Do you trust the CJC/CMC?
The final reason used to justify no further action be taken was that the Goss Cabinet, involved in the shredding, acted on erroneous advice from the Crown Solicitor. While the CMC admitted “mistake of the law is no defence to a criminal offence” they considered it “relevant” in exercising their discretion not to prosecute.
House of Representatives Standing Committee on Legal and Constitutional Affairs
CRIME IN THE COMMUNITY
The Forde inquiry examined child abuse in Queensland institutions dating back to 1911. However, much of the evidence presented to the Committee suggests that such abuse was rife throughout the 1980s and 1990s and left unchecked by the very institutions established to investigate and report criminal conduct and official misconduct.
Of grave concern to the Committee in the Heiner Affair and abuse at JOYC are the inadequacies of the investigations carried out by the then Criminal Justice Commission (CJC) in particular. The Committee notes that other Queensland Government bodies also appeared to have failed in their duty to protect Queenslanders and their children. Indeed, Queensland institutions appear to have collapsed around the executive government, and, in that sense, protected it.
CRIMINAL JUSTICE COMMISSIONThe Criminal Justice Commission (CJC) is an independent statutory body, established under the Criminal Justice Act 1989 and accountable to Parliament through the all-party Parliamentary Criminal Justice Committee (PCJC). It is the key so-called proper authority established in the aftermath of the Fitzgerald Commission of Inquiry to which whistleblowers may take their allegations of public sector wrong-doing.
Its officers - contracted or otherwise - are required under the Act to perform their duties honestly and impartially when investigating allegations of official misconduct and corruption in units of Queensland's public administration, and not to advantage themselves or other persons in the process.
This case brings into question the role of the CJC and certain of its past and present officers who handled the allegations of high level official misconduct and/or corruption.
3.1 The CJC had the complaint of the shredding, inter alia, lodged by Mr Lindeberg on 14 December 1990 with CJC Complaints Officer Mr Peter Jones. Evidence was provided with the complaint and afterwards as and when it came to Mr Lindeberg's hand or attention.
3.2 On Thursday 10 January 1991 QPOA union officials Messrs Terry Hamilton (QPOA Asst General Secretary) and Brian Tierney (QPOA Industrial Officer) attend a meeting in the Department and threaten to take "the Coyne Case" to the CJC unless the Department either:(i) discloses details of Mr Coyne's job application for JOYC manager; orThe Department opts for (ii). Mr Tierney told Mr Lindeberg of meeting within days, and Mr Lindeberg informed the CJC by letter dated 15 January 1991. (See Exhibit 19) 3.3 On 18 February 1991 Mr Lindeberg, via a covering letter, supplied the CJC with:
(ii) makes it financially worthwhile for Mr Coyne to leave the public service as he was considering purchasing a delicatessen. (Later disclosed to Mr Lindeberg in February 1991 by Mr Tierney again).(1) QPOA letter dated 29 January 1990 to DFSAIA signed by Mr Martindale re breach of PSME Reg 63;3.4 On 25 March 1991 via covering letter to Mr Jones CJC Complaints Officer, Mr Lindeberg sent further evidence:
(2) QPOA letter dated 1 March 1990 signed by Ms Kinder re breaches of PSME Regs 46 and 65;
(3) Memorandum to QPOA Executive dated 12 June 1990 from Mr Lindeberg setting out details associated with the shredding of the Heiner documents, and a prima facie breach of the Queensland Criminal Code having been committed by either:(i) the Goss Cabinet;
(ii) Minister Warner; or
(iii) Ms Matchett. (See Exhibit 20)(i) Crown Solicitor's interpretation of PSME Regs 46, 63 and 65 dated 30/6/89;3.5 On 12 April 1991 Sir Max Bingham QC CJC Chairman wrote to Mr Tait seeking his recollections about the shredding, and including an opinion from the Crown Solicitor. (See Exhibit 22)
(ii) DFSAIA letter dated 1 August 1990 from Ms Matchett to QPOA President Mr William (Bill) Yarrow setting out an agreement reached between Mr Yarrow and her regarding Mr Coyne. The Department was offering, inter alia, to pay Mr Coyne's (and Ms Dutney's) legal costs. (The agreement was not ultimately kept by the Department.) (See Exhibit 21)
3.6 On 29 April 1991 the Queensland Cabinet Office responded to the CJC's request with certain details associated with the shredding. Nothing was mentioned concerning Mr Coyne's notice of foreshadowed court proceedings. A copy of the letter sent by Mr Tait to the CJC was also sent to the Office of the Director- General DFSAIA and received on 3 May 1991. (See Exhibit 23)
3.7 On 31 May 1991 Mr David J Bevan, CJC Chief Officer Complaints Section wrote to Mr Lindeberg informing him that the Heiner documents were lawfully destroyed because prior permission was obtained from the State Archivist under the Libraries and Archives Act 1988. (Mr Richard J Pointing was the CJC contact officer). (See Exhibit 24)
3.8 On 27 June 1991 Mr Lindeberg wrote to CJC Chairman Sir Max Bingham QC challenging certain accuracy aspects in the CJC's letter, and its findings, and placed before him nine (9) questions which required answers, the most crucial being:-(i) "It is not the real issue as to whether or not the State Archivist gave his approval before the Heiner Report was shredded in this particular case, but what information base he was operating from at the time, and who gave such information and why?" (See Exhibit 25)3.9 On 23 August 1991 Mr Bevan wrote to Mr Lindeberg stating that the shredding was lawful, and stated that the Cabinet Secretary placed:"the matter (Heiner documents) before Cabinet which determined that, as the documentation was no longer required, permission should be sought for the material to be disposed of. As already indicated, that process was carried out in accordance with the requirements of the relevant statute."Mr Bevan also described the allegation of misappropriation of public monies as "simply ancillary to the final result and does not warrant further investigation." He stated that the CJC considers its investigation finalised. (See Exhibit 26)
3.10 On 29 August 1991 Mr Lindeberg wrote to Mr Bevan challenging his letter of 23 August 1991. He advised Mr Bevan:"that information given to Cabinet by the Cabinet secretary was erroneous as the documentation was required. The QPOA, Queensland Teachers Union, Mr Peter Coyne and Ms Anne Dutney (via separate legal action) were demanding access to the documentation at the time it went to Cabinet."Mr Lindeberg also told Mr Bevan that he used the word "fraudulently" advisedly regarding the final payout of $27,190 as one of the parties to it told him of its fraudulent concoction. (See Exhibit 27)
3.11 Mr Lindeberg wrote on 2 November 1991 to Mr Bevan seeking an acknowledgment of his last letter, and stated that the documentation supplied to the CJC spoke for itself.
3.12 On 6 December 1991 Mr Bevan informed Mr Lindeberg that the CJC was in receipt of his letters and the CJC did intend to alter its earlier decision. The CJC did not intend to take any further action in relation to his complaint.
3.13 Mr Lindeberg completed a document titled "Unprincipled Conduct in Many High Places" on 7 January 1992 which outlined the case as he understood it at the time. It was done in preparation for whistleblower protection legislation in Queensland. He argued for "natural justice retrospectivity" to be included in the legislation to allow whistleblowers still suffering from their disclosure an opportunity to seek justice.
The Parliamentary Criminal Justice Committee Intervention/CJC First Report:
3.14 On 26 March 1992 Mr Lindeberg wrote to Mr Peter Beattie MLA Chair of the Parliamentary Criminal Justice Committee (PCJC) expressing "dissatisfaction with the CJC's findings and pseudo investigation, and stated that the CJC no longer commanded his respect or confidence." The PCJC ordered a report from the CJC on the case.
3.15 On 29 April 1992 the PCJC provided Mr Lindeberg with the CJC's report dated 14 April 1992, prepared by then CJC officer Mr Richard Pointing, and signed by Sir Max Bingham QC. The PCJC requests further comments on the report from Mr Lindeberg. (See Exhibit 28)
3.16 The CJC report was inaccurate, containing false information and omission of evidence but made the following claim out of its investigation:-"Lindeberg, in his capacity as a Senior Organiser, acted for Coyne in relation to the Inquiry and, during the course of his representation of Coyne, claims that he discovered that the Minister for Family Services improperly organised for certain documents to be destroyed while litigation was still pending. The litigation was initiated by Mr Coyne against the Department for improper dismissal and one aspect of that action sought the provision of the subject documentation. The matter was apparently settled, with Mr Coyne being paid an amount in damages. The documentation thereupon was not further required for the purposes of the litigation."(Note Exhibit 28 p2)
3.17 After receiving the report Mr Lindeberg contacted Mr Coyne for the first time since he left the public service and asked him about "being paid an amount in damages." He denied it and was outraged, and reaffirmed the monies he received was one year AFTER the shredding, and was never presented as "damages."
3.18 On 13 May 1992 Mr Lindeberg gave a detailed response to the CJC's report to the PCJC. He outlined what he believed were the offences involved and informed the PCJC: "I have been the victim of an on- going series of lies. I will not cop it." (See Exhibit 29)
3.19 On 26 May 1992 Mr Lindeberg provided the PCJC with a document titled "Chronology of Events". (See Exhibit 30)
3.20 On 15 June 1992, upon learning that the PCJC had referred the case back to the CJC BEFORE examining the material itself. He expressed his utter dismay over their action as he had no confidence or respect for the CJC following its "pseudo" investigation.
3.21 In June 1992 EARC published the "Report on Review of Archives Legislation" showing that Mr Lindeberg's submission (No 38) dated 23 April 1992 using the shredding as a case study was received. The submission was displayed in an edited fashion on EARC's computerise public register.
3.22 On 9 August 1992 Queensland journalist Mr Chris Griffith published an article in "The Sun-Herald" titled "Too much Cooke spoils the broth." The article highlighted the shredding of the Heiner documents for the first time, and disclosed that the CJC was assessing the case again.
The Noel Francis Nunan/CJC Connection:
3.23 On Tuesday 11 August 1992 Mr Peter Coyne presented himself and was interviewed at the CJC Headquarters by Barrister-at-law Noel Francis Nunan contracted by the CJC to review the shredding. (The content and conduct of the Nunan/Coyne interview should be obtained by the Senate Committee from Messrs Coyne and Nunan, or other sources eg tape recordings).
3.24 On Wednesday morning 12 August 1992 Mr Lindeberg was interviewed by Mr Nunan at CJC Headquarters. The interview was taped throughout except for approximately 15/20 minutes after the tape was filled as Mr Nunan did not have or seek another tape. Mr Lindeberg was challenged throughout by Mr Nunan asserting that there was no further legal action threatened by Mr Coyne after mid-January 1990 when he threatened a Writ of Prohibition.
3.25 Mr Nunan recognised that Mr Coyne threatened defamation action but asserted that under the circumstances what was heinous or reprehensible about the Government shredding the documents to stop people suing each other. Mr Lindeberg rebuked the suggestion by asserting that Governments have no rights to interfere with individual's legal rights, and had other means to address the problem.
3.26 Mr Nunan challenged Mr Lindeberg's interpretations of certain PSME Regulations 46, 63 and 65. Mr Lindeberg repeatedly told Mr Nunan that the documents were required for known legal action.
3.27 After the tape stopped and the interviewed continued with Mr Nunan taking notes, when Mr Lindeberg maintained that the documents were required for litigation Mr Nunan put it bluntly to Mr Lindeberg: "What do you want me (Nunan) to do, charge the entire Cabinet with criminal conspiracy to pervert the course of justice?" (See Exhibit 31 - Statutory Declaration by Mr Lindeberg 22 August 1994)
3.28 The allegation of misappropriation of public monies ($27,190) to bribe Mr Coyne was covered in the interview. Mr Nunan claimed that he had NO experience with public sector administrative matters having dealt mostly with the private sector.
3.29 Mr Nunan was told that there were no such Award entitlements for Mr Coyne's classification (I-12), and that Mr Lindeberg was told TWICE by Mr Tierney that it was "a fraudulent concoction". As there were no award entitlements, then there should have been no expectation, and this was unquestionably known by the Department's and QPOA's industrial officers.
3.30 Mr Lindeberg informed Mr Nunan of the role played by Departmental officers Ms Matchett and Mr Gary Clarke, and QPOA officials Messrs William (Bill) Thornton Yarrow, Terry Hamilton, Brian Tierney and Ms Jeni Eastwood in the payment. (To Mr Lindeberg's knowledge none was interviewed by Mr Nunan afterwards or have ever been interviewed by the CJC).
3.31 During the interview a supporting EARC/CJC submission from Mr Desmond F O'Neill was raised regarding an extraordinary public service circular produced in mid-March 1991 by Premier Wayne Goss reaffirming that nothing could be shredded without first obtaining the approval of the State Archivist. Mr Nunan made the following statement concerning its contents: "He (O'Neill) paints a grand conspiracy. If I had to choose between a cock-up and a conspiracy, I'd choose a cock-up every time." (See Mr Lindeberg's Statutory Declaration 22 August 1994 Exhibit 31)
3.32 Concerned over Mr Nunan's attitude during the interview Mr Lindeberg on 14 August 1992 wrote to Sir Max Bingham QC CJC Chair setting out:(i) the shredding background affecting Messrs Coyne and Lindeberg; and3.33 Mr Lindeberg confirmed with Mr Coyne after the CJC interviews that there were legal demands on the Heiner documents after mid-January 1990 unlike Mr Nunan asserted during their interview of 12 August 1992. Mr Lindeberg, on 24 August 1992, wrote to Sir Max Bingham QC reasserting the correctness of his evidence. He stated in the letter on the alleged out- of-court settlement with Mr Coyne contained in the CJC's Report of 14 April 1992:-
(ii) the potential precedents. (See Exhibit 32)."This section recognises that the Heiner Report was required for the purposes of litigation but attempts to justify the shredding on the basis that a settlement was reached before it occurred.(See Exhibit 33) Barrister's Interpretation of PSME Regulation 65:
No settlement was reached beforehand. This is a crucial lie. It has either been told to the CJC, or originates from within the CJC itself.
It clearly represents a cover-up."
3.34 Queensland Barrister-at-law Mr Peter Feeney was provided with documents given to CJC and Mr Nunan by Mr Lindeberg. On 15 September 1992 Mr Feeney provided an opinion that Mr Coyne had a statutory right to the Heiner documents under PSME Regulation 65 at the time requested. (See Exhibit 34)
Part 8 - Miscellaneous - PSME Regulation 65 states:
"Access to officer's file
65(1) At a time and place convenient to the department, an officer shall be permitted to peruse any departmental file or record held on the officer.3.35 Mr Lindeberg collected from Mr Barnes a copy of the interview tape recording evidence taken by Mr Nunan. Mr Lindeberg discovered that it was not a true and accurate reproduction of what was said. It was edited to erase Mr Nunan's statement "He (Mr O'Neill) paints a grand conspiracy. If I had to choose between a cock-up and a conspiracy, I'd choose a cock-up every time." (See Point 3.31). (Mr Lindeberg provided a statutory declaration on this matter dated 22 August 1994 to the Parliamentary Criminal Justice Committee - Note Exhibit 31 tabled by Whistleblowers Action Group (Qld) and The Queensland Justices' and Community Legal Officer's Association).
(2) The officer shall not be entitled to remove from that file or record any papers contained in it but shall be entitled to obtain a copy of it." (See Exhibit 35)
The CJC/Nunan Report:
3.35 20 January 1993 the CJC provided Mr Lindeberg with Mr Nunan's findings of no official misconduct. The report was signed by Mr Michael Barnes CJC Chief Officer, Complaints Section.
The Report contained:
3.36 Mr Barnes also made the following disclosure:- "It is conceded that some of the assertions made in the Commission's letter to you of 14 April 1992 were not completely accurate. This is regretted and I apologise for any embarrassment caused. The officer responsible for the preparation of the report is no longer employed by the Commission. " (See Points 3.16 & 3.33) (Note Exhibit 36).
- an INACCURATE finding regarding Mr Coyne's payout of $27,190;
- FABRICATED statements concerning Mr Coyne's redundancy;
- an interpretation of section 129 of the Queensland Criminal Code which allows evidence which may be required in any judicial proceedings to be destroyed;
- a crucial MISQUOTATION of PSME Regulation 65 thereby altering its meaning;
- the assertion that "there is no offence of misleading the State Archivist";
- interpretations of PSME Regulations 46 and 63 contrary to public service practice and natural justice. (See Exhibit 36)
3.37 On 26 January 1993 Mr Lindeberg wrote to Mr Barnes wanting to know:(i) the name of the officer who investigated and wrote the 20/1/93 report;3.38 On 7 April 1993 Mr Lindeberg informed Mr Ken Davies MLA Chairman of the PCJC that he (Lindeberg) did NOT accept the CJC's findings, and that he was not in a position to make a response because of "certain legislative investigative processes" beyond his control.
(ii) who was the CJC officer responsible for briefing and selecting the officer in (i); and
(iii) who was the officer responsible for the first CJC report of 14 April 1992. Mr Barnes refused to provide answers to the questions, wanting to know the reasons for such a request.
3.39 On 29 April 1993 Mr Lindeberg gave evidence in Parliament House Brisbane to the Senate Select Committee on Superannuation for its investigation into the administration of the Queensland Professional Officers Association Superannuation Fund (QPOASF). The shredding, the CJC's findings of 20/1/93 and the role of Mr Nunan were raised during the bracket of evidence. (See Senate Hansard 29/4/94 SSCS pp44-89).
3.40 On 18 May 1993 Minister Warner delivered a statement in Parliament regarding the shredding, and outlining the reasons why the Goss Government destroyed the documents in response to several Questions on Notice from Mr Kev Lingard MLA. The Minister mentioned nothing about Mr Coyne's notice of foreshadowed litigation served on the Government beforehand. (See Exhibit 37)
3.41 On 13 July 1993 Mr Kev Lingard MLA Deputy Leader of the Opposition delivered a major speech in State Parliament on the shredding of the Heiner documents alleging offences by the Goss Government including cover-ups. The speech was not reported in the electronic or print media. (See Exhibit 38)
3.42 On 8 August 1993 Mr Lindeberg wrote to Mr David Solomon Chairman of EARC Re: "Final Submission For EARC Issue Paper No17 `Archives Legislation.'" The submission outlined the precedents created by "the Peter Coyne Case" assuming "that a systemic cover-up is not being perpetrated on the Queensland public..." (See EARC & Section 30 p33-34 "Unprincipled Conduct In Many High Places MKII" 8 December 1993)
3.43 In late August 1993 Senator John Watson SSCS Chairman tabled 8th SSCS Report outlining the investigation into the QPOASF, and its unanimous recommendations.
"The Bulletin" and "Shreds of Evidence":
3.44 On 7 September 1993 "The Bulletin" magazine published a lead story on the shredding written by journalist Mr Greg Roberts "Shreds of Evidence." CJC Chief Complaints Officer Mr Michael Barnes described the CJC initial investigation as "grossly inadequate" and "It is embarrassing and we regret it. We don't know how it happened. The officer concerned is no longer with us." (See Point 3.16) (See Exhibit 39)
3.45 In the article it quoted Mr Lindeberg's comments to the Senate Select Committee on Superannuation concerning Mr Nunan that he had "known connections with the ALP...". Mr Barnes, himself a former office holder in Labor Lawyers, rejected suggestions that Mr Nunan was not impartial and said his appointment was approved by Sir Max Bingham QC, a former Tasmanian Liberal deputy Premier. Mr Roberts posed a key question in his article: What did the Government tell the State Archivist? (Note Exhibit 39)
3.46 On 11 September 1993 Mr Lindeberg, in his home, received an unsolicited phone call from Mr Nunan. Mr Nunan called Mr Lindeberg "a pathetic bastard" three times, and threatened him with defamation action if he said publicly that he was not impartial in his investigation. He confirmed to Mr Lindeberg that he never spoke with the State Archivist, and that the shredding was "a political decision". Mr Lindeberg provided a statutory declaration, dated 13/9/93 on the unsolicited phone call which was delivered to CJC Chairman Mr Rob O'Regan QC by PCJC Deputy Chairman Mr Neil Turner MLA. (See Exhibit 40)
3.47 On 24 September 1993 Mr David Bevan CJC Deputy Director Official Misconduct Division wrote to Mr Lindeberg confirming his letter of 12 September 1993. Mr Bevan stated in reference to Mr Lindeberg calling Mr Nunan a "CJC officer." "Please note that Mr Nunan is not and has never been an officer of this Commission." (See Points 3.23 & 3.24) Mr Bevan stated that the Commission understood the phone call was in a private capacity by Mr Nunan. (See Exhibit 41)
The Senate Select Committee on Public Interest Whistleblowing & the Shredding Meet:
3.48 On 8 December 1993 Mr Lindeberg presented his submission "Unprincipled Conduct In Many High Places MKII" to the Senate Select Committee on Public Interest Whistleblowing highlighting his whistleblowing experience which unearthed systemic corruption, the shredding, and its ramifications. (See Volume 4 Submission 74).
3.49 On 8 March 1994 Mr Lindeberg gave oral evidence in Parliament House Brisbane to the Senate Whistleblowing Committee (SWC) together with Mr Des O'Neill, Queensland Public Servant in the Department of Treasury. Documents were tabled. (See Senate Hansard 8/3/94 pp1132- 1144)
3.50 On 8 March 1994 CJC Official Misconduct Divisional Director Mr Mark Le Grand, together with CJC Corruption Prevention Divisional Director Mr Robert (Bob) Hailstone, gave evidence to the SWC. WA Greens Senator Christabel Chamarette asked Mr Le Grand whether he'd heard of the Lindeberg case and to provide a response to Mr Lindeberg's submission and bracket of evidence for the Committee. He gave an undertaking to do so, and confirmed that he knew of the case.
3.51 On 24 June 1994 Mr Le Grand provided the SWC with the CJC's promised response on several cases including "the Lindeberg/Coyne/Shredding Case."
3.52 On 4 July 1994 Mr Lindeberg provided a detailed "Submission in Reply" to the CJC's response. Mr Lindeberg asserted that the CJC had not honoured its commitment to address his bracket of evidence and had provided false and misleading evidence to the SWC. The CJC had also:(i) fabricated evidence;3.53 The SWC considered the CJC's response and according to SWC member Tasmanian Liberal Senator Paul Calvert in a statement to the Australian Senate, the SWC found it inadequate.
(ii) tampered with evidence;
(iii) failed to interview key witnesses;
(iv) misquoted a key statute.
3.54 On 31 August 1994 SWC Chair Senator Jocelyn Newman tabled in the Senate a unanimous Report "In The Public Interest" which, inter alia, called on the Goss Government to establish independent reviews into certain unresolved Queensland whistleblower cases, with "the Lindeberg Case" named.
3.55 In December 1994, after the establishment of the Senate Select Committee on Unresolved Whistleblower Cases which had "the shredding of the Heiner documents" as a specific term of reference, CJC Chairman Rob O'Regan QC publicly stated that all the cases had been thoroughly investigated. Source