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SELECT COMMITTEE ON THE LINDEBERG GRIEVANCE - 11/06/2004 - Lindeberg Grievance

ACTING CHAIR (Senator Kirk) —Members, we do have a copy of Mr MacAdam's submission that was made available to us, but it has not been published as yet. We need a motion that this submission be made public.

Senator SANTORO —I so move.

ACTING CHAIR —It is so ordered. Welcome to the hearing today. Do you have any comments to make on the capacity in which you appear?

Mr MacAdam —I am a senior lecturer in law at the Queensland University of Technology School of Law. Although I have become involved in this matter in the course of my duties, I speak in a personal capacity here, not on behalf of the QUT.

ACTING CHAIR —Would you like to make an opening statement?

Mr MacAdam —I have only ever been involved on the fringes of this matter. I cannot remember exactly when or who, but many years ago someone rang the QUT and asked if there was anyone who knew anything about statutory interpretation. It was put through to me. I became involved in the matter in this way. Mr Lindeberg and, in more recent times, Mr Grundy are the people who have had the central carriage of this. I certainly support their efforts but I am not a prime mover. I have come here today to perhaps help the committee largely within the area of my expertise. As an academic lawyer I have been involved for many years with the general principles of statutory interpretation. I have three editions of a textbook that deals with that. I have prepared an outline of my submissions, in which I have listed three broad areas:

the fundamentally flawed interpretation of section 129 of the Criminal Code, `Destroying evidence';

false claims that these matters have been investigated and nothing has been found; and

the failure of a whole range of Queensland government bodies to do their duty in relation to this matter.

I was originally involved in this matter in the interpretation of section 129 of the Criminal Code. As an appendix to my submission, I have extracted the relevant clauses, which are on the fifth page. The argument, as I understand what was originally advanced and has been picked up by a whole lot of other people anxious to say that nothing wrong was done, was to start with section 129, the key provision, `Destroying evidence'. It says, `Any person who, knowing that any book, document, or other thing of any kind, is'—and these are the key words—`or may be required in evidence in a judicial proceeding, wilfully destroys' that material creates a criminal offence.

Arguments have been advanced by all sorts of people. On the next page are the Criminal Practice Rules of 1900. They are in fact a piece of delegated or subordinate legislation. It is said that these provisions were largely drafted by Sir Samuel Griffith before his appointment as the first Chief Justice of the High Court. There is an optional form of indictment or an optional form of a charge that can be used in relation to these offences. That is extracted in the outline. It is No. 83, Destroying evidence, and refers to section 129. It says:

Knowing that a certain book [or deed (or as the case may be)], namely, a ledger (or as the case may be), was [or might be] required in evidence in an action then pending in the Supreme Court ...

It is argued that the use of those words in the optional forms of indictment means that no offence can be committed against section 129 unless proceedings have actually been commenced. This was something I wrote about as far back as 1983 in the first edition of my book. Indeed, it is perfectly clear that you cannot use after-the-event material of the executive to determine the intent of the words in the legislation that parliament has enacted. If you just think about it—and I take it that all the senators would well understand this—there is the legislative function of the Senate and there is the function of the government and often the parliament will authorise, usually by the Governor-General in council, the making of various forms of delegated or subordinate legislation. But they always follow the act. As far back as 1905 in the High Court, in the case the Great Fingal Consolidated v. Sheehan, the same Sir Samuel Griffith who allegedly drafted these Criminal Practice Rules made it perfectly clear:

I cannot assent to the argument that a regulation can be used for the purpose of construing the statute under which it is made.

Furthermore, around about the time this matter first arose, there was the High Court case of The Queen v. Rogerson. That case was about the disgraced New South Wales detective Roger Rogerson who had been charged and convicted of an offence of conspiring to pervert the course of justice. The High Court made it perfectly clear in relation to that related type offence that court proceedings did not have to be in existence in order for an offence to have occurred.

It seems to me that this position is perfectly clear and beyond doubt. I know that this committee is really looking at what was the state of play back in the past some years ago. But in more recent times there has been the case in the District Court of Queensland before Judge Samios where a Baptist pastor was prosecuted for a similar offence; no proceedings had been instituted and the judge ruled that that was not a necessary requirement—that you could not use these optional forms of indictment to read down the clear words of the act. The words of the act seem to me to be perfectly clear because they include the words `that is or may be required in evidence', which, it has been explained, have an element of the future about them.

You ask why this interpretation was originally adopted by so many people. You can only speculate about that, but it seems that we have a lack of what I would describe as true independence in this matter. It was investigated by the CJC. It transpires that Labor lawyers were involved in the investigation and arguments were advanced that, when that was discovered after the event, it was too late to remove them. I would have thought that if someone was approached that had close connections—and this is the Labor Party—with the Labor Party, rather than wait for the employer to say, `You should not act,' it was incumbent upon those persons themselves to say, `I should not act in this matter.' Even if they act truly independently, that will never be accepted by the wider community. There will always be this perception that there is something amiss. It seems to me that the original determination that was advanced led to everything else. We had a whole host of other government lawyers and a whole host of other officials who simply adopted that line.

You ask yourself, `Well, why might that happen?' The thing that I and some of my professional colleagues could never figure is when the problem arose in the first place, rather than destroy the documents, if it was alleged the inquiry had not been properly appointed, why was not a short piece of retrospective legislation passed—not that I am a great one favouring retrospective legislation but this was in the nature of a piece of validating legislation which I think legislation committees tend to endorse—why was not a simple piece of legislation passed saying that Mr Heiner was at all times appointed under the commissions of inquiry act? That would have done away with all the problems.

You then ask, `Why didn't we go down that path?' For many, many years, until Mr Grundy was involved, noone knew that what was being covered up here was serious child abuse. It was thought that this was some intra- or inter-union dispute that noone quite understood. When we look further, it seems to me if we look back in retrospect this can be explained something like the problems that some of the churches have been experiencing—the former Governor-General, Archbishop Hollingworth, and I notice just in the last two days in the paper the archbishop of Adelaide, George—that the people connected with the organisation are too keen to protect the organisation rather than doing the right thing. It seems to me that similar sorts of things occurred in this matter. I am involved assisting another organisation in relation to electrical deaths in Queensland—a matter about which this committee is in no way interested but similar things occur there. When it is alleged the government has done the wrong thing, there seem to be all spurious reasons constantly advanced why no action should be taken.

A second point that arises is that there are these constant claims that have been made, and from reading some material apparently made before former committees of the Senate, that all these matters have been investigated, and the word keeps cropping up to the nth degree, and nothing has been found. The current Premier of Queensland, Peter Beattie, constantly comes up with that almost religious mantra. To my way of thinking, to the extent this matter was investigated by government lawyers and was investigated by Labor lawyers that is correct; nothing was found. But the moment two independent lawyers were appointed, Tony Morris QC and Edward Howard, and all they were allowed to do was follow the paper trail, they found that it was open to conclude that very serious criminal offences had been committed. In my written submission to you I have taken extracts from that report and highlighted or put pen marks around some of the key provisions which are contained in there.

I note that at an earlier point in time the Criminal Justice Commission has come before former committees and said, `This has been investigated and nothing has been found.' Paragraph 24 is instructive, where Morris and Howard say:

We have no doubt that both individuals, the then chairman of the CJC, Mr Clair, and the new Premier, Mr Beattie, honestly believe that the matters the subject of our investigation had been exhaustively and independently scrutinised. We make no criticism of their scepticism in respect of our investigation. Nonetheless, we imagine that the results of our investigation must surely shake their confidence in the exhaustiveness—we say nothing as to the independence—of previous investigations.

It seems to me that at earlier points in time the spurious reasons that were trotted out for originally doing nothing were trotted out before the Senate committees. To the extent that some of these reasons are clearly not maintainable, I believe it is open to conclude that the earlier Senate committees were misled. People might say to me, `Well, about law, lawyers are forever disagreeing. We have regular decisions in the High Court where the High Court splits four-three. Is this not just a matter like this where it was open to go one way, you thought the other way and thought there is nothing inherently wrong?' Very often that is the case, but this case seems to go so far the other way that the grounds advanced are so clearly not maintainable that you then ask yourself whether there were really other reasons why this occurred.

Here it was relatively junior people asked to do things about the Queensland cabinet. It was suggested that the whole of the Queensland cabinet ought to have been prosecuted for these matters. Maybe that was all too difficult. But what I have been looking at there are the details of it, and I notice one ground of this committee's terms of reference is not only the past but also the future. It is the future that concerns me. I have been talking here about how the facts were that it was a Labor government and Labor lawyers and government lawyers were involved.

I hope it does not displease members of the committee but I have a strong suspicion that if other parties were in power exactly the same thing would have happened. These people—these organs of government—believe that their job is to protect the executive government instead of to fulfil their obligations. Looking to the future in this, you will see on page 3 of my submission a great long list of bodies that I believe have let Queenslanders down. These bodies have the function of assisting the executive government but many of them have been established, at least in part, to protect us from the excesses of the executive government. We have the Criminal Justice Commission, Crown Law, the Crown Solicitor, the Director of Public Prosecutions, the Attorney-General, the Queensland Police Service, the Ombudsman, the Information Commissioner, the State Archivist and the department of family services. I believe that all those bodies and organisations have let Queenslanders down simply because they did not do their job. They thought their job was to protect the executive government. In my submission that is clearly not correct.

Mr Lindeberg—I am not sure whether he knew what he was writing at the time—presented a so-called one-man petition to the Queensland parliament. It ran to about 80 pages. I read that petition. It identified a crucial point: these organs of government simply do not do what is required of them. Since then other bodies could be mentioned as having done the wrong thing: the Queensland parliament as a whole; the Speaker; the parliamentary committees, particularly the Parliamentary Criminal Justice Committee; Premier Goss, a lawyer who was in the cabinet at the time the documents were destroyed; the Forde inquiry; National Party Premier Rob Borbidge, who initially investigated the matter but, for reasons that were totally unexplained, let it drop; and of course the current Premier. It has been investigated to the nth degree and nothing has been found.

Sometimes in matters like this people say that there is some conspiracy involved but it occurs to me that maybe things can be looked at in a different way. I would be very surprised if there were evidence that someone rang up someone and said, `Do this; it will solve the problems.' I am reminded of the excellent British TV shows Yes, Minister and Yes, Prime Minister. In one of those shows Jim Hacker asked Sir Humphrey Appleby if he appointed a committee of inquiry how he could ensure getting the results he wanted. His idea was to ring up the chairperson of the inquiry and tell them what to do but Sir Humphrey said, `No, you cannot do that. You simply appoint a sound person to the inquiry, and sound people know what is expected of them. You do not have to do anything.' I suspect that that has occurred: people have thought that this was expected of them.

But we have the persistence of Mr Lindeberg, at great personal cost to himself. We have attempts to disparage his determined efforts. In more recent times we have had Mr Grundy. I have had dealings with Mr Grundy about this and other matters over the years, and he strikes me as an absolutely first-class journalist. Members of the committee as politicians might be open to the opinion that many journalists never allow the facts to get in the road of a good story. I have found Mr Grundy to be the exact opposite of that: he will not publish anything unless he has confirmed sources. It reminds me of the editor of the Washington Post who would not let his two journalists run stories about Watergate. I think his requirement was that he needed three independent sources.

Serious matters have arisen here. It has gone on for a long time but something ultimately needs to be done, not only for the past but also to protect us in the future. The prosecution of the Baptist pastor in Queensland seems to me to indicate that in Queensland there is one rule for ordinary people and another rule for the high and mighty.

CHAIR —That is very good evidence, Mr MacAdam. Senator Kirk, do you have a question?

Senator KIRK —No, I will defer to others at this point.

Senator SANTORO —I could ask a few questions if nobody else wants to. Mr MacAdam, thank you for your evidence. I found it very interesting and very stimulating. You talk about appointing a sound person. Within your formal submission you then proceed to outline a series of government bodies or statutory authorities and advisers, a lot of whom strike me as being umpires; they are people who often have to express judgment about conflicting submissions. Often those submissions are submissions from ordinary people—people who ordinarily do not have a lot of power within them or around them, supporting them. What you have outlined is a very sad state of affairs in terms of what you think exists in Queensland.

Mr MacAdam —I think it exists in Queensland but I suspect—although I do not have the detailed knowledge—it exists in a lot of other places as well.

Senator SANTORO —We are concerned about Queensland here today.

Mr MacAdam —Yes, Queensland in particular. We had an incident a year or two ago where an age pensioner at Hervey Bay fed a few undersized whiting to a pelican he had befriended. He was prosecuted. But we seem to have different standards in relation to other matters. I am reminded of a recent incident in Queensland—the Winegate matter—where it was said that the police commissioner was personally involved and that there were three legal opinions. I have been involved on a pro bono basis trying to assist people where I believed that they should not be prosecuted and attempted to make submissions, and you get the line: `Tell it to the magistrate; we don't interfere.' There just seem to be double standards.

Senator SANTORO —Back at another time in this place—I frequented it for 12 years as a state member—one of my pet interests, at least initially, was the politicisation of the public service and a lot of the institutions. I was very heavily condemned for raising the issue of cronyism. I used to talk about cronyism a lot. Do you think there is a culture of cronyism and politicisation? I ask the question stimulated by your statement about the appointment of sound people. Sound people, if they are allowed to remain for long periods of time in the high office to which they are appointed, are very consistent in delivering the right outcomes, if I put it that way. Is that what is happening here?

Mr MacAdam —I think there are two levels of this. Looking at the holders of some of these offices—and we are talking between 10 and 14 years ago—I would say some of the people have no known political connections. I would not say, `That person is a Labor man; that person is a Liberal.' You just do not know. They seem to be virtually apolitical. But that category of person, notwithstanding them having no known associations with any government, seems to be more the servant of the government and they do not see that, if the government is doing something wrong, they should intervene to protect the rights of the citizen. But I guess I am really getting away from my area of expertise. Maybe you should have a political scientist here. I know there is that conflict of views. I believe that, in the United States, when there is change of administration the top 5,000 public officials go out and they bring in 5,000 of their own. I have to be a bit careful: I am quite happy to comment about the law, but my opinion about that issue is no better or worse than yours or that of the other people in the room.

Senator SANTORO —Drawing on your familiarity with the people involved, particularly Mr Lindeberg and the people who are advising Mr Lindeberg—including some very distinguished colleagues of yours—how credible is the advice structure?

Mr MacAdam —Since I first got involved in this I always worry that I have overlooked something, that I have made a mistake and I will be made to look foolish—and I guess we all try to avoid that. But I am actually comforted in this, in that the opinion that I independently reached was reached by others. I refer to people like Ian Callinan, who before his elevation to the High Court was regarded as the dominant QC in Queensland. A person who was appointed to the war crimes prosecution by, I think, the Hawke government, the late Bob Greenwood, reached a similar conclusion. I have seen where a retired judge of the Supreme Court, Jim Thomas, known for his integrity, has been reported as saying that there was no reasonable basis upon which this approach could be adopted. So I am comforted by the fact that I—and I am only an academic lawyer, a senior lecturer in law—am in the company of people who hold the same opinion.

Senator SANTORO —The comment has been made today about the role of the Crown Solicitor. How unusual would it be for government to obtain advice from the Crown Solicitor, not accept it and perhaps look beyond that advice for additional advice, particularly in the contentious circumstances that are played in relation to the issue—and cabinet and government would have known that it was a contentious issue—regarding the application of section 129? There are a lot of people who suggest that having received that advice that is the end of the matter.

Mr MacAdam —I do not see it as that. I very regularly tell people, `Don't let lawyers or accountants tell you what to do. Get advice from lawyers and accountants and form your own opinion.' Some things you just know are not right, regardless of whether or not lawyers tell you they are legal. The cabinet had parliamentarians of considerable experience. Surely the first thing that would have cropped into their minds was, `Let's pass a piece of retrospective legislation.' They had the numbers in the parliament. Why did they not do that?

Senator SANTORO —Or table the report in the parliament.

Mr MacAdam —Or that, yes; there are various other ways. Of course, it was said that there was no protection from defamation. I do not purport to be an expert in defamation but I know a little bit about it. If you set up under the Commissions of Inquiry Act there is absolute protection. However, if it is not set up under the Commissions of Inquiry Act, at least the defence of qualified privilege in any event would cover most, if not all, of what I understand the Heiner committee was inquiring about. But it then transpires—and I am relying upon what other people have said—that there was this very serious child abuse. Why would it not be in everyone's interests for all that to come out? It is said—and I believe, rightly—that some senior members of the clergy have not done the right thing by the victims of abuse, but can we not say exactly the same thing about some of these people in government?

Senator SANTORO —One last question: from what you have heard and read over the past number of years, particularly during the years when the Senate has considered this matter either directly or in a peripheral manner, do you believe that this committee has reasonable grounds to investigate possible contempt of a Senate committee or the Senate itself?

Mr MacAdam —I would like not to comment on contempt because it is clearly beyond my area of expertise to know the law of contempt of the Senate.

Senator SANTORO —Let me ask you in a different way. Do you think that previous Senate committees have been misled?

Mr MacAdam —Yes. I clearly believe they have been misled.

CHAIR —Deliberately misled or just misled?

Mr MacAdam —It is hard to say. You could look at it two ways and you could say we had on previous occasions a whole lot of honest bumblers.

Senator SANTORO —So all those people I listed before in my questioning of Mr Lindeberg, all those highly qualified and highly placed people, you would describe as `honest bumblers'?

Mr MacAdam —In light of what has been done here, the arguments that were advanced for doing nothing are clearly not maintainable. The really condemning report is that executive summary of the Morris-Howard report. They simply looked at the papers and said it was open to a conclusion that these very serious criminal offences had been committed. The other thing of course that you can conclude—and these are findings of fact—is that the bumbling has gone so far that this was not honest bumbling but something more than that.

CHAIR —There have been overtones of political persuasion or looking after mates, but I remind you that the government you referred to was actually followed by a government of a different political persuasion. That subsequent government, at cabinet level, made a decision not to pursue the grievance. So here we have a different government of a different political persuasion which had an opportunity to do so but did not pursue the grievance. How do you account for that? That is one of the mysteries to me.

Mr MacAdam —I have wondered about that myself. I am not sure that it was a cabinet decision not to pursue the grievance. I am not aware that it was a cabinet decision.

CHAIR —Perhaps we should be asking Senator Santoro about that. I think he led us to believe it was a cabinet decision.

Senator SANTORO —I humbly submit to you that I am not the witness here; I am actually the person asking the questions with you and the other members of the committee. I respectfully put that to you. The other thing is that, as I have explained to you and to the committee, I am restricted by cabinet confidentiality. I am still taking some advice in relation to that and how much I could say in a public forum or a forum under privilege, such as this one. I am not the person under cross-examination here. The issues being fundamentally questioned here are not those that pertain to the government that I was a member of.

CHAIR —I raised that because we are under the belief that it was a cabinet decision. Who should we be calling, Mr MacAdam?

Mr MacAdam —My understanding of this is that Denver Beanland, a former Liberal member for Indooroopilly, who was the opposition Attorney-General spokesman, initially raised this issue. He wrote to the then Director of Public Prosecutions, Royce Miller—who, until this matter, had a very good reputation. He then wrote a response to Denver Beanland when he was in opposition coming up with this argument that you could use the Criminal Practice Rules to read down the clear words of the act.

I was surprised, given his reputation, that he would allow his name to go on something like that, because it seemed to me so fundamentally wrong, but I dismissed it—that it might very well be what a busy man would do in responding to an opposition backbencher. When the government changed, Denver Beanland became the Attorney-General. His director-general was Kevin Martin. I understand that initially they had the carriage of this matter. When information was gathered, it was taken out of their hands and dealt with in the premier's department by a man I have never met—I would not know him if he came into the room—known as John Sosso. The matter then, for totally unexplained reasons, just died. It is said that Royce Miller, Director of Public Prosecutions, was asked for a second opinion. As I understand it, that second opinion never went anywhere near cabinet. It seems to me that if this committee could get its hands on that second opinion by Royce Miller, it might give some answer to your question.

I have heard all sorts of completely spurious reasons why nothing was done. The reasons are so spurious and fanciful I would not even repeat them in an open gallery. If you pressed me and you wanted to close the hearing I could tell you the ridiculous things that I have heard. Then the government changed. We have never had an explanation and I think the people of Queensland, including particularly Mr Lindeberg, are entitled to an explanation. On the face of it, something should have happened but nothing did. Then when the Baptist pastor is prosecuted that is an even more fundamental reason why we should apply the same standards to everyone in Queensland.

Senator EGGLESTON —I have found your evidence very interesting. This is a very complex story with many threads in it. In a way you have covered what I was going to ask you as a question when you said that it could be just a series of events caused by bumbling incompetence. I remember seeing a film a few years ago where there was one story when a person got off a train and another story when the person stayed on the train—there were totally different outcomes. What seems to underlie a lot of the evidence that we have heard today is a sort of conspiracy theory that there really was a conspiracy to cover up things and to hide the fact that there was apparent child abuse at the John Oxley centre and that the people responsible were not pursued. Another alternative is the one you raised as an alternative. For example, the Senate Select Committee on Unresolved Whistleblower Cases commented in its report on page 60:

... the shredding—

of the Heiner evidence—

appears to have been a pragmatic solution to a difficult problem.

What the committee was referring to there was the problem with Mr Heiner's appointment so that he and his informants to his inquiry were vulnerable to a defamation action. The committee then went on to observe:

... the shredding of the Heiner documents may have been an exercise in poor judgment.

Is it not possible perhaps that this is really all this incident is about? The cabinet perhaps did not turn its mind to other potential approaches such as retrospective legislation. You suggested tabling the documents in the parliament and retrospective legislation to appoint Mr Heiner under the correct act. So that is what happens—bumbling. Then we go to the state archivist. We have to remember that the cabinet was acting on the advice of one of these bodies which you said were set up, at least in part, to protect citizens against the excesses of the executive—in this case the Crown Solicitor. The state archivist then in turn accepted the Crown Solicitor's advice in good faith. Later, when there were questions raised, we had another one of these bodies, the Criminal Justice Commission, finding that there was no case to answer. Then twice these matters have been to a Senate Committee on Privileges which has twice found that there was no question of the Senate being misled or any case of that kind to answer.

Is it not possible, in terms of what you have said, that that kind of scenario is equally as possible an answer to this rather complex story as the story of endless conspiracies, which we have been asked to accept today? Is it not possible that it was just a bit of bumbling on the part of the cabinet perhaps for not seeking other advice and what has happened has flowed from that through to the Criminal Justice Commission and so on to the Senate Committee on Privileges? In the end, it may be that indeed there were cases of child abuse in the John Oxley centre and other matters to do with the interpretation of this section 129 of your Criminal Code. Does it not really belong in the arena of the state of Queensland to sort those problems out? Here we have seen twice, as I have said, the Senate Privileges Committee not finding a case to answer. I wonder whether this is really an appropriate forum to be considering these matters. There are real issues, it seems here, about child abuse and I would have thought perhaps they are matters which Queensland should be addressing.

Mr MacAdam —Could I answer that in a number of ways. Firstly, in relation to the point I made before about a conspiracy, a conspiracy is when I have a chat to you, Senator, and I say, `Senator, let's play a trick on the chairman of this committee. You talk to him and I'll pull his chair out from underneath him.' That is a conspiracy where you and I agree to do something. But I do not know that there is hard evidence that it was like that—that people spoke and said, `We are going to do this.' I have very grave doubts if anyone from the cabinet ever spoken to Mr Nunan, the investigating officer at the Criminal Justice Commission.

Let us have a very broad definition of conspiracy that might cover that, rather than specific discussions and agreed courses of action. What you say might be relevant, originally, to the cabinet. We might say: `The cabinet was an inexperienced cabinet. It was new to government. Although they knew of child abuse and although there were experienced parliamentarians there, they just went down the wrong path.' In answer to that at the cabinet level, we have the statement I saw on the Channel 9 Sunday program some years ago, where Pat Comben, who seems to have a reasonable reputation in Queensland for being a decent and honest bloke, said, `Yes, the cabinet knew there was child abuse involved in this.'

But when we move on from there, that is when it seems to me to get much worse. Lawyers would say, `We can't have documents destroyed. That harms the whole nature of legal proceedings.' When we go on from there, and Mr Lindeberg discovers what goes on and starts complaining to the CJC, it is then a bit hard to say that all the goings-on from there can just be excused in that manner. The CJC not only reached their original clearly wrong conclusion but came to the Senate and repeated that clearly wrong conclusion. They have not sought to correct it. As far as I am aware, even to date, the new Crime and Misconduct Commission has not sought in any way to say, `What we did back there was clearly wrong.'

CHAIR —Despite the fact that there might be repetition, can you just repeat why there was that misleading by the CJC.

Mr MacAdam —When they came back to the Senate inquiries—and I am only going on material that I have read—they seemed to want to maintain through those Senate inquiries that they had done the right thing, that there could be no offence committed by the cabinet, that they had rightly dismissed Mr Lindeberg's original claim. It seems to me that that is where the concerns started about the Senate being misled. They made the wrong decision and we left it there. Then they came back and they kept on saying that that wrong decision was right.

CHAIR —For the Senate record, why did they make that wrong decision?

Mr MacAdam —Why did they make the wrong decision? It was a matter of conflict of interest. You can have actual conflicts of interest or perceived conflicts of interest. I, from time to time, have been asked to sit on judiciary bodies involving sporting bodies. I have said, `I can bring my mind to this issue and deal with it clearly.' But some other people will say, `I know that person and therefore I will not deal with it fairly.' So they do not sit. That is what happened here. Mr Nunan, with very clear connections to the Labor Party, a Labor lawyer with close involvement in his working days with Premier Goss, should never have been allowed to investigate it. The CJC should never have allowed it and he himself should have said, `No, you need to get someone investigating these sorts of matters with no known political affiliations.'

Senator SANTORO —Was he what you would describe as a sound person?

Mr MacAdam —I think clearly.

Senator EGGLESTON —We are hearing a lot of unsubstantiated allegations. You have said that a person on the Channel 9 Sunday program said he knew that the Queensland cabinet knew that there was child abuse.

Mr MacAdam —No. Pat Comben was a member of the Queensland cabinet at the time.

Senator EGGLESTON —I did not know that because I am not a Queenslander.

Mr MacAdam —He was the minister for the environment.

Senator SANTORO —He might have been the minister for education at that stage.

Mr MacAdam —He sat in the cabinet. He said: `Yes, when we were asked to destroy these documents, the cabinet knew in general terms that they concerned issues of child abuse.'

Senator EGGLESTON —But not in specific terms. Is that what you are saying?

Mr MacAdam —He did not go on with that. Maybe you could ask Mr Comben and members of the cabinet what they knew. But very clearly the child abuse that was covered up—through Mr Grundy's investigations—is of a very serious level.

Senator EGGLESTON —What we are talking about is the misleading of Senate committees. This begins with the misleading evidence given before the Senate Select Committee on Unresolved Whistleblower Cases and then two Senate Privileges Committee reports which looked into that and found that there was no case to answer. The onus falls on the witnesses before us to show very clearly and specifically how and where these Senate committees were misled.

Mr MacAdam —I believe they were misled through the maintenance of the view that the cabinet and all those other parties could be absolved on the basis that no legal proceedings had commenced. That clearly was not a maintainable view. I think I have expressed elsewhere that, if that had been written in a first-year law assignment, the person would have got a fail, and I stand by that.

Senator EGGLESTON —Nevertheless, the Crown Solicitor of the day advised the cabinet that that was a permissible course of action. As has been said today, lawyers are notorious for disagreeing over the meaning of the same set of facts. Essentially, aren't you just saying that there is another point of view about this?

Mr MacAdam —I am saying that, but I am always one to concede that there is another point of view and that I am not necessarily right. Often the High Court splits 4-3 and you cannot say that three judges were wrong and four were right; that is just the mechanism. It seems to me that this case goes far beyond that sort of thing.

Senator EGGLESTON —In this case, the majority, if you like, was the Crown Solicitor. He had an opinion, and that was held by the majority of four in the High Court—that was the opinion which held the day. Isn't that a fair comment? People might have disagreed, but that was the one with the power of force.

Mr MacAdam —The original advice was to destroy the documents because there was no protection against defamation. I have not seen the documents of the Crown Solicitor; I have read the Morris report, and my understanding of that is that the Crown Solicitor did not even apply his mind to the issue of section 129.

Senator EGGLESTON —That is an interesting comment, but I would like to see some evidence that supports that.

Mr MacAdam —I am only speaking from recollection on the Morris and Howard report. The Morris and Howard report seems to talk about the Crown Solicitor giving advice to destroy the documents. It seems that the idea that nothing wrong had been done only arose when Mr Lindeberg went to the CJC and the CJC said that legal proceedings had to have actually been commenced for an offence to have been committed. I cannot recollect whether the Crown Solicitor actually gave any advice on section 129 at that earlier point.

Senator EGGLESTON —I am not in a position to say, but I assumed that that was the case, that—as was said earlier this morning—it was not until March 2004 in the Ensbey case that there was a determination that perhaps what had to be taken into account as well was the fact that there might be impending legal action rather than legal action which was actually under way and perhaps that that was an evolution of the law from a position some years earlier in interpreting that clause.

Mr MacAdam —I think that is clearly wrong. You had the High Court decision in Rogerson in 1992 and you had the clear words of the act. In addition to the decision in the Ensbey case, the point that you cannot use those rules to read down the clear words of the act—not in the context of 129 but in a more general context—has been confirmed by our Court of Appeal. It was never maintainable. It is not maintainable now, it was not maintainable in 1989 and it was not maintainable at any point in between. But, in any event, it is not too late. The limitation period does not apply in respect of indictable offences. Because of inaction in these matters, certain other offences, while known as simple offences in Queensland, have been found to have been likely to have been committed, but it was beyond the general one-year limitation period to institute proceedings in respect of them. But, as we have seen in Queensland in recent times, they have been prosecuting people for offences that took place in the middle sixties involving sexual offences against children. So there is no limitation period. If they were wrong then the matter should be reviewed now in light of what happened to the Baptist pastor.

Senator SANTORO —So you are saying that the precedent existed. Quite apart from the explicitness of the actual provisions within the statute, case law existed.

Mr MacAdam —The case law did not specifically exist on section 129 of the Criminal Code but case law existed in respect of similar provisions from other jurisdictions.

Senator SANTORO —Which was the evidence of Mr Lindeberg this morning.

Mr MacAdam —That is why I have been involved. The principle of interpretation was clearly established by the High Court back in 1905 or 1906 that you could not use these sorts of arguments. I would have thought that senators would well appreciate that—that they would not like the law as endorsed by them to be modified because of what the executive government does after the event.

Senator EGGLESTON —It is modified by the High Court all the time.

Mr MacAdam —That is a question of interpretation. That is what the courts are doing. They are interpreting the law. But what is alleged here is that by using the Criminal Practice Rules—the after-the-event actions of the executive—it has altered the meaning of the law.

Senator EGGLESTON —I want to finish on one thing. The core of all this is whether or not the Criminal Justice Commission provided false or misleading evidence to the Senate. We have to thereby come to the conclusion that the advice the CJC provided was not bona fide—that they knew that they were providing false evidence to the Senate—if we are going to find that the Senate has been misled and that a contempt has occurred. Would you like to give your views about the bona fides of the CJC's advice to the original Senate committee—possible false or misleading evidence to the Select Committee on Unresolved Whistleblower Cases?

Mr MacAdam —In relation to the position I repeat that I only have the vaguest knowledge about the law of contempt as it applies to the chambers of parliament.

Senator EGGLESTON —Not about the contempt; about the bona fides of the CJC.

Mr MacAdam —In relation to things being misleading, there are various levels at which things can be regarded as misleading. To use the jargon of the common law they can be fraudulently misleading, innocently misleading or negligently misleading. So far as the question of fraud, in a famous House of Lords case, Derry v. Peek, there were three tests for something being fraudulent: you knew it to be false, you did not believe it to be true or you had a reckless disregard as to whether it was true or false. Unless you have hard evidence—someone heard someone say something, you have phone taps or something like that—it is always difficult to prove the first thing. But in light of reading the material after the event and the Morris-Howard report, it may very well be that you are able to conclude that it was something more than honest bumbling—that these people made a wrong decision to protect the cabinet and they simply did what was necessary after the event to protect themselves.

Senator EGGLESTON —Are you prepared to comment definitively on the CJC? That is what we have to do.

Mr MacAdam —Indeed, I think that is your function. There are some things—

Senator EGGLESTON —We need your evidence upon which to base a decision—or evidence from people like you.

Mr MacAdam —I am not in a position to give hard evidence and to say that I know that the CJC deliberately misled the Senate. It is a matter of looking at the evidence that is before you, looking at what was said originally, looking at it in the light of what has transpired. I believe that an absolute key document for you is the Morris and Howard report—looking at it in the light of the Morris and Howard report. It is for you to look at all that information, maybe call other witnesses and say, after hearing all of this, `This was just honest bumbling,' or `We think it was something significantly more than that.' I would not think it is like what the CJC did to Mr Lindeberg. It was summarily dismissed. I would say that there appears to be enough material before you that this committee should at least make further inquiries.

CHAIR —It is probably a good time to take a break. We would like you to come back after afternoon tea. During the break, I would like to give you a letter from the Crown Solicitor dated 23 January 1990 for your comment. I think this could be quite persuasive.

Proceedings suspended from 3.31 p.m. to 3.51 p.m.

ACTING CHAIR (Senator Kirk)—We will continue with questions to Mr MacAdam.

Senator HARRIS —I would like to ask you a series of questions in relation to your position at the university, teaching law. When I look at the Criminal Code Act 1899, I am intrigued, to some extent, that it does not carry the preface that we normally see today whereby the act binds the Crown. I will read the preamble for the committee. It says:

Whereas it is desirable to declare, consolidate, and amend the Criminal Law;

Be it enacted and declared by the Queen's Most Excellent Majesty, by and with the advice and consent of the Legislative Council and Legislative Assembly of Queensland in Parliament assembled, and by the authority of the same, as follows—

An Act to establish a Code of Criminal Law.

In our modern legislation, the legislation would then go on and give the short title, as this does:

This Act may be cited as the Criminal Code Act 1899.

Then it makes a reference to binding the Crown. Because that is not in the Criminal Code, are you of the opinion that that in any way absolves the Crown from the content of the act?

Mr MacAdam —No. Some years ago I had noticed myself that there was not an express provision in the code that it does bind the Crown. I explored it with one of my colleagues who is a former senior crown prosecutor. I know that, under the rule of statutory interpretation, the Crown is not bound unless by express provision or necessary implication. Once it was very hard to get a necessary implication. I have written in my book about the case of Bropho, which must have been about 10 years ago now. It was a case that arose in Western Australia relating to the old Swan Brewery site: Bropho v. Western Australia (1990) 171 CLR 1. In that case, the High Court has now said it is much easier to establish that the Crown is bound by implication. I know a bit about criminal law, but I do not profess to be a top expert on it. But any good criminal lawyer will tell you that, in the absence of a provision of that nature, the Crown is still bound. The simple example that is always trotted out is: what happens if the Crown murders someone? You just have to ask that question. Indeed, it is generally accepted that the provisions of the Criminal Code apply to the Crown.

Senator HARRIS —Going directly to section 129 of the Criminal Code 1899, the opening phrase is `Any person'. In light of the answer that you have just given, is it reasonable to assume that you believe that the cabinet, as an entity made up of individuals, is also bound by this same Criminal Code?

Mr MacAdam —Yes. I think that would be generally accepted. I am not sure if the cabinet is a separate legal entity, but the individuals that make it up would generally be bound by the provisions of the Criminal Code, as they would generally be bound by the general law of Queensland.

Senator HARRIS —Moving on then, 129 goes on to say:

Any person who, knowing that any book, document, or other thing of any kind, is or may be required ...

If it was the intention of the parliament to only have that explicitly apply to a future act, would the parliament have expressed what I believe is two dimensions: `is', which is present, and `may'? I do not believe that is an expression of possibility; I believe that it is the parliament's will to express two distinct time frames. Taking into account your position as a lecturer, what would be your position in relation to that phrasing?

Mr MacAdam —I think that is clearly right. Judge Samios, in the matter involving the Baptist pastor, has ruled accordingly. If you look further—if you go back to section 119 of the code, which I have extracted in the appendix to my submissions—it says:

... “judicial proceeding” includes any proceeding had or taken in or before any court ...

There is an argument that is advanced that somehow that means that unless the proceedings are in existence it is not a judicial proceeding. But such an argument, I believe, is spurious because the word `includes' is used. Senators would know that often in legislation something is said to `mean' something or something is said to `include' something. Where the word `means' is used, that is an exhaustive statement. Where the word `includes' is used, that is an inclusive statement—it means what is in the definition plus the ordinary meaning of the word.

There is another well-known principle of interpretation. If there are two or more interpretations open, consider the consequences of both. The consequences of the other interpretation here are quite ludicrous: `We know these things might be needed for litigation or litigation might be immediately pending, so let's destroy them all.' If that represented the general law, that is what people would do in many cases to escape liability. We are not talking about governments. That is what you would do in business and in your own personal affairs—destroy them. Obviously, that interpretation is absurd. It would lead to the act being unjust, capricious and irrational, and there are a whole host of cases from the High Court, the House of Lords and the Privy Council that say you do not interpret things in that manner.

The element `or may be required' is clearly widely worded. It may be that it is required for some future thing. There is that British American Tobacco case involving the unfortunate woman who has since passed away, Rolah McCabe. That was a case where, although ultimately she was unsuccessful in obtaining a summary judgment, the Victorian Court of Appeal reinforced those proceedings, as they were bound to—reaffirmed the Rogerson case—saying that you do not need proceedings to be in existence in order for these sorts of things to occur.

Senator HARRIS —Do you believe that if it were the intention of the parliament—and I stress `the intention of the parliament'—that it be only documents that are required at foot, would the parliament have placed a singular time frame in 129? In other words, if it were the intention of the parliament to only take documents into consideration where a writ has been issued, in your opinion would 129 read `or any other thing of any other kind' is required in evidence?

Mr MacAdam —Yes. There is a well-known principle of interpretation that supports that. In legislation, except in very exceptional circumstances, words are assumed not to be what is known as mere `surplusage'—that is, where additional words are added, there is a very strong presumption that they have some meaning. That is very clearly the interpretation that is correct—it is the only interpretation that was ever maintainable—and the arguments that have been advanced that say you can do whatever you like if proceedings have not yet been instituted are ridiculous.

Senator HARRIS —Are you aware of any other situation or case law where the same opinion had been given in relation to section 129 and was then adopted?

Mr MacAdam —I have done a bit of research to see if I can turn up anything, but the only one I am specifically aware of is the recent case involving the Baptist pastor, over which District Court Judge Nick Samios presided. I was surprised that this old discredited submission was trotted out again. He clearly rejected it.

Senator HARRIS —In relation to the Criminal Practice Rules, do you believe it is possible for regulations to have a greater head of power than the act from which they derive their power?

Mr MacAdam —Generally that is not correct, although we have the largely discredited so-called Henry VIII clauses, whereby the parliament can authorise amendment of an act by regulations. I think there is a universal approach by all the scrutiny committees to say that such clauses are generally undesirable and there are very limited categories where they are regarded as not being offensive. But the general principle is overwhelming.

Senator HARRIS —As a lecturer, is there any doubt in your mind that the abuse of a child is a criminal act?

Mr MacAdam —I have not seen the document first hand but, if there is admissible evidence in relation to the reported allegations of abuse, there is no doubt that criminal offences have been committed there.

Senator HARRIS —The question goes specifically to the clinical definition. We are not talking about evidence; it is clearly the structure of the situation. Is the abuse of a child a criminal act?

Mr MacAdam —It is not normally expressed in those precise terms. We have the general label `child abuse'. Some people would allege that if you give your kids a whack on the bottom for being naughty it is child abuse. It is probably fair to say that most Australians do not think that that is child abuse. At a further level there are a whole lot of specific offences. Some are under the Criminal Code. Some are under acts—I am not sure of the current names, but acts like the Children Services Tribunal Act—whereby a whole range of specific things amount to child abuse. For instance, some of the provisions in the Criminal Code about child sexual abuse are quite specific, and the seriousness of the offence can depend upon the age of the person.

Senator HARRIS —Following that line further, is it material how a person acquires material knowledge of an alleged fact?

Mr MacAdam —I like to be helpful. I know enough to answer the questions I have answered so far. I claim, rightly or wrongly, to be an expert on statutory interpretation and I know a fair bit about criminal law, but that is getting beyond my level of expertise. I might give you a wrong answer.

Senator HARRIS —Maybe I need to rephrase that in a slightly different manner. If a person has certain evidence put before them and they read that evidence, is that in itself a person having material knowledge? What I am looking for is—

Mr MacAdam —Something I know a bit more about is a concept under the Criminal Justice Commission Act, and now under the Crime and Misconduct Act, in relation to official misconduct which I believe is partly involved in this case. It is that, if the head of a unit of public administration has reasonable cause to believe that there is official misconduct, they must report it or they commit an offence themselves. It is then about the appropriate level of satisfaction. If you had a written report before you from an apparently credible person it would be reasonable to say that you might have a reasonable suspicion. In the end, fortunately, the ultimate guilt or innocence in serious criminal matters is determined by the jury. But with those sorts of things, if you have some reasonable evidence or reasonable suspicion, you need to investigate it further or refer it to the investigating bodies. In Queensland if you are the head of a unit of public administration and you have a reasonable suspicion and fail to pass it on you commit a separate offence yourself, even if you are in no way involved in the original child abuse or, indeed, in any other criminal offence.

Senator HARRIS —So that premise, again, would place a duty of care on a minister in a cabinet which is being asked to agree to the shredding of documents? Would it be reasonable to expect that that minister would make themselves acquainted with the material facts contained within the documents that they are being asked to shred?

Mr MacAdam —You would like to think so, but it might be more appropriate to ask senators who are associated with ministers. Maybe not everyone reads every single document. I know from personal experience of sitting on committees that you are so pressed with other things that perhaps you scan things, but you would like to think that in serious matters at least some people would need to look at them. In this matter it may very well be that some members of the cabinet say, `I was out of the cabinet room at the time and I didn't know anything about it; I was more worried about dealing with these amendments to the stock inspectors act,' or something like that.

Senator HARRIS —If it became clear to a Senate committee that a decision had been reached based on mistaken facts, do you believe that that decision should be allowed to stand?

Mr MacAdam —Sometimes decisions should not be allowed to stand or go uncontested, but I am not sure of the powers of this committee.

Senator HARRIS —I am asking you in your position as a lecturer at law: if sufficient evidence is provided that a decision has been made and that decision has been reached based on a mistake of fact, should that decision stand?

Mr MacAdam —In a perfect world the answer to that is clear: no, it should not. But sometimes the great inertia that we have in governments or organisations, as we all know, makes it very difficult to do anything about it. There is a clear answer: those things should be corrected but unfortunately the practicalities are that often they are not—and often people suffer because of it.

CHAIR —I gave you a letter and I ask you to comment on it. I give you the opportunity to make some observations—I will put it that way—on that letter.

Mr MacAdam —This is a letter dated 23 January 1990 signed by Crown Solicitor K.M. O'Shea. At the top there is a note `Mr Thomas'. I do not believe I have seen this previously but I may have. The letter looks at the reasons why the inquiry should be closed down and how Mr Heiner should be given indemnity from costs or any legal proceedings that are to be brought against him. It acknowledges—and someone else has already marked this—that the informants have no statutory immunity but would appear to have qualified privilege. That is a point I made earlier. On the second page, it says:

I do not see any difficulty in the destruction of the material supplied to Mr. Heiner, naturally any material removed from official files should be returned to those files but the tape recordings of interviews had with people or any notes or drafts made by Mr. Heiner should I suggest be destroyed.

You notice that advice is about tape recordings of interviews and Mr Heiner's notes. It does not seem to mention the destruction of a range of other documents. I understand that Mr Coyne's solicitors were after the written complaints by other officers of the John Oxley Youth Centre. Then the letter goes on:

This advice is predicated on the fact that no legal action has been commenced which requires the production of those files and that you decide to discontinue Mr Heiner's inquiry.

It goes on to note in a letter that solicitors have requested that they be allowed to have copies of all allegations and evidence taken to date. It says:

However, such a request is related to the continuation of the inquiry which is now to be halted, therefore, it is my recommendation that the solicitors for Mr. Coyne and Mrs. Dutney be advised that the inquiry has been terminated, no report has been prepared, and that all documentation related to the material collected by Mr. Heiner has been destroyed. I have enclosed a draft letter to that effect.

That almost seems to be illogical to me. Just because the inquiry has been closed down, is that justification for the destruction of the documents? Senator Watson, is it the first sentence of that paragraph that you are concerned about? That sentence says:

This advice is predicated on the fact that no legal action has been commenced which requires the production of those files ...

There is no mention here of section 129 of the Criminal Code.

CHAIR —I saw a bit of an inconsistency in the letter.

Mr MacAdam —In civil proceedings, as distinct from criminal proceedings, once proceedings are under way there is a general right to the process that is known as discovery where other parties need to make lists of their documents relevant to the proceedings. That seems to be what he was alluding to. It looks like he was alluding to the civil proceedings because he says:

This advice is predicated on the fact that no legal action has been commenced which requires the production of those files ...

When civil legal proceedings commence and the process of discovery is embarked upon, both sides provide a list of the documents that are relevant. The other side can then ask, unless the documents are under privilege, to see documents—for example, documents 1, 3, 4 or 126. I do not know the particular background of Mr O'Shea, or indeed Mr Thomas.

Senator SANTORO —Do you think that he may not have known that legal proceedings had been foreshadowed?

Mr MacAdam —No, I think he did know that they had asked for these documents—and he did know about defamation. The problem might be that people expect lawyers to know all about everything. Senator, if you asked me something about family law, I regret to say that I know virtually nothing about family law. We had an incident that our Chief Justice in Queensland recently highlighted in the prosecution, conviction and jailing of Pauline Hanson. I do not want to go into the merits of that, but the Chief Justice pointed out that, although that matter was a criminal matter, the essential facts were matters of contract law. He said it would have been a good idea earlier in the piece to have someone who knew about the civil contract law and not just a criminal lawyer. It may be that this was around the other way: maybe it was the case that the Crown Solicitor—or Mr Thomas, whoever he is—knew an awful lot about civil liability but did not know an awful lot about the criminal law.

Our Criminal Code has 600 sections in it. There are some really obscure and surprising provisions in there. It may very well be the case that this had not been looked at. In my view, if this comes before the cabinet—and here they want to destroy documents—you have to ask yourself, regardless of the advice you have received, `Is this right or is this wrong?'

Senator SANTORO —It is a judgment.

CHAIR —But in terms of the letter, the problem of inconsistency was that the advice from Mr O'Shea—

Mr MacAdam —Mr O'Shea signed that letter.

CHAIR —indicated that the tapes et cetera should be destroyed, but later on he refers to `documents'—which appears to have been interpreted as all the documents.

Mr MacAdam —Early on he talks about `notes or drafts made by Mr Heiner'.

CHAIR —That is right. So what he initially asked to be destroyed is fairly restricted.

Mr MacAdam —Yes.

CHAIR —But later in his letter there is the inference that everything should be destroyed. Am I reading that correctly? That must have been the presumption on which cabinet acted in destroying everything.

Mr MacAdam —He says later in his letter:

... that all documentation related to the material collected by Mr Heiner has been destroyed.

You wonder why that advice was given. Senator, let us say that you or I get the best legal advice in the country—we go to a QC and get advice about a matter and they say, `It is perfectly legal for you to do that.' If it turns out not to be legal, we have no defence. It is no defence—except in some very limited cases—to act in accordance with legal advice. There seems, again, to be one law for the high and mighty and one law for the ordinary Queenslanders. If ordinary Queenslanders act in accordance with legal advice and it turns out that, nevertheless, they commit a criminal offence then they are prosecuted—it is no defence. There is some suggestion that in DPP Royce Miller's second opinion, which we have not seen, a similar line is trotted out—that if people have acted in accordance with crown law advice, they should not be prosecuted.

It is drawing a very long bow, but a similar sort of principle is known as the Nuremberg defence—just following orders, just following the legal advice of crown law. If crown law says, `It shall be lawful to take all people over 50 with beards to a place in western Queensland and shoot them,' and someone does, is that lawful? That is an extreme case, but the point I am making to you is this: if crown law says that something is lawful, sometimes crown law is right, but crown law is wrong all the time, as it appears by matters that are litigated in the courts. Mostly, unless there is a really bloody-minded litigant, in every case that has gone to court one lawyer was right and one lawyer was wrong.

CHAIR —Do you think that letter was sufficiently clear as to what had to be destroyed?

Mr MacAdam —It is certainly, at best, ambiguous. But I ask myself this. We had lawyers in the cabinet. We had Premier Goss; we had the Attorney-General, Dean Wells; we had Mr Braddy.

Senator SANTORO —No, he was not.

Mr MacAdam —If someone comes to me as a lawyer and says, `The tax office is coming to investigate; let's destroy these documents,' I would be thinking to myself, `That's not the right thing to do.' There almost seems to be some reason why this matter should not go on. But again there is the problem of a piece of retrospective legislation. He seems to be saying that the complainants will not be satisfied with the outcome of the higher inquiry, and that does not seem to be self-evident at all.

CHAIR —Senator Moore?

Senator MOORE —My questions have been answered, thank you.

CHAIR —There being no further questions, I thank you, Mr MacAdam.

[4.22 p.m.]