Retrospective law adds to secret documents fiasco
A warning to all of you who are reading The Most Dangerous Detective: the Outrageous Glen Patrick Hallahan and the Rat Pack: you could be at risk of a fine of up to $55,000 or a year's jail according to new and retrospective amendments to Queensland's Crime and Misconduct Act 2001.
This would appear to be a possible interpretation of Section 346a of the Act which deals with anyone who has gained access to information contained in documents created by the Fitzgerald Inquiry into Queensland corruption and made public by the Crime and Misconduct Commission between February 1 2012 and March 5 2013.
I accessed many of those documents absolutely legitimately and used some of the information, again absolutely legitimately, in The Most Dangerous Detective which I published on November 6 2012.
What makes the legislation even more of an ass is the fact that it does not differentiate between Fitzgerald Inquiry information which had been secret until the administrative slip-up which resulted in the release of thousands of Inquiry documents, and information which had been released by the Inquiry between 1987 and 1989.
Fitzgerald himself determined that many statements and exhibits should be available for public scrutiny. These documents later disappeared from public view, were made public again for more than a year with all the other
documents and have now been deemed so secret that to use information from them could result in a year in the slammer.
Could it be held that any sales of my book since April 29 this year, when the retrospective legislation came into force, through Amazon.com have been, are and will be illegal? Section 346A applies "to a person who, from any source, has gained, gains, or has access to, a disclosed document."
Not only does a 'disclosed document' mean 'a document relating to the (Fitzgerald) inquiry accessed from the archivist between 1 February 2012 and 5 March 2013', 'document' also means 'information'.
Hence, the Act applies to anyone who, from any source, has gained, gains, or has access to, information which came via the State Archivist in the defined period.
So here's how the Act could be interpreted as pertaining to you, the reader, libraries, Amazon.com and me: having gained access to the aforesaid information we must not, on or before November 8 this year,
(a) copy the information,
(b) use the information for any purpose,
(c) disclose the information to anyone,
(d) give access to the information to anyone.
Could “using the information for any purpose” be taken to mean “reading the information for educational purposes”?
For four months after publication The Most Dangerous Detective was as far removed from the Crime and Misconduct Act as Winnie the Pooh and Shakespeare.
Now it's not just me who could be at risk of prosecution and being turned into a criminal by this retrospective
legislation.
Let's say you're at a dinner party and you give a fellow diner a morsel of information which, unknown to you, originally came from one of these Fitzgerald documents and that diner repeats it to someone else – could it
be held that you’ve started a crime wave?
Under this scenario the National Library of Australia, the Queensland Parliamentary Library (an embarrassing own goal here), Queensland public libraries and Queensland State Library could be viewed as disclosing information affected by section 346a.
This legislation is even more farcical than a recommendation of Queensland’s Parliamentary Crime and Misconduct Committee (PCMC) following its investigation of the unintended release of the Fitzgerald Inquiry documents.
The PCMC recommended: “…that the Government establish a scheme whereby persons who have
accessed, copied and used the released Fitzgerald Inquiry material between 2 February 2012 and 4 March 2013…return the material to the CMC.”
I “accessed, copied and used” the material in the book. How on earth does the committee envisage me returning it? I could send the CMC a copy of the words I typed into a laptop when I accessed the documents at Queensland State Archives and then delete the file but as I understand it, a computer expert would still be able to retrieve the information from the hard drive.
It’s not my laptop, so would the CMC have to seize the laptop and stick some sort of electronic eraser into the hard drive? But the information would remain in paperbacks throughout the country. Who would track down their owners? And what about those copies which have been bought overseas?
Would people who have read the book have to promise never to reveal certain parts of its contents to others?
How did this situation arise?
At the start of 2011 I decided that after nearly a quarter of a century of interviews and sifting through yellowing documents it was time to finish my manuscript about Glen Patrick Hallahan and the Rat Pack.
I also decided I should incorporate denials made in statements made public during the Fitzgerald Inquiry by some of the unsavoury characters featured in my manuscript.
I was amazed to find that these statements together with every other Fitzgerald-generated document that had been made public by Fitzgerald during his inquiry were now locked away for 65 years in Queensland State Archives.
I applied to the CMC as owner of the documents for permission to access more than 50 of these documents and also asked whether access might be granted to other Fitzgerald-related documents which had never been made public.
It seemed obvious to me as a journalist and researcher that there would be many documents which would throw new light on Queensland’s dark past.
My application and subsequent letters and emails went unanswered.
Eventually, I turned up at the CMC’s offices and insisted on speaking to a senior official. Russell Kenzler, the CMC’s right to information officer, was sympathetic. He told the recent PCMC investigation he had been unaware of a 65-year blanket ban on the once-public documents until I told him. He told the PCMC he thought this was “odd or even silly because 25 years ago Mr Fitzgerald was prepared to release a range of documents at the public hearing and now suddenly 25 years later they’re not available”.
He promised me a response. Nothing.
A month later – and nearly a year after I had started my campaign - I complained again, this time to Peter Duell, the CMC director of information management. This finally triggered action. Mr Duell emailed Russell Kenzler on January 27 2012 saying: “Please see the message from Steve Bishop…I really feel for him in this matter. Are you aware if we are any closer to being able to respond to him?”
Four days later Mr Duell emailed me: “I have discussed the matter with the acting Chairperson, Warren Strange,
today. He agrees with my recommendation to change the Restricted Access Period on the bulk of the Fitzgerald Inquiry holdings from the current 65 years to 20 years. This will effectively mean these records will then be available from Queensland State Archives without any requirement for CMC authorisation.”
And then two days later this email: “At least some good news Steve. I have submitted the necessary paperwork to Queensland State Archives (QSA) to have the restricted access period changed for the bulk of the Fitzgerald Inquiry holdings. QSA have committed to implement the update this week so these holdings will be available to all members of the public from Monday. As this change was largely precipitated by your requests, I believe you can rightly claim a major role in making this information so readily available.”
This was, indeed, good news. The parliamentary committee’s investigation revealed that while author Tony Reeves had been granted a one-off access to a limited number of files relating to his research on Brisbane’s Whiskey Au Go Go fire, this was to be the first time since the blanket ban had been imposed that a large range of documents were to be made available to all researchers.
When I arrived at the Archives I found that the reference numbers I had used in my application no longer tallied. In searching through the Archives metadata for new reference numbers I realised there were reference numbers giving access to a vast range of highly-sensitive and confidential material which, to my knowledge, had never been released before. Some of the information had never even been hinted at during the inquiry.
I am now forbidden from telling you whether or not I saw a confidential police report on an investigation into
an allegation that a pillar of the establishment (now dead) was prepared to issue a lucrative contract for an organisation of which he was chairman in exchange for his massive credit card debt being paid off.
I was so stunned that apparently sensitive information was being released that I asked the archivist on duty to check with the CMC that this was, indeed, the intention.
Elizabeth Hawkins, Manager Archival Collections at Queensland Archives, told the parliamentary committee investigation this was the first time to her knowledge that such a request had been made about material
held by the archives. She did phone the CMC. But the call failed to trigger any alarm. She returned to tell me that everything was in order.
I spent three days trawling through what I described at the time as an Aladdin's Cave full of gems of information.
I inserted relevant information into my manuscript which I published as an ebook with Kindle Direct on Amazon.com on November 6 2012 and as a paperback with CreateSpace later that month.
It was the first book to focus on the Rat Pack and topped the best sellers in Amazon.com's category of 'organised crime true accounts' for ebooks in November. Together with the paperback it has become one of the highest rated books by reviewers on Amazon.com.
Meanwhile, in May 2012, former special branch detective Barry Krosch became the second researcher to suggest that some of the Fitzgerald Inquiry documents should not have been released. This time the alarm was raised and action was taken to remove the previously-secret documents from scrutiny. But a CMC stuff-up resulted in many of them remaining open to searching.
When Hedley Thomas from The Australian discovered these documents early this year the furore resulted in every Fitzgerald-related document being once again hidden under a blanket 65-year ban.
I was in Europe when the parliamentary committee CMC held its investigation and gave evidence by video conference from London to the committee in Brisbane.
In my statement to the committee I said: “I believe that while there may be some Fitzgerald Inquiry documents which could be classified as being still sensitive, there is a strong case to make many more documents, in addition to those previously released, available for inspection.” And in my evidence I urged that there were many documents with a 65-year secrecy order which should be made public because they were unlikely to cause harm to anyone now and would certainly be of great interest to researchers, to historians and to the general public in revealing Queensland’s murky past.
The Queensland Government and Parliament should abandon any attempt to criminalise researchers who acted
legally in accessing and using Fitzgerald-related documents and information before March 8 this year when retrospective legislation was first introduced.
This includes any information which Barry Krosch, Hedley Thomas and I obtained and which we ‘used’ in good faith.
Having once been published legally it should not now be deemed illegal for that identical publication to
continue to be available in hard copy or on the web.
On the other hand I am heartened by the parliamentary committee’s recommendation to the government
that The Right to Information Act 2009 be amended to allow right-to-information-access“to documents of historical commission of inquiry documents, subject to a range of appropriate exclusions and criteria”.
In November 2013 I received a letter from Janet Prowse, the State Archivist, informing me that there have been further amendments to the Crime and Misconduct Act 2001 applying a 65-year restricted access period to all Fitzgerald Inquiry documents.
"In addition, the amendments continue the prohibition on the copying, use, disclosure and provision of the documents and any other information about the documents, for the duration of the restricted access period," says the letter.
It also says: "Over time, as the Crime and Misconduct Commission undertakes a detailed review of its Fitzgerald Inquiry collection, the restricted access periods for some documents may be amended."
This would appear to be a possible interpretation of Section 346a of the Act which deals with anyone who has gained access to information contained in documents created by the Fitzgerald Inquiry into Queensland corruption and made public by the Crime and Misconduct Commission between February 1 2012 and March 5 2013.
I accessed many of those documents absolutely legitimately and used some of the information, again absolutely legitimately, in The Most Dangerous Detective which I published on November 6 2012.
What makes the legislation even more of an ass is the fact that it does not differentiate between Fitzgerald Inquiry information which had been secret until the administrative slip-up which resulted in the release of thousands of Inquiry documents, and information which had been released by the Inquiry between 1987 and 1989.
Fitzgerald himself determined that many statements and exhibits should be available for public scrutiny. These documents later disappeared from public view, were made public again for more than a year with all the other
documents and have now been deemed so secret that to use information from them could result in a year in the slammer.
Could it be held that any sales of my book since April 29 this year, when the retrospective legislation came into force, through Amazon.com have been, are and will be illegal? Section 346A applies "to a person who, from any source, has gained, gains, or has access to, a disclosed document."
Not only does a 'disclosed document' mean 'a document relating to the (Fitzgerald) inquiry accessed from the archivist between 1 February 2012 and 5 March 2013', 'document' also means 'information'.
Hence, the Act applies to anyone who, from any source, has gained, gains, or has access to, information which came via the State Archivist in the defined period.
So here's how the Act could be interpreted as pertaining to you, the reader, libraries, Amazon.com and me: having gained access to the aforesaid information we must not, on or before November 8 this year,
(a) copy the information,
(b) use the information for any purpose,
(c) disclose the information to anyone,
(d) give access to the information to anyone.
Could “using the information for any purpose” be taken to mean “reading the information for educational purposes”?
For four months after publication The Most Dangerous Detective was as far removed from the Crime and Misconduct Act as Winnie the Pooh and Shakespeare.
Now it's not just me who could be at risk of prosecution and being turned into a criminal by this retrospective
legislation.
Let's say you're at a dinner party and you give a fellow diner a morsel of information which, unknown to you, originally came from one of these Fitzgerald documents and that diner repeats it to someone else – could it
be held that you’ve started a crime wave?
Under this scenario the National Library of Australia, the Queensland Parliamentary Library (an embarrassing own goal here), Queensland public libraries and Queensland State Library could be viewed as disclosing information affected by section 346a.
This legislation is even more farcical than a recommendation of Queensland’s Parliamentary Crime and Misconduct Committee (PCMC) following its investigation of the unintended release of the Fitzgerald Inquiry documents.
The PCMC recommended: “…that the Government establish a scheme whereby persons who have
accessed, copied and used the released Fitzgerald Inquiry material between 2 February 2012 and 4 March 2013…return the material to the CMC.”
I “accessed, copied and used” the material in the book. How on earth does the committee envisage me returning it? I could send the CMC a copy of the words I typed into a laptop when I accessed the documents at Queensland State Archives and then delete the file but as I understand it, a computer expert would still be able to retrieve the information from the hard drive.
It’s not my laptop, so would the CMC have to seize the laptop and stick some sort of electronic eraser into the hard drive? But the information would remain in paperbacks throughout the country. Who would track down their owners? And what about those copies which have been bought overseas?
Would people who have read the book have to promise never to reveal certain parts of its contents to others?
How did this situation arise?
At the start of 2011 I decided that after nearly a quarter of a century of interviews and sifting through yellowing documents it was time to finish my manuscript about Glen Patrick Hallahan and the Rat Pack.
I also decided I should incorporate denials made in statements made public during the Fitzgerald Inquiry by some of the unsavoury characters featured in my manuscript.
I was amazed to find that these statements together with every other Fitzgerald-generated document that had been made public by Fitzgerald during his inquiry were now locked away for 65 years in Queensland State Archives.
I applied to the CMC as owner of the documents for permission to access more than 50 of these documents and also asked whether access might be granted to other Fitzgerald-related documents which had never been made public.
It seemed obvious to me as a journalist and researcher that there would be many documents which would throw new light on Queensland’s dark past.
My application and subsequent letters and emails went unanswered.
Eventually, I turned up at the CMC’s offices and insisted on speaking to a senior official. Russell Kenzler, the CMC’s right to information officer, was sympathetic. He told the recent PCMC investigation he had been unaware of a 65-year blanket ban on the once-public documents until I told him. He told the PCMC he thought this was “odd or even silly because 25 years ago Mr Fitzgerald was prepared to release a range of documents at the public hearing and now suddenly 25 years later they’re not available”.
He promised me a response. Nothing.
A month later – and nearly a year after I had started my campaign - I complained again, this time to Peter Duell, the CMC director of information management. This finally triggered action. Mr Duell emailed Russell Kenzler on January 27 2012 saying: “Please see the message from Steve Bishop…I really feel for him in this matter. Are you aware if we are any closer to being able to respond to him?”
Four days later Mr Duell emailed me: “I have discussed the matter with the acting Chairperson, Warren Strange,
today. He agrees with my recommendation to change the Restricted Access Period on the bulk of the Fitzgerald Inquiry holdings from the current 65 years to 20 years. This will effectively mean these records will then be available from Queensland State Archives without any requirement for CMC authorisation.”
And then two days later this email: “At least some good news Steve. I have submitted the necessary paperwork to Queensland State Archives (QSA) to have the restricted access period changed for the bulk of the Fitzgerald Inquiry holdings. QSA have committed to implement the update this week so these holdings will be available to all members of the public from Monday. As this change was largely precipitated by your requests, I believe you can rightly claim a major role in making this information so readily available.”
This was, indeed, good news. The parliamentary committee’s investigation revealed that while author Tony Reeves had been granted a one-off access to a limited number of files relating to his research on Brisbane’s Whiskey Au Go Go fire, this was to be the first time since the blanket ban had been imposed that a large range of documents were to be made available to all researchers.
When I arrived at the Archives I found that the reference numbers I had used in my application no longer tallied. In searching through the Archives metadata for new reference numbers I realised there were reference numbers giving access to a vast range of highly-sensitive and confidential material which, to my knowledge, had never been released before. Some of the information had never even been hinted at during the inquiry.
I am now forbidden from telling you whether or not I saw a confidential police report on an investigation into
an allegation that a pillar of the establishment (now dead) was prepared to issue a lucrative contract for an organisation of which he was chairman in exchange for his massive credit card debt being paid off.
I was so stunned that apparently sensitive information was being released that I asked the archivist on duty to check with the CMC that this was, indeed, the intention.
Elizabeth Hawkins, Manager Archival Collections at Queensland Archives, told the parliamentary committee investigation this was the first time to her knowledge that such a request had been made about material
held by the archives. She did phone the CMC. But the call failed to trigger any alarm. She returned to tell me that everything was in order.
I spent three days trawling through what I described at the time as an Aladdin's Cave full of gems of information.
I inserted relevant information into my manuscript which I published as an ebook with Kindle Direct on Amazon.com on November 6 2012 and as a paperback with CreateSpace later that month.
It was the first book to focus on the Rat Pack and topped the best sellers in Amazon.com's category of 'organised crime true accounts' for ebooks in November. Together with the paperback it has become one of the highest rated books by reviewers on Amazon.com.
Meanwhile, in May 2012, former special branch detective Barry Krosch became the second researcher to suggest that some of the Fitzgerald Inquiry documents should not have been released. This time the alarm was raised and action was taken to remove the previously-secret documents from scrutiny. But a CMC stuff-up resulted in many of them remaining open to searching.
When Hedley Thomas from The Australian discovered these documents early this year the furore resulted in every Fitzgerald-related document being once again hidden under a blanket 65-year ban.
I was in Europe when the parliamentary committee CMC held its investigation and gave evidence by video conference from London to the committee in Brisbane.
In my statement to the committee I said: “I believe that while there may be some Fitzgerald Inquiry documents which could be classified as being still sensitive, there is a strong case to make many more documents, in addition to those previously released, available for inspection.” And in my evidence I urged that there were many documents with a 65-year secrecy order which should be made public because they were unlikely to cause harm to anyone now and would certainly be of great interest to researchers, to historians and to the general public in revealing Queensland’s murky past.
The Queensland Government and Parliament should abandon any attempt to criminalise researchers who acted
legally in accessing and using Fitzgerald-related documents and information before March 8 this year when retrospective legislation was first introduced.
This includes any information which Barry Krosch, Hedley Thomas and I obtained and which we ‘used’ in good faith.
Having once been published legally it should not now be deemed illegal for that identical publication to
continue to be available in hard copy or on the web.
On the other hand I am heartened by the parliamentary committee’s recommendation to the government
that The Right to Information Act 2009 be amended to allow right-to-information-access“to documents of historical commission of inquiry documents, subject to a range of appropriate exclusions and criteria”.
In November 2013 I received a letter from Janet Prowse, the State Archivist, informing me that there have been further amendments to the Crime and Misconduct Act 2001 applying a 65-year restricted access period to all Fitzgerald Inquiry documents.
"In addition, the amendments continue the prohibition on the copying, use, disclosure and provision of the documents and any other information about the documents, for the duration of the restricted access period," says the letter.
It also says: "Over time, as the Crime and Misconduct Commission undertakes a detailed review of its Fitzgerald Inquiry collection, the restricted access periods for some documents may be amended."
