By Bruce Grundy (27.7.2003)
Victoria's Labor government has opened up what could be a major a can of worms for its counterpart in Queensland.
The Victorian Attorney-General Rob Hulls' decision last week to seek to intervene in an appeal before the High Court has the potential to turn into a major embarrassment for the Queensland Beattie government.
Melbourne's Age newspaper led its front page on Saturday (26 July 2003) with the news that the Victorian government "wished to address the High Court" on the duties of lawyers to preserve documents that could be relevant in "anticipated legal proceedings".
The High Court is to consider an appeal against a decision of the Victorian Court of Appeal in a case in which a tobacco company was accused of destroying potentially damaging documents to prevent their being used in any legal action against the company.
A former high-profile executive of the company last week blew the whistle on the company's "document retention strategy" which he said was really designed to "get rid of everything that was damaging in a way that would not rebound on the company".
The problem for the Queensland government relates to a decision that has haunted Labor administrations in the state for over a decade.
Despite substantial legal opinion to the contrary, successive Labor governments in Queensland, the former Criminal Justice Commission (now Crime and Misconduct Commission), a former Director of Public Prosecutions, a serving magistrate, and the newly appointed State Coroner (amongst others) have all claimed documents likely to be needed for a legal proceeding could be destroyed as long as no such proceeding had actually commenced.
In 1990 the State Labor Cabinet authorised the destruction of all evidence gathered by an inquiry into a youth detention centre knowing at the time that the material was being sought for legal proceedings.
Over the years since, a string of Ministers, various heads of the Criminal Justice Commission, and others (mentioned above) have all excused the destruction on the grounds that no legal action had actually been commenced when the destruction was approved.
Numerous other legal authorities have rejected such a view.
The issue, they have said, has always been not just whether material was needed for an action that was on foot, but whether it was likely to be needed for a foreshadowed or anticipated legal proceeding.
In March former Supreme and Appeal Court Judge James Thomas told The Justice Project that the wording of the law specifically made the destruction of material likely to be required for a legal proceeding an offence.
Mr Thomas said those involved in the 1990 destruction could still be charged. See also: Action Against Shredders Reconsidered and Officials Could Have Been Charged.
While no action has ever been taken against those who authorised and carried out the detention centre shredding, action has been taken against a citizen who destroyed material likely to be needed for a legal proceeding.
Three months ago a man was committed to stand trial on a charge of destroying evidence or attempting to pervert the course of justice for destroying some pages of a diary.
It was five years after the pages were destroyed before any legal action relating to them was commenced.
Politicians from all parties and senior public officials who have been questioned by The Justice Project about the double standards involved in these two cases have either declined to respond or have "flicked" the issue to someone else.
In the end, the Attorney, Mr Welford, said the Labor Cabinet of the day had acted "in good faith" and on the basis of "legal advice" when it authorised the destruction of the detention centre documents, despite being aware that they were needed for court proceedings.
A former Minister who took part in the decision has since revealed Cabinet was also aware "in broad terms" that the material destroyed concerned the abuse of children in the care and custody of the State.
In its story at the weekend The Age also reported the New South Wales government was considering whether it too could intervene in the matter before the High Court.
Comment
The Victorian Attorney-General has put the cat well and truly among the chickens in The Sunshine, sorry, Smart State.
The chickens make quite an interesting list and include: past and present Queensland Labor governments and past and present faithful and compliant bureaucrats and torch-bearers; Queensland politicians of all other political shades; the Sunshine State's legal profession (which has carefully managed to say nothing on the matter for 13 years); the state's Police Service; the Office of the Director of Public Prosecutions; the magistracy; the newly created Office of State Coroner; the Civil Libertarians; not to mention the so-called watchdogs of our democracy (the Crime and Misconduct Commission and the media).
Mr Hulls is suggesting lawyers have a duty not to destroy material likely to be needed for a legal action.
Which, since it is so self-evident, is like saying Mr Hulls believes the world is round.
But for 13 years the chickens mentioned above tried to make out it was flat.
Despite the explicit wording of Section 129 of Queensland's Criminal Code, for the most part they either said it was OK to destroy material needed for a court action as long as the action had not actually commenced,or they bravely said nothing and looked the other way.
Now what will they say?
Will they seek to join Mr Hulls and thereby damn themselves with their blatant hypocrisy?
Or will they hold the line and reject the view of Mr Hulls?
And if they do that, and claim that an action must be commenced before s 129 of the Criminal Code applies, what do they then say about the citizen who has been charged with destroying evidence when no relevant court action occurred until five years later?
And so, for starters, we ask the Premier, Mr Beattie, the Attorney, Mr Welford, the current Chair of the Crime and Misconduct Commission, Mr Butler, former Chairs of the Criminal Justice Commission, Mr Clare and Mr O'Regan, former CJC Chief Complaints Officer and now State Coroner, Mr Barnes, and the others mentioned above plus the Opposition Leader, Mr Springborg, and Independent MPs Mr Wellington and Mrs Cunningham (plus any of the others who might care to answer) a couple of simple questions.
Do you support the action and views of the Victorian Attorney?
Do you oppose his action and views?
Will/should Queensland seek to also address the High Court on the duties of lawyers (and others) in preserving documents that are or may be required for legal proceedings?
It has taken a while, but for the chickens mentioned above, some others appear to be coming home to roost.
Bruce Grundy
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