Mr Jon Stanhope
Chief Minister & Attorney General
GPO Box 1020
Canberra ACT 2601
02/06/2005

Dear Mr Stanhope (Honourable Member)

I thankyou for your reply dated 17th May 2005. How ever, your reply does not satisfy my concerns, rather to the contrary.

In the first instance, so as to save you the inconvenience of having to have some one locate my initial letter, I have annexed a copy of my original letter sent to you on the 17th April, 2005, to this letter.

Instigation of Inquiry:

I note that you state that you did not in fact instruct the Coroner to instigate the Inquiry, but rather, " She, properly, instigated the Inquiry pursuant to sections 13 and 18 (1)(b) of the Coroners Act 1997."

I understand Mr Stanhope that on the 18th January, 2003, you were in fact the acting Minister for Emergency Services and at that time in that capacity you declared a State of Emergency for the ACT. I further understand that you made this decision so as to enable the police to be able to forcefully evict persons from their homes that were so instructed to leave, but might decline the order to do so, by the extended powers so bestowed by such a declaration.

I put to you Mr Stanhope that your declaration of a State of Emergency was for no other reason than the real fact that there was an impending disaster about to befall the Canberran Metropolitan area and the need for the police powers to be strengthened by this action was an aside, albeit, perhaps an important one, to the actual disaster that the wider ACT was enduring and that Canberra City was facing. In another way, " The ACT was facing a disaster of such proportions that not only was it possible for it to overwhelm the available Emergency Services standing in it's path, but also the powers of the civilian police were such that they were not sufficient for the task at hand. In other words a disaster of historical proportions was imminently about to occur.

This disaster in fact did occur.This disaster when and after it had occurred was so over whelming that the Emergency Services, Police and Civilian help, were helpless in it's face and were shocked beyond any normalcy for weeks after this disaster had passed, leaving just the tragedy and aftermath behind.

In short Mr Stanhope, Canberra and the wider ACT had suffered an historical disaster of unparalleled proportions and the entire population knew it, the Emergency Services knew it, but more importantly, so too did you and you officially declared such an event as a disaster when you declared a State of Emergency.

Given the above the Chief Coroner caused to be instigated an Inquest into the deaths of such a disaster and an Inquiry into the Disaster as was rightly expected of him and such an Inquiry was given validity under the Coroners Act of 1997 section 19 (2) The Chief Coroner shall not cause an Inquiry to be held into the cause and origin of a disaster except with the consent of the Attorney-General.

Mr Stanhope, you were also the Attorney General at that time and by the very fact that you were the person who declared a State of Emergency in the face of a pending Disaster to the ACT and your subsequent acceptance of an Inquiry with extremely broad ranging parameters of the investigation. I bring your attention to the media release from the Australian Capital Territory Office of the Coroner dated 24th January, just six days after the disaster had struck suburban Canberra, whilst everybody was still in traumatised shock. Especially paragraph (3) Due to the enormous scale of the incident and it's devastating effects on the lives and property of the Canberra community, the parameters of the investigation will be very broad," said Magistrate Doogan." The Inquiry was in fact an Inquiry into a disaster and by both your actions in calling a State of Emergency and not only acceptance of the scale of the Inquiry, but you own public statements condoning such an Inquiry and then your acquiescence to the Chief Coroner, you have given tacit consent and this consent is in accordance with section 19 (2) of the Corners Act 1997. There is no requirement for an instrument of consent under the Coroners Act 1997, just consent. There is no requirement for the Coroner to ask you if that consent is conveyed in another manner, other than as I have outlined above. You declared a State of Emergency, you accepted the broad ranging Inquiry, and you acquiesced to the decision of the Chief Coroner to cause such an Inquiry to proceed and hence the Chief Coroner in effect instigated this Inquiry as an Inquiry into a Disaster and an Inquest into the sad deaths that there followed.

Mr Stanhope, as the Attorney-General, by the above actions, you in fact did give tacit consent and thereby under section 19(2) of the Coroners Act 1997, were the person that is ultimately responsible for the causation for the Inquiry into the Disaster that struck the ACT on the 18th January 2003.

Apprehension of Bias allegation against Coroner Maria Doogan:

This matter has now been heard and is presently under deliberation by the three Justices of the ACT Supreme Court and on this matter I make no comment. It is a matter for the Justices to decide and all argument and submissions have been made in respect to this issue, an issue I believe has been comprehensively put by both sides.

The issue of Jurisdiction to be argued:

Mr Stanhope this is the matter that is of grave concern to me and many others and to be quite honest, I am astounded, as I understand that you are a qualified lawyer in your own right and yet you seemed unable to realise that my allegation of apprehension of bias related to this particular issue in the matter.

This jurisdictional issue was not part of the proceedings brought against Coroner Doogan by either the nine independent plaintiffs, nor the ACT. It was in fact brought about by the bench itself, adding a whole new dimension to the proceedings.

It is obvious that there is a need for an absolute, fair and transparent adjudication over this extra issue of jurisdiction and I notice how lightly you quote one reference quote from a Justice and then arrogantly proceed to advise me that no apprehension of bias exists from my claim. Well Mr Stanhope, you are wrong. A very real apprehension of bias does in fact exist and that apprehension is as a direct result of that which I advised in my initial letter to you. This matter of jurisdiction that the Supreme Court Justices first asked of their own volition and by so doing assigned themselves the task of answering such a question. A situation that by the Chief justices own words, indicates that they can all be reasonably suspected of having a preconceived mindset about such matters as they are now expected impartially decide upon, is a matter that is and has been for a long time, a concern to them, is perhaps the most conspicuous example of apprehension of bias that a fair minded lay observer might ever come across.

This issue is of such magnitude that not only will, or could it effect the Coronial Inquiry regarding Coroner Doogan, but almost undoubtedly have a precedential effect on all Coronial Inquiries to follow in this nation. Further to this, as we have seen in this litigation re this Coronial Inquiry, reference has been made to international precedence and hence the ruling to come from this jurisdictional issue could also flow across the British Commonwealth.

But wait there is more Mr Stanhope. If this jurisdictional question and subsequently the ruling that follows has the effect of causing some significant narrowing of the evidence allowed and/or the actions of the Coroner curtailed, then what is to stop challenges to Coronial decisions from past Coronial Inquiries that have adversely affected other individuals that might not otherwise have been adversely affected had such a ruling been argued at the time the concern was first recognised. Such a situation as your Courts being swamped with applications for re-opening of Inquiries might well become unprecedented.

This jurisdictional question that was originally asked by Justice Crispen may have validity in being asked, but the Supreme Court of the ACT is in no way the Court to bring forth the answer. The allegation of apprehension of bias grows on an exponential scale with gravity of the matter being heard and more importantly with the possible ramifications of the resultant decision. Further the level of the bar for the proof of apprehension of bias drops dramatically when such gravity becomes evident.

I note that you comment as follows;

A pre-existing opinion concerning the proper construction of the breadth of the Coronial jurisdiction under the Coroners act 1997 (ACT) is not indicative of bias. I concur that the above, given that the Justices are in fact human, they may well have an opinion about many subjects legal and otherwise and of course there will be discussion re all sorts of topics between such persons when not sitting on the bench, but;

The but here is immense.

Whilst hearing an allegation of Apprehended Bias against a Magistrate acting as a Coroner in a duly instructed Coronial Inquiry the Chief Justice of the ACT Supreme Court whilst sitting as a member of the full bench of such Court makes the unsolicited statement , "I must say, It's been a long held concern about Coronial Inquests in this Territory, that they seem to have assumed the role of Royal Commissions, rather than Inquests, which is a much more narrow Inquiry indeed." Given that the question re Coronial Inquiry jurisdiction was in fact asked by the Justices during the proceedings of this matter before them and by so doing, convey upon themselves the legal right to decide this very issue of jurisdiction which has possible ramifications, not just for the matter before them, but also historically, futuristically and Internationally, the gravity of such findings are exponentially more dire than if this finding of the Justices in this issue only pertained to the matter before them.

Even so, this question of jurisdiction that is to be argued, is, in the first instance a matter that is definitely part of the Supreme Court action surrounding the Coronial Inquiry into the January 2003 ACT bushfires ("The Inquiry.")

How can the ACT Supreme Court Justices ask the most serious of questions that gives rise to the most serious legal argument, argument that these very same Justices have conveyed the right for themselves to argue, when the Chief Justice, whilst sitting as member of this bench makes a statement that leaves no doubt in the Fair Minded Lay Observer that the ACT Supreme Court Justices collectively might not bring an impartial mind to the resolution of the question that the Justices are required to decide?

Mr Stanhope, I again bring your attention to the words of the High Court in Ebner v Official Trustee in Bankruptcy; "The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the Tribunal be independent and impartial. So important is the principle, that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined."

Mr Stanhope, it has never been my intention by this allegation of apprehension of bias, to in any way infer that the Justices of the Supreme Court of the ACT are anything other than honourable people with a most important position in our society. It is probably most unfortunate that Chief Justice Higgins made the statement when and how he did, but the fact is the statement was made and the now very real suspicion that the justices might not bring an impartial mind to the resolution of the question they have set for themselves to decide, satisfies a stand alone, (10 out 0f 10 as Justice Brennan puts it), test for the apprehension of bias principle.

Mr Stanhope, as the Attorney-General of the ACT, the first officer of the law, (Colloquially, where the buck stops), it is cognizant upon you as the holder of this most eminent position, to address this most serious of situations.

This question of jurisdiction has now been asked and quite rightly now needs to be argued in law for the purposes of the Inquiry now before the Justices for decision, as well as futuristic and historical reasoning, but the ACT Supreme Court Justices by virtue of the very real suspicion of apprehension of bias that exists, need to be subject to one of two actions;

Either the ACT Supreme Court Justices themselves stand aside for this legal argument re jurisdiction and allow other, duly competent independent and impartial judicial officers to argue the question,

Or;

You as the Attorney-General for an on behalf of the people of the Australian Capital territory, cause to come about a legal challenge that addresses this allegation of apprehension of bias that I put before you and that any hypothetical fair minded lay observer with a limited knowledge of the law would cause to have this issue challenged.

I understand that as your Government is in an absolute majority position and hence can cause to come into force new legislation that would retrospectively eliminate the possibility of any finding of the question of jurisdiction having an effect upon any historical Coronial Inquiry decision that has gone before. I would point out to you Mr Stanhope that such legislative change that almost undoubtedly will be necessary, only fortifies my case of the gravity of the question, not withstanding the fact that it is most likely also a political mine field for those that propose such legislation unless total and absolute propriety in law is seen to be done.

In Summary;

Mr Stanhope, you found that the initial events that were before you as the ACT Attorney-General necessitated you causing the ACT to become embroiled in the original matter before the Court as a Plaintiff, although many considered such action as unnecessary. You have stated that the law is for everyone and their right to a fair hearing is sacrosanct, citing in Hansard that even the person convicted of the murder of one of your most senior police officers deserved such consideration. Here is an issue before you that goes to the very fundamental issues of the judicial system possible and as such must be given every consideration within your capacity as the Attorney-General.

There is no requirement whatsoever to satisfy the test for the principle of the apprehension of bias, to in fact prove that bias actually exists, just that there is a real and reasonable suspicion that bias might exist and that the justices might not bring an impartial mind to the resolution of the question they are to decide.

I believe unequivocally that I have shown that such a suspicion is not only real and reasonable, but also that the possible ramifications of not having this matter decided by those that have absolutely no known partiality to the question of jurisdiction to be decided is a blatant disregard for the very fabric and foundation of our internationally revered judicial system. Any attempt to circumvent the safe guards so in place to protect the individual citizens rights under law is another step towards the Banana republic that Prime Minister Keating espoused we were heading towards.

Mr Stanhope, it is neither for you, nor I to debate such an important issue such as this by mail and then consider the matter closed because we agree to disagree, or what ever. We could quote case history until we are blue in the face and for every case you quote in support, I can quote one to the contrary in support of my self. This issue is far too important for that. You have an obligation as Attorney-General for the ACT to put both Political and personal needs aside and have this question of jurisdiction argued in a manner that not only achieves justice, but allows the public to see that justice has been done. For this reason, the real and reasonable apprehension of bias that now exists over this jurisdictional question must be addressed by others, other than the Supreme Court Justices of the ACT.

In Anticipation of your most expeditious attention to this most serious of issues,

Thankyou.

Yours Sincerely

Duane L Langley

A proud and concerned Australian Citizen.