QUEENSLAND CHILD PROTECTION COMMISSION OF INQUIRY Re: An Application by Mr Kevin Lindeberg Outline oF Argument INTRODUCTION TO APPLICATION 1. This is an application made to the Queensland Child Protection Commission of Inquiry [“QCPCI” & “the Commission”], that Commissioner the Hon Tim Carmody SC, recuse himself from hearing and considering term of reference 3(e) as contained in the Commissions of Inquiry Order (No1.) 2012. 2. Throughout this outline the Commissioner is referred to as Mr Carmody SC to avoid confusion that may arise when referring to the previous position held as Queensland Crime Commissioner. 3. Mr Rofe QC, who initially appeared on behalf of the Applicant, indicated that the application to be made was of broader scope and was to include the role of Mr Carmody SC as it pertained to all the terms of reference. 4. That position was corrected by way of letter to the Commission dated 17 July 2012 wherein it was indicated that the application was to be confined to term of reference 3(e). 5. Term of reference 3(e) states: “reviewing the adequacy and appropriateness of any response of, and action taken By, government to allegations, including any allegations of criminal conduct associated with government responses, into historic child sexual abuse in youth detention centres.” 6. It is submitted on behalf of the Applicant that Mr Carmody SC should not proceed in relation to term of reference 3(e) as he is unable to fulfil his statutory duty on the grounds that: a) there is a reasonable apprehension of bias; and/or b) Mr Carmody SC, by virtue of previous professional activity, may be called upon to effectively judge his own conduct. THE TESTS TO BE APPLIED 7. It is submitted that the test at law for determining issues such as these is well settled and non controversial. 8. In relation to the ground referred to in paragraph 6(a) above the following, it is submitted, outlines the appropriate test to be applied in the determination of this question: “Where, in the aBsence of any suggestion of actual Bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may Be relevant to the second appeal), a judge is disqualified if a fair-minded lay oBserver might reasonaBly apprehend that the judge might not Bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should Both Be done and Be seen to Be done, a requirement, which reflects the fundamental importance of the principle that the triBunal Be independent and impartial. It is convenient to refer to it as the apprehension of Bias principle.” [1] 9. It is not submitted, at the time of filing this outline, by the Applicant that there is any evidence or suggestion of actual bias in relation to Mr Carmody SC and, at this time, this ground is confined to the issue of ‘apprehended bias’. 10. The above position has been restated in numerous authorities and it is submitted that this is the test that should be applied in relation to 6(a) above. 11. Paragraph 6(b) above also deals with the question of bias but is separated, for the purpose of [1] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344, 350 this argument, for convenience as the facts, when applied, stand alone and the position agitated by the Applicant are that the grounds referred to above, whilst not mutually exclusive and exist in the alternative, are also complimentary. 12. The principle that one should not be judge in ones own cause is settled authority, dating back hundreds of years. The most often cited example can be found in City of London v Wood (1701) 12 Mod 669 at 687, 88 ER at 1602, Hulse J said that: "…It is against all laws that the same person should be party and judge." 13. This position has been often adopted and repeated, most recently in the High Court, in the Judgment of French CJ, in British American Tobacco Australia Services Limited v Laurie [2001] HCA 2 at 34 as follows: The maxim that no person can be a judge in his or her own cause is an expression of the requirement of impartiality, which extends to the fact and the appearance [43]. It has deep historical roots [44]. It was prefigured in Justinian's Institutes, which proposed that a judge "who delivers an unjust or partial decision" should be subject to a pecuniary penalty [45]. Bracton in the 13th century wrote of the desiraBility of recusing the judge where "for some reason, fear, hatred or love, he is considered suspect."[46] Judicial statements in England of a rule against anyBody Being a judge in his own cause could Be found in decisions of the 17th and 18th centuries [47]. So too could its application to administrative triBunals or decision-makers exercising "quasi-judicial" functions [48]. Blackstone's deferential oBservation that "the law will not suppose a possiBility of Bias or favour in a judge"[49] did not survive the test of time. The importance of the appearance of impartiality in judicial and quasi- judicial decision-making was highlighted in Dimes v The Proprietors of the Grand Junction Canal [50]. Lord CampBell, in that case, warned all inferior tribunals "to take care not only that in their decrees they are not influenced By their personal interest, But to avoid the appearance of laBouring under such an influence."[51] The requisite standard required appearance Beyond suspicion of Bias. It was emphasised in the oBservation By Bowen LJ in Leeson v General Council of Medical Education and Registration that [52]: "judges, like Caesar's wife, should Be aBove suspicion". [43] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 364 [87] per Gaudron J; [2000] HCA 63. [44] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 343 [3]. [45] The Institutes of Justinian, Moyle trans, 5th ed (1913), Bk IV, Title v at 172. [46] Bracton, De LegiBus et ConsuetudiniBus Angliae, WoodBine ed, Thorne trans (1977), vol 4, f 411 at 280. [47] Earl of Derby's Case [1572] EngR 116; (1613) 12 Co Rep 114 [77 ER 1390]; Inter Brookes and the Earl of Rivers (1668) Hardres 503 [145 ER 569]; Wright v Crump [1790] EngR 1142; (1702) 2 Ld Raym 766 [92 ER 12]; Between the Parishes of Great Charte and Kennington (1742) 2 Strange 1173 [93 ER 1107]. [48] Dr Bonham's Case [1572] EngR 107; (1610) 8 Co Rep 113 B [1572] EngR 107; [77 ER 646]; Day v Savadge [1792] EngR 643; (1614) HoBart 85 [80 ER 235]; City of London v Wood (1702) 12 Mod 669 [88 ER 1592]. [49] Blackstone, Commentaries on the Laws of England, (1768), Bk III, c 23 at 361. [50] [1852] EngR 789; (1852) 3 HLC 759 [10 ER 301]. [51] [1852] EngR 789; (1852) 3 HLC 759 at 793-794 [10 ER 301 at 315]. [52] (1889) 43 Ch D 366 at 385, see also at 390 per Fry LJ. THE HEINER AFFAIR 14. To be able to adequately consider this matter the Commission must be aware of the background and nature of the series of events now commonly referred to as the ‘Heiner Affair’. The Commission needs also to be aware of the chronology of subsequent events, considerations, hearings and developments that have occurred in the Heiner Affair. 15. To assist the Commission an abridged chronology has been prepared by Mr Lindeberg and is provided as Attachment 1. 16. In his pursuit of adequate and proper resolution of the Heiner Affair, Mr Lindeberg has agitated numerous State and Federal governments, statutory agencies and other forums to properly consider the events and circumstances of the Heiner Affair. 17. To assist in that activity Mr Lindeberg, in October of 2005, engaged Mr david Rofe QC, of the Sydney Bar, to examine all of the relevant material collected in relation to the Heiner Affair and to effectively conduct an audit of the matter. 18. Mr Rofe QC was admitted to the Bar in NSW in 1956 and took silk in 1974. 19. One of the functions to be conducted by Mr Rofe QC, after considering all of the material, was to advise on potential criminal activity that may have occurred during the lifetime of the Heiner Affair. 20. In August of 2007 Mr Rofe QC completed his audit and presented same to Mr Lindeberg. 21. A copy of the report is provided as Attachment 2 to this outline. (Given the size of the document it is provided in electronic format but a hard copy can be provided upon request). 22. The events that constitute the Heiner Affair are ones which were clearly in the mind of the Government when forming this Commission and, in particular, term of reference 3(e). 23. This point has been acknowledged by Mr Copley SC in his opening statement to the Commission, as follows; “Term of reference 3E are: obliges this Commission to "review the adequacy and appropriateness of any response of, and action taken by government, to allegations including any allegations of criminal conduct associated with government responses into historical child sexual aBuse in youth detention centres". Prima facie this term of reference potentially calls for a forensic examination of how all past State governments have acted in responding to historic child sex allegations in youth detention centres and investigating any alleged criminal conduct associated with such responses.