81. The flow-on effect is, I suggest, equally serious and relevant to these SSCENIC deliberations. The CCC (being Queensland's so-called integrity commission) regularly accounts for its actions to the bipartisan PCCC. By law, its evidence and submission must not be knowingly false and misleading. Accordingly, these egregious actions by the CCC immediately opened up (to me) very, very serious questions as to whether or not the CCC had knowingly misled the PCCC when reporting on them. For example, did the CCC:
i. accurately recount the whole truth to the PCCC, or only a selective part or its version of the whole truth? ii. inform the PCCC about its 2 March 2015 written undertaking signed by CCC act Chair Dr Levy to me promising to appoint a judge "...external to Queensland?" iii. inform the PCCC about its secret breach of trust regarding "the switch" from a (promised) interstate senior judge to a recently retired senior Queensland judge as the authorised decision-maker under the Crime and Corruption Act 2001 who was mandated to act honestly, impartially and independently? iv. inform the PCCC how a recently retired senior Queensland judge could look into the allegations in the Heiner affair papers impartially without giving rise to a perception of apprehended bias, when knowing, inter alia, that some of the
21
allegations concerned the conduct of certain sitting Queensland judges with whom the secretly appointed Queensland judge had worked alongside for years, and had carried out the investigation in a room in the Supreme Court building? v. inform the PCCC about the allegations associated with the conduct of Her Honour Chief Justice Holmes and (then) Commissioner Carmody in respect of their secret agreement in early June 2013 - during the active life of the Carmody Inquiry - to use a 'privileged' item of evidence (i.e. the Rofe QC audit) tendered, accepted and published unedited to the world by the Carmody Inquiry under the authority of the Commissions of Inquiry Act 1950, for the specific purposes of attempting to render a detriment against my counsel (which also had the foreseeable conjoined effect of diminishing the audit's standing in which both parties (i.e. Holmes and Carmody) were known to be adversely named).
82. Inescapably, the aforesaid opens up equally serious questions about what did the PCCC itself do when informed that a senior retired Queensland judge was, inter alia, investigating the conduct of certain Queensland judges, which also included the more recent 2012-13 conduct of (now) Queensland Chief Justice, the Hon Catherine Holmes, regarding serious matters arising out of the conduct of the Carmody Inquiry [in respect of its investigation into Term of Reference 3(e)] associated with the tender into evidence, acceptance and unedited publication of the Rofe QC Audit on 24 July 2012?26 (See Points 88-93)
83. I believe that any reasonable person, being acquainted with the facts and with a modicum of commonsense, would instantly be alerted to the legal/ethical necessity of ensuring that perceptions of apprehended bias ought not to arise in authorised decision-makers in respect of these matters under consideration. Consequently, I suggest that such a person would reasonably and instantly recognise a prima facie conflict of interest arising out of such an arrangement of contracting a retired senior Queensland judge, let alone:
i. it being agreed to in secret; ii. how the retired senior Queensland judge himself could credibly explain away such a perception to the satisfaction of the aforesaid reasonable person, let alone me; and iii. what my relevant view might be, notwithstanding the CCC always knew precisely what it would be otherwise no preliminary review would have been entertained.
84. It needs to be emphatically recorded publicly that had I ever been informed about this "switch" of judges when it occurred in mid-April 2015 or at any time, I would have immediately withdrawn my approval from the whole process, and probably gone to the media. I would have done so because:
i. the process simply could not, and did not, satisfy the legal/ethical thresholds of honesty, impartiality or independence (by perception at the very least which would be sufficient reason to cease the review) which relevant provisions of the Crime and Corruption Act 2001 and the Public Sector Ethics Act 1994 mandate as always being necessary; and ii. in many egregious ways, it fundamentally violated my trust of the CCC, let alone public trust at large, and was an affront to its purpose under section 4(1)(b).
26 See LSC v Bosscher [2016] QCAT 75; Also see Lindeberg's attached 1 September 2016 submission to the Law Council of Australia.
22
23
24
25
MISCELLANEOUS CONSEQUENCES ASSOCIATED WITH A NATIONAL INTEGRITY COMMISSION
Impact on the Exercise of the Reserve Powers of the Crown
96. In the event that the Commonwealth Government and Parliament establish a national integrity commission, there no doubt that the relevant legislation will need a provision making it 'a paramount duty' on Heads (i.e. "a public official") of "a unit of public administration" (i.e. Offices, Departments or entities established by statue and paid from the public purse) to notify the integrity commission's official misconduct division of any matter which gives rise to a reasonable suspicion of official misconduct which may come to their attention in the course of their public office within a unit of public administration. To enforce this duty, a failure to notify places the public official him/herself in potential breach of the law. Such provisions regarding 'duty to notify' are found in sections 37, 38 and 39 of the Crime and Corruption Act 2001.
97. The compelling logic behind this provision is not one about being an oppressive or onerous duty on the designated "public official" because the whole purpose of such legislation is to eradicate any and all corruption and official misconduct from public administration. Plainly, that must start from notifying all "reasonable suspicions". In other words, it is better to be safe and sure instantly than to be sorry later on. In short, ignore an awareness of all "reasonable suspicions" of corruption/official misconduct at your own peril.
98. Underpinning this 'duty to notify' is the general obligation on all public officials, irrespective of whether or not an oath or affirmation is sworn, to act honestly, ethically, impartially and the public interest in the performance of their respective public duty. In short, it might be termed trustworthiness, and captured under the associated term of "public trust in public office". Plainly this is an unequivocal duty. In Queensland, it is underpinned by relevant provisions of the Criminal Code 1899 (Qld), Public Sector Ethics Act 1994 and the Crime and Corruption Act 2001.
99. It is worth reiterating an important point here (within the context of the SSCENIC's terms of reference). That is, in the Criminal Code 1899 (Qld), provisions have existed since its enactment (in 1899) addressing offending/unacceptable conduct by public officials under Chapter 13 - Corruption and abuse of office. For example, "Official corruption" (section 87), "Extortion by public officers" (section 88), "False claims by officials" (section 91), "Abuse in Public Office" section 92), and "Misconduct in relation to public office" (section 92A), all of which are essentially triggered when a public official knowingly advantages another or him/herself in respect of the public conduct in question. The Crimes Act 1914 in the Commonwealth of Australia mirrors these provisions. They were traditionally enforced by the police, but now integrity commissions have come into the field of play. Be that as it may, lest anyone think otherwise, the field of public administration being kept clean of corruption/misconduct in government has never been vacant for over 100 years and more at law and only latterly occupied by the establishment of these standing royal commissions in the form of integrity commissions like the CJC/CMC/CCC.
26
100. The exercise of 'final check and balance option' (which some might call nowadays as 'the nuclear option') under Australia's Westminster constitutional monarchy system of government is 'the reserve powers of the Crown' to be only used in exceptional circumstances by the Governor- General and/or State Governor if and when any government in the Commonwealth of Australia persists in acting unlawfully and beyond the Constitution. Those Heads of State, as the guardian of the Constitution, have the right to "...to encourage, warn and advise" their chief adviser (i.e. Prime Minister and/or Premier) and, in exceptional circumstances, may reject their advice, and either seek alternative advice which may come about by removing the commission from the Prime Minister and/or Premier and appoint a replacement (but on the condition he/she can govern with the numbers on the Lower House) or, almost always, declare the replacement adviser under care-taker status and issue an order for the dissolving of Parliament and the holding of an immediate general election so that the people may have the ultimate decision.
101. It ought not to be thought by anyone that when push comes to shove, in exceptional circumstances, under the Constitution Governors-General do have real final non-justiciable power to remove a government by the exercise of the Crown's reserve powers and that they may do so without consulting and obtaining the approval beforehand of our Monarch, Her Majesty the Queen.
102. These powers in Australia are long standing but obviously always give rise to heated debate. From my research, even in the Constitutional Monarchy vs Republic national debate (such that it substantially exists at the moment), those who desire change to a directly elected Head of State by the people or appointed by a yet-to-be-decided process (e.g. 2/3 majority vote of both Houses of Parliament) away from the current arbitrary method (i.e. effectively being exercised solely in the hands of the Prime Minister and/or Premier's which Her Majesty then approves from the distance of Buckingham Palace London), the reserve powers of the Head of State are to remain as a final check and balance protection from a rogue government. It is doubted that these powers could ever be codified, let alone should ever be.
An Unavoidable Issue Arising
103. The unavoidable issue arising out of the administration of the Office of the Governor- General (and, in State-terms, the Office of the State Governor) is that when such an exceptional circumstance arises, it will inevitably have within its ingredients the presence of a "reasonable suspicion of corruption/official misconduct", which, it might be safely and reasonably assumed "the system" beneath the Australian Crown (as reposed in the Governor-General and/or State Governor) cannot resolve either by immoveable deadlock, or, in a worst case scenario (as in the Heiner affair), may be itself part and parcel of the problem through active engagement in a prima facie systemic cover-up.
104. The instant legal problem-cum-paramount duty the Governor-General (or State Governor) will have to address, in order to comply with the law if and when a national integrity commission is enacted into law, is that he/she must notify the suspicion with the national integrity commission. This paramount duty overrides other obligations of confidentiality. This situation comes about because all the aforesaid elements under the Act establishing an integrity commission would be satisfied making the Office of the Governor-General "a unit of public administration" with the Governor-General being its undoubted designated "public official". The conduct giving rise to an awareness by the Head of State that a 'reasonable suspicion' exists which may warrant the exercise of the reserve powers would have to be notified otherwise he/she (i.e. the Head of State) would be acting outside the law even in the face of the integrity commission being potentially a player in bringing about the crisis (which doubtless it would
27
assert to be otherwise). It becomes a recipe for chaos on a grand scale which brings into play the great axiom on which the rule of law now relies and sits since doing away with the divine right of kings on 30 January 1649 in England, namely:
"The king must not be under man but under God and under the law".
105. I shall not exhaust all the legal/constitutional permutations now but the aforesaid scenario was played out in the Heiner affair. The legal/constitutional ramifications are set out in Volume IX of the public Rofe QC audit in respect how (then) Her Excellency, Governor Quentin Bryce AC handled my PID when brought to her attention. The Attached Abridged Chronology of Events of the Heiner affair at Points 53-63 sets out the interchanges between myself, Her Excellency, the Beattie Government and its Attorney-General and Crown Law. There is no evidence currently to hand which shows that Her Excellency, at the time, complied with her paramount duty to notify her suspicions of potential wrongdoing, but instead only sought a report from her Government (i.e. the Beattie Government) about them. She was made to wait some 18 months before it was provided. On receipt of the (still secret) report on 26 April 2005, Her Excellency informed me on 24 May 2005 that she had considered the report and had decided to take no action. In taking this decision, Her Excellency had been informed by me that:
i. the report would likely be self-serving; and ii. she had sworn an oath to uphold the law without fear or favour.
106. It is now clearly established that, inter alia, the 5 March 1990 shredding order by the Queensland Cabinet was always a serious prima facie crime, and by the recent actions of the CCC, that the Heiner affair (properly understood) also involved an alleged protracted systemic cover-up of the original 5 March 1990 prima facie crime. Relevantly, that same situation existed at the time my PID was delivered into Her Excellency's hands at Government House Bardon on 13 October 2003. It existed when she then wrote to Premier Beattie on 21 October 2003 seeking a report on my allegations. It cannot be reasonably or plausibly suggested that Her Excellency did not have "a suspicion of official misconduct" in her mind once becoming aware of the contents of my correspondence on which she sought an explanation from her Chief adviser on 21 October 2003, let alone then afterwards let such serious governance concerns drift for 18 months before Her Majesty's Queensland Government finally responded.
107. For the record, I respectfully submit that it is a matter of serious and historic public interest for this 26 April 2005 report to be made public.
108. Accordingly, it is my respectful recommendation to the SSCENIC that as an inevitable incursion into the operations of the reserve powers of the Australian Crown (as reside in Her Majesty's representatives, the Governor-General and State Governors) will occur if and when a national integrity commission is established then such a pivotal change to the good governance of the Commonwealth of Australia, particularly concerning the exercise of the reserve powers of the Crown, should be the subject of further comprehensive deliberations by a properly constituted authorised expert tribunal beforehand out of an abundance of caution.
INVESTIGATION INTO FEDERAL JUDICIAL MISCONDUCT/MISBEHAVIOR
109. Under the Constitution, the relevant power is found in section 72(ii) which says: "The Justices of the High Court and of the other courts created by the Parliament-
28
(ii) shall not be removed except by the Governor-General in Council, on an address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity."
110. The most high-profile Constitutional example of its use in Australian jurisprudence to date, which caused major (and continuing) ructions throughout the judicial and political systems, occurred in respect of allegations of judicial misconduct or incapacity against His Honour Justice Lionel Murphy of the High Court of Australia in the mid-80s. After His Honour was cleared by the NSW Court of Appeal over the charge of conspiracy to defeat justice (i.e. what might be called "misconduct"), section 72(ii) of the Constitution was yet still triggered to establish a Parliament Tribunal to decide the other vital unanswered issue about whether or not His Honour may have engaged in "misbehaviour" ill-befitting of a judge. The Tribunal was presided over by Their Honours George Lush, Richard Blackburn and Andrew Wells. Its work was terminated when it was discovered that His Honour was diagnosed with terminal cancer. The files were sealed by Federal Government order for 30 years and have only been recently released to the public.
111. My research shows that, inter alia, the Senate Legal and Constitutional Affairs Reference Committee in December 2009 report on "Australia's Judicial System and the Role of Judges" relevantly recommended (at p97): (Quote)
"the government implement a federal process enabling it to establish an ad hoc tribunal when one is needed to investigate complaints of judicial misconduct or incapacity".
112. A great deal of heated debate has always resolved around the meaning of "proved misbehaviour", and it was decided by the both Houses of Parliament in 2012 that the meaning was best left of a parliamentary judicial tribunal to decide the question. That said, on its face, "misbehaviour" is less serious conduct than "misconduct" but, logically and arguably, must reasonably include in its character a common understanding of the word "misbehaviour" to such a level as to make the judge not "fit and proper" to sit on the Bench and make defining judgements on others while still maintaining public confidence in his decisions and in the operation and integrity of the administration of justice and its judicial officers.
113. In a later report on this interconnectedness of "misconduct" and "misbehaviour" in the context of the gravity of removing a judge, (then) Clerk of the Senate, Mr Harry Evans said:
‘that the removal of a judge is such a grave step that the most stringent standard of proof should be required’ (the criminal standard, beyond reasonable doubt). However, on the lesser standard of proof, it ‘may be thought to be irresponsible for the Houses to leave a judge on the bench when it is probable that the judge has engaged in acts constituting grave misbehaviour, simply because proof beyond reasonable doubt is lacking’ 29
114. It seems quite clear, in particular as matters were undertaken by the CCC in 2015 and are still being undertaken
that the Heiner affair's allegations have clear relevance to the SSCENIC's terms of reference (insofar as a national integrity commission and its empowering legislation might mirror Queensland).
29 H Evans, ‘Parliament and the Judges: The Removal of Federal Judges Under Section 72 of the Constitution’, Legislative Studies, vol. 2, no. 2, Spring 1987, p. 24.
29
115. In Queensland, pursuant to section 58 of the Crime and Corruption Act 2001, authority is given to the CCC to investigate credible allegations of judicial misconduct (while in judicial office) which is to be carried out by the CCC Chair, in the knowledge of and in a manner in cooperation with the Chief Justice. The Act specifies "judicial misconduct" as against "judicial misbehaviour" which is dealt with under section 61 of the Constitution of Queensland 2001 which triggers an independent judicial tribunal made of three senior judges from a different jurisdiction.
116. The CCC Chair has the authority to delegate any such investigation to what the Act describes under section 58(7) as "a senior officer" (also see section 245) who is considered suitable in the Chair's opinion to properly carry out the task. In respect of the task of investigating judicial misconduct (as in also judicial misbehaviour), one might reasonably expect that if the CCC Chair were not to be a former senior judge himself, than one would be engaged quite properly "...external to Queensland" to mirror what Parliament prescribed in respect of section 61 of the Constitution of Queensland 2001.
117. An overriding consideration in this area of investigation into allegations of possible judicial misconduct is to respect the independence of the judiciary, which would most blatantly not occur if and when the Executive arm became involved. Notwithstanding Parliament gave authority to the CCC to investigate judicial misconduct in cooperation with the Chief Justice, it is unavoidable to not recognise that within the Westminster structure of three arms of government, the CCC may only fall under the umbrella of the Executive arm no matter how much it may claim to be independent of the Executive arm whether that be the responsible Minister or the Cabinet. Plainly an unacceptable dichotomy has arisen. This situation must be further exacerbated if the CCC Chair were only a junior counsel - which would still satisfy the qualifications necessary for appointment - who still has a career in front of him after his tenure in office and who suddenly finds himself investigating, for example, a Supreme Court judge, let alone in a worst case scenario, a Chief Justice, who may have engaged in official misconduct.
118. Section 224 of the Crime and Corruption Act 2001 - Qualification for appointment - chairman and deputy chairman - says:
A person is qualified for appointment as the chairman or deputy chairman if the person has served as, or is qualified for appointment as, a judge of — (a) the Supreme Court of Queensland; or (b) the Supreme Court of another State; or (c) the High Court of Australia; or (d) the Federal Court of Australia.
119. As a matter of high principle, judges ought to be investigated before a public tribunal by their peers (albeit from another jurisdiction) where any perception of intimidation is assiduously avoided in order that the investigative process and decision outcome is seen to be impartial and properly reached. In turn, this maintains public confidence, as far as is humanly possible, in the independence and integrity of the judiciary because while to shows the requisite respect due, it shows not having been performed by one local judge investigating another local judge, like a mate investigating a mate.
120. It is my respectful recommendation that the SSCENIC ought not to endorse the establishment of a national integrity commission unless or until the Heiner affair has reached a lawful conclusion under its current system of governance in order that all lessons may become known, and, if and where found necessary, appropriate legislation either amended or introduced and enacted.
30
121. In this context, I would also recommend that the SSCENIC, with the authority of the Senate (if required beforehand), respectfully encourages the Queensland Government and Parliament to take all necessary steps to finally resolve the Heiner affair in an expeditious, impartial and thorough manner, not just in the public interest of Queensland's polity and overall governance, but also in the national interest.
31