–  senior reporter Tim Moore – November 27, 2014 – 2:49PM

roco-1Member for Gladstone Liz Cunningham has urged the Commission of Inquiry. Photo: Harrison Saragossi

Queensland Independent MP Liz Cunningham has asked in State Parliament on Thursday that a special Commission of Inquiry be called to investigate the “cover-up” of the 1990 decision by the Queensland cabinet to shred documents required by a court.

Ms Cunningham does not want another investigation into the shredding of the documents, which has become known as the Heiner Affair.

She instead wants an investigation into why it took from 1990 until July 2013 – 23 years – for a properly-constituted inquiry to find that there was a prima-facie case against the 1990 Queensland Cabinet members for shredding the documents.


Queensland Attorney-General Jarrod Bleijie. Photo: Glenn Hunt

It would be similar to the 1989 Parliamentary Commission of Inquiry that saw Judge Angelo Vasta removed from office.

It is the “Why did it take so long to investigate?” Liz Cunningham wants answered, not the “What happened originally?”.

The Carmody Inquiry


Inquiry driving force Kevin Lindeberg (pic).

On July 1, 2013 Commissioner Tim Carmody found a case existed against Goss government cabinet ministers.

He reached the conclusion after spending months on the Child Protection Inquiry, which included investigating the shredding of Magistrate Noel Heiner’s inquiry document in 1990.

“The available evidence is legally sufficient, as it stands, for a jury to find that in resolving to hand the Heiner documents over to the state archivist for destruction, the premier and each participating cabinet minister meant to ensure that they could not be used in evidence if required in an anticipated judicial proceeding,” Mr Carmody wrote on July 1, 2013.

However the Office of Public Prosecutions found there was “no reasonable prospects of a conviction”.

The whistleblower

The man behind Ms Cunningham’s private member’s bill, whistleblower Kevin Lindeberg, accepts there is now no public benefit in pursuing the previous Cabinet MPs.

But Mr Lindeberg,– and now Ms Cunningham – believes there is merit in investigating the “why”.

“Why did it take 23 years for a prima-facie case to be established?” Mr Lindeberg asked repeatedly.

“…for our State Attorney to make himself the sole arbitrary decision-maker on the substance or otherwise regarding documented Heiner allegations of possible serious prima facie illegality hanging over the heads of certain known sitting Queensland judges, means, to all intents and purposes, he has usurped the authority, duty and rights of the Parliament to himself”.

The Attorney-General

Attorney-General Jarrod Bleijie told journalists there would be no further inquiry into why it took 23 years to make this finding.

However, Mr Lindeberg and Ms Cunningham believe some members of the Queensland’s judiciary have questions to answer and the Attorney-General – as a sole MP – cannot make that decision alone.

That decision has to be made by the 89 members of Queensland’s Legislative Assembly, they believe.

The Constitution

Mr Lindeberg says section 61 of the Queensland Constitution provides the legal framework for this.

It states: “A judge’s misbehaviour justifying removal from an office is proved only if the Legislative Assembly accepts a finding of a tribunal, stated in a report of the tribunal, that, on the balance of probabilities, the judge has misbehaved in a way that justifies removal from the office.”

Queensland’s Constitution requires that this inquiry be administered by three retired “judges or justices of a State or Federal superior court in Australia.”

That is what Ms Cunningham’s private members’ bill wants MPs to consider.

‘All MPs should decide’

Mr Lindeberg said he has only ever wanted the law to be obeyed.

Mr Lindeberg said each member of Parliament must now decide whether the documented allegations against the key players gave rise to a mere suspicion of possible wrongdoing.

“This is a solemn moral, ethical and legal duty on each politician now that the bill is tabled,” Mr Lindeberg said.
“It must be treated above party politics,” he said,
“It’s a seminal moment in our State’s unicameral, political, legal and constitutional history. I hope and pray that the law prevails.”

The letter

Mr Bleijie wrote to Mr Lindeberg in July 2014 and disagreed the issue needs to be taken to State Parliament.
Seven months earlier, the persistent Mr Lindeberg had taken his request to the then-Crime and Misconduct Commission for a new investigation into why it took 23 years to find a prima-facie case existed.

The CMC told Mr Lindeberg it had a “perception of bias” because it had investigated twice – before Mr Carmody found in 2013 a prima-facie case did exist – and sent it back to the Attorney-General.

In his letter back to Mr Lindeberg on July 11, Mr Bleijie wrote that he had discussed the issue with the-then Queensland Chief Justice Paul de Jersey. (Himself the subject of dire allegations of sexual impropriety)
Allegations have been ‘fully ventilated’

“Your allegations have been the subject of numerous reviews and inquiries, most recently the Queensland Child Protection Inquiry, and have been fully ventilated,” he wrote.

“I recently announced that that I had received advice from the Office of the Director of Public Prosecutions and will not be referring the matter to the Queensland Police, or issuing any ex-officio indictment in relation to it,” he wrote.

“I do not see any reason to instigate any further inquiry.”

Whistleblower calls for fresh inquiry

Mr Lindeberg believes most previous inquiries were politically aligned.

He points out the actual terms of reference for Mr Carmody’s Inquiry did not allow him to investigate anything after December 31, 1990 – the aftermath of the document shredding in the Heiner Affair.

Mr Lindeberg is the original whistleblower on Cabinet’s decision to shred documents in 1990.
The documents related to allegations of abuse and mismanagement at the John Oxley Youth Detention Centre at Wacol in the late 1980s. Magistrate Noel Heiner spearheaded the inquiry.
Ipswich solicitor Ian Berry, who is now a LNP MP, represented the manager of a youth detention centre.
Mr Lindeberg was the centre manager’s trade union representative.
A long-time battle waged by one man
Mr Lindeberg is nothing, if not persistent.
He can be pedantic, insistent and at times mildly irritating.
But is passionate, persistent – and given Commissioner Carmody’s findings in July 2013 that a prima-facie case existed – to some degree, he has been proven correct.
He is a former trade-union representative, former light opera singer, an aviation and Bert Hinkler enthusiast, and a cartoonist.
Kevin Lindeberg does not know what will happen if 2014’s parliamentarians do not ask for an inquiry, in the style of the 1989 Judge Angelo Vasta inquiry.
He says he cannot say if today’s action is his final attempt to achieve closure.

“I really can’t answer that,” he said.
“I expect the law to be complied with.
“In other words, you are saying what will you do if this aspect of the law is not complied with?”
“Well, I just can’t answer that.”
“Parliament’s overriding obligation is to obey the law.
“And, no matter the pain or political embarrassment, to always nip in the bud matters of possible judicial impropriety as Mrs Cunningham’s bill and supporting material clearly reveals.”

Mr Lindeberg said the need to have faith in the law is why he has persisted for 24 years.

“So that we Queenslanders can have complete confidence in the integrity and independence of the judiciary and never have to live in fear that our freedoms and rights might be lost through arbitrary abuse of power when you least expect it.”