* The Shredding of the Heiner Inquiry Documents and matters arising therefrom

Kevin Lindeberg, 20 Lynton Court, ALEXANDRA HILLS, QLD, 4161.
3 July 1995


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Introduction Page 1 The Concealed Documents and Their Significance Page 3 - Changed Legal Circumstances Page 3 - Documents Critically Relevant Page 4 - Ms Matchett Rejects Crown Law Advice Page 6 - Cabinet knew what it was doing Page 7 The Role of the Criminal Justice Commission Page 8 - Tampering with Evidence Page 8 - Intimidation Page 9 - The PCJC Page 10 - The Turner Resignation Page 10 - Partiality Within the PCJC Page 10 - The Grandest Conspiracy Plan Ever Heard Page 11 The Leaked Goss Cabinet-in-Confidence Submission Outlining the Goss Government's approach and attitude to the Senate Select Committee Page 12 - Police Double-Standards Exposed Page 13 - CJC and Police Compromised Page 13 The Role of the Attorney-General; Law Officers of the Crown; and the Rule of Law Page 14 - A Recognised Obligation Page 15 - Public Confidence Diminished Page 16 - Lord Denning on legal advisers to the Crown Page 16 - The Crown as a Model Litigant Page 16 - Mr Justice Mahoney on the Crown's duty Page 16 - Lord Hartley Shawcross and the Lynsky Tribunal Page 17 - All Roads leads to the Cabinet Page 18 - Anarchy or the Rule of Law Page 18 - Fundamental Questions Page 19 The Crown Solicitor's Response to the submission by Mr Ian Callinan QC Page 20 - Mis-stating the Obvious Page 20 - Clearly Foreseeable Page 20 - The Court must have the Final Say Page 23 - To Whom does the Crown Solicitor's Ultimate Duty Lie? Page 25 The Retrospective Amendment to the Freedom of Information Act 1992 (Qld) Page 25 Mr Peter Coyne's Submission and Bracket of Evidence Page 27 - Notification of the Shredding Date Page 27 - The Additional Payment Page 29 The Treatment of Queensland Whistleblowers Page 29 - The Creighton Affair Page 29 - Abuse of Power Page 33 Federal Whistleblower Protection Legislation Page 33 The Criminal Justice Commission's Submission (February 1995) and Brackets of Evidence 23 February and 29 May 1995 Page 35 - Introduction Page 35 - 1. PCJC's alleged Involvement Page 36 - Misleading Oral Evidence Page 37 - 2. Shooting the Messenger Page 37 - Cooke Commission of Inquiry Page 37 - 3. Changing Focus Page 38 - 4. A Very Very Long List Page 39 - 5. Lindeberg's alleged Duplicity Page 41 - The Police Commissioner Page 41 - The Information Commissioner Page 42 - 6. Deceiving the State Archivist Page 44 - Greater Power than a Court Page 44 - A Rogue Archivist or an Intimidated One Page 47 - What Commonwealth Archives Legislation Says Page 48 - 7. Declaring the Metamorphic nature of Public Records Page 49 - A Wide Discretion cannot be Limited Page 52 - No such Thing as an "Unofficial" File Page 52 - 8. Commercialisation of public monies and Public Service Award (State) Page 53 - Ignorance is Bliss Page 54 - Political Slush-Fund Page 54 - Claim Anything You Like Page 56 - 9. Condoning Corruption Page 57 - A Series of Official Lies Page 57 - A Deceiving Agent of the Crown Page 57 - Summary Page 61 - 10. CJC's Contradictory positions Page 62 - The Secondment and No Causal Connection Page 62 Miscellaneous Page 63 - A Code of Conduct for Public Sector Union Officials Page 63 - Registered Australian trade unions honouring ILO Conventions Page 63 References 1-77

Return to the Goss Government document shredding scandal

"Decency, security and liberty alike demand that government officials shall be subject to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy."1 Mr Justice Louis D Brandeis, Dissenting in Olmstead v United States, 277 U.S. 438, 475 (1928). The Senate Select Committee is faced with stark admissions of the offence of obstructing justice relating to the shredding of the Heiner Inquiry documents when, on 5 March 1990, members of the Goss Cabinet knowingly ordered the destruction of public records in order to obstruct Mr Peter Coyne's known foreshadowed litigation. These stark, irrefutable admissions have come from evidence provided by the Criminal Justice Commission (CJC) to the Committee in Canberra on 29 May 1995. Hard evidence by Mr Coyne and myself to the Committee support the admissions. For its part, the CJC has attempted to legitimise this blatant act of destroying relevant evidence and obstructing justice on the basis that at the time of the order no Supreme Court writ had been issued by Mr Coyne. This is in spite of the admission that the Government was fully aware of his intentions having been placed on notice by his solicitors as early as 14 February 1990 by phone conversation, and later confirmed in a letter dated 15 February which was officially received by the Government on 19 February 1990. In this case, not only was litigation clearly foreseeable but it had been officially foreshadowed on the Crown by Mr Coyne's solicitors as part of a due, proper and honourable notice which was and is quite common practice throughout the legal fraternity where respect for the law is taken for granted. Mr Justice Brandeis in 1928 set the scene we now face in 1995. A Government itself has broken the law. It has set an example of contempt for the law. Can it remain above the law? If it can, then the precedent established with the shredding of the Heiner Inquiry documents becomes an affront to every Australian citizen who believes that we are all equal before the law, and who faithfully allows Executive Government power over their lives in the expectation that the law will not be wilfully broken in the Cabinet room. The inescapable conclusion, should this case not invite redress through the Australian Senate, is that public records (or indeed any record) which are known to be required and relevant for foreshadowed and clearly foreseeable litigation, may be shredded by the Crown in order to obstruct one of its citizen's known course of justice. And, to achieve that end, the Crown may actively deceive, verbally and in writing, any plaintiff (and his/her solicitor) into a false sense of security concerning the welfare of such evidence thereby delaying the issuance of a writ, while behind the facade of being a model litigant secretly order the destruction of the material after perpetrating a fraud on its own archivist to give approval for the shredding on the pretext that the records are of no historical value and by withholding knowledge that such material is required for the purposes of litigation. The very notion of the Crown as a model litigant is now in jeopardy. Inherent in that notion is that "the King can do no wrong." The High Court of Australia recently upheld the principle that the Crown is indivisible2. It follows that acts which are carried out in its name in Queensland must inevitably affect its standing in other parts of the Commonwealth. It would seem to follow that any acceptance of the decision to shred public records in order to obstruct that course of justice of one of the Crown's law-abiding subjects in the Crown's name in the State of Queensland is especially poignant because its Legislative Assembly enshrined into law that Queen Elizabeth II is the Queen of Queensland. The ripple effect to the Crown's reputation may therefore not only affect its name throughout the Commonwealth of Australia, but extend to other constitutional monarchy countries within the Commonwealth of Nations (eg the United Kingdom, Canada, New Zealand et al). This would create a reasonable expectation in the mind of any Crown subject that whilst he or she must obey the laws of the realm, any Government of the day can be arbitrarily excused from upholding those same laws. The public admissions over the shredding and the resultant implications, I submit, cannot be left to go unchallenged by citizens who enact, enforce, love, practise and respect the laws of the nation. On 14 August 1992 following an interview at the CJC by its ad hoc reviewing officer Mr Noel Francis Nunan, I addressed a letter to the CJC whose opening two paragraphs stated: "The meaning of the chain of events set out in detail in material supplied by me to the CJC is to be found in the unfortunate situation imposed by corrupt activity upon the two central characters - Coyne and Lindeberg. Both have paid a high price. If corruption and official misconduct can be taken to mean anything, those words must find their meaning in the effects that misconduct and corruption wreak upon the individuals who become the focal points of such corrupt conduct. In this sense the two named may be considered as representatives of the total public service. This is not a discussion about ancient history. Neither is it a talk about the affairs of nations. It is a discussion about cheap corruption and misconduct by persons in positions of power who interfered - illegally and unethically and by the bending of time-honoured procedures - with the lives of individuals and with the destruction, by this abuse of power, of the livelihood of those individuals. Of acts carried out in the past that have a continuing effect in the present..."3 For five years I have struggled for justice. By any measure Mr Coyne has been done a grave injustice which requires redress. I would not tolerate the abuse of power carried out against me. The issues have now been publicly ventilated before an all-party select committee of the Australian Senate which represents a cross-section of the Australian community. I submit that the principles bound up in the shredding of the Heiner Inquiry documents and matters arising therefrom transcend party political considerations and cry out for public exposure and reaffirmation. As an Australian, (with the undesired appellation of whistleblower), I believe that the principles represent the very lifeblood of a nation governed by laws not by Executive decree. It has taken, and demanded, five years out of my life and that of my dear family to bring it to the attention of the Australian Senate and my fellow Australian citizens. KEVIN LINDEBERG 3 July 1995 -------------------------------------------------

The Goss Government and CJC have attempted to argue that the shredding was lawful and point in particular to two disclosed Crown Solicitor's advices of 23 January and 16 February 1990 as evidence of alleged lawful directions to shred. Those directions were conditional upon no legal action having commenced, and providing permission was obtained beforehand from the State Archivist as the documents were defined as public records within the meaning of S5 of the Libraries and Archives Act 1988. The CJC has asserted that any potential charge of official misconduct or criminality could not be sustained because the Government (in particular one of its Chief Executives Ms Matchett) allegedly followed Crown Law instructions contained in those advices. The other main contention of the CJC and the Government is that Mr Coyne "threatened" litigation but never actually took it to the stage of at least issuing a writ. This misleading contention is addressed further on in this submission which places Mr Coyne's alleged inaction in context and shows his real legal action continuum. Their alleged justification by following Crown Solicitor's advice, however, is fundamentally flawed because other subsequent actions initiated by Mr Coyne's solicitors and two trade unions overtook the scenario which the Crown Solicitor addressed in his two advices of 23 January and 16 February 1990. Evidence revealed under my two Freedom of Information access decisions from the Department of Justice and Attorney-General (See Exhibit 57) and the Department of Family Services and Aboriginal and Islander Affairs (DFSAIA) shows that the DFSAIA sought further advice from the Crown Solicitor on the effect of Mr Coyne's solicitors letters of 8 and 15 February 1990. They received advice back after 19 February 1990. Those advices post-date the revealed Crown Solicitor's advices, and inevitably throw into serious question the legal relevance of any advice predating them because of the changed circumstances which saw new legal demands placed on the documents not present at the time of the formulation of the revealed Crown Solicitor's advices.

Changed Legal Circumstances The CJC's finding of no official misconduct and/or criminality is based on this pretext: that any Crown Solicitor's advice which recommends a particular course of action at a given point in time can be used to justify any subsequent act merely because it exists even when circumstances have changed which brought the selected advice into existence, and when subsequent advice also exists. The CJC and Goss Government are presenting a false reality. That is why these later official communications have become crucially important in this analysis. The facts reveal why they currently remain withheld from public scrutiny. On 23 February 1995 the CJC confirmed to the Senate Committee that it had not sought to inspect DFSAIA's briefing documents to the Crown Solicitor stating that "...we (CJC) treat crown law advices with a fair degree of sensitivity"4, and that it was satisfied with the Crown Solicitor's advices revealed. Mr Barnes, representing the CJC, went so far as to state: "...Mr Lindeberg now asserts that there are further documents to be found; that there are further advices that will extend the life of this matter. I would suggest to you that no good purpose would be served by further investigating the matter. I would suggest to you that the actions of the officers who destroyed those documents have been shown to be not unlawful and not to amount to official misconduct."5 The CJC asserted that Mr Coyne's solicitors letter of 15 February 1990 did not have the relevance that I placed on it concerning the protection of the documents from destruction.

Documents Critically Relevant Senior Counsel appearing for me, Mr Ian D F Callinan QC placed a different interpretation on Mr Coyne's solicitor's letter of 15 February 1995 (See Exhibit 5): "Although in turn there is no reference to defamation, there are only two possible types of proceedings that could possibly be contemplated at that stage. Those proceedings would either be defamation or proceedings by way of prerogative writ or judicial review to get access to the documents. So, in either case, those documents were critically important and critically relevant to any proceedings that Mr Coyne might take."6 Mr Callinan QC said further: "...The real point, on any view of this matter, is that legal proceedings that were threatened would inevitably involve necessary recourse of the documents. The documents ought not, for that reason, to have been destroyed."7 Committee member Senator Christabel Chamarette asked the CJC whether there was some point at which the shredding became inappropriate behaviour within the public service or cabinet. Mr Barnes responded in the following manner: "I do not know the final answer to that. I know that the Crown Solicitor in 1990 had one view of it. Mr Callinan when he was appearing for his client today put another view of it, saying that the obligation extends more widely. I do not know what the answer is; and, with respect, it is not really our function when we are assessing complaints to work that out. If we see that a departmental officer acts consistently with crown law advice, then we are going to come to the conclusion fairly easily that that departmental officer has not been guilty of official misconduct."8 Senator Chamarette attempted to address the issue of destroying documents to prevent litigation going to court with the CJC in the following exchange: Senator Chamarette: "Is it not possible then to consider that if the reason for the destruction of the documents is to prevent litigation going to court, you are doing exactly the same thing as interfering with litigation on foot? The very reason for the destruction of the documents is to prevent litigation being prepared, for whatever motive, and therefore the same rationale should apply." Mr Barnes: "You may well be right; but my opinion on that point - and, with respect, Mr Callinan's opinion - is irrelevant. The opinion that is relevant is the one received by the acting director-general from the Crown Solicitor. She acted in accordance with that advice..."9 The unresolved question is: Did the Crown Solicitor's views continue to change as the legal circumstances changed after the disclosed advices with which the CJC is apparently satisfied, and is there evidence to support this? The Government and the CJC have attempted to assert (See Leaked Cabinet submission10) that Mr Coyne's notice of litigation was about his sudden secondment and that the continuing existence of the documents was unrelated. Mr Coyne in his submission and bracket of evidence on 5 May 1995 made it clear that his foreshadowed litigation was about access to the documents because he accepted that Ms Matchett had the authority under the PSME Act 1988 to second him anywhere in her Department. Mr Coyne made the following disclosure to the Committee: "...I submit the facts show the Heiner Inquiry went horribly wrong, and public officials and union officials could not acknowledge or accept that I had a legal right to challenge complaints made against me both in the inquiry and in the court. So a course of action was then entered into where the Queensland Cabinet made a decision that the Heiner inquiry documents were to be destroyed - destroyed despite being fully aware that these documents would be required in judicial proceedings. The director-general then advised me she was still seeking legal advice, knowing full well the decision for the improper destruction of the documents had already been made by the Cabinet and the State Archivist...."11 Nowhere has the Government disclosed the Crown Solicitor's specific opinion regarding Mr Coyne's claim of access under PSME Regulation 65, and yet evidence indicates that he did offer such an opinion. Why hasn't that opinion been disclosed? It should be remembered that three DFSAIA public officials knew firsthand that Mr Coyne was seeking access to the documents by a foreshadowed judicial review. They were then acting-Director-General Ms Ruth Matchett, her Executive officer Mr Trevor Walsh, and Ms Sue Crook, the Department's Principal Industrial Relations officer. All were party to seeking Crown Solicitor's advice, and the formulation of Cabinet submissions on the matter. Evidence indisputably indicates that all three actively deceived Mr Coyne and myself at different times about the secure welfare of the documents when they knew otherwise. It has been established elsewhere that Mr Walsh personally assisted in the secret destruction of the evidence.

Ms Matchett Rejects Crown Law Advice Ms Crook allegedly later told her Departmental work colleagues that Ms Matchett specifically rejected Crown Solicitor's advice. Another question then arises: Would it be so strange for Mr O'Shea, the Crown Solicitor, not to advise the shredding after 16 February 1990? He had already warned the Cabinet on 16 February 1990 (See Exhibit 6) that the documents could not attract "Cabinet privilege" and could not be protected in any way by public interest immunity, and that they would have to be provided on discovery processes in litigation in which the Crown was a party - the very scenario the Crown faced with Mr Coyne's solicitors letter dated 15 February and officially received on 19 February 1990 and passed onto Mr O'Shea for consideration and advice. We may be faced with the real possibility that the Crown Solicitor has been grievously wronged by the unexpected rejection of his lawful advice by Ms Matchett and ultimately the Goss Cabinet, and as a consequence, he has been hopelessly compromised, both legally and ethically, on this matter ever since 5 March 1990 when the order to shred was made by the Cabinet. Ms Crook's extraordinary revelation about Ms Matchett's decision - adopted by Cabinet - brings sense to what appears to be irrational advice, and what eminent senior counsel Mr Ian Callinan QC, and other barristers and solicitors, have described as "unthinkable." Otherwise, we are expected to believe that a responsible solicitor of some 30 years experience, (in this case a Crown Solicitor duty bound to uphold the role of model litigant, officer of the Court and member of the Queensland Law Society) after being served with notice by a firm of solicitors, has advised his client (ie a Department and/or Cabinet, themselves entities of substance within the legal system) to shred relevant public records before a writ was issued in full knowledge that the public records were required for the purposes of foreshadowed and foreseeable litigation. We are also expected to believe that Mr O'Shea, in accordance with his professional and ethical duties, did not even caution his client to err on the side of caution and not shred the documents (in this case the central item of evidence) until Mr Coyne's foreshadowed course of justice was resolved. Mr Ian Callinan QC described such a notion as unthinkable. He further regarded the shredding in the following terms: "...(it) would be regarded as conduct of the greatest seriousness - and much more serious, might I suggest, if done by a government."12 Practising in the Federal, Queensland and New South Wales superior courts Mr Roland D Peterson, a counsel, in a submission to the Senate Committee highlighting the role of the archivist, made the following comment on the shredding: "...The significance of shredding "public records" with haste is, to say the least, monumentally indefensible in our system of justice."13

Cabinet knew what it was doing The CJC confirmed to the Committee on 29 May 1995 that it (CJC) had no doubt that the documents were destroyed at a time when the Cabinet well knew that Mr Coyne wanted access to them. The CJC also confirmed that Cabinet also knew it was destroying material evidence on which a potential litigant would rely to pursue or prosecute his/her case. Mr Barnes (for the CJC) made the following public admission in Parliament House Canberra: "...There is no doubt that the documents were destroyed at a time when the Cabinet well knew that Coyne wanted access to them. There is no doubt about that at all."14 The following exchange over motivation took place at the same Canberra meeting: Senator Abetz: "I am trying to get a handle on this. What seems to have occurred is that, with the potential threat of a defamation suit, Cabinet decided to shred the documents because they were of no historical value, knowing full well that it may be the material evidence on which a potential litigant would rely to pursue or prosecute his case." Mr Barnes: "I think that probably is a fair summary. As a result of the actions, the correspondence and the communications, I think they believed that Coyne was considering suing the people who gave evidence before Heiner for defamation. As you say, the Crown Solicitor's advice seems quite clear that that was a potential and, consistent with that advice, cabinet decided that they would prevent that from happening."14A While Cabinet knew that the documents were required by Mr Coyne and his solicitors had served notice on them, it instructed the State Archivist on 23 February 1990 that those same records: " no longer required or pertinent to the public record."15 Here the CJC itself places on the public record admissions which go to the heart of the offences of obstructing justice and destroying evidence which may be required in judicial proceedings. While these admissions have been made, the significance of these later briefing documents and Crown Solicitor's advice/s is plainly obvious. They cannot and should not remain hidden from the lamp of public scrutiny in the public interest.

THE ROLE OF THE CRIMINAL JUSTICE COMMISSION The finding of no official misconduct by the CJC touching the shredding is now of as much importance to the Goss Cabinet, Ms Matchett and others directly involved as it is to the CJC itself. The CJC has continually relied on the advice of its ad hoc counsel who reviewed the case Mr Noel Nunan, who was later appointed as a Stipendiary Magistrate in Brisbane by the Attorney-General and Minister for Justice the Hon Dean Wells MLA. Mr Coyne informed the Committee that Mr Nunan, required by Section 6.3(2) the Criminal Justice Act 1989 to approach the case impartially and not to advantage any person, allegedly told him immediately upon their meeting each other at the CJC on 11 August 1992: "There will be absolutely no solace in this matter for you or Mr Lindeberg. This is a complaint against the Cabinet."16 During the course of my interview with Mr Nunan on the following day 12 August 1992 when I pressed the point that the Heiner Inquiry documents were required for the purposes of litigation, he said: "What do you want me to do, charge the entire Cabinet with criminal conspiracy to pervert the course of justice?"17

Tampering with Evidence In the same statutory declaration, and in my submission, I have referred to a CJC copy tape of the interview between myself and Mr Nunan conducted on 12 August 1992 being tampered with by someone inside the CJC. I have alleged that the following words spoken by Mr Nunan have been erased from the tape: "...He paints a grand conspiracy. If I had to choose between a cock-up and a conspiracy, I'd choose a cock-up every time." On 27 March 1995 Professor Miles P Moody of the Queensland University of Technology, an independent expert in the field of electronics, examined the tape. His report has been subsequently forwarded to the Committee as an exhibit by cover letter dated 3 April 1995. The CJC has purported in its submission that the above words, if they occurred, were said after the tape stopped. Professor Moody examined the tape comprehensively and responded to a series of questions on the erasure. He confirmed that the above words fit into the space where the erasure occurs. The following key question was put to him and answered thus: "Question 6. If one accepts such a purely co-incidental explanation, is it possible to calculate in percentage terms (or another acceptable ratio) the co-incidental random blip/gap appearing in the tape at the very point where the above alleged words happen to occur given that the gap occupies approximately 10-11 seconds during a tape of 5,400 seconds? That is, does it represent at least a 1 in 540 chance of occurring during that 10-11 second period, and can that be extended by some other factor ie the co-incidence of capturing a complete sentence etc.? Answer 6. If the occurrence of the gap were a random event (caused by a mal-function of the mechanism in some way or accidental operation of the record function when replaying), then the probability of it occurring for the particular 10 seconds in 5,400 seconds would appear to be 1 in 540. However, other factors would make this probability much less. The probability of a fault occurring at all is very low, particularly if the equipment is of high quality. The probability of anyone accidentally operating the record button is also low, providing the person were reasonably familiar with the recorder. If indeed there was a fault in the system, why did it not occur regularly during the recording and why, when it did occur, did it seem to repair itself 6 or 7 times (the blips) unsuccessfully before finally succeeding for the rest of the interview? If it were a faulty connection, one would expect to hear a more random pattern of static or blips. The gap starts at the end of a sentence and a new sentence starts at the end of the gap. The coincidence of this occurring at each end of the gap would be approximately equal to the square of the ratio of the length of a phoneme to the length of the gap. Since a phoneme lasts for about one fifth of a second, the ratio would be about 1 to 50. The probability of this occurring twice (once at each end of the gap) would be therefore about 1 in 2,500." Unlike my interview with Mr Nunan when the tape recorder was not touched, Mr Coyne alleged in his bracket of evidence that Mr Nunan switched the tape recorder on and off a number of times. Mr Coyne told the Committee: "...The CJC will probably come back and say "It is not in the tape." Well, the tape is not an accurate record of what happened, because it was turned on and off on numerous occasions. They have given me a transcript, and it shows it was turned off on a particular occasion, but I assert that it was turned off on numerous occasions...." 18

Intimidation On 11 September 1993 I received an unsolicited phone call to my home from Mr Noel Nunan threatening me with defamation action if I alleged that he wasn't impartial in carrying out his review of the shredding. (See Exhibit 40). Mr Nunan called me a "pathetic bastard" some three times, and amongst other matters said that the shredding was a "political decision". An immediate complaint was lodged with the CJC over his intimidatory call which was dismissed as a private call, and asserted that Mr Nunan "is not nor was he ever a CJC officer." My statutory declaration was delivered to the then CJC Chairman Mr Robin O'Regan QC by the PCJC Deputy Chairman the Hon Neil Turner MLA. (See Exhibit 40)

The Parliamentary Criminal Justice Commission

THE TURNER RESIGNATION In an unprecedented move, on Friday 26 May 1995 Deputy PCJC Chairman Mr Neil Turner MLA resigned from the PCJC alleging that the CJC misled the PCJC over the leaking of a CJC report in late 1993. Mr Turner said publicly: "They deliberately misled us, as such misled the Parliament of Queensland and the people of Queensland."19 In the related PCJC's unanimous report on the Inquiry into the CJC's failure to account for two missing copies of the November 1993 monthly report to the PCJC and related matters, the PCJC made a following conclusion: "...The Parliamentary Committee is of the belief that Mr Callinan QC, Counsel for the Commission, should have been informed that as at 7 January 1994 four copies of the document could not be located and as at 11 January 1994 two copies of the document could not be located. It was a matter for Mr Callinan QC to determine whether those facts were relevant to the proceedings against News Limited and Madonna King. The Parliamentary Committee cannot rule out that Commission officers deliberately withheld this information in order to improve the Commission's prospects of securing injunctive relief. However, the failure of the Commission to provide Mr Marxson and therefore Mr Callinan QC with this information demonstrates a lack of co-ordination between Commission personnel, a breakdown in the lines of communication and reporting, and the general lack of leadership at that critical time. Mr O'Regan QC must accept responsibility for the Commission's failure to inform Mr Callinan QC and Mr Marxson of the missing November 1993 monthly reports. It is clear from the evidence, that at the relevant time, Mr O'Regan was in a position to co-ordinate the investigation and to ensure that the lines of communication and reporting were maintained. However, Mr O'Regan, as the senior officer, failed to co-ordinate the matter or to set-up an appropriate mechanism to ensure that all relevant officers were informed of the matters which arose."20

Partiality within the PCJC The PCJC is established under the Criminal Justice Act 1989 and a heavy public duty is placed on all its members to approach matters impartially and not to advantage any one in its deliberations, and to do otherwise, is an offence. It is the Parliamentary watchdog on the CJC, and complaints may be lodged with the PCJC should any individual feel aggrieved with his/her treatment of a complaint by the CJC. The relationship between the CJC and PCJC has been extremely strained at various times. The CJC has untruthfully asserted in its report that the shredding has been investigated twice by the PCJC. The current PCJC has not, to my knowledge, carried out any investigation of its own volition other than to have received a report from the CJC on 20 January 1993 of Mr Nunan's alleged review of the shredding. The PCJC is still awaiting my response to that report which means any definitive finding is yet to be considered by members of that Committee. In other words, members of the PCJC would be duty bound to keep an open unbiased mind on the matter.

The Grandest Conspiracy Plan ever Heard One member of the current PCJC is the Member for Waterford Mr Tom Barton MLA, a previous General Secretary of the Queensland Trades and Labor Council (TLC) before entering Parliament in 1992. Mr Don Martindale was the Assistant General Secretary of the TLC during part of the time when Mr Barton held the post of General Secretary. On 17 November 1994 Mr Barton MLA participated in the debate in State Parliament on the Whistleblowers Protection Bill. In his speech he saw fit to make the following remarks about certain people whom he believed were self-professed whistleblowers and who allegedly did the cause of whistleblowing and innocent parties great harm: "...I was not going to name him, but he has been referred to extensively today by the Leader of the Opposition. I am talking about Kevin Lindeberg who, I would suggest, is a self-proclaimed whistleblower with the grandest conspiracy plan that I have ever heard. He claims that he is a victim. I would suggest that the other person whom he claims to represent is the real victim - not a victim of the Heiner inquiry, but a victim of Kevin Lindeberg's actions. In my view, Lindeberg is a self-professed whistleblower. He has defamed innocent people - some who are very close former colleagues of mine - before Senate inquiries, before the Cooke inquiry and in other places..."21 As a Member of Parliament, Mr Barton MLA unquestionably has right to speak on any subject matter he so chooses, and I would never seek to take that right away from him, or any other elected representative of the people, out of respect for our parliamentary system. However, on the evidence presented by his own admission, any consideration of the shredding in accordance with his heavy parliamentary duties as member of the PCJC under the provisions of the Criminal Justice Act 1989 would appear to be prejudiced from the outset. It seems that he is unaware of Commissioner Marshall Cooke's QPOA findings (See Exhibit 48) and the unanimous findings in its 8th Report of the Senate Select Committee on Superannuation into the administration of the QPOA Staff Superannuation Fund which found (i) breaches of the trust deed involving Mr Don Martindale, Ms Roslyn Kinder and others; (ii) conflicts of interest; (iii) crucial missing documents; (iv) highly questionable withdrawals which may have deceived the Fund administrator, National Mutual Life which ultimately cost the union membership thousands of dollars to reimburse; and (v) brought about a Queensland Police Fraud Squad investigation into Mr Martindale, Mr Kinder and two others over their withdrawals and missing documents.22 It is noteworthy that Mr Barton appears to make reference above to Mr Coyne without mentioning his name. In stark contrast to Mr Barton's untested assertion under parliamentary privilege, Mr Coyne freely and publicly said in his opening statement to the Committee: "...It is my assertion that the real and genuine whistleblower in this matter is Mr Kevin Lindeberg...." 23 As a Queensland whistleblower named in Senator Jocelyn Newman's unanimous Senate report on public interest whistleblowing - "In The Public Interest" [August 1994] - as one of the "unresolved whistleblower cases" which her Committee recommended that the Goss Government undertake an independent review of, this Senate Select Committee should now be aware that: 1. Allegations exist from a previous PCJC Deputy Chairman the Hon Neil Turner MLA that the CJC misled the PCJC and therefore, in his view, the Parliament of Queensland which sufficiently disturbed him to cause his resignation from the Committee; 2. A conclusion exists in the unanimous PCJC Report into an inquiry into two missing reports found that the CJC misled its own counsel (Mr Callinan QC), and misled the Supreme Court of Queensland in order to obtain injunctive relief for its own purposes; 3. Public comments have been made from a member of the PCJC which indicate a pre-conceived judgment of my case contrary to the duties placed on him under the Criminal Justice Act 1989; 4. Unresolved evidence, now supported by an independent expert, exists that someone in the CJC may have tampered with evidence to erase certain words from a official tape which gave prima facie evidence of the biased attitude of Mr Nunan to the case; 5. Later attempts were made by CJC appointed reviewing officer Mr Noel Nunan to intimidate me (a witness) in my own home; 6. Allegations put on the public record by Mr Coyne showing that before Mr Nunan even interviewed either Mr Coyne or myself, he declared that neither of us would get any solace out of the complaint because it was against the Cabinet.

THE LEAKED GOSS CABINET-IN-CONFIDENCE SUBMISSION OUTLINING THE GOSS GOVERNMENT'S APPROACH AND ATTITUDE TO THE SENATE SELECT COMMITTEE The leaked Cabinet-in-confidence submission was tabled in State Parliament on 21 February 1995 by Mr Santo Santoro MLA, the Shadow Opposition Spokesperson for Employment, Vocational Education Training and Industrial Relations thereby making it a public document and open to comment. It was tendered as Exhibit 93 by me on 15 March 1995. The document revealed the Goss Government's real attitude to a lawful inquiry and confirmed that there was further hidden advice in the system pertaining to Mr Coyne's solicitors letters which came to Cabinet just before its 5 March 1990 decision to shred the records. It revealed that the Goss Government was willing to use delaying tactics and public monies by seeking from the High Court of Australia a declaratory relief should the Committee decide to summons State officials after such officials declined invitations to give evidence on the shredding. It revealed that such a tactic would cause a possible two year delay, but that there was no certainty that the State would win such a High Court challenge.

Police Double-Standards Exposed It also highlighted the Queensland Police Service (QPS) as being party to "a political decision" not to co-operate with a lawful Senate Inquiry. The involvement of QPS in the Cabinet submission revealed its contradictory stance over the shredding when seen against a letter dated 25 January 1995 sent to me from Assistant Commissioner Graham Williams which declared that the QPS believed that the Senate Inquiry was an appropriate body to investigate matters raised by me, and that: "...the Police Service would be happy to address any matter which remains for investigation upon the report of the Senate inquiry."24 This contradictory stance must cast grave doubts over the political independence of the QPS and its preparedness to investigate matters associated with the shredding (which demonstrably involve the Goss Cabinet) if it is willing to support a political decision of the Goss Cabinet not to co-operate with a lawful inquiry, and even impede its activities in seeking out the facts. Mr Callinan QC pointed to a similar predicament facing the CJC and its involvement in the Senate hearings. (See pp.42-44 Senate Hansard 23/3/95). Mr Callinan QC made the following submission: "...I can finalise my submission by simply pointing out to the committee that the two serious questions that arise - and this committee may well have to answer them - are whether the members of the cabinet are members of a unit of public administration and, if so, whether in the events that have happened to which I have referred there has been official misconduct. If I am correct in suggesting that those are questions that have to be answered, the existence of those questions really requires me to draw attention to the very guarded role that the CJC should play from now on in these proceedings before this committee. I have put it that way for this reason: these are questions, which, if they do arise, will fall for consideration, close examination and reporting by the Criminal Justice Commission. When a tribunal or a body is placed in that position, it has to be very guarded in the way it acts and makes submissions and deals with some other body such as this one." 25

It is my respectful submission to the Senate Committee that any future role for the CJC to examine any possible official misconduct associated with the shredding which the Committee may deem worthy of investigation has been irreparably compromised, and would not serve the interests of truth and justice. Moreover, the weight of evidence indicates that any future investigation should now also include the CJC's handling of the case as well. It is also my respectful submission that the double standards of the QPS revealed in the leaked Cabinet submission show that any future role of the QPS in the matter may have been also compromised. The leaked Cabinet submission has revealed, in unequivocal terms, how the implications of the shredding ordered by Executive Government is a "whole-of-government matter." It has effectively closed down the system of justice in Queensland in regard to openly and willingly establishing the truth. At the same time, it has also made plain the crucial role of the Australian Senate in the task of preserving the rights of Australian citizens, especially Queensland whistleblowers who attempt to expose high level official misconduct and/or corruption in our State Government and its agencies where an Upper House does not exist.

THE ROLE OF THE ATTORNEY-GENERAL; LAW OFFICERS OF THE CROWN; AND THE RULE OF LAW The role of Queensland's Attorney-General the Hon Dean Wells MLA in the shredding cannot be easily overlooked, and nor can the role of Queensland's Crown Solicitor Mr Kenneth M O'Shea which is dealt with in more detail in the following section of this submission. The role of the Attorney-General appears to have been a very passive one in early 1990. The significance of the decision to destroy public records in order to reduce the risk of legal action attaching to the material, which did not attract cabinet privilege and could be required in any future litigation under the discovery processes upon the issuance of a writ undeniably impinged on the rights of any individual who may have wished to institute court proceedings. That fundamental issue, from evidence to hand, did not seem to exercise Mr Wells' mind or even enliven his sworn duty as Attorney-General to intervene with wiser counsel. He appears to have been happy to be party to the decision. An actual Cabinet discussion took place on 5 March 1990 after the Government had been put officially on notice of foreshadowed litigation by Mr Coyne's solicitors. Minister Warner was presumably fully briefed by her Departmental Director-General Ms Matchett who undeniably knew that the material was required for foreshadowed litigation. Out of that discussion a decision was reached and agreed upon to destroy public records in order to reduce the risk of legal action. The evidence presented by myself and Mr Coyne in particular, clearly shows that the Government had been served with notice that litigation regarding a judicial review on access to the documents was at hand. The CJC actually confirmed to the Senate Committee on 29 May 1995 in Parliament House Canberra that the Cabinet knew Mr Coyne needed the documents for litigation. In this case, Queensland's first law officer, the Attorney-General, being a member of Cabinet, participated in the debate to destroy evidence (ie public records) without apparently urging caution on the part of his colleagues to safeguard and protect potential evidence, the legal system, the public interest, or, in particular, Mr Coyne's interests. In plain unequivocal terms, that round-table discussion of 5 March 1990 deliberately conspired to obstruct Mr Coyne's known course of justice.

A Recognised Obligation The behaviour of the Goss Cabinet, and in particular the Attorney-General's, stands in stark contrast some three years later when the Attorney-General discussed his understanding of his responsibilities when addressing possible contempt in the ABC's docu-drama "Joh's Jury". The interview occurred on ABC-Radio on 17 February 1993: "...Well, contempt law is there to protect the legal system from being undermined. If certain behaviour, be it publication or whatever, has that effect. And if that's capable of being proved up to and beyond the necessary legal standard, then an Attorney-General has an obligation to bring a criminal prosecution for contempt of court."26 What is curious about the 5 March 1990 decision is that it was taken on advice given to one line Department by the Crown Solicitor on a matter which clearly had wider ramifications on the State's legal system which the Attorney-General had a sworn duty to uphold as its first law officer. There were competing interests. Nowhere has it been established that advice from the Solicitor-General (the Government's barrister) was sought to give a "whole-of- government" perspective into the ramifications of the shredding. In EARC's report of July 1993 on the independence of the Attorney-General it stated "...cabinet should not take decisions which have legal significance on the basis solely of advice obtained by individual departments for their own purposes."27 What makes it even more curious is that advice was sought on 13 February 1990 from the Crown Solicitor by the Cabinet Secretary Mr Stuart Tait and not by the Attorney-General himself. Nowhere has any input been identified to date from Mr Wells himself seeking a wider balance on a matter touching his important portfolio responsibilities in upholding the rule of law. The steadying hand of a Government erring on the side of caution is absent throughout in the dealings associated with the shredding. The major decisions were taken within only ten working days which, by any standard, was extraordinarily hasty. The Crown and its law officers, with the clear duty to be a model litigant, apparently paid no attention whatsoever to Mr Coyne's statutory demand and due notice of foreshadowed litigation if one accepts that the Crown Solicitor actually still urged the shredding to proceed with such notices in the system. It is in that context that this section is part of my submission. The shredding brings into sharp focus crucial questions which many eminent jurists and authors have written on because they are fundamentally important to the rule of law and to the pivotal role the Attorney-General (and his Law Officers) play in our system of Justice. It has already been addressed partly by the Electoral and Administrative Review Commission (EARC) in its issue paper of July 1993 on "The Review of the Independence of the Attorney-General." The Goss Government initially accepted in its first term Commissioner Tony Fitzgerald's recommendation that the office of Attorney-General and Department of Justice should be separated, but after 1992 in its second term, the Goss Government reverted to the old ways condemned by Commissioner Tony Fitzgerald QC.

Public Confidence Diminished Mr Coyne, the prospective litigant and a victim in the shredding affair, summarised the issue in his opening statement to the Committee: "...if Governments are able to destroy public records when judicial proceedings are at hand, public confidence in the court system would be severely diminished. Government would be permitted to destroy any public record which would reflect badly on itself in a future court proceeding. No free and democratic society can tolerate such behaviour from public officials."28

In Alfred Crompton Amusement Machines v Customs & Excise [1972] 2 QB 192 Lord Denning M.R. stated that barristers and solicitors employed as legal advisers to government are regarded by the law in every respect in the same position as those who practice on their own account.29 (Also see Waterford v The Commonwealth (1987) 61 ALJR 350 and also Attorney-General for the Northern Territory v Maurice & Ors (1986) 69 ALR 31).

The Crown as a Model Litigant The solemn duty of the Crown is to act at all times as a model litigant. This principle is inherent in Lord Denning's statement in the aforementioned case. There is a public expectation of such conduct. Legal practitioners (including the Crown) are required to forewarn their clients not to shred documents when litigation is foreshadowed because of the wide gather the discovery and disclosure process entails, and to wilfully destroy relevant material could impinge or hinder the flow of the fountain of justice. Our system of Justice acknowledges the pivotal importance of the Attorney-General (as the first law officer of Crown) and his/her law officers. They are required to always act as model litigants within the rule of law in our parliamentary democratic system. Our system purports to allow one citizen the opportunity and freedom to test his/her rights against the might of the Crown before an independent judiciary which itself in turn acts under the scrutiny of an open forum, an open judicial appeal process with an allegedly watchful independent media ready to report the facts, and possible miscarriages of justice. That cornerstone maintains the citizenry's faith in our system of Justice.

Mr Justice Mahoney summarised the Crown's duty in P & C Cantarella v Egg Marketing Board [1973] 2 NSWLR 366 at 383 in the following manner: "The duty of the executive branch of government is to ascertain the law and obey it. If there is any difficulty in ascertaining what the law is, as applicable to the particular case, it is open to the executive to approach the court, or afford the citizen the opportunity of approaching the court, to clarify the matter. Where the matter is before the court it is the duty of the executive to assist the court to arrive at the proper and just result."30 The Attorney-General has been described by Professor John Edwards in his book "The Law Officers of the Crown" 31 as the "guardian of the public interest." As a member of the Executive in governments throughout the Commonwealth of Australia he/she effectively performs a dual role as politician and guardian of the public interest which does not touch other Executive members in the same dramatic way. This dual function always has the potential to bring about a clash of major proportions when the Attorney-General is obliged to take a wider perspective of issues which may challenge the action of executive government, even to the extreme point of prosecutorial action when a colleague engages in wrongdoing as occurred in the Lynsky Tribunal in England in 1948. Professor Edwards commented further in his book on this dual role when he stated: "...Where, as has sometimes happened, members of the government, political colleagues of the Attorney-General, have been directly involved in the subject-matter of the inquiry, it has been suggested that the clash of loyalties involved renders it unlikely that the public interest entrusted to the Attorney-General of England will be effectively represented." 32 In another book "Politics and the Independence of the Attorney-General," Professor Edwards described the role of the Attorney-General in the following terms: "This unique office stands astride the intersecting spheres of government and parliament, the courts and the executive, the independent Bar and the public prosecutors, the State and the citizenry at large. When speaking of politics as impinging on the diverse roles of the Attorney-General this may involve the exercise of that official's statutory or prerogative powers, the action of the Director of Public Prosecutions or his superior in terminating an ongoing prosecution, as well as the Attorney-General's difficult role as both the chief legal adviser to the Government and to the House of Commons."33 He warned against political favouritism ever being exercised by the Attorney-General: "...Any Attorney-General who places the avoidance of embarrassment to his political party, his political colleagues or even his political opponents as the foremost consideration in fulfilling his official duties is in violation of that trust."34

Lord Hartley Shawcross and the Lynsky Tribunal: A previous eminent British Attorney-General Lord Hartley Shawcross when involved in the Lynsky Tribunal in 1948 which inquired into allegations of corruption against certain members of the Attlee Government addressed his duty in the following manner in his later writings: " was of the utmost importance from the public point of view to maintain the position that it was the duty (however personally unpleasant) of His Majesty's Attorney-General to represent the public interest with complete objectivity and detachment, and that to refuse to discharge that duty in a particular case in which the public interest might be suspected to conflict with the interests of certain of his friends or of his political colleagues would be tantamount to saying that the office itself was inadequate to represent and protect the public interest against whosoever might challenge it. It was in many ways a very distasteful decision to have to make, but I hope it helped to consolidate the Attorney-General's right and duty - and that is what I emphasise in these matters - the duty - to be wholly detached, wholly independent and to accept the implications of an obligation to protect what he conceives to be the public interest whatever the political results may be."35

All Roads lead to the Cabinet The extraordinary legal and political feature with the shredding of the Heiner Inquiry documents and tapes is that it was not just a decision of one or two Ministers alone, but an entire Cabinet. That feature also introduces the maxim of "respondeat superior" (let the principal answer) for all those engaged in the shredding beneath the level of Cabinet notwithstanding no employee can be instructed to carry out an unlawful order.35A In this affair, we are faced with the inevitable conclusion that all roads lead to the Cabinet, and inescapably to the Chief Executive. It can reasonably be assumed that Minister Warner correctly briefed her colleagues throughout after being fully and accurately briefed herself by her Departmental Director-General Ms Matchett. It also brings the role of the Cabinet's first executive member into question, namely the Hon the Premier Wayne Goss, himself a qualified lawyer. The current Queensland Police and Corrective Services Minister the Hon Paul Braddy was another lawyer in Cabinet actively agreeing to destroy material evidence during that extraordinary Cabinet meeting of 5 March 1990. Another member of that Cabinet was the first law officer of the State of Queensland, Attorney-General, the Hon Dean Wells MLA. No one apparently exercised caution, not even those Cabinet members with years of legal training paid any respect to due process or to Mr Coyne's legal rights. It seems little wonder, with all the political and legal ramifications of bringing a charge of official misconduct and/or criminality against an entire Cabinet in ordering an illegal shredding of public records that Mr Nunan, contracted by the CJC to review the shredding complaint, allegedly told Mr Coyne immediately upon meeting him at CJC Headquarters on 11 August 1992: "There will be absolutely no solace in this matter for you or Mr Lindeberg. This is a complaint against the Cabinet."36

Anarchy or the Rule of Law The clear evidence is that Mr Coyne after putting the Government on notice was deliberately and deceptively stonewalled by the Government and its agents over the status of the documents when behind the scenes it was secretly moving to shred the evidence. "The Administration of the Murphy Trade Practices Act" author Dr V G Venturini when speaking of secret backroom Executive duplicity mentions: "....the moral framework of President Nixon, who proclaimed publicly on 17 April 1973: 'I condemn any attempts to cover up in [the Watergate] case, no matter who is involved,' having said privately on 22 March 1973; ' I want you all to stonewall it, let them plead the Fifth Amendment, cover-up, or anything else.' That President was speaking to his Attorney-General. One ended up as an unindicted co-conspirator, the other in jail."37 It is pertinent to recall that the secret inner workings of the Goss Government revealed in the leaked Cabinet-in-Confidence submission showed that the Queensland Premier was prepared to consider delaying the Senate Inquiry by instituting an unwinnable High Court challenge. Additionally, despite the legality of the Senate Inquiry, he was prepared to withhold the State's co-operation, and had managed to obtain the secret agreement from the Queensland Police Service not to co-operate as well. The words of Mr Justice Louis D Brandeis in his dissenting ruling in Olmstead v United States 277 US 438, 475 (1928) (op cit)1 should be recalled and considered.

Fundamental Questions The prima facie illegal shredding begs fundamental questions which I respectfully suggest, on the evidence, now face the Senate Select Committee on Unresolved Whistleblower Cases:- 1. Are all Australian citizens, irrespective of status or position, equal before the law, and if so, does acceptance of the shredding make Queensland's citizens within the Commonwealth of Australia, less equal before the law than their fellow Australian citizens? 2. Has the first law officer of Queensland Attorney-General and Minister for Justice the Hon Dean Wells been derelict in his duties and therefore unfit to continue in that high public office? 3. Can this evidence, of a serious prima facie illegal act perpetrated by a State Government under the alleged authority of the Crown, presented to the a Senate Select Committee of the Australian Parliament remain unaddressed without creating an unacceptable precedent on the function of the Crown in the Commonwealth of Australia if the Crown is indivisible, and expected to be a model litigant? 4. How can a prima facie illegal act perpetrated by an entire Cabinet (including the Attorney-General) be investigated to the full satisfaction of the law and the traditions of the Westminster system without creating a constitutional crisis? 5. Can our legal and administrative system really cope when an entire Cabinet breaks the law, is found out, and requires the system to turn on its fountainhead in order to uphold the law? If it cannot cope, are we not in a state of anarchy?

THE CROWN SOLICITOR'S RESPONSE TO THE SUBMISSION BY MR IAN CALLINAN QC On 30 March 1995, on the instruction of the Goss Cabinet, Queensland's Attorney-General and Minister for Justice the Hon Dean Wells MLA sought leave of State Parliament to table a memorandum from Queensland's Crown Solicitor Mr Kenneth O'Shea which purported to address the substance of Mr Ian Callinan's submission to the Senate Select Committee on 23 February 1995. It is understood that the Goss Government subsequently forwarded Mr O'Shea's memorandum as its submission to the Committee which was confirmed by Committee Chairman Senator Shayne Murphy in Brisbane.38 Mr Roland D Peterson, on behalf of Mr Ian Callinan QC and myself, commented on Mr O'Shea's opinion at the Brisbane hearing on 5 May 1995.39

Mis-Stating the Obvious I wish to add the following points on Mr O'Shea's opinion in this submission additional to those already made by Mr Peterson. In essence Mr O'Shea has mis-stated Mr Callinan's submission, and then attempted to deal with various points on that mis-stated premise. He used the umbrella of Parliament to table his opinion without opening himself up to scrutiny by the members of the Committee unlike my counsel Mr Ian Callinan QC did on 23 February 1995. First, his fresh opinion is some five years after the event. Despite the opportunity to do so he did not table his advices to the DFSAIA addressing Mr Coyne's solicitor's letter of 8 and 15 February 1990, or the advices addressing the official lodging of breaches of the PSME Act and Regulations 1988 on the DFSAIA by two registered trade unions, the QPOA and QTU. Second, Mr O'Shea launched himself with vigour into quoting uncertain case law about "pending litigation." It totally ignored the fact, that whilst Mr Coyne had not served a writ before the documents were shredded, the Government had been served with due, proper and honourable notice of foreshadowed litigation by Mr Coyne's solicitors beforehand. After serving notice Mr Coyne instructed his solicitor to prepare documents for their case, and evidence exists to prove that preparatory work was done and still underway when the shredding was ordered and carried out. Mr Coyne embarked on a legal action continuum which any reasonable litigant would do after serving notice on the Crown.

Clearly Foreseeable There is ample case law, especially in the United States of America jurisdiction, which addresses the legal implications of documents being destroyed when it was foreseeable that such records would be required in litigation or lawful inquiries.40 (See "The Notre Dame Lawyer" Volume 56 Number 1 October 1980 - Document Retention and Destruction: Practical, Legal and Ethical Consideration. Authors John M Fedders and Lawyrn H Guttenplan). In the aforesaid publication the American Bar Association (ABA) Model Rules of Professional Conduct comment on "clearly foreseeable" proceedings in the following terms: "A lawyer shall not advise a client to alter or destroy a document or other material when the lawyer reasonably should know that the material is relevant to a pending proceeding or one that is clearly foreseeable."41 Model Rule 2.5 states: "Documents and other items of evidence are often essential to establish a claim or defence. Subject to evidentiary privileges, the right of an opposing party, including the government, to obtain evidence through discovery or subpoena is an important procedural right. The exercise of that right can be frustrated if a person alters or destroys material that could be demanded by an opposing party. Applicable laws in many jurisdictions make it an offence to destroy material for purpose of impairing its availability in a pending proceedings or one whose commencement can be foreseen. Falsifying evidence is also generally a criminal offence. In any event, it is improper for a lawyer to advise a client deliberately to take steps that impair the legal rights of others. The Rule applies to evidentiary material generally, including computerised information. The Rule does not require a lawyer to foresee all possible uses of material and does not preclude advice about a general policy concerning retention of records. It does preclude a lawyer from suggesting the destruction or falsification of specific material whose relevance can be foreseen in pending or clearly foreseeable litigation. It also prohibits a lawyer from turning over such material at the client's direction when the client plainly intends to destroy it."41 In this case however not only was it foreseeable but the litigation had been foreshadowed, and known, in the form of an official communication (letter and phone call) from Mr Coyne's solicitor to the Government. The litigation was discussed officially between Ms Matchett and myself, and witnessed by Ms Sue Crook, a DFSAIA senior official. Mr O'Shea overlooks this inescapable fact which is an important feature in "the course of Justice" recognised by the courts, covered by laws, and exercised the minds of many eminent jurists, High Court Justices and academics in their writings. Three, Mr O'Shea asserts that Mr Callinan's submission made him party to a conspiracy in the offering of his advice in 1990. That assertion is incorrect. There was no comment or consideration by Mr Callinan QC that he was party to a conspiracy before the shredding. On the advices disclosed by the Government to date Mr O'Shea appears to have been unaware in 1990 of Mr Coyne's 8 February 1990 statutory demand on the documents. He appears also to have been unaware that Mr Coyne's solicitor had served notice on the Government that, because the department was denying access to the documents (albeit Ms Matchett was indicating that she was waiting for Mr O'Shea's advice on the matter even after the Cabinet had ordered the shredding to proceed!) a judicial review was to be instituted. Nowhere, to date, has any document revealed how he viewed Mr Coyne's later solicitors letters, and yet it is known that briefing documents were sent to him by the DFSAIA. Four, the fundamental question that Mr O'Shea glaringly avoids would such notice of foreshadowed litigation cause him to offer different advice concerning the treatment and status of the documents, and in fact, did it? In Mr O'Shea's memorandum, dated 21 March 1995, he makes the following comment: "The Libraries and Archives Act 1988 reposes a wide discretion in the Chief Archivist to authorize destruction of "Public Records" (which is what the Crown's ownership of the Heiner Documents made them). Cabinet clearly had a right to seek their destruction and, although I did not advice her on the question, the Chief Archivist was clearly within her rights in authorizing their destruction. In a free society, a person (and this includes the Crown) does not need to find an enabling law to enable that person to destroy his or her own property. In a free society a person (which, as I said, includes the Crown) may do what he likes with his property, including destroying it, unless there is some positive law preventing its destruction." Five, Mr O'Shea speaks about the Government's right to destroy its "own" property in accordance with a Statutory regime permitted under the Libraries and Archives Act 1988. He opens up an astounding range of questions concerning the real ownership of public records, and on what factual basis such records may be destroyed while avoiding the reality that the records in question had a statutory demand on them, and were required for foreshadowed litigation of which the Departmental Director-General Ms Matchett, who took them into her possession from Mr Heiner, unquestionably knew about. Mr O'Shea seems to believe that one individual's right to seek a judicial review of a statute concerning access to certain (or any) public records, within the rule of law, can be thwarted by the Crown wilfully destroying such official records in full knowledge of such a demand because the Government of the day allegedly owns public records. He then boldly calls such an act as a pointer of "a free society!" The government of the day, their servants and their legal officers are the mere custodian in bailment of such records on behalf on the Crown in perpetuity. Six, Mr O'Shea then speaks about an abundance of authorities which shows that the Courts will not countenance evidence being unfairly or illegally obtained, and then mentions several cases, including the "Vasta Tapes" which was decided in a High Court decision, all of which saw documents ultimately destroyed. The Crown Solicitor misses at least two fundamental points. The Heiner Inquiry was lawful by his own admission in advice submitted to Government and therefore the documents and evidence were not illegally obtained. Furthermore he fails to acknowledge, or address, that the original written complaints against Mr Coyne were obtained before the Heiner Inquiry itself commenced, and were in the possession of the then Departmental Director-General Mr Alan Pettigrew making them public records, and were unquestionably a departmental record held on Mr Coyne fitting precisely the wording and intent of PSME Regulation 65 (See Exhibit 35). The status of those original written complaints never changed one iota. That only leaves open the posed question of unfairness regarding the evidence obtained by Mr Heiner which manifested itself into the documents and tapes, and, if allegedly unfair, then to whom and who may legally make that judgment? By any standard what happened to Mr Coyne could never be judged by any reasonable person as being fair. Mr Coyne himself saw access to the documents as being fair and just treatment to him. It is clear that equity and natural justice principles should have stood in the way of the shredding of the documents until, at least, Mr Coyne's rights were legally addressed. Ms Matchett had a statutory duty under the Section 12 of the PSME Act 1988 to treat all her staff fairly and justly and to maintain proper records but these breaches of her statutory duties concerning her treatment of Mr Coyne are completely overlooked by Mr O'Shea.

The Court must have the Final Say But the real point missed by Mr O'Shea in his latter-day attempts to justify the shredding, using especially the "Vasta Tapes" case, (High Court of Australia Vasta 179 CLR 427) 42 showed that it was the Court that decided whether the documents should or should not be released or destroyed, not some public official or Executive Government. They did not shred the documents first and then seek court approval afterwards. What judge, with the wisdom of Solomon, can or could order the un-shredding of shredded documents if he or she found in favour of their retention or access to by a plaintiff? Clearly those cases of themselves do not give any Government a unilateral right to destroy official public property whose access is being contested by a citizen, save in a society that is anything but free and has a Government which does not operate under the rule of law. In his book "Crown Law" Mr Paul Lordon QC stated in Section 2 - Powers and Duties of the Crown when addressing the duty of the Crown to abide by laws: "It is the duty of the Crown and all its servants or agents to abide by and obey the law. This requires that components of government purporting to act on behalf of the Crown be able to point to some positive authority for their actions."43 Also see for illustrations: Fulton v Norton (1908) A.C. 451; Eastern Trust v Mackenzie, Mannn & Co., (1915) A.C. 750 at 759 (Privy Council); Bhatnager v Minister of Employment and Immigration, (1988) 3 F.C. 383, at 384. Access to and the continuing existence of the documents should have been argued before a Court as Mr Coyne intended to do. Mr Coyne, the plaintiff, was forestalled in issuing a writ because of the blatant provable lies told to him by the agent of Executive Government Ms Matchett on the pretext that Mr O'Shea himself was still working on an opinion as to whether or not he (Coyne) could have access the Heiner documents under PSME Regulation 65. These demonstrable written lies touching the alleged performance of Mr O'Shea himself are assiduously overlooked in his opinion. Why? What reasonable person, exercising his/her own common sense such as Mr Coyne would ever think that while being openly assured (verbally and in writing) by a lawful agent of the Queensland Government like Ms Matchett, (advised by the Crown Solicitor duty bound to be a model litigant) that he (Coyne) was actually being deliberately deceived by that agent about the central issue of the litigation even after she knew the evidence was ordered destroyed on the false pretext that it wasn't required? Seven, Mr O'Shea comments on Mr Callinan's suggested course of action to resolve the predicament facing the Goss Government over the Heiner Inquiry and the public records it generated by introducing retrospective enabling legislation. Mr O'Shea impugned his suggestion as being an unacceptable course of action for a newly elected government. It is interesting to note that the British Conservative Government of Prime Minister Margaret Thatcher when elected to office in 1979 was immediately confronted with an unfortunate complex legal predicament of the previous Government's making in one major department. She introduced retrospective legislation and lawfully overcame the problem. As an aside, the Goss Government, some five years later in 1995, had no compunction whatsoever in introducing retrospective Freedom of Information legislation (backdating it to 1992!) which in turn breached its own Legislative Standards Act 1992. Five years after the shredding, documents generated in 1990 are still hidden in the system, and he introduces the notion that the witnesses were "whistleblowers." Why not seek leave to table everything generated in 1990 instead of constructing an fresh apologia in 1995? Eight, Mr O'Shea introduces the most remarkable comment of all when he presumes to speak for Mr Coyne by effectively asserting that destroying the documents was in everyone's interests, especially Mr Coyne, and to do otherwise may have led to "...considerable injustice." Mr O'Shea never sought Mr Coyne's opinion on such a matter. Given that the Inquiry targeted him, one would have thought Mr Coyne would have had some comment on any decision to shred evidence affecting him. Mr Coyne had his own solicitor, Mr Ian Berry. In fact, Mr Coyne told the Committee that he wanted the inquiry to continue to seek out the truth (See p.525 Senate Hansard 5/5/95), instead of that he was suddenly seconded to a non-job, his career destroyed, and he was presumed guilty without ever being given the opportunity to properly defend himself. He had justice denied him, and now apparently, that injustice is being endorsed by the Crown Solicitor himself. If, in fact, he did advise the Government to proceed with the shredding after receipt of Mr Coyne's solicitors letters of 8 and 15 February 1990 (which on the evidence is highly unlikely) and Mr Coyne proceeded with his writ and court action, because the documents were known to be critically relevant, Mr O'Shea, a solicitor of some 30 years experience, would have placed his client open to immediate challenge on the legal maxim: omnia praesummuntur contra spoliatorem (all things are presumed against the wrongdoer). It would have placed his client (ie the Crown) in an untenable legal position before the Court. Isn't the plain fact that the Crown Solicitor is now really attempting to defend the indefensible?

To Whom Does the Crown Solicitor's Ultimate Duty Lie? The final questions which Mr O'Shea himself should address (or may even be wrestling with now) is that if in fact he advised the Government not to shred after Mr Coyne served notice on the Crown, and his lawful advice was wilfully rejected, where does his duty really lie? Has he compromised himself by not addressing the rejection of his lawful advice back in early 1990? Can he ethically and legally still advise the Goss Government on the Heiner Inquiry documents in full knowledge that his final lawful advice in 1990 was rejected? And, in declaring that he cannot advise the Cabinet any longer, does he provoke an unavoidable constitutional crisis for the Queensland Government which could and may inevitably invite the intervention of the State Governor? Under such circumstances Lord Denning M.R. has made Mr O'Shea's legal, professional and public duty very clear in Alfred Crompton Amusement Machines v Customs & Excise [1972] 2 QB 192 (op cit), and the provisions of the Criminal Justice Act 1989 to report official misconduct to a proper authority cannot be ignored.

THE RETROSPECTIVE AMENDMENT TO THE FREEDOM OF INFORMATION ACT 1992 (QLD) On 2 April 1993 Queensland Premier Wayne Goss delivered a speech in Brisbane to a seminar on Fundamental Legislative Principles. It addressed the Legislative Standards Act introduced by his government following the recommendations contained in the Electoral and Administrative Review Commission's (EARC) Report on the Review of the Office of Parliamentary Counsel in 1991. The Act was seen as a model for other States and the Commonwealth to follow and was born out of the Fitzgerald Commission of Inquiry into Possible Illegal Activities and Associated Police Misconduct (See p.140). Commissioner Tony Fitzgerald QC made the following observation on p.140 of his Report concerning the role of the Parliamentary Counsel: "The Parliamentary Counsel obviously should not tailor advice to political expediency or fail to point out fundamental errors in principle or obligation in any proposed course. The present role and functions of the Parliamentary Counsel should be reviewed (in light of other matters identified in this report) to ensure its independence." Premier Goss placed the enactment of the Legislative Standards Act 1992 in the following context in his speech on 2 April 1993 to the above EARC seminar: "For too many years, the system of law making in Queensland operated without sufficient regard for the rights and liberties of our citizens. What we now call fundamental legislative principles were not previously well known among public servants and even Ministers. Of greater concern was the absence of proper checks and balances to ensure that both Cabinet and Parliament were adequately informed when proposed legislation was designed (intentionally or otherwise) to depart from fundamental principles upholding rights and liberties... Fundamental legislative principles are guiding principles that help us ensure that legislation does not unduly interfere with the rights and freedoms of Queenslanders... They are principles on which a parliamentary democracy based on the rule of law is founded."44 Section 4 of the Act set down the principles referred to by Premier Goss. One such principle illustrates the point of how easily and quickly so-called fundamental legislative principles can be discarded when political expediency apparently demands it in post-Fitzgerald Queensland. Section 4(3)(g) of the Legislative Standards Act 1992 states: "...does not adversely affect rights and liberties, or impose obligations, retrospectively." The sudden retrospective amendment directly impacted on my two active Freedom of Information applications before the Information Commissioner seeking access to identified but hidden documents. The amendment breached the mischief that the Legislative Standards Act 1992 was designed to correct. The documents sought had been identified but access denied. The Government went so far as to seek alleged independent counsel advice which declared that even "the date" of the document could be withheld on the grounds of being legal professional privilege. Seeking advice on such a legal absurdity indicates the depths to which the Government was prepared to stoop to stop disclosure of certain documents and their important dates relating to the shredding. "The date" on a letter can never represent, or be, legal advice between a solicitor and client. In this case however, the date will reveal further advice after 16 February 1990 when the Government is attempting to deceive all and sundry that its last piece of Crown Solicitor's advice was on 16 February 1990. Attorney-General and Minister for Justice the Hon Dean Wells guillotined the Freedom of Information Amendment Bill 1995 through Parliament in a late night session on 21 March 1995, just under one month after the first Senate Select Committee hearing when I spoke about the hidden Cabinet documents (See pp.131-132 Senate Hansard 23/3/95). Mr Wells made the following comment in his second reading speech: "The Bill applies retrospectively. I make no apology for that. The FOI Act was never intended to provide a vehicle to inquire inside the Cabinet Room. The Queensland Government does not accept that this would be a legitimate purpose of Freedom of Information legislation. The Bill is retrospective because it gives effect to the intent that Government always had, that is, to protect the confidentiality of Cabinet and Executive Council deliberations and decisions, and all documents physically submitted to, or prepared in relation to, Cabinet and Executive Council."45 Against the fanfare of enacting the Legislative Standards Act 1992 and the Goss Government's alleged commitment to open and accountable Government, this sudden retrospective amendment to its Freedom of Information Act 1992 which denied me access to important documents connected with the Goss Cabinet's decision to shred the Heiner Inquiry documents was, in lieu of being deliberate, either extremely fortuitous on their part, or unfortunate on mine - and on the public interest as well.

MR PETER COYNE'S SUBMISSION AND BRACKET OF EVIDENCE: The Senate Select Committee on 5 May 1995 gave Mr Coyne his first opportunity to speak publicly under parliamentary privilege about the shredding of the Heiner Inquiry documents and matters relating thereto. By any measure, his preparedness to give evidence and be questioned while in the new employment back with the Queensland Government was an act of considerable courage on his part. Previously he had been silenced from making any public comment on the Heiner Inquiry and its aftermath by the provisions of a unexpected Crown Law Settlement Deed, secretly negotiated between the Department and his union and suddenly imposed on him when leaving the public service in February 1991 which he ultimately signed under duress. Mr Coyne's submission and bracket of evidence complemented my version of events and therefore I shall only comment on two places where slight differences have emerged.

Notification of the Shredding Date In his submission (See p.10) and bracket of evidence (See p.543 Senate Hansard 5/5/95) he alleged that I learnt of the shredding on 23 March 1990 and informed him about it on or about that same day. My recollection on this point differs. In addressing this point the CJC's comments on it shall also be addressed. Mr Barnes made the following comment: "...although Mr Lindeberg asserts in one of his submissions three little words which have now changed, because they do not fit in with the chronology. You will recall the three little words - I think it was a song by Duke Ellington - but he uses it in a different context to suggest that he was told some time in early March that, 'They've been shredded.' Faced with the facts that that did not happen until 23 March, he now says he was told of the plans to shred them. I submit, in view of the great play he made of the three little words, that you can take no notice of the evidence in that regard."46 In evidence at the Cooke Commission of Inquiry in my evidence-in-chief the matter was addressed in the follow manner by me: "...I happened to speak with the Minister's private secretary and I was told, when I was telling her about what the union, that is - sorry Miss Norma Jones is the Minister's private secretary - that we were demanding access to those documents - when she let slip in the conversation, "Oh, they have been shredded." Of course, that brought in a whole range of matters of great concern to the union..."47 Commissioner Marshall Cooke QC questioned me again about Minister Warner's private secretary's comments confirming the shredding, and I responded in the following manner: "...That's right, and - well, because it lives in my memory, once she said that, she stopped, because I immediately asked her on the matter, because it was of vital importance, and she couldn't answer, and then shortly after that I was moved off the case."48 The exchange on this vital point between Ms Jones and myself was very brief and occurred around 8 March 1990 several days after the Cabinet had secretly decided to shred the documents. Only several days later around 13 March 1990 on the specific insistence of Minister Warner Ms Jones told me that she (Minister Warner) would only deal with QPOA officials Mr Don Martindale or Ms Roslyn Kinder on the Coyne case. In light of evidence now on the public record, the only possible reason for my removal was that I knew too much after that brief exchange between Ms Jones and myself. My recollection of my removal from the case is that it occurred on or about 15 March 1990. Mr Martindale was fully briefed on the case and following his meeting with Minister Warner he offered Mr Coyne a position elsewhere in the Department.49 My next recollection of speaking with Mr Coyne about the shredding was on the day the news broke of the shredding in the print media on 11 April 1990.50 The transcript of my interview with Mr Nunan on 12 August 1992 at the CJC indicates that I was unclear even then as to the precise shredding date. It was only revealed after certain documents were obtained under my FOI application to the Administrative Services Department and shown to be 23 March 1990. Mr Barnes implies that I have placed different slants on the shredding at different times. What he conveniently omits as a key factor is the interchange which occurred between Ms Jones and myself in early March 1990. My recollection is that Ms Jones stated that the documents had been shredded. It was a very fast admission on her part, and not repeated again once I challenged her because, I believe, she suddenly realised that she'd disclosed certain information which I was not supposed to know. The phone call ended very abruptly thereafter. What is indisputable however is that the word "shred or shredded" was used by Ms Jones in relation to the Heiner Inquiry documents at the very time when they were clearly required by Mr Coyne and two trade unions, and that is why I immediately reacted to her words. Mr Martindale was fully briefed before meeting with Minister Warner. He knew that the documents were required, and the meeting was held before the shredding actually occurred when "a deal" was undoubtedly struck in spite of Mr Coyne's desires or instructions to the union. A job offer was clearly made contrary to my understanding from Ms Matchett that Mr Coyne's secondment was temporary and he could rightfully expect to return to the JOYC after completely his so-called special work task. Minister Warner allegedly told Mr Martindale that I threatened her career and that of her senior Departmental officials. The threat I posed, providing I stayed on the case and remained loyal to Mr Coyne and persisted on our course of seeking access to the documents, was that complete exposure of the secret plans to shred and obstruct Mr Coyne's legal rights would have occurred opening up questions of criminality and/or official misconduct then. Mr Martindale intervened, later sacked me and assisted in the cover-up. My union duties, insofar as Mr Coyne was concerned, were taken from me by Mr Martindale however records inside the QPOA generated by me afterwards indicate that I always viewed the shredding as an illegal act but the union leadership of Messrs Martindale and Yarrow rejected my recommendations, showing further evidence of their role in the cover-up. (See Exhibit 79).

The Additional Payment Mr Coyne indicated that he did not need the money to purchase his delicatessen as I alleged in my evidence. Mr Coyne said: "...I could not really rely on how much other money was going to come in. I did not need that money to buy the business."51 I accept Mr Coyne's evidence, however, my comment was based on direct evidence given to me by then QPOA Industrial Officer Mr Brian Tierney who participated in the negotiations with Ms Matchett, Ms Jeni Eastwood (QPOA General Secretary) and Mr Gary Clarke (DFSAIA Corporate and Finance Director). The connection was not my own creation but Mr Tierney's, and he has never been questioned over his description of the payment by anyone.


The Creighton Affair During the 50's when the notion of "whistleblowing" was unknown an extraordinary scandal was played out in Queensland politics involving allegations of high level political corruption. The case illustrates, like the shredding, the immense power that the Executive wields in Queensland, and how the system is almost impregnable when one individual challenges corruption at ministerial level. Mr Vivian Rogers Creighton, Chairman of the Office of Land Administration Board was a senior public servant at the centre of attempts to expose possible misconduct in the granting of Crown Leaseholds involving his Minister for Public Lands and Irrigation the Hon Mr Tom Foley MLA. He found himself caught in the whistleblower's aching dilemma of loyalty to his Minister, boss or organisation, and how to successfully expose the wrongdoing after accepting that there is an even greater personal loyalty: Truth. His initial dilemma was wrongdoing at the highest levels of the Gair Labor Government. His avenues of exposure within the Government were either unsuccessful or administratively untenable including approaching the Queensland Governor, Cabinet, the Premier or the Parliament. Ultimately he decided on the device of writing anonymous letters to the Northern District Secretary of the Australian Workers Union (AWU) Mr Cecil W Edgar Williams with whom he was good friends. Another AWU official Mr Joseph Bukowski (later to become the AWU State Secretary and Queensland ALP President) used the information in a series of three articles reflecting badly on the administration of Mr Foley's portfolio in his union's publication "The Worker." It was alleged during a later parliamentary debate in 1956 that Mr Bukowski's motivation had nothing to do with a desire to expose maladministration but more to do with discrediting Mr Foley during the Grouper/Anti-Grouper warfare within the Australian Labor Party. Mr Bukowski sought leave to appear before the Bar of Parliament to air his concern over the granting of land leases but it was defeated along party lines. A short speech in the Australian Senate by Queensland Liberal Party Senator Ian Wood on 16 February 1956 on the affair brought national prominence to the allegations of high level graft.52 Within hours Queensland Premier Vince Gair, unaware that the source of the information was Mr Creighton and his preparedness to give evidence, established a royal commission under Mr Justice K R Townley. An interim report resulted in Mr Foley's criminal prosecution of which he was acquitted in a Magistrate's Court. The final report found him guilty of improperly soliciting funds for the ALP which saw him sacked from Cabinet and later expelled from the party. After the Commission concluded the Gair Government immediately moved to dismiss Mr Creighton from his position on the charge that he had improperly communicated information which came to his knowledge in the performance of his duties to Mr Williams, and that he should have communicated his complaints to the Governor, Cabinet, the Premier or to Parliament. On 2 August 1956, an extraordinary debate in State Parliament took place which saw Mr Creighton removed from the public service by a vote cast on party political lines upholding the charges of alleged misbehaviour. Mr Creighton was issued with an historic invitation to speak at the Bar of Parliament before Members of Parliament cast their votes on terminating his employment. It is recorded that amid jeers from the Government Members, Mr Creighton outlined the predicament he faced in an address before the Bar: "...I decided after much thought that it was my responsibility to bring into the open such matters in order that the whole position could be cleared. In this regard, I decided that there was no duty upon me to give blind loyalty to my Minister..."53 and " I have previously briefly stated that, in ordinary circumstances, I owe, as head of my Department, to my Minister both loyalty and discretion. But it was impossible for me to abide by this loyalty and discretion if I was to attempt to bring these matters into the open. After much consideration, I decided upon this course as it was obvious that there may come a time when these virtues could be a cloak, not merely for corruption, but for even more serious derelictions of duty. Surely, no one would suggest that a public officer should close his eyes for example to treason or sedition out of personal loyalty to any particular person or body. My decision to depart from the ordinary principle of loyalty which was, in the circumstances, no longer applicable, was essentially personal and in my case it was made after long and careful consideration and after I had satisfied myself that my first duty, under the circumstances, was to the public as a whole."54 Mr Creighton declared his actions and the judgment befalling the State Parliament in the following manner: "...Find me guilty of treachery to Her Majesty's Ministers if you will, but neither that nor anything you may do will make me guilty of any breach of the higher loyalty which I at all times owed to the public of this State." and "...I have already been condemned without a hearing by the majority of the members of this Parliament. In those circumstances, and being aware as I am that the vote for my dismissal will be made on Party lines, I recognise the futility of my appearance here. By the vote of that majority of the Members, I know that I will be discharged from my office. By so voting, Parliament will not dishonour me but will dishonour itself."55 The then Leader of the State Opposition Mr Frank Nicklin MLA in the debate made the following statement: "After deep consideration I give it as may firm conviction that Mr Creighton is now being viciously victimised by the Government because he had the audacity to break through their code of fear and intimidation and take action to expose a corrupt member of their fold. That was the result of Mr Creighton's action. He brought to light corruption of a Minister of the Crown, corruption in the high circles of Government. In such circumstances surely any indiscretions of his should be overlooked and, instead of being dismissed, he should be given credit for bringing to light something unsavoury and unsatisfactory in the official affairs of the State."56 Mr Nicklin MLA went on further to quote from the Royal Commissioner's report concerning Mr Creighton's behaviour: "At page 129 of his report the Royal Commissioner said - As I early said I am not concerned with Mr Creighton's conduct unless it was corrupt conduct and, however misguided, however extravagant, or however wrong his correspondence and conduct may have been, I cannot persuade myself that it amounted to corrupt conduct in respect to any dealings with Crown leaseholds. I believe that primarily he (Creighton) was activated by a desire to do good and the methods he employed were not in breach of any statute, but however indiscreet they were this was outweighed by the results of his endeavours which disclosed corruption at ministerial level. In the final analysis Creighton's actions have benefited the people of the State and it is deplorable to contemplate that the representatives of those who so benefited should display such inhuman vindictiveness as is contemplated today."57 Mr Aikens MLA (Member for Mundingburra) made the following observation during the Creighton debate: "...The Commissioner said that he did not want to refer to the impropriety or otherwise of Mr Creighton's remarks, but that he was innocent of any charges. And the ex-Minister was guilty of one of the most nefarious charges of which a Minister could be found guilty. We are being asked to vote on a motion that will mean the dismissal of the innocent man, while the guilty man will be allowed to remain as a member of this Assembly. That is the point agitating the minds of the people of Queensland, the guilty man goes free while the innocent man is dismissed..."58 Mr Creighton's public service career of over thirty years was terminated by a vote along party political lines 43 - 18. The debate took just on 15 hours. The Creighton Affair reveals the very timeless nature of the conflict when one individual takes on an allegedly corrupt Minister of the Crown, or, in the case of the shredding of the Heiner Inquiry documents, one Minister whose sanctioning of and involvement in official misconduct in her Department ultimately embroiled an entire Queensland Cabinet in official misconduct and/or corruption and corrupted the system. It demonstrates that the system has a curious, but determined, way of protecting itself and ultimately must either shoot or attempt to destroy the messenger, be it Mr Creighton in 1956, or Messrs Coyne and O'Neill and myself in the 90's rather than address the issue. Nearly 40 years later Queensland has the so-called independent CJC to look after whistleblowers. Does it stand the test? The CJC and its alleged watchdog role over "the system" sees it also engaged in shooting the messenger in its personal attacks on myself and Mr Coyne just like the QPOA and DFSAIA did to us respectively after we confronted them over the shredding. It begs the question: Can whistleblower protection legislation really work, or could it ultimately work against the whistleblower?

Abuse of Power Whistleblowing involving misconduct at the highest levels of government is about the raw abuse of power, where the victor (just as in wars between nations) allegedly and effectively wins the right to write the history books. That right then enables the omission of the victor's own indiscretions or original wrongs which brought about the clash, through to the magnification of alleged or real flaws of its foe until Truth (and its messengers) has been buried - and hopefully forgotten - beneath a mountain of hypocrisy and lies. But, the exposure of the lies and the establishment of the Truth, inevitably and historically, has its own timetable. Despite the passage of some five years, the shredding of the Heiner Inquiry documents has an odium about it which refuses to go away because it has affronted timeless principles larger than any of the individuals involved in the scandal.

THE FEDERAL WHISTLEBLOWER PROTECTION LEGISLATION The deep concern Federal legislators should have arising out of the shredding of the Heiner Inquiry documents as a case study is whether legislation specifically drafted to protect whistleblowers really affords any protection for someone who may find him or herself confronted with high-level political corruption and/or official misconduct. It may turn out to be a cruel mirage. The CJC has declared that elected officials in Queensland involved in (or believed to be) official misconduct are immune from prosecution unless it satisfies the necessary elements of a criminal offence. It becomes a double-jeopardy for the would-be whistleblower, exacerbated if the agency lacks the will to tackle high-level political corruption. The whistleblower may find him or herself completely isolated and exposed once the step is taken to do something. There is no turning back once the step is taken. All the facts pertaining to the wrongdoing may not always be known when the would-be whistleblower decides to act because, in some cases, speed is of the essence otherwise evidence may be destroyed or the incident occur which may be detrimental to the health and safety of the community or individual. The CJC has its Whistleblowers Support Unit (WSU) which is supposed to provide guidance for would-be whistleblowers before they actually take the step. From the experience of Whistleblowers Action Group (WAG) in Queensland the WSU is neither credible nor working. "The system" seems to subsume everything. When it comes to allegations of high-level political corruption as with the shredding example, the system literally shuts down and bites back. It becomes preoccupied with the political ramifications, not the allegation or the whistleblower. The Queensland Police Service (QPS) offers an irrefutable example in regard to the shredding. The detectives who interviewed me in depth wanted to know what the Opposition and I intended to do next rather than address the facts and act in accordance with their sworn duty. Then, in various pieces of contradictory correspondence, the QPS declared that (i) the shredding should be referred to the CJC; (ii) the shredding had been investigated by the CJC to its (CJC's) satisfaction and therefore the matter was closed; and (iii) the Senate Inquiry was the appropriate body to investigate the matter and it (QPS) would be happy to take up anything coming out of the Senate Report while behind the scenes it was being party to the Goss Government's strategy of not co-operating with the Senate Inquiry. These differing positions from the police may also be known under another classical term: Passing the Buck. In the meantime, the injustice continues. Whistleblowers cannot be protected by the same agency which addresses the wrongdoing. Their tasks are different. In my case, the CJC appears not to even acknowledge that I may perhaps fulfil the (undesired) appellation of whistleblower. Instead, before the Senate Select Committee it has described me as a liar, duplicitous, unreliable, consumed etc. It has actively engaged in shooting the messenger, and done the same to Mr Coyne, the other victim in the shredding. The Federal legislation calls for the establishment of an all-party standing committee to which the agency must report. That committee must also have the authority to hear grievances from whistleblowers not satisfied with the investigation of their complaint. The shredding may be a worst case scenario in public interest disclosures. It is noted that in the draft legislation that should the Prime Minister be involved in official misconduct then the agency must contact the Governor-General. That would presumably bring into play the reserve powers of the Governor-General, and such a contact would have the capacity to create a major political crisis depending on whether the alleged misconduct involved the Prime Minister alone. The Westminster traditions and ministerial responsibility would demand, at the very least, that the Prime Minister stand aside until his or her name was cleared, and the Deputy Prime Minister take over leadership of the Government. The Street Royal Commission of 1983 which touched the integrity (et al) of the then New South Wales Premier the Hon Neville Wran QC caused him to stand aside immediately as Premier for the duration of the inquiry and to appoint the then Deputy Premier Mr Ferguson as acting Premier. Mr Wran's name was cleared and he resumed his premiership afterwards until his resignation on his terms. In respect of the shredding, we are confronted with an entire Cabinet engaged in allegations of official misconduct and/or criminal behaviour. It may be argued that the Government would have no other option than to resign, or be asked to resign by the Governor of the Queensland. The Goss Government has repeatedly declined an independent review of the case asserting that the CJC has thoroughly investigated the matter and found no official misconduct. Unless a whistleblower can be assured of full protection under the Federal legislation involving a worst case scenario then it should be explicitly noted in the legislation that wrongdoing touching elected officials be handled through political processes which may cause or allow the person further reflection before he or she embarks on a course which may jeopardise his/her family's future. The forgotten persons in whistleblowing are the families. The burden they carry is unfair and often intolerable, and it should be addressed in some form similar to victims of crime. Young children cannot understand what is going on. Some marriages are strong enough to weather to storm, but others may disintegrate unless support can be given. In that regard state funding of private sector groups (eg WAG) who can provide that vital support should be high on the agenda. The term "whistleblower" has gained its niche in our vocabulary, but I submit, it sits very uneasily in our Australian culture. Many so-called whistleblowers never saw themselves as whistleblowers when they acted. It may be said that they are and/or were ordinary Australians caught up in unpleasant work situations involving real and suspected wrongdoing which their values could not and would not accept. In acting, they found and/or find the spotlight turned on themselves rather than the wrong itself. Their value system is often turned against them because of the nature of the conflict. They become isolated through apathy, scepticism, misinformation, disinformation or intimidation of the community at large or the workforce. It is a term which runs counter to "mateship" - the alleged great Australian virtue. A strong community education program must accompany the enactment of the legislation, and w hilst it may be too late to coin another term more befitting Australian culture, serious consideration on this point should be given before any legislation is placed on the statue books.


Introduction It is not my intention to systemically dissect and analyse every sentence or assertion in the CJC's submission or bracket of evidence in this submission in reply because that would be restating facts already contained in my major submission "The Shredding." To address everything may tend to distract from the central issue: The shredding of the Heiner Inquiry documents and matters relating thereto. There are several assertions however which I believe should be addressed lest it gives an impression, through silence, of their acceptance on my part. It is important that the Committee is left with no misunderstanding regarding certain key CJC points either as to their misrepresentation, falsity, or their legal, administrative and/or industrial relations absurdity. So that it cannot be claimed by anyone that my response has been purposely selective, I state this plainly for the public record:- 1. I stand by everything I have placed on the public record; 2. I submit that far from demonstrating the absence of official misconduct associated with the shredding, the CJC's submission and brackets of evidence in fact do not (a) undermine the seriousness of my allegations; and (b) lend credibility to the CJC's claim that the allegations have been properly and exhaustively investigated.

1. THE PARLIAMENTARY CRIMINAL JUSTICE COMMITTEE'S ALLEGED INVOLVEMENT "In the discharge of its functions the PCJC has on two separate occasions inquired into, and found to be without foundation, allegations of the kind placed before the Senate Select Committee on Public Interest Whistleblowing by Mr Kevin Lindeberg and Mr Gordon Harris in evidence and by submission. These allegations are reflected in paragraph (a) and (b) of the Terms of Reference of this Committee. In each case those inquiries were commenced because of complaints made, initially to the first PCJC chaired by Mr Peter Beattie MLA and subsequently to the second PCJC chaired by Mr Ken Davies MLA. Each PCJC was differently constituted and on each occasion found that the allegations made could not be sustained. In the case of the Lindeberg complaints, the inquiries were conducted by the PCJC itself. In the case of the Harris allegations, the first PCJC had the benefit of an independent investigation conducted by two senior and experienced NSW police officers, while the second PCJC had the assistance of a leading Queen's Counsel from the criminal bar." (See pp.5-6) 1.1. The CJC presents grossly misleading and untruthful evidence regarding my dealings with the PCJC. 1.2. On 26 March 1992 I wrote to Mr Peter Beattie MLA Chair of the PCJC expressing "dissatisfaction with the CJC's findings and pseudo investigation, and stated that the CJC no longer commanded my respect or confidence." The PCJC requested a report on my complaints from the CJC which was duly supplied dated 14 April 1992 signed by CJC Chairman Sir Max Bingham QC. The PCJC supplied me with a copy and sought my comments which was duly done in a detailed submission in reply on 13 May 1992. (See Exhibits 28, 29 & 30). 1.3. Far from carrying out inquiries by itself as the CJC has asserted, Mr Beattie's PCJC sent the material back to the CJC BEFORE reading it, and in August 1992 then Barrister-at-law Mr Noel Nunan (now Stipendiary Magistrate) conducted an alleged second review after being appointed by the CJC, not the PCJC. (See pp.38-39 CJC submission). 1.4. On 19 September 1992 the Goss Government was re-elected and a new all party PCJC was appointed by the Parliament with Mr Ken Davies MLA taking over from Mr Peter Beattie MLA as PCJC chair. 1.5. On 20 January 1993 the CJC presented to both myself and the PCJC its second report into the shredding and related matters conducted by Mr Nunan. The CJC report was signed by Mr Michael Barnes. 1.6. On 29 January 1993 PCJC Research Assistant Ms Luisa Pink wrote to me on behalf of Mr Ken Davies MLA indicating that the PCJC had received the CJC report, and sought "any further representations" to the PCJC on the matter. 1.7. On 7 April 1993 I wrote to Mr Ken Davies MLA indicating that I did not accept the CJC's findings or its various assertions. I further stated that I was not in a position to give a detailed response to the PCJC because of certain legislative investigative processes occurring within Queensland's public administration over which I had no control (ie an FOI application to the Administrative Services Department commenced on 18 January 1993). 1.8. The present PCJC is yet to receive my detailed response to the CJC's second report of 20 January 1993, and therefore, whatever position it (the PCJC) may currently hold regarding the shredding is held without the benefit of my response, other than it unquestionably knows that I reject the CJC's findings.

Misleading Oral evidence 1.9. On p.121 of Senate Hansard for the public hearing on 23 February 1995 the following exchange occurred between Senator Christabel Chamarette and the CJC:- Senator Chamarette: "And did the PCJC take you up on this particular case, to go through it again?" Mr Le Grand: "Yes, it did." Mr Barnes: "On two occasions, I recall." 1.10. To my knowledge, the PCJC chaired by Mr Ken Davies MLA, like Mr Beattie's Committee, has never conducted an inquiry itself into the shredding and related matters. For the CJC to assert this is grossly misleading and untruthful.


Cooke Commission of Inquiry "The allegations which Lindeberg now makes about his dismissal from the QPOA were examined in some detail during two weeks of evidence at the Cooke Commission of Inquiry into various unions. Because of lack of time Commissioner Cooke concluded that a sufficiently thorough examination of the issues was not possible and so no findings on Lindeberg's allegations were included in Commissioner Cooke's report." 2.1. My appearance before the Cooke Commission of Inquiry is dealt with in detail under Point 5 (pp.36-39) in "The Shredding" supported by Exhibits 47, 48, 49 & 50. 2.2. It is disingenuous of the CJC not to acknowledge that Commissioner Marshall Cooke QC was threatened with a Supreme Court injunction by Mr Don Martindale and the QPOA in order to stop any adverse findings being made (See Point 5.14 "The Shredding"). This is exacerbated by the CJC not recording Commissioner Cooke's QPOA recommendations, one of which called on the CJC to examine all the evidence and exhibits relating to my hearing once an amendment to the Criminal Justice Act 1989 was made bringing unions under the official misconduct provisions of the Act. (See Point 5.17 "The Shredding"). 2.3. The Goss Government failed to implement this key recommendation to amend the Criminal Justice Act 1989, and contrary to the CJC's assertion on 29 May 1995 I have never criticised Commissioner Marshall Cooke QC in the performance of his duties. (See p.690 Senate Hansard)

3. CHANGING FOCUS "After the Commission (CJC) informed Lindeberg that it had no jurisdiction to investigate his dismissal, he changed the focus of his complaint to other matters which he considered would be within jurisdiction." (p.9) and "After Lindeberg was informed by a complaints officer at the Commission that neither of the organisations which he wanted investigated came within the Commission's jurisdiction, he changed the focus of his complaint to the actions of the Minister, Ms Anne Warner, in authorising the shredding of the Heiner documents. In the voluminous material provided with his first letter, this matter had been given only a fleeting reference amongst his many complaints about his dismissal from the QPOA, but he wrote to the Commission on 18 December 1990: The Charge levelled at me by the General secretary to justify my dismissal concerning "the Coyne Case" involves the Minister for Family Services and Aboriginal and Islander Affairs the Hon Anne Warner taking documentation to the Queensland Cabinet to authorise their shredding while litigation was still pending on them." (p.13) 3.1. On 14 December 1990 I lodged my complaint with the CJC in the genuine belief that "trade unions" and "credit unions" were "units of public administration." I was duly informed by the CJC itself that those bodies did not fall within its jurisdiction and I accepted those limitations without question or rancour. 3.2. The CJC itself, through its officer Mr Peter Jones, informed me that as "the Coyne Case" (ie the shredding) involved a Government Department it did fall within the CJC's jurisdiction being "a unit of public administration" and would therefore would be investigated. 3.3. I have remained resolute in my approach ever since my initial dismissal on 30 May 1990. I was sacked on demonstrably contrived charges following a whistleblowing incident, but with "the Coyne Case", it involved criminality and/or official misconduct touching the Goss Government, the union and others. I have not deviated. 3.4. It is remarkable that the CJC sees fit to remark on my providing it with "voluminous material" relating to my complaint. I did not make my complaint lightly. I was merely supplying all the facts associated with my dismissal (including the shredding) I had in my possession to assist the Commission in its serious task. As facts emerged concerning "the Coyne Case" I continued to forward them on to the CJC considering it my duty to do so. 3.5. It is quite untruthful and misleading for the CJC to allege that I changed my focus from other matters associated with my dismissal to solely concentrate on the shredding when it was the CJC itself which set the parameters of my dealings with it in accordance with the provisions of the Criminal Justice Act 1989.

4. A VERY VERY LONG LIST "...The following bodies or individuals have, according to Lindeberg, failed to understand or adequately respond to the concerns which he has raised: The Hon the Minister for Family Services and Aboriginal and Islander Affairs Ms Anne Warner; The Director-General of the Department of Family Services and Aboriginal and Islander Affairs, Ms Ruth Matchett; The Auditor-General; The State Archivist, Ms Leigh McGregor; The Arbitrator who found against Lindeberg in his employment dispute; Various office bearers of the QPOA; Commissioner Marshall Cooke; The Criminal Justice Commission; Electoral and Administrative Review Commission; The Information Commissioner; Various officers of the Department of Family Services and Aboriginal and Islander Affairs; Public Sector Management Commission; Queensland Police Service." (pp.10-11) 4.1. The Committee will ultimately judge for itself in my submission "The Shredding" and associated exhibits the worth of the CJC's assertion touching the above. My main reason for covering this point is to illustrate the misleading nature of the above list, and, in some cases, their unwarranted and unsubstantiated presence. 4.2. Given that it is not clear what the CJC is attempting to portray to the Committee except perhaps show a "very, very long list" or attribute a begging bowl mentality to me, I shall deal with several of the above to illustrate the misleading nature of the list. 4.3. The Auditor-General: It was through my contact with the Auditor-General, and that body's subsequent intervention which ultimately led the CJC changing its position over the legality of the payment of $27,190, finally seeing it written off as "a loss" by the DFSAIA. The CJC never investigated the payment thoroughly, and the Auditor-General could not find supporting documentation, and yet the CJC sees fit to include it in the list. 4.4. The Arbitrator: Just under half the QPOA Council had grave misgivings over the findings of the alleged independent arbitrator Mr Joe Patti. An examination of his findings on each charge brought against me by Mr Martindale shows that he could not sustain them. His final judgement of an alleged "irretrievable breakdown in the working relationship between Mr Martindale and myself" to justify the dismissal went against all union principles, and yet my union found such a finding acceptable. The CJC's comment in this area is inadequate and unwarranted because by its own definition it falls outside its jurisdiction. 4.5. Various office bearers of the QPOA: The CJC does not state who they are, and in what context these alleged unknown people are mentioned. Why not? In fact, a number of office bearers supported, and continue to support my struggle, as indeed do many public servants. Suffice it to say that the CJC has never spoken with anyone from the union so it is in no position to truthfully assert what any particular QPOA office bearer thinks, or may have thought, about the shredding and my dismissal. 4.6. Various officers of the Department of Family Services and Aboriginal and Islander Affairs (DFSAIA): The CJC does not state who these alleged officers are. Why not? The CJC has never interviewed key people inside DFSAIA, and yet it deems to assert something it has never tested. How can it truthfully include these various officers except to gratuitously attack me personally? 4.7. Public Sector Management Commission (PSMC): I have never lodged any complaint with the PSMC or appeared before it regarding my dismissal or the shredding. The CJC alleged in evidence on 29 May 1995 (See pp.688-689 Senate Hansard) that I lodged a complaint with the PSMC regarding cronyism touching Mr Martindale and Ms Kinder sitting on each other's selection panel for Senior Executive Service positions in the Queensland Public Service. The allegation is utterly untrue, as I have not been to the PSMC in any shape or form. Its presence in the list is a naked untruth. 4.8. Queensland Police Service (QPS): By Assistant Police Commissioner Graham Williams' own hand in a letter dated 25 January 1995 (See Exhibit 92) the shredding is still, in effect, "an open question" to the QPS pending any recommendations in the Senate Select Committee's report. 4.9. Without substantiating the presence of each body or person on the list, and given the above illustrations, especially regarding the PSMC, the CJC is being less than truthful and open in this matter.


5.1. The Police Commissioner "In the Commission's experience, Lindeberg is so consumed by his view of the issues involved in these matters that his evidence in relation to them is often unreliable and sometimes duplicitous. A recent example occurred in November 1994, when Lindeberg, in an effort to induce the Fraud Squad of the Queensland Police Service to investigate the shredding of the Heiner documents, wrote to Commissioner O'Sullivan falsely asserting that the Information Commissioner had released a Crown Law advice on the status of the Heiner documents to Lindeberg, and that the releases of the documents was a result of Lindeberg proving a prima facie case of conspiracy to pervert the course of justice on the part of various public servants." (pp.1-12) 5.1.1. The Committee may judge for itself as to whether I am "so consumed" that my evidence is allegedly unreliable and sometimes duplicitous. For my part I believe that my evidence is reliable and has never been duplicitous. 5.1.2. Where variations may have appeared over a four year period, they would have been as a result of fresh emerging evidence or public disclosures obtained from different sources ie FOI applications, questions in State Parliament or the acquisition of a greater understanding of legal and administrative processes on my part. 5.1.3. As early as 7 April 1994 a complaint over the shredding was lodged with the QPS when CIB Detectives Les Melville and Cameron Sharp interviewed me in my home when investigating the circumstances surrounding four missing documents pertaining to the Queensland Professional Officers Association Superannuation Fund (QPOASF) as recommended in the Senate Select Committee on Superannuation's (SSCS) 8th Report August 1993 (pp.59 and 62). (Also See "The Shredding" p.53 Points 11.12-11.15). 5.1.4. On 24 May 1994 I was interviewed between 3 to 4 hours on tape again by CIB Detective Sergeant Don Mabbutt in my home. He took detailed information relating to (i) possible fraud associated with missing QPOASF documents; and (ii) the illegal shredding of the Heiner Inquiry documents and related matters, involving the associated CJC's conduct and findings. 5.1.5. On 14 September 1994 I was interviewed again in my home for approximately 3 hours by three Fraud and Corporate Crime Squad detectives allocated to investigate the file (MS93/25262 - Fraud Squad 94/089). Detailed evidence was given on the shredding and related matters. (See "The Shredding" p.54 Points 11.18-11.21 'The Heiner Document Shredding and Queensland Police Commissioner Meet'). 5.1.6. On 19 September 1994 Queensland Police Commissioner Jim O'Sullivan himself acknowledged my letter of 15 September 1994 (See Exhibit 60) addressed to him on the shredding and related matters, including possible improprieties involving the CJC's handling of the matter. Commissioner O'Sullivan stated in his letter "Your letter has been referred to the Assistant Commissioner State Crime Operations Command for continued investigation." (Enclosed Exhibit 95). [Note the word "continued."] 5.1.7. For the CJC to assert in its report that I made "efforts to enduce" the Police Commissioner to investigate the shredding already under police investigation, and duly acknowledged by the Police Commissioner himself in official correspondence is patently untruthful and misleading.

5.2. The Information Commissioner "As Lindeberg well knew, he obtained the legal advice only because the Government voluntarily agreed to its release, on the basis that so much of its contents had already been published that it could arguably be said that any privilege attaching to the document had been waived." (p.12) 5.2.1. My dealings with the Information Commissioner are set out in extenso in Section 12 of my submission "The Shredding." The CJC in its submission attempts to assert that I well knew that the legal advice was released on the terms it (the CJC) publicly states. The truth is otherwise. 5.2.2. The Information Commissioner in his letter of 9 November 1993 (See Exhibit 68) set the criteria by which the sought-after Crown Solicitor's advice (16/2/90) could only be released. That is, I had to provide "prima facie evidence of a conspiracy to pervert the course of justice" in "clear and definite terms" to have it released. 5.2.3. Evidence was duly supplied to the Information Commissioner on 9 December 1993, including Mr Coyne's solicitor's letter of 15 February 1990, (See Exhibit 71) and a wait of many months ensued. 5.2.4. On 2 August 1994 I wrote to the Information Commissioner setting out the significance of the "Cabinet exempt" passage in the Cabinet Secretary's letter of 23 February 1990 to the State Archivist (See Exhibit 72). 5.2.5. On 6 September 1994 I wrote again to the Information Commissioner pointing out the significance of the revealed "Cabinet exempt" passage of the 23 February 1990 letter made available when Minister Warner tabled the document in Parliament on 2 September 1994. I stated in my letter the following: "I now know that you in fact possess "prima facie evidence" of the offence of obstructing justice, and that you have held this crucial evidence for close on 10 months. I remind you that Minister Warner, presumably appraised of all the facts when presenting her submission to Cabinet at the time, later informed State Parliament on 18 May 1993 that one of Cabinet's considerations to shred was "to reduce the risk of legal action against all the parties involved..." The key party was the Crown itself. Accordingly my case is proven. I seek access to all public records under question. I also place on record, given the gravity of the situation, your duty under the Criminal Justice Act 1989 to report this prima facie offence to a proper authority immediately in the public interest." (See Exhibit 73) 5.2.6. On 21 November 1994 the Deputy Information Commissioner wrote to me (See Exhibit 75) suddenly releasing the Crown Solicitor's advice of 16 February 1990 making the following comments:- "I refer to previous correspondence and, in particular, your letters of 2 August 1994 and 6 September 1994. The Department of Administrative Services (the Department) has now agreed to grant you access to the following material: • letter from the Crown Solicitor to the Acting Secretary to Cabinet dated 16 February 1990; • letter from the Acting Secretary to Cabinet to the State Archivist dated 23 February 1990; • internal memorandum dated 23 February 1990; • internal memorandum dated 30 May 1990. I have authorised the Department to release to you the material identified above. etc etc...." 5.2.7. Nowhere in Exhibit 75 did the Deputy Information Commissioner inform me that the material was being released on the basis "that so much of its contents had already been published...etc..." as the CJC asserts in its submission. Moreover, the Deputy Information Commissioner referred to our previous correspondence, and in particular my letters of 2 August 1994 and 6 September 1994 [Note Point 5.2.5.] 5.2.8. Under the circumstances I submit that my contention that the material was being released because I had proven my case was not without reason or substance, and I reject totally the CJC's accusation of duplicity on my part associated with this matter.

6. DECEIVING THE STATE ARCHIVIST Introduction The State Archivist's approval on 23 February 1990 to destroy the Heiner Inquiry documents has been used by the Goss Government and CJC as its central evidence that the shredding was legal as the proper process and permission were allegedly followed and received respectively. The State Archivist, Ms Lee McGregor, has never been spoken to by the CJC, and it is admitted that known facts were withheld from her at time. The CJC's understanding of the State Archivist's duty was outlined in its evidence to the Committee on 23 February 1995: "...The archivist's duty is to preserve public records which may be of historical public interest; her duty is not to preserve documents which other people may want to access for some personal or private reason. She has a duty to protect documents that will reflect the history of the state. Certainly she can only preserve public records, but there is no commonality necessarily between public records and records to which Coyne or other public servants may be entitled to access pursuant to regulations made under the Public Service Management and Employment Act." In my submission, the fact that people may have been wanting to see these documents - and there is no doubt the government knew that Coyne wanted to see the documents - does not bear on the archivist's decision about whether these are documents that the public should have a right to access forevermore, if necessary. That is the nature of the discretion that the archivist exercises. The question about whether people have a right to access these documents is properly to be determined between the department, the owner of the documents and the people who say they have got that right. That is nothing to do with the archivist, so I suggest to you that the fact that was not conveyed to the archivist is neither here nor there. That has no bearing on the exercise of her discretion."59

Greater power than a court The role now cast on Queensland's Archivist, given the facts of this case, is that she, in effect, has far greater power than any court to decide what records may or may not be shredded. Her role stands at stark variance to the understanding of it expressed by the State of Victoria's Chief Archivist Mr Chris Hurley covered at Point 6.9 of this submission. Through her continuing silence on the matter, she is giving credibility to her newly acquired power, which, for any potential litigant (including their solicitors and counsel) against the Goss Government in which public records are a central item of evidence, should cause major concern for their prospects of a successful prosecution in court as such evidence may now be shredded with impunity beforehand in full knowledge of foreshadowed and foreseeable litigation if the Government (ie respondent) claims that the records are of no historical value. Due process is being presented as and being reduced to the spectacle of a race between the litigant on one hand and the respondent on the other after due, proper and honourable notice as been served. What makes this spectacle more remarkable and poignant is that the respondent was and is the Crown, in the shape of the State of Queensland. The litigant must immediately rush to the court to issue a writ, while the respondent (ie the Crown) can immediately rush to the archivist to have the records destroyed claiming such records represent no historical value, and if the plaintiff can be delayed in issuing the writ by the respondent (ie the Crown) actively deceiving him or her (and solicitor) into a false sense of security concerning the welfare of the evidence then so much the better. Whoever obtains the Supreme Court writ or State Archivist disposal approval first wins, and Justice is apparently served. Under such circumstances the notion of the Queensland Government being a model litigant and entity of substance must be brought into question if it can deliberately withhold other key known facts pertaining to the records from the guardian of public records when seeking their destruction. Executive Government in Queensland may conspire to obstruct justice with impunity. This flies in the face of the obiter dicta of the High Court of Australia case R v Rogerson and Ors (1992) 107 ALR in which the elements of a conspiracy to pervert the course of justice were addressed. Brennan and Toohey JJ stated: "A conspiracy to pervert the course of justice may be entered into though no proceedings before a court or before any other competent judicial authority are then pending (See R v Sharp [1938] 1 All E.R. 48 at 51) or are even contemplated by anyone other than the conspirators." Brennan and Toohey JJ stated: "A conspiracy to pervert the course of justice, like any other conspiracy to commit an offence, is an inchoate offence in the sense that it is complete without the doing of any act save the act of agreeing to pervert the course of justice. (R v Kamara [1974] AC 104 at 119; R v Panayiotou [1973] 1 WLR 1032 at 1036; [1973] 3 All ER 112 at 115-116). Such an agreement imports a common intention among the conspirators that an act be done by somebody which will have the effect of perverting the course of justice." McHugh J stated: "As this Court said in Murphy (1985) 158 CLR, at 609, an attempt to pervert the course of justice at a time when no curial proceedings of any kind have been instituted is an offence. Because the course of justice includes proposed as well as existing judicial proceedings..." 6.1. The State Archivist is a statutory officer within the Libraries and Archives Act 1988. She is required by (i) the Code of Conduct; (ii) the Criminal Justice Act 1989; and (iii) the Queensland Criminal Code to perform her statutory duties honestly and impartially in the public interest. It constitutes official misconduct to knowingly cause any public official not to act honestly and impartially in the performance of his/her duties. 6.2. On page 25 of its submission the CJC confirms that Ms McGregor, the State Archivist, was not advised that Mr Coyne and the QTU were asserting a right of access to the material pursuant to regulations made under the PSME Act 1988. She was not informed that the QPOA was also seeking access to the documents pursuant to PSME Regulation 65. 6.3. Four (4) days after the Government received Mr Coyne's solicitors letter serving notice of foreshadowed litigation, and fifteen (15) days after Mr Coyne's solicitors served a demand to exercise a right of access to the material pursuant to PSME Regulation 65, the Goss Government officially informed the State Archivist on 23 February 1990 that the Heiner material " no longer required or pertinent to the public record." 6.4. The Heiner Inquiry documents and tapes were officially defined as "public records." Federal and State Governments hold public records in bailment for the Crown in perpetuity, and therefore, any Government of the day, together with its statutory officer the Chief Archivist, has a binding stewardship over such records bearing in mind that the Crown is expected to set examples of behaviour for the community at large, be a model litigant and assiduously maintain its status as an entity of substance. 6.5. The Goss Government and State Archivist had a clear duty to liaise with Mr Coyne over access before proceeding with their destruction given that they were trustees of the particular records. Instead the Government actively deceived Mr Coyne (a member of the public and public official) about their continuing welfare up to and after their secret shredding on 23 March 1990, and afterwards the State Archivist refused to discuss the shredding with him when he challenged her over the matter. 6.6. The following statement was made by me at the first Committee hearing in Brisbane on 23 February 1995: "The facts indisputably show that a deliberate fraud was perpetrated against the state archivist. The facts show that only certain facts were disclosed to achieve the objective of obtaining her approval to shred public records. The facts also show that while telling her that the documents were not required, other key facts - that the same documents had a statutory demand on them and were required in court proceedings of which the government had been served notice on 19 February 1990 - were kept secret from her."60 6.7. On page 30 of their submission, the CJC states: "Contrary to Lindeberg's assertion, there is no statutory duty cast on anyone to provide any specific information to the Archivist about the documents." 6.8. There is a specific duty under the Criminal Justice Act 1989 which declares that it is an offence to mislead any public official in the performance of his/her duty thereby causing that official not to act honestly or impartially. To deliberately withhold key known information (eg notice of litigation and a statutory demand) from such an official (eg the State Archivist) to achieve an outcome (eg destroy public records) which is not impartial (eg not to take into account Mr Coyne's legal and industrial claims) must surely enliven the provisions of official misconduct within the Criminal Justice Act 1989, if not the Queensland Criminal Code covering obstruction of justice.

A Rogue Archivist or an Intimidated One 6.9. The Chief Archivist of the Victorian Government's Public Records Office Mr Chris Hurley on 9 December 1991 in a speech delivered to an Electoral and Administrative Review Commission (EARC) seminar in Brisbane on Archives Legislation stated:- "I don't believe that any archivist in this country would feel justified when exercising its power to approve or forbid the destruction of records in wholly disregarding any other public interest considerations apart from the needs of historical research, and I would need convincing to persuade myself that a court would take a different view of the archives responsibilities. Archives laws provide the only general statutory regulation of which records are kept and which are destroyed."61 6.10. Mr Hurley made further comments at the EARC seminar concerning offences and enforcement of laws regarding destruction of records:- "There certainly are rules of law which create circumstances in which the destruction of records is unlawful - for example the destruction of evidence once legal proceedings are under way or in prospect. Perhaps the Watergate tapes are the best example of that. There's a small body of literature, mostly American, which deals with the legal obstacles to record destruction. The general conclusion seems to be that, archives law apart, the regulation of disposal is slight and the area of administrative discretion is broad. Let me turn finally to the question of enforcement. It's no doubt regrettable that because we're dealing with questions of statutory law we must speak of the enforcement and penalties. All the archivists and the records managers in the room I'm sure will say that the purpose of their craft are best achieved through education, persuasion and cooperation. You don't get good records management by prosecuting people. It's only in extreme cases that enforcement in the punitive sense should desirably be used. But I think you can say this also: you don't get good records management without the ability to prosecute in those extreme cases. So, on balance, I'm in favour of offence provisions in archives laws, even if they are seldom used. If they're never used, they could come into disrepute and become a dead letter. And the disadvantages of trying to bring a successful prosecution under the offence provisions are so great that possibly that is going to be the outcome. It is a dilemma and a difficulty. To begin with, you're probably in a situation where one government agency is prosecuting another, and no government likes that. No government would willingly see that process embarked upon if any alternatives can be found. There are inherent difficulties in the offence provisions. Because most of them are expressed to create an offence, a criminal offence, you have got a higher standard of proof. You have got the proof beyond reasonable doubt - the criminal standard. That is very difficult to achieve. You have also got the problem of finding witnesses. In most of these instances the best witness is the person who is in the dock, and you really can't get them to give evidence against themselves. You have got the problem of who to prosecute. The ultimate responsibility does lie with the chief administrator. That person who did the deed, and who therefore must be charged with the offence, is far more likely to be somebody acting under orders."61

What Commonwealth Archives Legislation Says 6.11. The legislative framework for the enactment of the Archives Act 1983 (Cmwlth) gives the Australian Archives control over disposal of Commonwealth records to ensure: * efficient and economical record keeping in the Commonwealth government by the prompt destruction of records no longer needed for legal, fiscal, administrative or other reasons; * identification and preservation of those records which for similar reasons, must be kept permanently. Within that framework the following prohibition is placed in the destruction of such public records: "It is also not permissible to destroy any record once a Freedom of Information request or another legally binding request has been made of it, irrespective of whether it is eligible for destruction under the 'normal administrative practice' provision." 6.12. In a submission sent to the Committee on 22 June 1995 by the Queensland Justices' and Community Legal Officers' Association (Inc) [QJA], an attached leaflet produced by Queensland State Archives clearly states that "legal value" must be considered before destroying public records (be they permanent or temporary). In a covering letter dated 31 May 1995 to the QJA, Ms McGregor (Queensland's Chief Archivist) made the following comments: "I am not aware of any legal/legislative provision governing or directing the provision of advice/information relevant to enabling the State Archivist to satisfy criteria for decisions to retain or dispose of public records; I am not aware of any legal/legislative provision which requires that the State Archivist is to/must be alerted to any existing or potential legal demand for access to or retention of public records."62 6.13. It would appear that Ms McGregor (and possibly her legal adviser the Crown Solicitor) appears to have little regard to common law, the Queensland Criminal Code, or the Criminal Justice Act 1989. 6.14. The Committee may wish to consider making a recommendation, upon receipt of its own counsel's opinion, to an appropriate body ie Criminal Justice Commission or Archivist Society of Australia regarding Queensland's Chief Archivist Ms Lee McGregor incorporating the following features based on the facts of this affair: That whilst the deception in the performance of the State Archivist's duties was perpetrated against her on 23 February 1990, the deception and its consequences have not lapsed or lessened in any way. An unacceptable precedent against the proper public records management in the Commonwealth of Australia has been created which will tend to undermine public confidence in the integrity of Australian governments. Failure on her part to redress the wrong now leaves the impression that she has become a willing partner in the deception, and incapable of independently fulfilling her important statutory role as guardian of Queensland's public records in the public interest.

7. DECLARING THE METAMORPHIC NATURE OF PUBLIC RECORDS Introduction Civilised society, in all its different facets, depends on the proper retention and protection of its records. Under a parliamentary monarchy, the Crown, exercising its power in the public interest, manifests itself through democratically elected Governments in Australia which operate under what may loosely be termed the Westminster system. Queensland's democracy is unique in the Commonwealth of Australia as it operates under a unicameral system which gives its Executive Government immense power within the State and over the system. The key recommendation in the Fitzgerald Commission of Inquiry designed to put a brake on and guard against the excesses of Executive Government in Queensland was the establishment of an independent Criminal Justice Commission. The Commission was required to be accountable to the people of Queensland via an all-party Parliamentary Criminal Justice Committee (PCJC) which reported to Parliament. The CJC and PCJC were both subject to the provisions of the Criminal Justice Act 1989. Open and accountable Government functioning under the rule of law is dependent on all its pro-active and reactive activities and transactions being honestly recorded on public records. Lawful Governments depend on those records being impartially handled by public officials who should be fully cognizant of all administrative and legal considerations pertaining to such records, see that they are retained, protected, managed and retrieved in such a manner as to instil public confidence, and disposed of in a lawful manner while taking into account public interest considerations over and above concerns or demands of the record creator. The three central features of public records are: (i) creation; (ii) receipt; and (iii) possession. The CJC, with all its attendant authority, has introduced into that process, within the context of the shredding of the Heiner Inquiry documents, the new notion of "a metamorphosis" having to occur to public records before access statutes may apply to such records. It creates a precedent which cannot be ignored. 7.1. In its submission (p.53) the CJC makes the following comment: "Before either of the regulations come into play the records in question have to be placed on files relating to the officer. That did not happen in respect of the Heiner Inquiry and material." 7.2. The CJC states on p.52 the following: "...Until that metamorphosis takes place, however, neither regulation 46 or 65 have any application." 7.3. The CJC concedes on p.52 the following: "The Commission did not mean to convey the documents could be accessed only if they were placed on an officer's file, and the first part of the summary quoted above makes it clear that an officer could also claim access to documents relating to him which were held on any official file." 7.4. The CJC has again misquoted PSME Regulation 65 which speaks of "any departmental record or file" - not just "file" as the CJC asserts on p.52 and set out in Point 8.3. above. 7.5. It is conveniently overlooked by the CJC that access to the Heiner Inquiry material was also sought, via official letters, by two major public sector unions (QPOA and QTU) respectively signed by their General Secretaries Messrs Donald Martindale and Steven Knudsen. On 1 March 1990 QPOA Assistant General Secretary Ms Roslyn Kinder lodged official breaches of PSME Regulations 46 and 65 which also gave effect to seek access to the documents before they were secretly shredded. 7.6. Those three union officials were highly experienced industrial relations practitioners who possessed comprehensive knowledge of the PSME Act and Regulations 1988. Mr Martindale is currently the Director of Human Resources and Industrial Relations in the Queensland Health Department, and Ms Kinder is the Director of the Senior Executive Service of the Goss Government, attached to the PSMC. 7.7. It is instructive for the Committee to note that the QTU was still seeking access to the documents AFTER they had been secretly shredded, and, unbeknowns to the QTU, being actively deceived in return by Ms Matchett on the matter, while on the other hand, the QPOA ceased its action once I was removed from the case in early March 1990 when its carriage was taken over by Mr Martindale and Ms Kinder. 7.8. Mr Coyne's submission of 1 May 1995 (p.8) makes the following claim: "To suggest that NONE of the (Heiner) records were held on me is NOT PLAUSIBLE. Written complaints against me were received and taken into possession of the Department." 7.9. These arguments may be considered "technical points of pleading" which Mr Coyne was intent on resolving by a judicial review. It is remarkable that the Goss Government (the model litigant) and CJC should see fit to argue on technical points before and after the destruction of the evidence in light of the following comment by Sir Samuel Griffith CJ in Melbourne Steamship Co Ltd v Moorhead (1912) 15 CLR 333 when the Chief Justice was concerned that the Crown had taken a purely technical point of pleading: "...and I cannot refrain from expressing my surprise that it should be taken on behalf of the Crown. It used to be regarded as axiomatic that the Crown never takes technical points, even in civil proceedings, and a fortiori not in criminal proceedings. I am sometimes inclined to think that in some parts - not all - of the Commonwealth, the old-fashioned traditional, and almost instinctive, standard of fair play to be observed by the Crown in dealing with subjects, which I learned a very long time ago to regard as elementary, is either not known or thought out of date. I should be glad to think that I am mistaken."63

A Wide Discretion cannot be Limited 7.10. The Libraries and Archives Act 1988 while offering the State Archivist what may be deemed as a wide discretion on what may be destroyed, under statutory law interpretation she has no right to "read down" that discretion to only consider a public record's historical value against and in spite of other public interest considerations (eg legal, informational, data values) which pertain to such records under active consideration for destruction. 7.11. Mr Ian Callinan QC is his submission to the Committee stated: "...there are only two possible types of proceedings that could possibly be contemplated at that stage. Those proceedings would either be defamation or proceedings by way of prerogative writ or judicial review to get access to the documents. So, in either case, those documents were critically important and critically relevant to any proceedings that Mr Coyne might take."64 7.12. For the CJC to introduce the notion of "a metamorphosis" pertaining to public records opens up avenues of obstructing access to public records to a Government and/or public official by refusing to file identifiable documents in order to legitimise non-access by a claimant. It places the life of a record solely into the hand of the creator which may not always accord with the public interest or accountability. That is, there are inevitably many potentially embarrassing public records which could be destroyed between the moment of creation and/or receipt and their filing, which could and would undermine public confidence in open and accountable government and any government's record management and retrieval practices. 7.13. A public record is, and must be, a departmental record or file from the moment of its creation and/or receipt and possession by a Government agency, and be fully protected by the law from that moment.

No Such Thing As An "Unofficial" File 7.14. The Queensland Education Department, Administrative Law and Legislative Operations Branch issued guidelines* to its staff in "Education Views" 10 December 1993 (p.5) addressing subject matters of (i) what is a document for FOI access purposes; (ii) do "unofficial" files and documents have to be disclosed65: 7.15. The Queensland Education Department officially described "a document" in the following manner: "A document is any paper or other material on which there is writing, marks, figures, symbols and perforations having a meaning to a person qualified to interpret them. It includes any disc, tape or other article or material from which sounds, images, writings or messages are capable of being reproduced. Some common examples are files, correspondence, reports and working papers, jottings, diary entries, computer printouts, maps, and electronically stored data (including "E mail"). "Private" diaries are also covered if they contain entries about an officer's activities for work purposes. These documents are also "public records" controlled by the Libraries and Archives Act 1988 (no matter where, when or why created or stored). That legislation prohibits dealing with any public record inconsistent with the department's approved Retention and Disposal Schedule. Improper dealings can attract substantial penalties and disciplinary action. The Director-General can compel disclosure of departmental documents for inspection." 7.16. The Queensland Education Department officially answered the notion of the CJC's alleged "metamorphosis" having to occur with a public record in the following manner: "...There is no such thing as an "unofficial" document or file. All documents received or created by the department are official documents." * These guidelines would be officially sanctioned by the Crown Solicitor as a matter of common practice. 7.17. The central issue, is not whether the Heiner Inquiry documents were filed, but that they were (i) created and identifiable, (ii) officially defined as "public records" and (iii) the Department took them into its possession. Ms Matchett attempted to have me believe when she had taken the documents into her possession that they were "in limbo", and not a file or record. 7.18. Once Mr Coyne served the Government with official notice on 8 and 15 February 1990, the documents had other public interest considerations legitimately pertaining to and lawfully enforceable on them over and above any desire the Government may have had to destroy them even if it (and the Archivist) considered that they were of no historical value, and for that reason they ought not to have been shredded until, at least, the interests of Mr Coyne were satisfactorily resolved.

8. COMMERCIALISATION OF PUBLIC MONIES AND PUBLIC SERVICE AWARD Introduction The Financial Administration and Audit Act 1977 provides the framework for expenditure and accountability of public monies in Queensland's public sector. The Public Service Award (Qld) is the main award in Queensland's public sector, which, together with administrative instructions, sets out remuneration entitlements which public servants and professional industrial relations practitioners (Government and trade union) understand sets limits on claims for work performed and matters relating thereto. The CJC, the Department of Family Services and Aboriginal and Islander Affairs (DFSAIA) and the Queensland Professional Officers Association, (QPOA) Union of Employees, (now amalgamated as the State Public Services Federation Queensland [SPSFQ]) have effectively introduced a new dimension on award entitlements by allegedly "commercialising" negotiations between Government and its employees. In this case I suggest the use of the word "commercial" by the CJC is sanitizing the correct one: "misappropriation." The real issue is not that Mr Coyne sought additional remuneration before leaving the public service after experiencing such reprehensible treatment because he was entitled to feel entitled, but why did his Department and union give him such special consideration when the Department claims that it treated him fairly like any other staff member? What was the special hold that Mr Coyne had over the Department and union? What caused them to entertain his additional unique claim on the public purse which professional industrial relations practitioners know has no legal basis whatsoever, and would be rejected out of hand by any other similarly placed public servant on secondment?

Ignorance is Bliss What is crystal clear however is that the CJC has little or no knowledge of public sector industrial relations. It has no idea of the strict guidelines adhered to by Government and its industrial relations practitioners in accordance with various registered award provisions (as paid-rates awards), and being aware that monies paid are public monies, not that of a private commercial enterprise where negotiation outcomes are obviously flexible and very much at the discretion of the enterprise owner/manager. The CJC's abysmal industrial relations knowledge on awards, secondments, redundancies and human resource management so sadly demonstrated in its submission and during the Senate hearings, if nothing else, makes it imperative in the public interest and the proper appropriation of public monies that it employs someone with such expertise as soon as possible. The Senate Select Committee may wish to consider such a recommendation in its report.

A Political Slush-Fund The "special payment/ex gratia" provisions of the Financial Administration and Audit Act 1977 by the precedent created in this case, can now be used as "a political slush fund" to palm off a public servant because it can be sanctioned by a Minister of the Crown, and later written off as "a loss" by her Departmental Director-General with impunity. 8.1. On Page 48 of its submission the CJC states: "As an experienced industrial officer, Lindeberg would be well aware of commercial negotiations in which payments above and beyond an award are made." 8.2. Mr Barnes addressed the additional payment in the following manner: "Much has been made of the payment made to Coyne at that time. In the context of information that comes to the commission it does not seem an exceptional thing. We have officers from the same Department complaining to us they only got $225,000 when they left the department, and that was supposedly evidence of corrupt conduct by the government. For Coyne to get his extra payment did not strike us as being anything particularly unusual. It was negotiated by the union with Coyne. It was approved by the minister. As it turns out, that approval was technically inappropriate." 66 8.3. The provisions of the Financial Administration and Audit Act 1977 together with the paid rates Public Service Award (State) make no allowance for "...commercial negotiation in which payments above and beyond an award are made." 8.4. Mr Barnes introduced alleged examples of unknown officers from the same department (DFSAIA) complaining to the CJC that they only got $225,000 when leaving the department. He did not address the following points pertaining to such officers:- (i) on what basis were these unknown officers complaining to the Official Misconduct Division of the CJC about their payments; (ii) were these unknown officers part of the Senior Executive Service, or where they on the same classification as Mr Coyne; (iii) did these unknown officers receive an additional $225,000 to their redundancy entitlements, if so, how could such an extraordinary amount be calculated; (iv) is a fraudulent payment in DFSAIA only measured or considered as such by the CJC if it is above and beyond $225,000; (v) does approval by a Minister of the Crown make a payment legal; (vi) are the activities by a Minister of the Crown above suspicion in the eyes of the CJC. 8.5. Mr Coyne told the Committee that he did not need the additional monies to purchase his delicatessen67. Clearly Mr Coyne is in the best position to know but the alleged connection between the additional monies and purchasing his delicatessen originated from QPOA Industrial Officer Mr Brian Tierney who negotiated the package and later told me of the connection, and therefore, the apparent discrepancy on this point between my evidence and Mr Coyne's version, originates from Mr Tierney not me. 8.6. The CJC has never once spoken with Mr Tierney to inquire as to why he would describe the payment to me as "a fraudulent concoction", not once but twice when directly asked about it, and why he was so concerned about giving evidence to the Cooke Commission on Inquiry on that matter. 8.7. Under the circumstances Mr Coyne was entitled to feel entitled. It is my submission that he cannot be condemned for making a claim for remuneration on his Department. The fundamental question is, however, was there any legal basis for the payment? The answer is no. 8.8. Mr Coyne's classification (I-12) did not qualify for unpaid overtime of which he was paid $14,110.00. He was seconded from John Oxley Youth Centre (JOYC) Wacol to DFSAIA Headquarters which meant that his employment location changed from Wacol to Brisbane thereby denying him any entitlement for reimbursement for additional travelling time of which he was paid $10,000.00. Wacol is considered part of the Metropolitan region. (See Queensland Government Gazette No 55 3/3/90 p.1088).

Claim Anything You Like 8.9. The union allegedly told Mr Coyne to make any claim and the department would pay it. Mr Coyne stated: "It was put to me by union officials that I just keep claiming time in lieu: "Put down anything you want. Claim anything you want. Just put it down, they will pay it." 68 8.10. It is my submission that what other possible view can any reasonable observer take of such an extraordinary invitation than that his Department was willing to pay almost anything because they knew he had something on them to make such an open assault on the public purse just so long as he left his employment afterwards? 8.11. It is to Mr Coyne's credit that he claimed only what he may have thought that he was entitled to under such circumstances, but, on the other side, it represents prima facie abuse of office and a conspiracy to defraud on the part of those Departmental officers (ie Minister Warner, Ms Matchett and Mr Gary Clarke), who allegedly invited such an open assault on the public monies over which they had statutory stewardship. 8.12. The "special payment/ex gratia" provisions of the Financial Administration and Audit Act 1977 (s77) are used by departments and statutory authorities to reimburse employees and/or members of the public over incidents where clothing or property may have been damaged while on or in government premises or property in which liability is accepted by the Crown. 8.13. As an experienced organiser, along with many other Queensland Public Service experienced industrial officers, it is known that the additional payment was and remains a "fraudulent concoction" by those people from the DFSAIA and QPOA who negotiated it. It was paid to palm Mr Coyne off. It was "hush up money" paid behind the shield of a Crown Law Settlement Deed which Mr Coyne had no knowledge of beforehand and ultimately signed under duress by his own admission to the Committee69.

9. CONDONING CORRUPTION Introduction The conduct of public officials is prescribed within a code of conduct, provisions of the Criminal Justice Act 1989 and the Queensland Criminal Code. The Goss Government, in late 1994, enacted its Public Sector Ethics Act with a strengthened code of conduct for all public servants, and complemented it with its Whistleblowers Protection Act 1994. Currently there is no code of conduct for Queensland's Members of Parliament but the provisions of the Criminal Justice Act 1989 and Queensland Criminal Code may apply under certain circumstances.

A Series of Official Lies In this case we have a well documented series of official lies being perpetrated by Ms Matchett and certain of her Departmental officers against Mr Coyne, his solicitor and me as Mr Coyne's industrial agent. The CJC addressed the issue of Ms Matchett's conduct in the following manner: " may well be that Ms Matchett was less than frank with the union. I do not imagine that would be unusual. Certainly I do not consider that that would amount to official misconduct, however undesirable you or I might both feel it to be."70 Under the circumstances of this case, is it really good enough for the CJC to be so dismissive of Ms Matchett's conduct given her central role in the affair and the statutory obligations placed on her under the PSME Act 1988 as the Chief Executive Officer of a Government Department? Or, does Ms Matchett's conduct represent arbitrary acts prejudicial to the rights of another (ie Mr Coyne's statutory right under PSME Regulation 65 in abuse of the authority of her office thereby bringing it within the ambit of Section 92 of the Queensland Criminal Code which covers abuse of office?

A Deceiving Agent of the Crown What is also overlooked is that Mr Coyne was also a prospective (it may be argued real) litigant against the Crown, and Ms Matchett was his direct point-of-contact which gave her the added responsibility to behave as a model litigant in keeping with the Crown's duty. Ms Matchett's direct line to the Goss Cabinet was through her Minister the Hon Anne Warner, (and vice versa) and therefore it is not plausible to believe that all information was not passed to her so that she would be fully briefed when discussing the matter with her Cabinet colleagues. It is now known that Cabinet knew about Mr Coyne's court proceedings intentions. It is a fact that a series of lies was being perpetrated against Mr Coyne (the foreshadowed and foreseeable litigant), his solicitor and myself from 8 February 1990 onwards which unquestionably and knowingly obstructed Mr Coyne's known course of justice. This is stated against the current position that the Government (ie Cabinet and Ms Matchett etc) acted in accordance with Crown Solicitor's advice of: 1. 23 January 1990 which advised that the documents were Mr Heiner's property and that could be destroyed provided no legal action had commenced; 2. 16 February 1990 which advised that because the better view was that the documents were "public records" permission from the State Archivist would have to be obtained beforehand. IMPORTANT: ALL THE REVEALED ADVICES WRITTEN BEFORE 16 FEBRUARY 1990 DO NOT ADDRESS MR COYNE'S LEGAL DEMANDS ON THE DOCUMENTS. 9.1. Mr Coyne's solicitor by official letter dated 8 February 1990 specifically sought access to the following public records in accordance with statute PSME Regulation 65: 1. Statement of allegations made to the Department by employees appertaining to complaints against our clients and which may be the subject of Mr Heiner's enquiry; 2. Transcripts of evidence taken either by Mr Heiner or in respect of the complaints which specifically refer to allegations or complaints against our clients.71 9.2. Item 1 of the above was handed to the Department of Family Services BEFORE the Heiner Inquiry actually commenced. They were specific records of complaints against Mr Coyne, and officially held by the Department which unquestionably made them "a file and/or record held on Mr Coyne." 9.3. The Department ultimately gave Mr Heiner "copies" of those complaints and never relinquished ownership of the originals, which therefore, always gave Mr Coyne a statutory right to see the documents. (See Mr Coyne's memorandum to Ms Matchett dated 18/1/90) 9.4. In the Crown Solicitor's advice of 16 February 1990 (written before the Crown received Mr Coyne's solicitors notice of foreshadowed litigation) Mr O'Shea reached the better view of the status of Mr Heiner's material previously outlined in his opinion of 23 January 1990 as belonging to Mr Heiner. He stated: "...After considering the matter further, I am of the view that notwithstanding that Mr Heiner was primarily engaged to prepare a report, the Crown would be entitled to claim possession to the documents brought into existence by Mr Heiner in the course of undertaking his Inquiry. This is particularly so in relation to statements or transcripts of evidence upon which his final report was to be based. Even if the arrangement with Mr Heiner was that he was to retain legal possession of all preparatory papers, it may well be that as has given up possession of those papers, both in a legal and physical sense, that the Crown, by accepting custody, is now in legal possession of the documents and in such circumstances would be considered to hold such documents within its possession or power at this point in time."72 The Crown Solicitor continued: "...In reaching the foregoing conclusions, I acknowledge the difficulty that this may cause in that there may be potentially defamatory material contained in the documents now held. However, that cannot affect the legal position in terms of the operation of the Libraries and Archives Act 1988 and there is no doubt that the Act binds the Crown and accordingly must be complied with. One other consequence of the foregoing conclusion is that the files now held by private solicitors who are or have in the past undertaken work on behalf of the Crown may also contain public documents and accordingly would be subject to the provisions of the Libraries and Archives Act 1988."73 9.5. The Crown Solicitor therefore served notice on the Cabinet that as Mr Heiner was contracted by the Department of Family Services, he was in fact generating "departmental records on and/or about Mr Coyne's management practices and alleged behaviour" during the course of his inquiry, and it was made even more inescapable after Mr Heiner handed over the documents to Ms Matchett. 9.6. Ms Matchett would have known that Cabinet took the decision on 5 March 1990 to shred the documents in order to reduce the risk of legal action. Minister Warner was duty bound to inform her Departmental Director-General after the Cabinet meeting because the matter directly affecting the running of her Department. It is not credible to believe that Ms Matchett was unaware of Cabinet's decision until weeks afterwards. 9.7. On 19 March 1990 Ms Matchett signed an official memorandum to Mr Coyne which, amongst other matters, stated the following: " many of the requests made by you directly through your memorandum (8/2/90) have also been made through your Solicitor, Mr Berry, of Rose, Berry, Jensen, I have not been in a position to respond directly to you on these matters but have placed them in the hands of the Crown Solicitor. You may be aware that I have provided interim responses to Mr Berry and have advised him that the matters he has raised are still the subject of ongoing legal advice. Such issues will be addressed through your Solicitors when I have received final legal advice."74 9.8. According to the CJC and Goss Government Ms Matchett already had the "final legal advice", making her official communique of 19 March 1990 a blatant untruth and gross deception being perpetrated against Mr Coyne, a known litigant at the time. 9.9. Was it so unreasonable for Mr Coyne to believe that he was dealing with honourable public officials when he (and his solicitor) received a official letters (16/2/90 & 19/3/90) from the Crown's agent (Ms Matchett) referring specifically to the Crown Solicitor that (i) only interim advice had been given; (ii) final advice was still being formulated; (iii) and such advice would be forthcoming? 9.10. On 19 March 1990 Ms Matchett also informed the Queensland Teachers Union (QTU), another interested party in the continuing existence of the documents, that the union's request for access: " currently being examined and I will advise you of my response in the near future..."75 9.11. The final advice, always officially alluded to, never materialised. On 22 May 1990 Ms Matchett informed Mr Coyne's solicitors and the QTU that everything had been destroyed in accordance with advice offered by the Crown Solicitor on 23 January 1990 when the documents were not the subject of any statutory demand and believed to have been Mr Heiner's own property. In her final letters, Ms Matchett made no mention of the promised Crown Solicitor's advice. 9.12. Evidence exists that Ms Matchett received further advice from the Crown Solicitor which specifically addressed Mr Coyne's legal demands on the material, and it was rejected. The DFSAIA's Principal Industrial Officer Ms Sue Crook who was party to (i) all negotiations; (ii) indisputable knowledge that the material was required for foreshadowed litigation; (iii) formulating briefing documents to the Crown Solicitor; (iv) and formulating Cabinet submissions on the matter, was the constant figure in the affair throughout. She told her work colleagues afterwards that Ms Matchett specifically rejected the Crown Solicitor's advice. 9.13. If no further advice was received after 16 February 1990, what advice did the Department reject unless there is advice still in the system which acknowledged Mr Coyne's right of access either by PSME Regulation 65 or under the discovery process once a writ was issued? 9.14. Or did the DFSAIA mislead the Crown Solicitor by not providing him with all the relevant facts when seeking his advice by withholding Mr Coyne's notice of foreshadowed court proceedings?

Summary Under these circumstances is it so extraordinary that Mr Coyne did not issue a writ when he could genuinely believe that his requests may be addressed in the ever-promised final Crown Solicitor's advice which might obviate the costly business of actual court proceedings? Afterall, this was litigation against his employer (the State of Queensland) and no employee, especially one seeking a long term public service career, would wish to put himself into open legal conflict with his/her employer until every out-of-court avenue had been explored. His reasonableness is being turned against him because he didn't seek a Supreme Court writ immediately. On the other hand, Ms Matchett's (and Cabinet's) lies are overlooked or downplayed. It may be argued that given the written assurances from the Crown's agent, Ms Matchett, that for Mr Coyne to issue a writ would have been unnecessarily provocative and against his best interests until the Crown Solicitor provided his final opinion on the matter. Furthermore, to mount a challenge of a judicial review it would have been important to know what precisely the Crown's position was in order to prepare legal argument before the court. Mr Coyne, with the advice of his solicitor, had every right to believe that the documents would be secure after serving notice on the Government, together with my meeting with Ms Matchett on 23 February 1990 when we actually discussed the foreshadowed litigation and its possible outcome leading to defamation action. Ms Matchett unquestionably knew court proceedings were at hand. Ms Sue Crook witnessed our meeting, and took notes. But we now know that Ms Matchett was still offering Mr Coyne hopes of a settlement outside a court room even when she knew that the order to shred the material had been made 14 days beforehand by the Goss Cabinet, and then, on 23 March 1990, obviously instructed her Executive Officer Mr Walsh to assist in the destruction of the evidence through a shredding machine. It is quite implausible, against the facts of the case, to believe that the actions, and bare-faced lies, of Ms Matchett, newly appointed and acting in her position of Director-General upon the recommendation of Minister Warner, were not sanctioned or known by her (Minister Anne Warner) who in turn was consulting with the entire Cabinet on the matter from 12 February 1990 onwards having secretly transferred the documents to Cabinet in a vain attempt to obtain "Crown privilege" on them. Recommendation The prima facie offences of obstructing justice and abuse of office perpetrated the Goss Cabinet of 5 March 1990, and by Ms Matchett and certain of her senior Departmental officers against the statutory and due process rights of Mr Peter Coyne, as a public servant of and known litigant against the Crown, be addressed by the Senate Select Committee in its report and recommend action by an appropriate authority and/or through the appropriate means of intervention by the State Governor, a Royal Commission or Special Prosecutor.


The Secondment and Causal Connection 10.1. CJC's Chief Complaints Officer Mr Barnes told the Committee: "...She (Matchett) seconded Coyne out of there. There is no evidence to connect the two, other than one following the other. There is no causal connection between Coyne's secondment and the Heiner Inquiry. There is a connection between the allegations that the staff made about Coyne to Heiner and the allegations they had been making about him for months before that inquiry."76 10.2 Mr Barnes reiterated that view: "...I repeat that, as far as the evidence available to the commission I would suggest to this inquiry is concerned, the only evidence connecting the Heiner documents and Coyne's secondment is that one followed the other. There is no evidence of any causal connection."77 10.3. On 12 August 1992 the following exchange (recorded on tape) took place between the CJC's ad hoc counsel Mr Noel Nunan and myself on the matter of "a causal connection" which contradicts the current aforesaid CJC's evidence: Lindeberg: "I don't believe that it is a long jump in this situation, because now you're moving into a slightly new area and we haven't explored Regulation 65 either..." Nunan: "Right." Lindeberg: " are saying that the sudden secondment of Peter Coyne had nothing to do with the Heiner Report and at that..." Nunan: "Oh, no, quite clearly it did..." Lindeberg: "In other words what you are saying therefore is that what occurred in the Heiner Report was detrimental to his career." Nunan: "Well, why couldn't it have been the fact that he was in a situation there that was unworkable, now whether or not..." Lindeberg: "Whose, whose judgement is that?" Nunan: "Well, things tended to be polarised during the Heiner Inquiry, we've got Peter talking about suing people for defamation..." -------------------------------------------------


A Code of Conduct for Public Sector Union Officials and the Honouring of ILO Conventions by Registered Australian Trade Unions One of the fundamental dilemmas faced by public sector unions in Queensland in late 1989 and early 1990 after 32 years of conservative governments was how to cope with a new Labor Government and maintain their independence. The QPOA was not affiliated with the Australian Labor Party, moreover prided itself in being non-party political and non-sectarian in its activities. Many of its officials were members of the Australian Labor Party, and like most Queenslanders after the Fitzgerald Inquiry revelations, they welcomed a change of Government in the expectation that industrial relations matters in the public service would improve. The immediate abuse of power by the Goss Government against Mr Coyne within 90 days of being sworn into office on a wave of anti-corruption following the Fitzgerald Inquiry revelations effectively presented those involved in the affair with stark inescapable choices of whether the rule of law was more important than the demise of one public servant even though he (Coyne) represented fundamental values within our system, and to the rule of law itself. In the cover-up it was clearly thought by those in authority that the shredding victims like Mr Coyne and myself would never surface again. The choices and the consequences of everyone's respective actions made at the time the shredding came to their notice cannot be rewritten only judged against the facts and the law. The shredding, as an example, highlights that unethical conduct by certain public sector union officials may impact adversely on the proper running of a unit of public administration. It may also may assist in the cover-up of a prima facie serious offence against the public interest through to actually colluding in the misappropriation of public monies to buy silence. At the time of the shredding the then QPOA President Mr William (Bill) Yarrow was on secondment with the union from the Queensland Public Service and enjoying remuneration and entitlements (ie superannuation etc) from the public purse. Mr Yarrow was effectively having the best of both worlds without any attendant responsibility applying to other public servants drawing the same remuneration from the taxpayers of Queensland. He was drawing remuneration from the public purse while working for the union on award restructuring which was beneficial to an effective public service. That was and is not an unusual occurrence as elected Presidents of public sector unions are serving public officials, and may find themselves on temporary secondment with their respective union for the duration of their election period. In regard to Mr Yarrow, he did not see any obligation to report official misconduct perpetrated against Mr Coyne over the shredding, moreover actively assisted in its cover-up, along with other QPOA officials ie Mr Martindale, Ms Kinder, Ms Jeni Eastwood, Mr Terry Hamilton and others. Mr Yarrow allowed my career and involvement of 14 years in industrial relations to be terminated using my handling of "the Coyne Case" as a reason. He was given an opportunity to intervene but declined and saw "no problems" with the charge. He did this in full knowledge that documents had been shredded when the subject of known foreshadowed litigation, and a statutory demand from his own union. Mr Yarrow was unquestionably aware of the developments associated with the later demise of Mr Coyne's career, through to the payment of public monies, which, from his experience as a long serving public servant, he undoubtedly would have known had no award basis despite being formulated on that pretext. An obligation exists on public servants under the Criminal Justice Act 1989 and a Code of Conduct to report their knowledge of official misconduct to an appropriate body, in this case it was the CJC. Instead the union used the shredding as a device on the Department to extract monies from the public purse on threat of reporting the matter to the CJC. In plain terms the union engaged in extortion. Together, the DFSAIA and QPOA then colluded to misappropriate public monies agreeing to shield its exposure, without Mr Coyne's foreknowledge, behind a Crown Law Settlement Deed forbidding any discussion of it afterwards by him which he was forced to sign under duress. Mr Yarrow did not intervene in my dismissal despite knowing that "the Coyne Case" charge was based on an illegal act perpetrated by the employer while I was attempting to safeguard a union member's job and industrial interests. He knew that what happened to Mr Coyne had service-wide implications as well, and was an affront to decent unionism.

The additional extraordinary nature of such a charge being used by a union General Secretary to dismiss an organiser is contrary to all notions of what unionism was and is about, and is contrary to ILO conventions of which the Australian, State and Territory Governments are signatories and legally bound. RECOMMENDATIONS 1. It is recommended that a code of conduct which mirrors the code of conduct for public servants be instituted through consultation and negotiation between such public sector unions, the ACTU and government so that the community at large can be sure that public monies will not be used for "political slush-fund purposes" with the imprimatur of public sector union involvement. 2. It is recommended that registered Australian trade unions honour the Commonwealth's and State Governments' ratification of ILO conventions and not participate in the dismissal or punishment union officials and their members when such officials and members are engaged in lawful union activities, and where such breaches occur the relevant Commonwealth, State or Territory Government authority should intervene. Kevin Lindeberg 20 Lynton Court ALEXANDRA HILLS QLD 4161 3 July 1995

LIST OF REFERENCES SUBMISSION IN REPLY Senate Select Committee on Unresolved Whistleblower Cases The Shredding of the Heiner Inquiry Documents and matters arising therefrom 1. Mr Justice Louis D Brandeis, Dissenting in Olmstead v United States, 277 U.S. 438, 475 (1928). 2. High Court of Australia Jacobsen v Rogers ALR 17/2/95. An appeal on behalf of the DPP (Cmwlth) to the High Court succeeded over a decision of the Full Bench of the Federal Court to set aside a decision to issue a warrant against the Fisheries Department of the Western Australia Government. The High Court majority concluded that while the Crown was Federal it was indivisible and as the Commonwealth power authorised the issue of search warrants over its own executive government there was no reason to suppose it did not bind the executive government of the States. The majority also concluded questions of public interest immunity could apply to defeat a search warrant (as could legal professional privilege) but it did not in the circumstances of this case. (See "Australian Lawyer" April 1995 - High Court Notes p.41.) 3. Exhibit 32 - p.2. 4. Senate Hansard 23/3/95 p.116 5. id. 23/3/95 p.137 6. id. 23/3/95 p.38 7. id. 23/3/95 p.38 8. id. 23/3/95 p.120 9. id. 23/3/95 p.102 10. See Exhibit 93 and Section: The Leaked Goss Cabinet-in-Confidence Submission outlining the Goss Government's Approach and Attitude to the Senate Select Committee p.14 11. Senate Hansard 5/5/95 p.524 12. id. 5/5/95 p.39 13. Submission by Counsel Roland D Peterson dated 26/5/95 to Senate Select Committee. 14. Senate Hansard 29/5/95 p.682 14A. id. 29/5/95 p.696 15. Exhibit 8 - p.2 16. Senate Hansard 5/5/95 p.545 17. Exhibit 31 - p.1 18. Senate Hansard 5/5/95 p.550 19. "The Courier-Mail" 27/5/95 p.5 20. Unanimous Parliamentary Criminal Justice Committee Report into two missing CJC Monthly Reports 5/8/94 pp.37-38 21. Hansard Queensland Legislative Assembly 17/11/94 p.10487 22. Unanimous 8th Report of the Senate Select Committee on Superannuation investigation into the Queensland Professional Officers Association Superannuation Fund (QPOASF) tabled in the Australian Senate in August 1993. 23. Senate Hansard 5/5/95 p.524 24. Exhibit 92 - p.1 25. Senate Hansard 23/3/95 p.42 26. See transcript of ABC-Radio interview 17/2/93 tabled on 23/3/95 by Mr Desmond O'Neill in evidence to the Senate Select Committee in Brisbane 27. Electoral and Administrative Review Commission Report (July 1993) "The Independence of the Attorney-General" p.23 Point 3.79. 28. Senate Hansard 5/5/95 p.524 29. Alfred Crompton Amusement Machines v Customs & Excise [1972] 2 Q.B. 192 30. P & C Cantarella v Egg Marketing Board [1973] 2 NSWLR 366 at 383 31. Professor John Ll J Edwards LL.D. (Cantab) (1964) Professor of Law and Director of the Centre of Criminology University of Toronto. "The Law Officers of the Crown". Sweet and Maxwell London p.286 32. id. p.8 33. Professor John Ll J Edwards 1984. "The Attorney-General, Politics and the Public Interest" Sweet & Maxwell London. Introduction. 34. id. Introduction. 35. Professor John Ll J Edwards LL.D (Cantab) 1964. "The Law Officers of the Crown" Sweet & Maxwell p.298 35A. Professor E I Sykes BA(Qld), LLD(Melb) 1980. "Sykes and Yerbury - Labour Law in Australia" Butterworth Sydney p.48. Professor Sykes discusses the duties of the employee. The foremost duty is to obey lawful commands. He makes the following comment: "...if an employer issues a command which relates to the performance of the duties of the employee within the general area of what he is engaged to do, then unless the command involves an illegal act or exposes the employee to undue danger of death of bodily injury, the employer is entitled to obedience." The case often cited is Ottoman Bank v Chakarian [1030] AC 277. Professor Sykes also discusses on page 60 the duty of an employee not to commit misconduct under a contract of employment. One may argue in the case of the shredding, who actually employs public servants and where does their ultimate duty lie: the Government of the day, or the taxpayers (the citizens) of Queensland. 36. Senate Hansard 5/5/95 p.545. 37. Dr V G Venturini (1980) "The Administration of the Murphy Trade Practices Act". Non Mollare Sydney p.381. 38. Queensland Government submission to Senate Select Committee: Memorandum from Queensland Crown Solicitor Mr Kenneth Michael O'Shea. 39. Senate Hansard 5/5/95 pp.619-621 40. John M Fedders & Lawyrn H Guttenplan 1980. "The Notre Dame Lawyer" Volume 56 Number 1 October 1980 - Document Retention and Destruction: Practical, Legal and Ethical Considerations. 41. id. p.62 42. High Court of Australia Vasta 179 CLR 427 43. Mr Paul Lordon QC 1991. "Crown Law". (Butterworths, Canada Limited in co-operation with the Federal Department of Justice and the Canadian Government Publishing Centre, Supply and Services Canada) p.9. 44. unpublished speech by the Hon the Queensland Premier Wayne Goss to a seminar on the Legislative Standards Act. 45. Hansard Queensland Legislative Assembly 21/3/95 p.11192 46. Senate Hansard 23/3/95 p.136 47. Cooke Commission of Inquiry Transcript into the QPOA 13/5/91 p.11815 48. id. 13/5/91 p.11816 49. Senate Hansard 5/5/95 p.543 50. Exhibit 15. 51. Senate Hansard 5/5/95 p.538 52. Senate Hansard 16/2/56 pp.540-548 53. Hansard Queensland Legislative Assembly 2/8/56 p.43 54. id. 2/8/56 p.44 55. id. 2/8/56 pp.45-46 56. id. 2/8/56 p.48 57. id. 2/8/56 p.53 58. id. 2/8/56 pp.57-58 59. Senate Hansard 23/3/95 p.108 60. id. 23/3/95 p.9 61. Speech delivered on 8 December 1991 in Brisbane by Mr Chris Hurley, Chief Archivist for the Victorian Government to an Electoral and Administrative Review Commission seminar on "Archives Legislation." A copy of the speech was submitted to the Senate Committee by counsel Mr Roland Peterson. 62. Copy of Ms McGregor's letter was submitted to the Senate Committee by the Queensland Justices' and Community Legal Officers' Association on 22 June 1995. 63. Melbourne Steamship Co Ltd v Moorhead (1912) 15 CLR 333 64. Senate Hansard 23/3/95 p.38 65. Queensland Department of Education publication "Education Views" 10/12/1993 p.5. 66. Senate Hansard 23/5/95 p.115 67. id. 5/5/95 p.539 68. id. 5/5/95 p.536 69. id. 5/5/95 p.537 70. id. 23/3/95 p.124 71. Exhibit 4 72. Exhibit 6 - pp.4-5 73. id. pp.5-6 74. Exhibit 12 75. Exhibit 16 76. Senate Hansard 23/3/95 p.106 77. id. 23/3/95 p.112 - o O o - "The Shredding" - Senate Select Committee on Unresolved Whistleblower Cases Submission in Reply