The Shredding of the Heiner Inquiry Documents and matters arising therefrom
20 Lynton Court
ALEXANDRA HILLS QLD 4161
25 January 1995
Mr Peter Coyne and myself, both at the centre of activities seeking lawful access to the documents at the time of the shredding, became its victims afterwards at the hands of the Goss Government and others. It involved acts of collusion, duplicity, deception and abuse of office.
This submission "The Shredding" builds upon evidence and my other submissions presented to the Senate Select Committee on Public Interest Whistleblowing and published by the Australian Senate in Volume 4 Submission No 74 of submissions and exhibits presented to that Senate Select Committee in 1993/94. The evidence and chronology of events in those submissions stand.
On 31 August 1994 Senator Jocelyn Newman handed down her Committee's unanimous Report "In the Public Interest" requesting that the Goss Government should hold an independent review into "the Lindeberg Case", and others. The Goss Government declined to meet this request.
Since 31 August 1994 significant events occurred and crucial evidence has emerged which are covered in this submission.
In my pursuit of justice since early 1990 I have unearthed and experienced what can only be described as systemic corruption/official misconduct in Queensland's public administration. It has taken many forms. In essence it has been my activity in respect to this systemic corruption that has earned me the appellation of "whistleblower."
Recently obtained evidence now allows for a more complete picture of systemic corruption to be presented. That systemic corruption touches the Criminal Justice Commission, and involves many people at various levels. The Queensland Police Service is not exempt from examination.
My submission presents an outline on how various public officials and agencies handled the shredding and related matters. All in their various ways, had a duty to act honestly and impartially in the public interest. All in their various ways, had a capacity to deliver justice to Mr Coyne and myself. None has.
Mr Coyne's career was reduced to tatters by his Department using pro-active means representing abuse of office. Following my removal from the case, his union betrayed his interests throughout preferring to assist in covering up the shredding rather than exposing it for what it was and remains.
I was at the time of the shredding, and am, a member of the Australian Labor Party.
I also became a victim of the shredding, and would not cop it.
That struggle now places me before the Australian Senate for examination based on facts.
The simple truth of the shredding and its ramifications remain to be thoroughly exposed. The Senate Select Committee on Unresolved Whistleblower Cases has determined to investigate the shredding to assist in the formulation of national whistleblower protection legislation.
The facts are what matter. The Senate Committee's investigation will expose the truth by pursuing facts to their ultimate requirement, and that must inevitably deliver justice to Mr Coyne and myself, serve the Senate's interest, and serve the public interest.
KEVIN LINDEBERG 25 January 1995
(i) on 23 February 1990 by letter the Goss Cabinet sought urgent advice from the State Archivist as to the appropriate action to be taken in the disposal of public records allegedly not required or pertinent to the public record but withheld crucial known information from her in the performance of her duties concerning the legal demands on the material and its real reasons for seeking disposal of the documents in that official communication, thereby misleading a public official in the performance of her duties;3
(ii) the Goss Cabinet ordered the destruction of known evidence (public records) on 5 March 1990 required in foreshadowed court proceedings of which the Government had due, proper and honourable notice from a firm of solicitors dated 15 February 1990. Such decision being taken in order to reduce the risk of legal action thereby destroying evidence and obstructing justice;
(iii) the Goss Cabinet knowingly ordered the destruction of public records over which it could not claim "Crown Privilege" in any civil or criminal proceedings as advised of by the Crown Solicitor on 16 February 1990, in order to reduce the risk of legal action pertaining to those records thereby destroying evidence and obstructing justice;
(iv) Minister Anne Warner Minister for Family Services and Aboriginal and Islander Affairs in spite of acknowledging receipt of a due, proper and honourable notice of foreshadowed court proceedings from a firm of solicitors on 19 February 1990 over access to certain known and identifiable public records, and assuming she was in Cabinet during (i) allowed a Cabinet communication to be sent to the State Archivist withholding those known facts when seeking approval or otherwise to destroy such records thereby misleading a public official in the performance of her duties;
(v) Minister Anne Warner Minister for Family Services and Aboriginal and Islander Affairs in spite of acknowledging receipt of a due, proper and honourable notice of foreshadowed court proceedings from a firm of solicitors on 19 February 1990 over access to certain known and identifiable public records, and, assuming she was in Cabinet during (1) and (ii), allowed them to be destroyed in order to reduce the risk of legal action thereby destroying evidence and obstructing justice;
(vi) the Attorney-General, and First Law Officer of the State, Dean Wells MLA, with all attendant responsibilities to uphold due process within the Rule of Law assuming he was in Cabinet on 5 March 1990, became party to a Cabinet decision to destroy public records in order to reduce the risk of legal action after the Government had been served with due, proper and honourable notice of foreshadowed court proceedings by a firm of solicitors on 19 February 1990 in which those records were the known central item of evidence thereby destroying evidence and obstructing justice;
(vii) the Attorney-General, and First Law Officer of the State, Mr Dean Wells MLA, with all his attendant responsibilities to uphold due process within the Rule of Law, and assuming he attended the Cabinet Meeting on 5 March 1990, participated in a discussion and became party to a decision to knowingly destroy identifiable public records which could be evidence in any prospective civil and criminal proceedings, and the decision being taken for the express purpose of reducing the risk of legal action associated with those public records, thereby destroying evidence and obstructing justice;
(viii) a Director-General of a Queensland Government Department received due, proper and honourable notice from a firm of solicitors informing her on (i) the 8 February 1990 of desire to exercise a statutory right to identifiable public records in her possession; (ii) 19 February 1990 of foreshadowed court proceedings over access to those same public records, and then allowed her Minister to attend Cabinet meetings which took decisions outlined in (i) and (ii) to destroy them thereby destroying evidence and obstructing justice;
(ix) Public servants in a Queensland Government Department with indisputable knowledge that certain identifiable public records were required in foreshadowed court proceedings allowed and participated in the destruction of those records thereby destroying evidence and obstructing justice;
(x) the Queensland Premier Wayne Goss allowed an official communication to be sent from the Cabinet Secretary on 23 February 1990 to the State Archivist withholding crucial known information concerning legal demands on public records when seeking urgent appropriate action of their disposal, thereby misleading a public official in the performance of her duties;
(xi) the Queensland Premier Wayne Goss, assuming he was in Cabinet on 5 March 1990, became party to a decision to destroy public records over which the Government could not claim "Crown Privilege". Such decision having been taken after the Government had been served with due, proper and honourable notice of foreshadowed court proceedings by a firm of solicitors on 19 February 1990 in which those records were the central item of evidence, and such decision taken in order to reduce the risk of legal action thereby destroying evidence and obstructing justice;
(xii) the Queensland Premier declined to hold an independent review into the shredding, "the Lindeberg Case", as recommended by the Senate Select Committee on Public Interest Whistleblowing on 31 August 1994;
(xiii) the Goss Government/Department sought further Crown Solicitor's advice AFTER 19 February 1990 by sending a briefing document addressing Mr Coyne's solicitors letter of 15 February 1990 of foreshadowed litigation to the Crown Solicitor, and received his advice in return. Those documents and their contents remain hidden to date from the Parliament and public;
(xiv) after refusing to table Crown Solicitors advices of 23 January and 16 February 1990 on the floor of Parliament, the Goss Government, presumably on the authority of Premier Wayne Goss himself, selectively disclosed those advices to Mr Tony Koch, senior political journalist of "The Courier-Mail" in full knowledge that such advices were redundant to the changed legal circumstances as of receipt on 19 February 1990 of official notification of Mr Coyne's intention to commence court proceeding thereby causing Queensland's major newspaper to give deceptively misleading information to the Queensland public. The publishing of such information without verifying its relevance, demonstrates irresponsibility of great magnitude on the part of "The Courier-Mail". (See Exhibit 88)
(i) O the first claimed that the Heiner documents were the subject of litigation but an out-of-court settlement was reached before the shredding occurred;4
O the second -
(a) failed to interview key witnesses;(ii) the CJC provided false and misleading evidence to the Senate Select Committee on Public Interest Whistleblowing.
(b) omitted evidence;
(c) fabricated evidence;
(d) tampered with evidence;
(e) misquoted a key statute; and
(f) claimed it was not an offence to mislead the State Archivist under the Libraries and Achieves Act and that she had almost unfettered discretion to shred any public record she liked.
(i) EARC had placed in its possession facts relating to the shredding and its systemic ramifications on Queensland's public and legal administration.5
(i) the Cooke Commission of Inquiry was prematurely closed in May 1991 when investigating the circumstances surrounding the dismissal of Mr Lindeberg when the interests of justice for Mr Lindeberg, at least, would have been served by allowing a complete investigation into matters before the inquiry, which inter alia, included the shredding which involved a Minister in the Goss Cabinet;6
(ii) Minister Anne Warner inquired of the Cooke Inquiry before public hearings commenced into Mr Lindeberg's dismissal as to whether she would have to give evidence, and her Department sought Crown Solicitor's advice in May 1991 as to whether it would have to provide evidence or document to the Cooke Inquiry relating to the QPOA investigation;
(iii) the QPOA and its previous General Secretary Mr Don Martindale, upon the closure of the Inquiry, threatened to issue a Supreme Court injunction against Commissioner Cooke QC to stop adverse findings being made by him in his Report into the dismissal of Mr Lindeberg;
(iv) the QPOA wrote to the Goss Government on 25 July 1991 expressing its "strong and emphatic view" that the government in respect of the Cooke recommendations as they applied to the CJC investigations all the evidence and exhibits of the QPOA / Lindeberg dismissal case not give any weight or any effect to way of legislation;
(v) the Goss Government refused to implement key recommendations flowing out of Commissioner Cooke's investigation into the Lindeberg dismissal.
(i) the public monies were paid to a public servant central to the shredding one year AFTER the event for which there was no entitlement by the award and yet based on alleged award provisions, no proper records kept, and eventually written off by the Department as "a loss" when discovered to have been unauthorised and recoverable by the Crown.7
(i) the Queensland Audit Office, despite being in possession of background facts to the payment and the shredding, and finding no proper Departmental records associated with the payment closed the investigation and allowed the Department to write off public monies in the sum of $27,190 as "a loss."8
(i) after a Cabinet discussion and decision, the acting Cabinet Secretary wrote a letter dated 23 February 1990, which withheld crucial known information concerning the legal demands on public records, with such letter being for the purpose of disposing of those records. Such letter, by the withholding of those key known facts, caused a public official (State Archivist) not to act "honestly or impartially";9
(ii) on 22 March 1990 the Cabinet Secretary wrote to the State Archivist that the Goss Government on 5 March 1990 decided to proceed with the shredding but did not mention that is express purpose was to reduce the risk of legal action associated with those public records, thereby withholding known facts, causing a public official (State Archivist) not to act "honestly or impartially".
(i) the Crown Solicitor by advice to the Goss Cabinet dated 16 February 1990, did NOT recommend the destruction of public records in order to reduce the risk of legal action;10
(ii) the Crown Solicitor was provided with a Departmental briefing document addressing a course of justice including court proceedings outlined in a solicitor's letter received by Government on 19 February 1990, and that public records central to those proceedings were destroyed on order of Cabinet of 5 March 1990 in order to reduce the risk of legal action;
(iii) in accordance with (ii) the Goss Government has stated publicly that it followed the Crown Solicitor's advice, hence the Crown Solicitor, an officer of the court, is, or has been made, a party to the act of destroying evidence assuming he advised Cabinet to do so after 19 February 1990 (Note 2(xii)) and obstructing justice.
(i) the State Archivist had crucial known facts withheld from her by the Goss Government on 23 February 1990 when required by law to carry out her public duties honestly and impartially, which saw her give approval to destroy evidence required in known anticipated court proceedings to the detriment of Mr Coyne and obstructed his known course of justice.11
(ii) on 22 March 1990 by letter from the Cabinet Secretary, the State Archivist was requested to proceed with the shredding by order of the Goss Cabinet decision of 5 March 1990 but was not informed that the reason for the disposal was to reduce the risk of legal action from matters associated with those public records, thereby the destroyed prospective evidence and obstructed justice.
(i) the Queensland Police Commissioner was provided with indisputable evidence of prima facie criminality associated with the shredding, including evidence against the CJC's handling of the case involving prima facie official misconduct [See 3 (i)] since December 1990 and passed the information back to the CJC.12
(i) the Office of the Information Commissioner placed the onus of proof on Mr Lindeberg in order to access certain public records, and then having provided "prima facie evidence" in "clear and definite terms" claimed that Mr Lindeberg had not provided sufficient evidence but nevertheless released documents (including the Crown Solicitor's advice of 16 February 1990) out of negotiations conducted with agencies. The Crown Solicitor's advice having been previously withheld from the Queensland Parliament itself by the Government because of "legal professional privilege";13
(ii) Departments (not necessarily with the FOI Commissioner's consent to date) have not only attempted to deny access to public records sought under the Freedom of Information Act but also to the dates on documents, and even the existence of such documents when it is known that the records exist relating to the shredding and court proceedings.
(i) the then QPOA General Secretary Mr Don Martindale on the complaint of an employer (ie Goss Government Minister Anne Warner) dismissed its organiser whose duty it was to protect his member's industrial interests and with such member being happy with the organiser's representations on his behalf. Such dismissal on this charge alone being in contravention of an International Labour Organisation (ILO) convention;1
(ii) QPOA General Secretary Mr Don Martindale and QPOA Assistant General Secretary Ms Roslyn Kinder accepted the shredding of public records by the employer in contravention to their member's statutory right of access to them, and later dismissed their organiser over his handling of the case when he attempted to uphold his member's legal rights to the records thereby making themselves parties to and after the action of destroying evidence and obstructing justice;
(iii) the QPOA remained pro-active in covering up the shredding, and in denying justice to a unionist and its dismissed organiser;
(iv) the QPOA, together with the Department of Family Services and Aboriginal and Islander Affairs, participated in the deliberate concocting of a fraudulent claim on the public purse.
(v) the QPOA by letter on 25 July 1991 gave its "strong and emphatic view" to the Goss Government that the Cooke recommendations allowing the CJC to investigate all the evidence and exhibits of the QPOA / Cooke Inquiry be given no weight or effect by way of legislation.
(vi) the QPOA leadership of QPOA President Bill Yarrow and General Secretary Ms June Eastwood knowingly deceived the QPOA membership in its publication "The Professional Officer" concerning the Cooke Inquiry and his (the Commissioner) alleged non-findings after the Inquiry closed.
The dates and actions have been mentioned in previous submissions but the recently obtained evidence allows for greater detail to be put on the public record with absolute certainty.
The information is held by various State agencies and independent authorities and/or organisations ie the CJC, defunct Electoral and Administrative Review Commission [EARC], the Queensland Police Service, Office of the Information Commissioner, Queensland Audit Office, a Queensland Public Sector Union and Queensland Newspapers Limited.
Their related actions/inactions shall be addressed throughout this submission.
Ms Walker later lodged written specific complaints against Mr Coyne and handed them to the Department. Those complaints became a specific term of reference, inter alia, for retired Stipendiary Magistrate Noel Heiner to investigate.
Without question those written complaints, once handed to the Department, became "public records" within the meaning of section 5(2) of the Libraries and Archives Act 1988, and also "any departmental record or file held on the officer" within the meaning of Regulation 65 of the Public Service Management and Employment (PSME) Regulations 1988. (See Point 10.1. Queensland State Archivist)
(i) the original complaints against Mr Coyne which were the subject of Mr Heiner's enquiry; and
(ii) other documents/evidence taken by Mr Heiner which referred to the complaints against Mr Coyne (and Mrs Ann Dutney) as per rights under Public Service Management and Employment (PSME) Regulation 65. A timeframe of 7 days is given to the Department/Government to comply. (See Exhibit 4).
(a) inform Premier Goss;
(b) take the matter to the PSMC; or
(c) join Mr Coyne in his court proceedings;
The Goss Government's first sitting day after winning office on 2 December 1989 was 27 February 1990, and sat throughout March 1990 when the shredding occurred. The Goss Government indemnified Mr Heiner against possible court proceedings. At the same time it destroyed evidence required for court proceedings which Mr Heiner gathered and was originally given to him by the Department of Family Services at the commencement of his inquiry.
2.1 The Goss Cabinet:32.1.1 The treatment of the Heiner Inquiry documents became the focus of the Goss Cabinet on at least three occasions before the shredding occurred on 23 March 1990:2.2 Minister Anne Warner and her Department:(i) 12 February 1990 when the Inquiry was officially terminated, and advice sought from the Crown Solicitor on 13 February 1990;2.1.2 Minister Warner presumably attended all the above mentioned Cabinet meetings, and by convention was required to present her Department's submission/s to her Cabinet colleagues with all the known facts of the case BEFORE any decision was made.
(ii) 19 February 1990 when it was decided to seek the State Archivist's "urgent" advice to dispose of public records purportedly "...not required or pertinent to the public record";
(iii) 5 March 1990 when the order to proceed with the shredding was made "...in order to reduce the risk of legal action...".
2.1.3 The ALLEGED last piece of Crown Solicitor's advice received by the Goss Cabinet was dated 16 February 1990, and presented to Cabinet on 19 February 1990. (See Exhibit 6). That advice was written in response to a Cabinet letter dated 13 February 1990 BEFORE Mr Coyne commenced his course of justice which included foreshadowed court proceedings.
2.1.4 The ALLEGED last piece of Crown Solicitor's advice does NOT address Mr Coyne's foreshadowed litigation, but makes it clear to the Cabinet that the public records concerned could be required and would have to be presented in any future litigation as "Crown Privilege" would and could NOT apply to the documents.2.2.1 Minister Warner presumably attended all the Cabinet Meetings which took decisions leading to the shredding of the Heiner Inquiry documents. Minister Warner took an oath of office to uphold the law.2.3 Director-General Ms Ruth Matchett and her Senior Departmental Officers:
2.2.2 Minister Warner acknowledged publicly in "The Courier-Mail" on 8 September 1994 that she, Ms Matchett and Mr Trevor Walsh received Mr Coyne's solicitor's letter on Monday 19 February 1990 setting out his course of justice which involved court proceedings. (Note Exhibit 7)
With that Public Declaration of Foreknowledge of Mr Coyne's anticipated litigation (Point 2.2.2) at least one of the following events (Points 2.2.3 - 2.2.6) occurred in the Goss Cabinet:
2.2.3 With that information Minister Warner presumably attended the Cabinet Meeting of 19 February 1990, assuming she was informed of the letter BEFORE attending the Cabinet Meeting, and allowed the Cabinet to mislead the State Archivist into believing that the Heiner documents "weren't required" in order to obtain her approval to shred the documents.
2.2.4 With that information after the Cabinet Meeting of 19 February 1990, assuming she was informed afterwards, Minister Warner allowed the Cabinet to mislead the State Archivist into believing that the Heiner documents "weren't required."
2.2.5 With that information Minister Warner presumably attended the Cabinet Meeting of 5 March 1990, and remained silent about Mr Coyne' solicitor's letter serving the Government with due notice of foreshadowed litigation and allowed the Cabinet to order the destruction of the Heiner documents to proceed "...in order to reduce the risk of legal action...".
2.2.6 With that information Minister Warner presumably attended the Cabinet Meeting of 5 March 1990, fully briefed her Cabinet colleagues that Mr Coyne was about to commence court proceedings as she'd received due notice from his solicitors, and the Cabinet ordered the destruction of the evidence required in those proceedings to proceed "...in order to reduce the risk of legal action...".
2.2.7 In regard to Points 2.2.5 and 2.2.6. Minister Warner should have been briefed by Ms Matchett of:(i) the unions' demand for the documents, including support for Mr Coyne's foreshadowed litigation, outlined during the meeting between Mr Lindeberg and Ms Matchett on 23 February 1990; andbefore she attended the Cabinet Meeting of 5 March 1990.
(ii) the QPOA's letter dated 1 March 1990 officially lodging breaches on her Department of PSME Regulations 46 and 65 associated with the documents,2.3.1 Ms Matchett is duty bound by the Public Service Management and Employment Act and Regulations 1988, Criminal Justice Act 1989, and Queensland Criminal Code to act honestly and impartially in carrying out her duties as Chief Executive Officer, including to act fairly and justly towards her Departmental staff. Ms Matchett's responsibility is also to thoroughly brief her Minister on submissions before attending Cabinet meetings.2.4 The Attorney-General:
2.3.2 Ms Matchett, once becoming Acting Director-General, knew that Mr Coyne wanted to see the original specific complaints laid against him and being investigated by Mr Heiner. She was NEVER relieved of that statutory demand by Mr Coyne.
2.3.3 On 19 January 1990 at a meeting convened by Ms Matchett and attended by Mr Lindeberg (QPOA) Ms Janine Walker (Queensland State Service Union [QSSU] Industrial Relations Director), it was made clear to her by Mr Lindeberg representing Mr Coyne, that the original complaints in the Heiner documents were wanted. Ms Sue Crook, Principal Departmental Industrial Officer witnessed the meeting.
2.3.4 Ms Matchett INDISPUTABLY KNEW that the Heiner documents (in part or full) were required by verbal or written notice as per a statutory right (PSME Reg 65) or court proceedings on the following dates: 19/1/90; 30/1/90; 8/2/90; 14/2/90 (phone call to Mr Trevor Walsh from solicitor); 19/2/90; 23/2/90; 28/2/90; 2/3/90; 20/3/90.
2.3.5 Mr Trevor Walsh, Ms Matchett's Executive Officer, INDISPUTABLY KNEW that the Heiner documents were required for foreshadowed litigation by verbal and/or written notice on the following dates: 14/2/90; 19/2/90; and 22/3/90. Mr Walsh assisted in the formulation of the submissions to Cabinet from the Department.
2.3.6 Mr Walsh informed Mr Coyne on 22 March 1990 that the Department was still waiting for Crown Solicitor's advice regarding the Heiner documents and Mr Coyne's demands on the material. (Note Exhibit 12)
2.3.7 On 23 March 1990 Mr Walsh assisted Ms C McGuckin Senior Archivist (Note Exhibit 14) to destroy the Heiner documents in a shredding machine in Family Services Building while still aware of Mr Coyne's foreshadowed litigation and statutory demand on the documents. Neither Ms Matchett nor Mr Walsh informed Mr Coyne on 23 March 1990 that the documents were destroyed on that day. It was done secretly.
2.3.8 Ms Sue Crook Principal Departmental Industrial Officer, INDISPUTABLY KNEW on and after 23 February 1990 that the Heiner documents were required for foreshadowed litigation.
2.3.9 Mr Walsh and Ms Crook are duty bound to act honestly and impartially under the Criminal Justice Act 1989 and Queensland Criminal Code, and not to cause any public official to act dishonestly or partially in carrying out his/her statutory duties.2.4.1 The Attorney-General, and first law officer of the State, Mr Dean Wells MLA presumably attended all the Cabinet Meetings which took decisions leading to the Heiner Inquiry documents being shredded. The Attorney- General is an officer of the court duty bound to uphold the law and protect due process.2.5 The Queensland Premier:
2.4.2 The Attorney-General was party to a decision which misled the State Archivist on 23 February 1990 into believing that the Heiner Inquiry documents "weren't required or pertinent to the public record" four (4) days AFTER the Goss Government had been properly, duly and honourably served on 19 February 1990 with notice of foreshadowed court proceedings by a firm of Queensland solicitors in which the Heiner documents were the central item of evidence.
2.4.3 The Attorney-General participated in a Cabinet discussion which reached a decision to destroy the Heiner document "...in order to reduce the risk of legal action..." on 5 March 1990 fifteen (15) days AFTER the Goss Government had been properly, duly and honourably served on 19 February 1990 with notice of foreshadowed court proceedings by a firm of Queensland solicitors in which the Heiner documents - public records - were the known central item of evidence.
2.4.4 The Attorney-General participated in a Cabinet discussion which reached a decision to destroy "public records" highlighted in Crown Solicitor's advice dated 16 February 1990 as potential evidence for possible future civil or criminal proceedings knowing that they could not attract "Crown Privilege" and the Cabinet's reason being "...in order to reduce the risk of legal action...".2.5.1 Mr Wayne Goss MLA Premier of Queensland, Minister for Economic and Trade Development and the Arts in 1990 presumably attended all the Cabinet Meetings which took decisions leading to the shredding of the Heiner Inquiry documents.
2.5.2 Premier Goss participated in the Cabinet decision of 19 February 1990 to inform the State Archivist that the Heiner Inquiry documents "... weren't required or pertinent to the public record" four (4) days AFTER his Government had been properly, duly and honourably served with notice of foreshadowed court proceedings by a firm of Queensland solicitors in which the Heiner documents were known to be the central item of evidence.
2.5.3 Premier Goss allowed the acting Cabinet Secretary Mr Stuart Tait in a letter dated 23 February 1990 to the State Archivist to misled her regarding the true status of the Heiner Inquiry documents in accordance with information held by his Government thereby causing her to NOT act honestly or "impartially" in carrying out her public duties to protect public records with legal status.
2.5.4 Premier Goss participated in a Cabinet decision of 5 March 1990 to proceed with the destruction of "public records", some defamatory in nature, (which according to Crown Solicitor's advice dated 16/2/90 could not attract "Crown Privilege" and could be required and/or discovered in any civil or criminal court proceedings) in order "...to reduce the risk of legal action..." fifteen (15) days after his Government had been properly, duly and honourably served with notice of foreshadowed court proceedings by a firm of Queensland solicitors in which those public records - the Heiner Inquiry documents - were KNOWN to be the central item of evidence.
2.5.5 Premier Goss allowed the acting Cabinet Secretary Mr Stuart Tait in a letter dated 22 March 1990 to the State Archivist order the destruction of evidence (required in known foreshadowed litigation) to proceed which was later carried out on 23 March 1990 in Family Services Building by two public servants, one of whom had INDISPUTABLE KNOWLEDGE that the material was required for foreshadowed litigation.
2.5.6 Premier Goss is a qualified solicitor and officer of the court sworn to uphold the law, and took an oath upon becoming Queensland's Premier.
2.5.7 In mid-March 1991, after Mr Coyne's departure from the public service, Premier Goss wrote a service-wide circular pointing out that it was an offence to destroy public records without first obtaining the permission of the State Archivist. The document was generated from the Premier's Department. (See Exhibit 87)
2.5.8 On 2 September 1994 presumably on his authority, Premier Goss allowed a journalist from "The Courier-Mail" to view the Crown Solicitor's advices of 23 January and 16 February 1990 while denying Parliament access to them. The journalist on 3 September 1994 in "The Courier- Mail" assured the Queensland public that the Government followed the advice. The changed legal circumstances after 19 February 1990 however demonstrate that those advices were overtaken by other events making them redundant.
2.5.9 The question arises for "The Courier-Mail" was it duped by the Goss Government through lack of detailed knowledge in order to present deceptive information to the Queensland community in its article to defuse the issue, or did it act grossly irresponsibly by not verifying what it was told by the government? (See Exhibit 88)
Its officers - contracted or otherwise - are required under the Act to perform their duties honestly and impartially when investigating allegations of official misconduct and corruption in units of Queensland's public administration, and not to advantage themselves or other persons in the process.
This case brings into question the role of the CJC and certain of its past and present officers who handled the allegations of high level official misconduct and/or corruption.
3.1 The CJC had the complaint of the shredding, inter alia, lodged by Mr Lindeberg on 14 December 1990 with CJC Complaints Officer Mr Peter Jones. Evidence was provided with the complaint and afterwards as and when it came to Mr Lindeberg's hand or attention.
3.2 On Thursday 10 January 1991 QPOA union officials Messrs Terry Hamilton (QPOA Asst General Secretary) and Brian Tierney (QPOA Industrial Officer) attend a meeting in the Department and threaten to take "the Coyne Case" to the CJC unless the Department either:(i) discloses details of Mr Coyne's job application for JOYC manager; orThe Department opts for (ii). Mr Tierney told Mr Lindeberg of meeting within days, and Mr Lindeberg informed the CJC by letter dated 15 January 1991. (See Exhibit 19) 3.3 On 18 February 1991 Mr Lindeberg, via a covering letter, supplied the CJC with:
(ii) makes it financially worthwhile for Mr Coyne to leave the public service as he was considering purchasing a delicatessen. (Later disclosed to Mr Lindeberg in February 1991 by Mr Tierney again).(1) QPOA letter dated 29 January 1990 to DFSAIA signed by Mr Martindale re breach of PSME Reg 63;3.4 On 25 March 1991 via covering letter to Mr Jones CJC Complaints Officer, Mr Lindeberg sent further evidence:
(2) QPOA letter dated 1 March 1990 signed by Ms Kinder re breaches of PSME Regs 46 and 65;
(3) Memorandum to QPOA Executive dated 12 June 1990 from Mr Lindeberg setting out details associated with the shredding of the Heiner documents, and a prima facie breach of the Queensland Criminal Code having been committed by either:(i) the Goss Cabinet;
(ii) Minister Warner; or
(iii) Ms Matchett. (See Exhibit 20)(i) Crown Solicitor's interpretation of PSME Regs 46, 63 and 65 dated 30/6/89;3.5 On 12 April 1991 Sir Max Bingham QC CJC Chairman wrote to Mr Tait seeking his recollections about the shredding, and including an opinion from the Crown Solicitor. (See Exhibit 22)
(ii) DFSAIA letter dated 1 August 1990 from Ms Matchett to QPOA President Mr William (Bill) Yarrow setting out an agreement reached between Mr Yarrow and her regarding Mr Coyne. The Department was offering, inter alia, to pay Mr Coyne's (and Ms Dutney's) legal costs. (The agreement was not ultimately kept by the Department.) (See Exhibit 21)
3.6 On 29 April 1991 the Queensland Cabinet Office responded to the CJC's request with certain details associated with the shredding. Nothing was mentioned concerning Mr Coyne's notice of foreshadowed court proceedings. A copy of the letter sent by Mr Tait to the CJC was also sent to the Office of the Director- General DFSAIA and received on 3 May 1991. (See Exhibit 23)
3.7 On 31 May 1991 Mr David J Bevan, CJC Chief Officer Complaints Section wrote to Mr Lindeberg informing him that the Heiner documents were lawfully destroyed because prior permission was obtained from the State Archivist under the Libraries and Archives Act 1988. (Mr Richard J Pointing was the CJC contact officer). (See Exhibit 24)
3.8 On 27 June 1991 Mr Lindeberg wrote to CJC Chairman Sir Max Bingham QC challenging certain accuracy aspects in the CJC's letter, and its findings, and placed before him nine (9) questions which required answers, the most crucial being:-(i) "It is not the real issue as to whether or not the State Archivist gave his approval before the Heiner Report was shredded in this particular case, but what information base he was operating from at the time, and who gave such information and why?" (See Exhibit 25)3.9 On 23 August 1991 Mr Bevan wrote to Mr Lindeberg stating that the shredding was lawful, and stated that the Cabinet Secretary placed:"the matter (Heiner documents) before Cabinet which determined that, as the documentation was no longer required, permission should be sought for the material to be disposed of. As already indicated, that process was carried out in accordance with the requirements of the relevant statute."Mr Bevan also described the allegation of misappropriation of public monies as "simply ancillary to the final result and does not warrant further investigation." He stated that the CJC considers its investigation finalised. (See Exhibit 26)
3.10 On 29 August 1991 Mr Lindeberg wrote to Mr Bevan challenging his letter of 23 August 1991. He advised Mr Bevan:"that information given to Cabinet by the Cabinet secretary was erroneous as the documentation was required. The QPOA, Queensland Teachers Union, Mr Peter Coyne and Ms Anne Dutney (via separate legal action) were demanding access to the documentation at the time it went to Cabinet."Mr Lindeberg also told Mr Bevan that he used the word "fraudulently" advisedly regarding the final payout of $27,190 as one of the parties to it told him of its fraudulent concoction. (See Exhibit 27)
3.11 Mr Lindeberg wrote on 2 November 1991 to Mr Bevan seeking an acknowledgment of his last letter, and stated that the documentation supplied to the CJC spoke for itself.
3.12 On 6 December 1991 Mr Bevan informed Mr Lindeberg that the CJC was in receipt of his letters and the CJC did intend to alter its earlier decision. The CJC did not intend to take any further action in relation to his complaint.
3.13 Mr Lindeberg completed a document titled "Unprincipled Conduct in Many High Places" on 7 January 1992 which outlined the case as he understood it at the time. It was done in preparation for whistleblower protection legislation in Queensland. He argued for "natural justice retrospectivity" to be included in the legislation to allow whistleblowers still suffering from their disclosure an opportunity to seek justice.
The Parliamentary Criminal Justice Committee Intervention/CJC First Report:
3.14 On 26 March 1992 Mr Lindeberg wrote to Mr Peter Beattie MLA Chair of the Parliamentary Criminal Justice Committee (PCJC) expressing "dissatisfaction with the CJC's findings and pseudo investigation, and stated that the CJC no longer commanded his respect or confidence." The PCJC ordered a report from the CJC on the case.
3.15 On 29 April 1992 the PCJC provided Mr Lindeberg with the CJC's report dated 14 April 1992, prepared by then CJC officer Mr Richard Pointing, and signed by Sir Max Bingham QC. The PCJC requests further comments on the report from Mr Lindeberg. (See Exhibit 28)
3.16 The CJC report was inaccurate, containing false information and omission of evidence but made the following claim out of its investigation:-"Lindeberg, in his capacity as a Senior Organiser, acted for Coyne in relation to the Inquiry and, during the course of his representation of Coyne, claims that he discovered that the Minister for Family Services improperly organised for certain documents to be destroyed while litigation was still pending. The litigation was initiated by Mr Coyne against the Department for improper dismissal and one aspect of that action sought the provision of the subject documentation. The matter was apparently settled, with Mr Coyne being paid an amount in damages. The documentation thereupon was not further required for the purposes of the litigation."(Note Exhibit 28 p2)
3.17 After receiving the report Mr Lindeberg contacted Mr Coyne for the first time since he left the public service and asked him about "being paid an amount in damages." He denied it and was outraged, and reaffirmed the monies he received was one year AFTER the shredding, and was never presented as "damages."
3.18 On 13 May 1992 Mr Lindeberg gave a detailed response to the CJC's report to the PCJC. He outlined what he believed were the offences involved and informed the PCJC: "I have been the victim of an on- going series of lies. I will not cop it." (See Exhibit 29)
3.19 On 26 May 1992 Mr Lindeberg provided the PCJC with a document titled "Chronology of Events". (See Exhibit 30)
3.20 On 15 June 1992, upon learning that the PCJC had referred the case back to the CJC BEFORE examining the material itself. He expressed his utter dismay over their action as he had no confidence or respect for the CJC following its "pseudo" investigation.
3.21 In June 1992 EARC published the "Report on Review of Archives Legislation" showing that Mr Lindeberg's submission (No 38) dated 23 April 1992 using the shredding as a case study was received. The submission was displayed in an edited fashion on EARC's computerise public register.
3.22 On 9 August 1992 Queensland journalist Mr Chris Griffith published an article in "The Sun-Herald" titled "Too much Cooke spoils the broth." The article highlighted the shredding of the Heiner documents for the first time, and disclosed that the CJC was assessing the case again.
The Noel Francis Nunan/CJC Connection:
3.23 On Tuesday 11 August 1992 Mr Peter Coyne presented himself and was interviewed at the CJC Headquarters by Barrister-at-law Noel Francis Nunan contracted by the CJC to review the shredding. (The content and conduct of the Nunan/Coyne interview should be obtained by the Senate Committee from Messrs Coyne and Nunan, or other sources eg tape recordings).
3.24 On Wednesday morning 12 August 1992 Mr Lindeberg was interviewed by Mr Nunan at CJC Headquarters. The interview was taped throughout except for approximately 15/20 minutes after the tape was filled as Mr Nunan did not have or seek another tape. Mr Lindeberg was challenged throughout by Mr Nunan asserting that there was no further legal action threatened by Mr Coyne after mid-January 1990 when he threatened a Writ of Prohibition.
3.25 Mr Nunan recognised that Mr Coyne threatened defamation action but asserted that under the circumstances what was heinous or reprehensible about the Government shredding the documents to stop people suing each other. Mr Lindeberg rebuked the suggestion by asserting that Governments have no rights to interfere with individual's legal rights, and had other means to address the problem.
3.26 Mr Nunan challenged Mr Lindeberg's interpretations of certain PSME Regulations 46, 63 and 65. Mr Lindeberg repeatedly told Mr Nunan that the documents were required for known legal action.
3.27 After the tape stopped and the interviewed continued with Mr Nunan taking notes, when Mr Lindeberg maintained that the documents were required for litigation Mr Nunan put it bluntly to Mr Lindeberg: "What do you want me (Nunan) to do, charge the entire Cabinet with criminal conspiracy to pervert the course of justice?" (See Exhibit 31 - Statutory Declaration by Mr Lindeberg 22 August 1994)
3.28 The allegation of misappropriation of public monies ($27,190) to bribe Mr Coyne was covered in the interview. Mr Nunan claimed that he had NO experience with public sector administrative matters having dealt mostly with the private sector.
3.29 Mr Nunan was told that there were no such Award entitlements for Mr Coyne's classification (I-12), and that Mr Lindeberg was told TWICE by Mr Tierney that it was "a fraudulent concoction". As there were no award entitlements, then there should have been no expectation, and this was unquestionably known by the Department's and QPOA's industrial officers.
3.30 Mr Lindeberg informed Mr Nunan of the role played by Departmental officers Ms Matchett and Mr Gary Clarke, and QPOA officials Messrs William (Bill) Thornton Yarrow, Terry Hamilton, Brian Tierney and Ms Jeni Eastwood in the payment. (To Mr Lindeberg's knowledge none was interviewed by Mr Nunan afterwards or have ever been interviewed by the CJC).
3.31 During the interview a supporting EARC/CJC submission from Mr Desmond F O'Neill was raised regarding an extraordinary public service circular produced in mid-March 1991 by Premier Wayne Goss reaffirming that nothing could be shredded without first obtaining the approval of the State Archivist. Mr Nunan made the following statement concerning its contents: "He (O'Neill) paints a grand conspiracy. If I had to choose between a cock-up and a conspiracy, I'd choose a cock-up every time." (See Mr Lindeberg's Statutory Declaration 22 August 1994 Exhibit 31)
3.32 Concerned over Mr Nunan's attitude during the interview Mr Lindeberg on 14 August 1992 wrote to Sir Max Bingham QC CJC Chair setting out:(i) the shredding background affecting Messrs Coyne and Lindeberg; and3.33 Mr Lindeberg confirmed with Mr Coyne after the CJC interviews that there were legal demands on the Heiner documents after mid-January 1990 unlike Mr Nunan asserted during their interview of 12 August 1992. Mr Lindeberg, on 24 August 1992, wrote to Sir Max Bingham QC reasserting the correctness of his evidence. He stated in the letter on the alleged out- of-court settlement with Mr Coyne contained in the CJC's Report of 14 April 1992:-
(ii) the potential precedents. (See Exhibit 32)."This section recognises that the Heiner Report was required for the purposes of litigation but attempts to justify the shredding on the basis that a settlement was reached before it occurred.(See Exhibit 33)
No settlement was reached beforehand. This is a crucial lie. It has either been told to the CJC, or originates from within the CJC itself.
It clearly represents a cover-up."
Barrister's Interpretation of PSME Regulation 65:
3.34 Queensland Barrister-at-law Mr Peter Feeney was provided with documents given to CJC and Mr Nunan by Mr Lindeberg. On 15 September 1992 Mr Feeney provided an opinion that Mr Coyne had a statutory right to the Heiner documents under PSME Regulation 65 at the time requested. (See Exhibit 34)
Part 8 - Miscellaneous - PSME Regulation 65 states:
"Access to officer's file
65(1) At a time and place convenient to the department, an officer shall be permitted to peruse any departmental file or record held on the officer.3.35 Mr Lindeberg collected from Mr Barnes a copy of the interview tape recording evidence taken by Mr Nunan. Mr Lindeberg discovered that it was not a true and accurate reproduction of what was said. It was edited to erase Mr Nunan's statement "He (Mr O'Neill) paints a grand conspiracy. If I had to choose between a cock-up and a conspiracy, I'd choose a cock-up every time." (See Point 3.31). (Mr Lindeberg provided a statutory declaration on this matter dated 22 August 1994 to the Parliamentary Criminal Justice Committee - Note Exhibit 31 tabled by Whistleblowers Action Group (Qld) and The Queensland Justices' and Community Legal Officer's Association).
(2) The officer shall not be entitled to remove from that file or record any papers contained in it but shall be entitled to obtain a copy of it." (See Exhibit 35)
The CJC/Nunan Report:
3.35 20 January 1993 the CJC provided Mr Lindeberg with Mr Nunan's findings of no official misconduct. The report was signed by Mr Michael Barnes CJC Chief Officer, Complaints Section.
The Report contained:
3.36 Mr Barnes also made the following disclosure:- "It is conceded that some of the assertions made in the Commission's letter to you of 14 April 1992 were not completely accurate. This is regretted and I apologise for any embarrassment caused. The officer responsible for the preparation of the report is no longer employed by the Commission. " (See Points 3.16 & 3.33) (Note Exhibit 36).
- an INACCURATE finding regarding Mr Coyne's payout of $27,190;
- FABRICATED statements concerning Mr Coyne's redundancy;
- an interpretation of section 129 of the Queensland Criminal Code which allows evidence which may be required in any judicial proceedings to be destroyed;
- a crucial MISQUOTATION of PSME Regulation 65 thereby altering its meaning;
- the assertion that "there is no offence of misleading the State Archivist";
- interpretations of PSME Regulations 46 and 63 contrary to public service practice and natural justice. (See Exhibit 36)
3.37 On 26 January 1993 Mr Lindeberg wrote to Mr Barnes wanting to know:(i) the name of the officer who investigated and wrote the 20/1/93 report;3.38 On 7 April 1993 Mr Lindeberg informed Mr Ken Davies MLA Chairman of the PCJC that he (Lindeberg) did NOT accept the CJC's findings, and that he was not in a position to make a response because of "certain legislative investigative processes" beyond his control.
(ii) who was the CJC officer responsible for briefing and selecting the officer in (i); and
(iii) who was the officer responsible for the first CJC report of 14 April 1992. Mr Barnes refused to provide answers to the questions, wanting to know the reasons for such a request.
3.39 On 29 April 1993 Mr Lindeberg gave evidence in Parliament House Brisbane to the Senate Select Committee on Superannuation for its investigation into the administration of the Queensland Professional Officers Association Superannuation Fund (QPOASF). The shredding, the CJC's findings of 20/1/93 and the role of Mr Nunan were raised during the bracket of evidence. (See Senate Hansard 29/4/94 SSCS pp44-89).
3.40 On 18 May 1993 Minister Warner delivered a statement in Parliament regarding the shredding, and outlining the reasons why the Goss Government destroyed the documents in response to several Questions on Notice from Mr Kev Lingard MLA. The Minister mentioned nothing about Mr Coyne's notice of foreshadowed litigation served on the Government beforehand. (See Exhibit 37)
3.41 On 13 July 1993 Mr Kev Lingard MLA Deputy Leader of the Opposition delivered a major speech in State Parliament on the shredding of the Heiner documents alleging offences by the Goss Government including cover-ups. The speech was not reported in the electronic or print media. (See Exhibit 38)
3.42 On 8 August 1993 Mr Lindeberg wrote to Mr David Solomon Chairman of EARC Re: "Final Submission For EARC Issue Paper No17 `Archives Legislation.'" The submission outlined the precedents created by "the Peter Coyne Case" assuming "that a systemic cover-up is not being perpetrated on the Queensland public..." (See EARC & Section 30 p33-34 "Unprincipled Conduct In Many High Places MKII" 8 December 1993)
3.43 In late August 1993 Senator John Watson SSCS Chairman tabled 8th SSCS Report outlining the investigation into the QPOASF, and its unanimous recommendations.
"The Bulletin" and "Shreds of Evidence":
3.44 On 7 September 1993 "The Bulletin" magazine published a lead story on the shredding written by journalist Mr Greg Roberts "Shreds of Evidence." CJC Chief Complaints Officer Mr Michael Barnes described the CJC initial investigation as "grossly inadequate" and "It is embarrassing and we regret it. We don't know how it happened. The officer concerned is no longer with us." (See Point 3.16) (See Exhibit 39)
3.45 In the article it quoted Mr Lindeberg's comments to the Senate Select Committee on Superannuation concerning Mr Nunan that he had "known connections with the ALP...". Mr Barnes, himself a former office holder in Labor Lawyers, rejected suggestions that Mr Nunan was not impartial and said his appointment was approved by Sir Max Bingham QC, a former Tasmanian Liberal deputy Premier. Mr Roberts posed a key question in his article: What did the Government tell the State Archivist? (Note Exhibit 39)
3.46 On 11 September 1993 Mr Lindeberg, in his home, received an unsolicited phone call from Mr Nunan. Mr Nunan called Mr Lindeberg "a pathetic bastard" three times, and threatened him with defamation action if he said publicly that he was not impartial in his investigation. He confirmed to Mr Lindeberg that he never spoke with the State Archivist, and that the shredding was "a political decision". Mr Lindeberg provided a statutory declaration, dated 13/9/93 on the unsolicited phone call which was delivered to CJC Chairman Mr Rob O'Regan QC by PCJC Deputy Chairman Mr Neil Turner MLA. (See Exhibit 40)
3.47 On 24 September 1993 Mr David Bevan CJC Deputy Director Official Misconduct Division wrote to Mr Lindeberg confirming his letter of 12 September 1993. Mr Bevan stated in reference to Mr Lindeberg calling Mr Nunan a "CJC officer." "Please note that Mr Nunan is not and has never been an officer of this Commission." (See Points 3.23 & 3.24) Mr Bevan stated that the Commission understood the phone call was in a private capacity by Mr Nunan. (See Exhibit 41)
The Senate Select Committee on Public Interest Whistleblowing & the Shredding Meet:
3.48 On 8 December 1993 Mr Lindeberg presented his submission "Unprincipled Conduct In Many High Places MKII" to the Senate Select Committee on Public Interest Whistleblowing highlighting his whistleblowing experience which unearthed systemic corruption, the shredding, and its ramifications. (See Volume 4 Submission 74).
3.49 On 8 March 1994 Mr Lindeberg gave oral evidence in Parliament House Brisbane to the Senate Whistleblowing Committee (SWC) together with Mr Des O'Neill, Queensland Public Servant in the Department of Treasury. Documents were tabled. (See Senate Hansard 8/3/94 pp1132- 1144)
3.50 On 8 March 1994 CJC Official Misconduct Divisional Director Mr Mark Le Grand, together with CJC Corruption Prevention Divisional Director Mr Robert (Bob) Hailstone, gave evidence to the SWC. WA Greens Senator Christabel Chamarette asked Mr Le Grand whether he'd heard of the Lindeberg case and to provide a response to Mr Lindeberg's submission and bracket of evidence for the Committee. He gave an undertaking to do so, and confirmed that he knew of the case.
3.51 On 24 June 1994 Mr Le Grand provided the SWC with the CJC's promised response on several cases including "the Lindeberg/Coyne/Shredding Case."
3.52 On 4 July 1994 Mr Lindeberg provided a detailed "Submission in Reply" to the CJC's response. Mr Lindeberg asserted that the CJC had not honoured its commitment to address his bracket of evidence and had provided false and misleading evidence to the SWC. The CJC had also:(i) fabricated evidence;3.53 The SWC considered the CJC's response and according to SWC member Tasmanian Liberal Senator Paul Calvert in a statement to the Australian Senate, the SWC found it inadequate.
(ii) tampered with evidence;
(iii) failed to interview key witnesses;
(iv) misquoted a key statute.
3.54 On 31 August 1994 SWC Chair Senator Jocelyn Newman tabled in the Senate a unanimous Report "In The Public Interest" which, inter alia, called on the Goss Government to establish independent reviews into certain unresolved Queensland whistleblower cases, with "the Lindeberg Case" named.
3.55 In December 1994, after the establishment of the Senate Select Committee on Unresolved Whistleblower Cases which had "the shredding of the Heiner documents" as a specific term of reference, CJC Chairman Rob O'Regan QC publicly stated that all the cases had been thoroughly investigated.
EARC was another so-called proper authority to which whistleblowers could report wrong-doing. Mr Lindeberg used "the Peter Coyne Case/Shredding of the Heiner documents" as a case study illustrating systemic corruption and offering recommendations in various issue papers including:
(i) the Protection of Whistleblowers;The precedents set for Queensland's public (and legal) administration flowing out of the shredding currently acceptable to EARC, CJC, and apparently the Queensland Police Service must raise questions regarding EARC's successful fight against systemic corruption.
(ii) Archives Legislation;
(iii) the Codes of Conduct for Public Officials;
(iv) the Separation of the Department of Justice and Attorney-General's Department.
4.1 On 16 January 1991 Mr Lindeberg wrote seeking a confidential meeting with EARC Chairman Mr Tom Sherman to discuss the formulation of a submission on EARC's Issue Paper No 10 "The Protection of Whistleblowers" in light of his personal whistleblowing experience with the QPOA. (See Exhibit 42)
4.2 On or about 28 January 1991 Mr Lindeberg met Mr Sherman and discussed his proposed submission and the circumstances surrounding his dismissal. The shredding of the Heiner documents was discussed, and involvement of the CJC.
The meeting was witnessed by Mr Greg J Sorensen EARC Project Officer (See Point 12.6) responsible for EARC's proposed whistleblower protection draft legislation. Mr Lindeberg resolved to put in two submissions:(i) coded for publication;4.3 On 19 February 1991 Mr Lindeberg enclosed his first draft submission to Mr Greg Sorensen, and mentioned in his letter that the CJC was investigating the shredding. (See Point 12.6 Office of the Information Commissioner). (See Exhibit 43)
(ii) naming names but to remain confidential.
4.4 On 22 February 1991 Mr Lindeberg enclosed his two submissions to Mr Sherman, and discussed his whistleblowing experience in a letter. The shredding was highlighted again. (See Exhibit 44)
4.5 In April 1991 EARC published "The Protection of Whistleblowers" - Public Submissions - which included Mr Lindeberg's coded submission (No 11).
4.6 On 2 October 1991 Mr Lindeberg presented Mr Howard Whitton EARC Project Officer with two submissions (one coded for publication, and the other naming names for EARC's confidential files) on EARC's Issue Paper No 15 "The Codes of Conduct for Public Officials" using the shredding as a case study. Although given to understand that his coded submission would be published Mr Sherman apparently vetoed it, and did not allow Mr Lindeberg's name to appear as a contributor in the Report published in October 1991.
4.7 On 6 November 1991 Mr Lindeberg wrote to Mr Sherman asking why "it would not be in the public interest or fair to make it (his coded submission) available for public examination."
4.8 On 26 November 1991 Mr Sherman informed Mr Lindeberg that it would be unfair to make public his submission without first allowing the people identified with the events to respond. EARC did not consider that such action was warranted in this case.
4.9 On 8 December 1991 Mr Lindeberg challenged Mr Sherman's (EARC's) position because the case was relevant and supported by evidence. He stated that he found "the Commission's decision and its conduct in this important matter utterly remarkable."
4.10 On 23 April 1992 Mr Lindeberg wrote to EARC Acting Chairman Colin A Hughes (Mr Sherman resigned to become head of the National Crime Authority [NCA]) presenting a submission on Issue Paper No16 "Archives Legislation" using the shredding as case study. He posed questions of alleged criminality associated with the shredding, and what duties were required of the State Archivist under the circumstances, and even EARC itself. An edited version was placed on EARC's public computerised register. (EARC Folio No 38) (See Exhibits 45 & 46)
4.11 On 21 May 1992 Acting EARC Chairman Colin Hughes wrote to Mr Lindeberg referring to his submission. He said that EARC did not propose to take any action on the matters referred to in his submission, and quote from EARC Act 1989:"S9(2). The Commission is concerned only with systems, principles particular instances of alleged inefficiency, dishonesty or partiality except to the extent that such instances indicate or suggest deficiency in existing systems, principles or practices.4.12. On 12 June 1992 Mr Lindeberg wrote to Mr Matt Foley MLA Chairman of the EARC Parliamentary Committee regarding "The Codes of Conduct for Public Officials". Mr Lindeberg argued that public sector unions's first officer (ie the elected President) was more often than not a public servant, and often placed on secondment (permanent or temporary) with the union for the duration of their elected period. Such officers often remained on the Government payroll. Mr Lindeberg proposed that:
(3) The Commission is not authorised by this Act to require or direct the alteration of systems, principles or practices or the revocation, reversal or alteration of any decision taken."(i) public sector union officials should be bound by a code of conduct which mirrored as closely as possible the public service, and4.13 Mr Lindeberg stated in his letter (See Point 4.12):
(ii) "public sector" unions should be subject to the official misconduct provisions of the Criminal Justice Act 1989."...how can "the public interest" be protected by ensuring that such an (union) official will always act with integrity and impartiality, if, for instance, political expediency for the union and/or for the protection of a public official (eg Minister or CEO) by inaction or collusion may become the modus operandi?4.14 On 16 November 1992 Mr Lindeberg wrote to the new EARC Chairman Mr David Solomon re "Archives Legislation" and his (Lindeberg's) concerns regarding the CJC's possible attitude towards the shredding. (See EARC Folio 80/74) He enclosed a copy of his letter to Sir Max Bingham QC dated 14 August 1992 (See Point 3.32). In his letter to Mr Solomon Mr Lindeberg stated in part:
Does the obligation a public (union) official, in the aforementioned scenario, to report "official misconduct" to a proper authority still apply, and does a failure to do so create an offence in itself? To whom does such an official owe loyalty? The union, the Government, or "the public interest?""If the CJC were to make a finding based on the proposition that actions complained of were simply "improper" - as distinct from "illegal" - there would be grave consequences for the Queensland Public Service and the community generally.4.15 On 4 June 1993 Mr Lindeberg presented a submission on Issue Paper "The Separation of the Department of Justice and the Attorney- General's Department" addressed to Mr Solomon EARC's Chairman. Mr Lindeberg argued that the Departments should not be joined. He made the following points:
Such a decision would also have implications for EARC. Precedents would be established on issues flowing out of "the Peter Coyne Case" such as would render EARC's work and position pointless. The existence of such precedents would make it impossible for EARC to establish structures guaranteeing open and accountable Government operating "in the public interest."""The important role of the State Attorney-General in respect of being the chief law officer of the Crown operating in the public interest is somewhat akin to the reserve powers of the Governor General of Australia to ensure ultimate accountability to the law and the people.and Mr Lindeberg added:
Both roles have the capacity to be highly controversial, and crucial, when unforeseen circumstances come together to create a situation which causes such a public official (ie the Attorney- General and/or Governor General) to choose between two competing masters. It can be an awesome task with major political consequences, and often not fully comprehended until it faces a particular crisis in government.""The fundamental issue that EARC needs to face in this important matter is that the Executive must and will always act lawfully.Mr Lindeberg concluded his submission:
A situation may arise when Executive, for political expediency, might knowingly break the law and be challenged over the act, albeit by only one aggrieved citizen. The entire system would become vulnerable because there is no total separation of powers beneath the level of the Judiciary.
What then becomes the real public interest test: the legal rights of one citizen, or the survival of "the system?"""The amalgamation of both Departments will not stop one of history's rare incidents arriving centre stage on Queensland's political stage and its ultimate cost to the community and confidence in our public institutions and government may be far, far greater than any administrative savings envisaged or realised with the amalgamation."
4.16 On 8 August 1993 Mr Lindeberg presented a final submission on Issue Paper No 17 "Archives Legislation." Mr Lindeberg used the shredding, and set out the so-called twelve (12) "acceptable precedents" the shredding now meant to Queensland's public administration and legal system. (See Section 30 p33- 34 The Ramifications & Recommendations "Unprincipled Conduct In Many High Places MkII" Submission 74 Senate Select Committee on Public Interest Whistleblowing).
4.17 Mr Lindeberg wrote in his final EARC submission of 8 August 1993:"EARC's commission ends in a matter of days. A public seminar is even to be held to discuss its work. According to public statements, it has completed the numerous essential tasks outlined in the Fitzgerald Commission of Inquiry Report. The tasks, in simple terms, were designed to ensure that Queensland obtained a more effective, open and accountable Government and Public Service working in the public interest. It has attempted to make our system fail- safe against corruption and official misconduct.Mr Lindeberg had cause to speak personally to EARC's last Chairman Mr David Solomon about the content of his final submission only days before his commission ended. Mr Solomon can speak for himself about the shredding and its ramifications.
The simple question remains: Has EARC succeeded?
It would be a grand irony indeed that after hundreds of submissions and numerous reports and at the same time as its commission and doors closed on Capital Hill, one of the final submissions placed on EARC's files illustrated continuing public sector official misconduct and corruption making much of its commission and work pointless."
The circumstances surrounding the dismissal of Mr Lindeberg from the QPOA was the last case heard publicly by Commissioner Marshall Cooke QC. The hearings lasted eleven (11) days in May 1991. Mr Lindeberg spent five (5) days in the witness box under intensive cross-examination, the longest period of any witness before the Commission.
The Commission was not allowed additional time by the Goss Government to fully investigate matters which would have seen justice served for Mr Lindeberg. The Commission also unearthed suspected rorting of the union's staff superannuation fund by certain individuals, and had the shredding of the Heiner documents to pursue.
In effect, the Australian Senate has taken up from where Commissioner Cooke QC was forced to conclude his Inquiry.
The Goss Government's decisions to disallow additional time needed by a Commission of Inquiry to investigate this case and its subsequent non-implementation of Commissioner Cooke's recommendation to amend the Criminal Justice Act 1989 to allow all the evidence and exhibits of this case to be examined raises potentially serious questions in light of the hard evidence to have subsequently emerged, and outlined in this submission.
5.1 On 28 March 1991 pursuant to S5 of the Commission of Inquiry Act 1950-1989 (Qld) Commissioner Nelson Marshall Cooke QC summonsed Mr Lindeberg to attend the Commission, give evidence and hand over documents, and appear if and when required at any future date. Barrister-at-law Alan J MacSporran was the Counsel Assisting. Mr Lindeberg complied with the summons and handed over documents which included specific reference to "the Peter Coyne Affair" involving the shredding. (See Exhibit 47)6
5.2 Shortly afterwards Mr MacSporran convened a meeting to discuss the circumstances surrounding Mr Lindeberg's dismissal. In attendance were Messrs Des F O'Neill, John Griffith, Thomas R C Wilson and Kevin Lindeberg. Mr MacSporran was alerted to possible irregularities relating to unauthorised withdrawals from the QPOA staff superannuation fund (QPOASF), which also had credit union staff as contributors. Mr MacSporran decided to subpoena the QPOASF file from National Mutual Life (NML) in Brisbane. 5.3 Mr MacSporran interviewed other potential witnesses before Commissioner Cooke QC decided to proceed with public hearings. They included Messrs Sean Curley, Terry Maguire, Anthony (Tony) Hill, Adrian G McNeil and Ms Lyn de Lange and Mrs Barbara Newton past Public Defender in the Attorney-General's Department and others. Other evidence was gathered from EARC and "The 7.30 Report" archives.
5.4 Shortly before public hearings commenced Mr Lindeberg was summonsed to another meeting and told that the Commission had inspected the file and discovered that superannuation funds had been withdrawn by four people, and Mr MacSporran asked Mr Lindeberg whether he knew if Mr Martindale and Ms Kinder (two of the withdrawees) had resigned their employment in 1987. He told Mr MacSporran that to his knowledge they had not. Mr Lindeberg was given to believe that questions would be asked of certain people when they gave evidence under oath. (Note Points 11.3 & 11.4 Queensland Police Service)
5.5 Mr MacSporran informed Mr Lindeberg that the Commission had been contacted by Minister Warner enquiring whether she would be required to give evidence.
5.6 NOTE WELL: Through an FOI application initiated by Mr Lindeberg on 28 June 1994 on the DFSAIA seeking access to public records pertaining to the Heiner Inquiry and the shredding, it was revealed in a DFSAIA letter dated 21 October 1994, that the Department sought and obtained Crown Solicitor's advice regarding "the supplying of evidence and/or documents to the Cooke Inquiry in the QPOA in May 1991." That matter must have been concerning "the Coyne Case" and the shredding.
5.7 On 13 May 1991 public hearings commenced into the circumstances surrounding Mr Lindeberg's dismissal. Mr Lindeberg was required to fund his own counsel while the QPOA covered expenses for counsel for Mr Martindale. For the first five (5) days while Mr Lindeberg was in the witness box Mr Frank Lippett acted as his counsel, thereafter Mr Lindeberg defended himself because of personal financial constraints.
5.8 For the duration of the inquiry - Eleven days in May - Mr Simon Couper acted as counsel for Mr Martindale, Mr Richard Perry acted for the QPOA, Mr George Fryberg QC (now Supreme Court Justice) and a junior barrister acted for the Queensland Professional Credit Union Ltd, and Mr Andrew Herbert acted for the Crown.
5.9 Commissioner Cooke QC placed QPOA officials Messrs Bill Yarrow, Brian Tierney and Mark Dougherty on summons but time constraints never allowed them to appear in the witness box.
5.10 On 9 May 1991 Mr Lindeberg spoke very briefly with Mr Tierney again at the QPOA office in South Brisbane. Mr Tierney once again confirmed that Mr Coyne's payout was "a fraud." Mr Lindeberg told him to just tell the truth when in the witness box.
5.11 Mr Lindeberg was put under intense cross- examination for five days. Counsels for Mr Martindale, the credit union and the QPOA challenged his credibility and motivation in great depth but he withstood their attempts to undermine his position. Ms de Lange attended most of the hearings sitting in the public gallery.
5.12 The shredding - the Coyne Case - was examined on several occasions during the public hearings (13/5/91 Cooke Inquiry transcript pp11814- 11821, 17/5/91 pp12161-12167). The specific nature of the threat Mr Lindeberg is alleged to have made to Minister Warner when discussed at the Cooke Inquiry was never made known or put to Mr Lindeberg while on oath by Mr Martindale's barrister.
5.13 On 27 May 1991 the public hearings ceased with Ms Kinder as the last witness and Ms de Lange sitting in the public gallery. Mr Lindeberg was unable to cross- examine either Mr Martindale or Ms Kinder or call Minister Warner and other witnesses because of time constraints on the Commission by the Government to close. (Note Point 13.43)
5.14 Immediately after the inquiry closed, Mr Martindale and the QPOA threatened a Supreme Court injunction against Commissioner Cooke to stop adverse findings on the basis that it would be a denial of natural justice. Commissioner Cooke did not contest the injunction, and after negotiations agreed not to find:(i) whether the dismissal was justified or not; and5.15 Together the QPOA and credit union spent approximately $200,000 of their respective members' monies justifying the dismissal.
(ii) whether Mr Lindeberg was a good or bad employee.
The Cooke Recommendations/Criminal Justice Commission Connection:
5.16 In June 1991 Commissioner Cooke QC produced his 4th Report which included his QPOA investigation. Of all the cases he investigated, unique to the QPOA, he ordered the reproduction as a public record the entire proceedings ie transcript and exhibits.
5.17 Commissioner Cooke QC made the following recommendations affecting the union, the Criminal Justice Commission, and Mr Lindeberg's opportunity for justice:
(See Exhibit 48)
- Any legislation to protect a "whistleblower" should be drafted to include protection for a whistleblower in a union environment;
- The Criminal Justice Act 1989 (Qld) should be amended to bring official misconduct in unions registered pursuant to the provisions of the Industrial Relations Act 1990 (Qld) within the jurisdiction of the Criminal Justice Commission;
- Once the legislative amendments recommended in 2 are made, the subject matter of this inquiry (including all evidence and exhibits) should be referred to the Criminal Justice Commission for any further action it may deem appropriate.
5.18 On 25 July 1991 QPOA General Secretary Ms Jeni Eastwood wrote a letter to the Minister responsible for the recommendations' carriage Mr Neville G Warburton, Minister for Employment, Training and Industrial Relations expressing the QPOA "strong and emphatic view" that the Government not to give the recommendations (See Point 5.17) "any weight or any effect by way of legislation." (Note Point 13.46) (See Exhibit 49)
5.19 Approximately one year later in the week which saw the commencement of the Barcelona Olympic Games the Goss Government rejected Commissioner Cooke's recommendations (See Point 5.17) claiming, inter alia, they were "legally flawed." He used the support of the Queensland employer body, the Queensland Confederation of Industry (QCI) in rejecting the recommendations to have a watchdog over trade union official misconduct and corruption. (See Exhibit 50)
For Mr Coyne, having his career destroyed after the shredding, he was entitled to feel entitled but his entitlement was for a lost career not for non-existent so- called award entitlements. Any notion of "damages" associated with the shredding meant liability for the Government with Mr Coyne, and also for the union with Mr Lindeberg, another victim of the shredding.
The expenditure of public monies is governed by the Financial Administration and Audit Act and legally binding instruments or impositions on the Government eg Industrial Awards, contracts, court orders etc. In all cases expenditure must be fully accounted for and have justification of some sort.
The payment became a fraudulent concoction behind a Crown Law Settlement Deed negotiated between the Government and Union, forced on Mr Coyne under duress at the very last moment. Mr Coyne must ultimately give his story.
This case raises questions over the proper use in the public interest of public monies and Crown Law Settlement Deeds.
6.1 This section needs to be read in concert with activities set out in Queensland Professional Officers Association/ State Public Services Federation, (Points 13.1 - 13.41) and Queensland Audit Office (Points 7.1 - 7.14) of this submission.7
6.2 On 10 January 1991 QPOA Assistant General Secretary Terry Hamilton threatened the DFSAIA to take "the Coyne Case" to the CJC unless the Department:(i) made available to Mr Coyne documents relating to his application for the position of JOYC Manager; or6.3 For negotiations between a Government Department and a public sector union to be based on allegations worthy of being investigated by the CJC, and to attempt to extract public monies out of a unit of public administration on that basis introduces prima facie elements of "extortion."
(ii) made it financially worthwhile for Mr Coyne to leave the public service. QPOA Industrial Officer Mr Brian Tierney attended the meeting as well as Mr Coyne. (Note Exhibit 19)
6.4 For a Government Department to offer to pay monies from the public purse on the basis of such threats issued by a public sector union worthy of being investigated by the CJC introduces prima facie elements of "collusion."
6.5 Additional to Mr Coyne's normal redundancy payout, he was paid on 11 February 1991 $27,190.00 made up of so-called award provisions which in reality either did not exist or did not apply at his classification level (I-12). The industrial officers involved from the DFSAIA and the QPOA UNQUESTIONABLY KNEW that there was no legal basis for the payment. (See Exhibit 51)
6.6 Mr Tierney, a party to the negotiations, informed Mr Lindeberg afterwards that Minister Anne Warner approved the payment.
6.7 Mr Tierney informed Mr Lindeberg that the payment was made - in the minds of the DFSAIA and QPOA - in order to assist Mr Coyne purchase his delicatessen, and that it was "a fraudulent concoction". Mr Tierney was never interviewed by either the CJC or the Queensland Audit Office.
6.8 Mr Coyne was required to sign a Crown Law Settlement Deed in order to obtain these monies. If, those my monies were his entitlement under the award, why was such a settlement Deed necessary? Upon signing that document, Mr Coyne was required to remain silent. Why?
6.9 On 12 February 1991 Ms Eastwood, QPOA General Secretary wrote to Ms Matchett confirming the payment, and stated that the QPOA would no longer pursue matters on behalf of Mr Coyne. (See Exhibit 52)
6.10 The settlement was not broadcast in the union despite the significant prima facie breakthrough of a public servant receiving cash for accumulated time off in lieu, excess travelling, and remuneration above the set classification level for overtime. It remained "a secret deal" except that Mr Tierney disclosed its true nature to Mr Lindeberg.
What the QAO officially found in respect of the payment in this case, is cloaked in secrecy, hidden behind confidentiality provisions of the Act (s92) but the following events occurred which resulted in the CJC declaring that it was "unauthorised" and the Crown Solicitor claiming it was "technically recoverable". The Department wrote it off as "a loss" after asserting its lawfulness throughout.
7.1 On 22 January 1993 after Mr Lindeberg received the CJC's second findings of 20 January 1993 declaring the payment "lawful" as an "ex gratia/special payment" under the provisions of the FAA Act 1997, he phoned Mr Len Dudman Assistant Auditor-General to verify the payment. Mr Lindeberg identified himself and gave certain details.8
7.2 On 28 January 1993 Mr Lindeberg visited Mr Dudman in Forestry House Brisbane and handed over a limited number of supporting documents. Mr Dudman discovered a late entry in the DFSAIA's audit records for the relevant financial year. He requested that Mr Lindeberg remain silent about the QAO's involvement as other material may be shredded, and their officer in that Department would be alerted to carry out an investigation.
7.3 On 29 January 1993 Mr Lindeberg visited Mr Dudman again and handed over all relevant documents pertaining to "the Coyne Case" and shredding of the Heiner documents. He forewarned Mr Dudman of an upcoming Senate Select Committee on Superannuation investigating allegations of rorting the QPOASF when certain matters may be put on the public record.
7.4 Further phone conversations occurred on 5 & 23 February 1993 and 22 March 1993 when Mr Dudman asked whether the CJC had contacted Mr Lindeberg again. Mr Lindeberg stated that no contact had been made.
7.5 On 25 March 1993 Mr Lindeberg informed Mr Dudman that the alleged reason for Mr Coyne's redundancy - ill health - was a fabrication. Mr Lindeberg stated the entire package was therefore "an inducement." He informed Mr Dudman that an experienced DFSAIA Industrial Officer believed the payments were "inducements" because the department never recognised such entitlements. Mr Dudman was told the payment was an illegal act to cover-up the shredding.
7.6 On 11 April 1993 Mr Dudman visited Mr Lindeberg's home. The QAO's investigation (within the secrecy constraints of the FAA Act) was discussed. He told Mr Lindeberg that the DFSAIA could not provide comprehensive documentation relating to the payment, and that the settlement Deed was proving an obstacle to check the bona fidei of DFSAIA officers who were claiming that everything was above board. Mr Dudman said that Minister Warner did not have the authority to authorise the payment as it needed to go to Cabinet, possibly Governor in Council. (Note Point 13.37) (See Exhibit 53)
7.7 On 26 May 1993 Mr Lindeberg wrote to Mr Dudman enclosing an amended flow sheet "The Shredding of the Heiner Inquiry Documents" inter alia.
7.8 On 28 May 1993 Mr Dudman phoned Mr Lindeberg and pointed out that the payment "might be" a technical breach of the FAA Act. Mr Lindeberg wrote to Mr Dudman on 6 June 1993 noting the conversation, but adding, inter alia, that the payment was an inducement. (See Exhibit 54)
7.9 On 30 July 1993 Mr Michael Barnes CJC Chief Complaints Officer wrote to Mr Lindeberg and advised that on information received from the Auditor-General the legality of Mr Coyne's redundancy payment had been re-examined. Mr Barnes stated in part:"The Commission is now advised that the Minister acted upon advice that she was entitled to make such a payment of the amount of $27,190 to Mr Coyne. It is clear that, had the Cabinet decision of 17 December 1990 been properly approved, the payment would have been lawful. The Commission accepts that the payment was, in the circumstances, not authorised." (Note Point 13.37)7.10 Mr Barnes informed Mr Lindeberg that the Department had been given advice by the Crown Solicitor that the money "was technically recoverable by the Crown." The Department maintained that Mr Coyne was entitled to the sum calculated, and had decided to regard it as "a loss", and Mr Barnes stated:"...the Commission remains of the view that there is no reasonable basis for a suspicion of official misconduct on the part of any person holding a position in a unit of public administration in relation to this payment and intends taking no further action in relation to this matter." (See Exhibit 55)7.11 On 15 August 1994 Mr Lindeberg wrote to Mr Dudman referring to his previous letters, and the misappropriation of public monies to payoff a public servant to cover-up official misconduct. Mr Lindeberg wanted to know what the QAO had done, and what its current stance was.
7.12 On 19 August 1993 Mr Dudman wrote and informed Mr Lindeberg that the investigation had concluded and that he was precluded by s92 of the FAA Act 1977 "confidentiality" from divulging or communicating information obtained during the course of an audit. He stated that the shredding was outside the QAO's jurisdiction resting with DFSAIA.
7.13 On 23 August 1993 Mr Lindeberg responded to Mr Dudman outlining the sequences of events relating to the payment, and illustrating that key public officials KNEW what they were doing at the time even though may be claiming ignorance now. Mr Lindeberg posed the question:"Can public monies be handed out by Ministers of the Crown for NO reason, breach the relevant Act and award, and written off as "losses" by their Directors- General with the blessing of the independent QAO?"7.14 On 25 August 1994 Mr Dudman acknowledged Mr Lindeberg's letter and expressed regret that he could offer no further comment on the issue.
"The use of such public monies can become nothing more than "political slush funds" or "hush-up money." (See Exhibit 56)
Mr Tait's was directly accountable to Premier Wayne Goss.
His crucial misleading letter of 23 February 1990 to the State Archivist seeking urgent advice on the shredding brings his role and those who directed him on the matter into question under the above Act and Code.
8.1 Mr Tait as acting Cabinet Secretary upon the election of the Goss Government on 2 December 1989 presumably attended all the Cabinet meetings with knowledge of the various submissions during the period of December 1989 - 30 May 1990.9
8.2 Mr Tait wrote the central letter of 23 February 1990 which gave false, misleading and incomplete evidence to the State Archivist regarding the status of the Heiner documents which saw Ms McGregor give her approval to shred evidence required in known foreshadowed court proceedings by many people, including at least one Minister of the Crown Ms Anne Warner. (Note Exhibit 8)
8.3 Mr Tait presumably heard the Cabinet discussions regarding the Heiner documents and what facts were presented, and then implemented, insofar as he was able and/or required, Cabinet's decisions.
8.4. Mr Tait wrote the letter dated 22 March 1990 instructing the State archivist to proceed with the shredding in accordance with the Cabinet's decision of 5 March 1990. He failed to inform her that an express reason was to reduce the risk of legal action emanating from and dependent upon the continuing existence of those records.
8.5 Mr Tait may be the prima facie perpetrator of a serious offence by acting alone, which according to the evidence, he did not, or otherwise he assisted in the act of obstructing justice by conspiring to destroy evidence for known anticipated court proceedings, and later assisted in the cover-up. (See Points 3.5.& 3.6. Criminal Justice Commission)
Hard evidence shows that the Crown Solicitor provided the Goss Government with advice on several occasions regarding the Heiner Inquiry itself and the status of the material gathered and placed into the possession of the Government.
In his client/solicitor relationship when offering advice to the Goss Government, the Crown Solicitor was faced with swiftly changing legal circumstances which unquestionably made some or part of his advice both inevitably redundant or more relevant.
The desire, legitimate or otherwise, to dispose of the Heiner documents changed profoundly from being an apparently legally innoxious act to one which had the legal constraints of due process imposed on it once Mr Coyne's solicitor officially informed the Government on 19 February 1990 of his client's course of justice involving court proceedings and the exercise of his statutory right to the documents.
How the Goss Government and the Crown Solicitor individually and/or collectively recognised and reacted to that profound change in events and consequent change of status to the Heiner documents is a core issue in this affair. It touches the Rule of Law.
In the face of the evidence, and indisputable foreknowledge of Mr Coyne's course of justice publicly acknowledged Minister Warner and her senior Departmental officers, did the Crown Solicitor advise that public records required in known foreshadowed litigation be destroyed in order to reduce the risk of legal action, or did he advise otherwise?
This key question cannot remain unanswered. Under these circumstances, it is suggested that silence on this key point from the Crown Solicitor, notwithstanding his solicitor/client relationship, is contrary to overriding statutory obligations as a public servant under the Criminal Justice Act 1989 and Queensland Criminal Code, and as an officer of the court.
9.1 On 23 January 1990 the Crown Solicitor gave advice to the Department but Mr Coyne had no demand on the Heiner documents at the time.10
9.2 On 16 February 1990 the Crown Solicitor gave advice to the Goss Government. (Note Exhibit 6) It did not recommend the destruction of the material, and nor did it address Mr Coyne's notice of foreshadowed court proceedings. The Goss Government refused to table this advice in Parliament in early September 1994 claiming "legal professional privilege" but later revealed it to political journalist Mr Tony Koch of "The Courier- Mail" who claimed, in an article, that it supported the Government's action. (See Exhibit 88 & Section 12 : Office of The Information Commissioner)
9.3 On 19 February 1990 Minister Warner and Ms Matchett received Mr Coyne's notice of foreshadowed litigation.
9.4 In letter dated 29 September 1994 from the Department of Justice and Attorney-General addressing Mr Lindeberg's FOI application of 8 August 1994 the following extract is taken:-7. Copy of briefing document/s from DFSAIA to Crown Law pertaining to:-(See Exhibit 57)(i) official notification received by the DFSAIA dated 15 solicitors (Rose Berry Jensen) informing the acting Director-General Ms Ruth Matchett of Mr Coyne's "intention to commence court proceedings" (to gain access to the material).Exempt s43(1) legal professional privilege. The document correspondence to the Crown Solicitor from DFSAIA created for the sole purpose of seeking confidential legal advice, and which would be exempt from the production in legal proceedings.
9.5 In letter dated 29 September 1994 from the Department of Justice and Attorney-General addressing Mr Lindeberg's FOI application of 8 August 1994 the following exact has been taken:-20. Copy of any Crown Law advice to DFSAIA between 23 February 1990 and 30 May 1990 pertaining to the Heiner Inquiry material and any person (eg Mr Coyne) or body (ie Queensland registered trade union seeking statutory access to the material.(See Exhibit 57)
Exempt s43(1) legal professional privilege. The document is legal advice provided by the Crown Solicitor to DFSAIA created for the sole purpose of giving confidential legal advice, and which would be exempt from the production in legal proceedings.
9.6 Mr Lindeberg on 2 October 1994 under the Freedom of Information Act 1992 appealed for an internal review of the Department's initial decision seeking to extend the date in section 20 back to 19 February 1990 (See Point 9.5) and wanting to know "the dates" on the correspondence referred to in the Department's letter of 29 September 1994.
9.7 On 17 October 1994 Internal Review officer (Dr) K S Levy, Deputy Director-General of the Department of Justice and Attorney-General upheld the original decision that not one public record of all the material requested could be released, and made the following statement:-"Having sought independent counsel's advice in respect to the application of law to the documents which are subject to your request, I affirm the decision of Ms Barratt of 29 September 1994. I consider that all of the information contained in the documents, including the dates, is exempt under section 43(1) of the Freedom of Information Act."9.8 The Goss Government led Parliament to believe that the last Crown Solicitor's advice it received was 16 February 1990 when Points 9.4 and 9.5 refutably indicate that there was later advice addressing Mr Coyne's foreshadowed litigation in response to the Department's briefing document to the Crown Solicitor pertaining to the solicitor's letter dated 15 February 1990 received by the government on 19 February 1990.
As a principle, she has no duty in a contract of employment to engage in any unlawful act which may happen to be desired by her employer for whatever reason.
The key question facing Ms McGregor is was she told of Mr Coyne pending legal action, and if not, why, and what does she intend to do about it in accordance with her public duty.
10.1 Under the Libraries and Archives Act 1988 there is no definition of what constitutes "a departmental file or record." The description used is "public record." Unquestionably once a document attracts the description of "public record" under the Act, it has the potential to be either "a departmental record or file held by the Department on the officer." This makes PSME Regulation 65 pertinent to this affair because Mr Coyne lodged a solicitor's letter dated 8 February 1990 with the Department wanting to exercise his rights as per PSME Regulation 65 when the Department had possession of the documents.11
10.2 In February 1989 a schedule was produced by Queensland State Archives for the purpose to set minimum retention periods which are legally binding on all councils in Queensland in accordance with the Libraries and Archives Act 1988.
The purpose of the official document "General Records Disposal Schedule for Local Government Records in Queensland" in the preface states:-
10.3 The document states the following category considerations in the retention of public records:
- identify and make provision for the preservation for those Local Government records that form part of Queensland's archival heritage.
- identify and authorize the disposal of nonpermanent records no longer required for legal, administrative and financial purposes.
Legal Value states:-
- Legal Value;
- Financial Value;
- Administrative Value;
- Informational Data Value."These are records which involve long and short term rights of the council or of private citizens and which are enforceable by the courts, eg contracts, tender documents, building approval permits, leases, title deeds etc. In many cases these are required by law to be kept for a specified period. In other cases it may be possible to dispose of the record after the transaction is completed. In general, the record should be retained long enough to ensure that the rights of the council and of any individual concerned are fully protected."10.4 On the morning of 23 February 1990 by faxed letter from acting Cabinet Secretary Mr Tait, Ms McGregor was asked for URGENT advice on the approval of destruction of the Heiner documents which the Goss Government decided were "no longer required or pertinent to the public record." Mr Tait had the Heiner documents delivered to Ms McGregor that same morning. (Note Exhibits 8 & 13)
10.5 Ms McGregor was NOT told in the official written communication dated 23 February 1990 from the Goss Government that:-(i) a firm of solicitors, acting for public servant Mr Peter Coyne, had served notice on the Department/Government by letter dated 8 February 1990 seeking access to the Heiner documents in accordance with Mr Coyne's statutory right under PSME Regulation 65;(Note Exhibits 4 & 5)
(ii) a firm of solicitors, acting for Mr Coyne, had served notice of foreshadowed court proceedings by letter on the Department/Government dated 15 February 1990 and received by the Goss Government on 19 February 1990 in which the Heiner documents was to be the known central item of evidence.
10.6 On the afternoon of 23 February 1990 Ms McGregor faxed approval to destroy the documents to Mr Tait, but noted in her internal correspondence, that the material was defamatory in nature, generally should be retained and the proposed FOI legislation may pose some problems for the Government which such material in the future.
10.7 Ms McGregor had over 100 hours of tapes - public records - and other material to check to satisfy herself that the Heiner documents could be destroyed, and did not represent any legal value to anyone concerned. She made no contact with Mr Coyne.
10.8 Before or after 5 March 1990 when the Goss Government decided to proceed with the shredding on one of the stated reasons "...in order to reduce the risk of legal action...", the State Archivist was not contacted again to reaffirm her approval to destroy the documents which in effect, meant the destruction was of prospective evidence not mentioned in Cabinet's original letter of 23 February 1990 to her.
10.9 Mr Tait, by official letter dated 22 March 1990, conveyed to the State Archivist Cabinet's decision of 5 March 1990 to proceed with the shredding. Mr Tait failed to inform her that one of Cabinet's express reasons was to destroy the records in order to reduce the risk of legal action which may have emanated from and/or depended on their continuing existence.
10.10 On 16/17 May 1990 Mr Coyne contacted the State Archivist to confirm whether the Heiner documents had been destroyed. Ms McGregor, according to her internal memorandum dated 30 May 1990, refused to comment to Mr Coyne beyond suggesting "that his lawyer should deal directly with the Department or with the Crown Solicitor's Office." (Note Exhibit 17 p2)
10.11 On the occasion of Point 10.10. Ms McGregor took the advice of Mr Trevor Walsh, Ms Matchett's Executive Officer in the Department of Family Services and Aboriginal and Islander affairs. Ms McGregor is a statutory officer bound by the Libraries and Archives Act 1988 and Criminal Justice Act 1989 to act honestly and impartially in the public interest. Mr Walsh was not her accountable officer. (Note Exhibit 17 p2)
10.12 Premier Wayne Goss was Ms McGregor's accountable Minister at the time of the shredding.
The Queensland Police Service is another so-called proper authority to which whistleblowers may take allegations of official misconduct or corruption.
This case brings into question the execution of those sworn duties.
11.1 In late August 1993 Senator John Watson, Chairman of the Senate Select Committee on Superannuation (SSCS) tabled in the Australian Senate its 8th Report "Inquiry into the Queensland Professional Officers Association Superannuation Fund."12
11.2 The SSCS's unanimous recommendations were:-Recommendation 1: "The Committee recommends the early implementation of legislation to increase the prudential control and supervision of superannuation funds."11.3 On Page 59 Point 9.12 the SSCS 8th Report states:-
Recommendation 2: "The Committee recommends that the Queensland Attorney-General and Minister for Justice investigate the circumstances surrounding the loss of the four Benefit Request Forms. Further, the Committee recommends that the Queensland Government review its archiving policy to ensure that all evidence tendered to quasi-judicial bodies is retained.""The Committee finds it strange that given all the documents produced and examined in the course of this inquiry, it is the crucial Benefit Request Forms which are missing. In oral evidence, NML (National Mutual Life) agreed this was odd (See 4.34 of Report). The possibility of the intentional removal of the documents, by a person (or persons) unknown, cannot be ignored. Particularly is the Committee concerned because it is possible that these documents may have contained evidence of conduct intended to mislead the fund administrator."11.4 The four QPOASF members who accessed their superannuation monies were: Messrs Donald Martindale, Gordon Rutherford, Kerry Daly and Ms Roslyn Kinder. (See Exhibit 58) 11.5 On Page 20 Point 3.39 & 3.40 the SSCS 8th Report states:-"However, the NML witness contended that NML's recollection was that each of the four beneficiaries gave "leaving the service" as the reason for withdrawing from the fund and that Roslyn Kinder was the authorised officer who signed the Benefit Request Forms.""The Committee observes that, if these recollections are true, then, having regard to the fact that none of the four beneficiaries were leaving service, clearly the transfers were contrary to the trust deed provisions. The Tower Perrin Review supports this conclusion."11.6 In late August/early September 1993, the Attorney- General Mr Dean Wells sought advice from the Crown Solicitor regarding the SSCS's Recommendation 2, and was advised that the appropriate body to handle the matter was the Queensland Police Service.
11.7 On or before 8 September 1993 the Director- General of the Department of Justice and Attorney- General wrote to the Queensland Police Commissioner Jim O'Sullivan regarding SSCS recommendation 2. Police File (MS93/25262) commenced on 8 September 1993.
11.8 On 15 October 1993 in State Parliament the Queensland Attorney- General and Minister for Justices Dean Wells in response to a question on SSCS Recommendation 2 from the Deputy Leader of the Opposition Mr Kev Lingard MLA informed Parliament that it had been referred to the police for any investigation.
11.9 On 12 November 1993 Mr Kev Lingard MLA issued a media release "Goss Turns Blind Eye To Corruption" regarding SSCS's Recommendation 2 and the Heiner document shredding. The media release was not taken up by mainstream media.
11.10 Mr Kev Lingard MLA wrote to Queensland Police Commissioner Jim O'Sullivan on 13 December 1993 recommending that Messrs Kevin Lindeberg and Des O'Neill, witnesses to the SSCS Inquiry, be contacted to assist the police in their investigation into the circumstances surrounding the four missing documents.
11.11 Messrs Lindeberg and O'Neill suffered prima facie reprisals at the hands of the Board of the Queensland Professional Credit Union Limited following their evidence to the SSCS, and lodged grievances with the SSCS. On 17 December 1993, following a unanimous recommendation in the SSCS 11th Report (December 1993), with the concurrence of the Senate, then President Kerry Sibraa referred the matter of possible contempt to the Senate Committee of Privileges.
QPOA Superannuation/Heiner Shredding and Queensland Police Service Meet:
11.12 On 7 April 1994 Mr Lindeberg was interviewed by Oxley CIB Detectives Les Melville and Cameron Sharp regarding the missing documents. Mr Lindeberg placed additional evidence of the illegal shredding of the Heiner documents with the police during the interview.
11.13 On 8 April 1994 Mr Lindeberg wrote to Queensland Police Commissioner Jim O'Sullivan seeking assurance that the police investigation would not be limited in any way, and that the investigation would not only look for the documents but why they may have went missing in accordance with concerns in Point 9.12 of the 8th SSCS Report. Mr Lindeberg also informed the Police Commissioner that evidence was given on the illegal shredding of the Heiner documents. (A copy of the letter sent to Senator John Woodley [SSCS member]).
11.14 Police Commissioner O'Sullivan acknowledged receipt of letter of 8/4/94, and referred it to Acting Chief Supt Vic Rossow Metropolitan South Region Brisbane to handle. On 26 April 1994 A/Chief Supt Rossow indicated from the information given "it would appear there has been official misconduct by government officials. This is an area which falls within the folio of the Criminal Justice Commission." (See Exhibit 59)
11.15 Mr Lindeberg contacted A/Chief Supt Rossow by phone and he arranged for Oxley CIB Det. Sgt Don Mabbutt to take detailed evidence on 24 May 1994 from Mr Lindeberg on possible rorting of the QPOASF and the Heiner documents shredding and matters arising therefrom.
11.16 On 24 May 1994 Mr Lindeberg gave detailed evidence to Det Sgt Mabbutt. The interview lasted for 3 to 4 hours, and was taped.
11.17 On 25 May 1994 Mr Lindeberg provided documents relating to the QPOASF matter and lists of witnesses who should be interview regarding both matters. Det Sgt Mabbutt indicated that he would provide a report and forward it to his superiors for further consideration.
On 31 August 1994 Senator Jocelyn Newman Chair of the Senate Select Committee on Public Interest Whistleblowing tabled her Unanimous All-Party Report which called on the Goss Government to hold Independent Reviews into certain unresolved Queensland Whistleblower Cases, including "The Lindeberg Case." On 1 September 1994 The Queensland Premier Declined the Senate's Request.
11.18 On 14 September 1994 Mr Lindeberg was interviewed in his home by three detectives from the Fraud and Corporate Crime Squad, led by Detective Sgt Peter Gleeson. (See Police File: MS93/25262 - Fraud Squad Ref 94/089). Detective Sgt John James and Snr Const Darren Padget are the other police officers. The interview lasted approximately 3 hours, and was taped. Mr Lindeberg once again gave detailed evidence regarding:(i) the prima facie rorting of the QPOASF; and11.19 Mr Lindeberg provided the police with the key letter of 23 February 1990 from the Goss Government to the State Archivist containing misleading information which he maintained provided hard evidence of an offence under the Queensland Criminal Code and Criminal Justice Act 1989. The police informed Mr Lindeberg verbally on 14/9/94 that they are unsure how the handle the shredding and related matters as it involved complaints against the Goss Government and CJC. Police asked Mr Lindeberg what he and the Opposition intended to do next on the case.
(ii) the shredding of the Heiner documents and related shredding matters including the CJC's handling of the complaint.
The Heiner Document Shredding and Queensland Police Commissioner Meet:
11.20 On 15 September 1994 Mr Lindeberg wrote directly to Police Commissioner Jim O'Sullivan setting out "the twelve (12) indisputable facts associated with the shredding" - given the police officers' stated concern to Mr Lindeberg as to how police could handle this case. (Note Point 11.19) Copies sent to Senators Cheryl Kernot (later tabled in the Australian Senate by Senator John Woodley 10/10/94), Warwick Parer, Christabel Chamarette, Mr Rob Borbidge MLA, Mrs Joan Sheldon MLA, Whistleblowers Action Group, Mullins & Mullins Solicitors, and Queensland Justices and Community Legal Officers' Assn [QJA]). (See Exhibit 60)
11.21 Commissioner O'Sullivan acknowledged receipt of letter, and informed Mr Lindeberg by letter dated 19 September 1994 that his letter had been referred to Assistant Commissioner State Crime Operations Command for continued investigation.
11.22 On 10 October 1994 Queensland Senator John Woodley delivered a major speech in the Australian Senate on the shredding.
11.23 On 12 October 1994 on State Government/Family Services' property "Yungabah" a meeting occurred in work time between Minister Warner, Ms Matchett and Departmental Divisional Heads to discuss "Issues Politically Damaging". Listed for discussion, inter alia, is "Heiner/Coyne/Lindeberg." The meeting was convened by "The Consultancy Bureau Pty Ltd of 80 Albert Street Brisbane." (See Exhibit 61)
11.24 On 15 October 1994 Mr Lindeberg alerted the Commissioner O'Sullivan to the "Yungabah" meeting pointing out it involved people at the centre of the case, and indicated the shredding was the subject of a continuing police investigation. Mr Lindeberg asserted that it reasonable to assume that the meeting was designed to agree on containing strategies. (See Exhibit 62)
11.25 On 22 November 1994 Mr Lindeberg informed the Police Commissioner that the Deputy Information (FOI) Commissioner Mr Greg J Sorensen granted him access on 21 November 1994 to certain public records, in particular the Crown Solicitor's advice, dated 16 February 1990. Contrary to the Government's public statements, Mr Lindeberg asserted the advice did NOT support the shredding. He also enclosed a copy of the advice, and copies of two letters dated 2 August and 6 September 1994 sent to the FOI Commissioner regarding the shredding.
11.26 Acting Assistant Commissioner Wayne King, State Crime Operations Command, on 24 November 1994, informed Mr Lindeberg that the QPOASF investigation was to continue but as the CJC was the appropriate body to investigate the Heiner documents shredding, and as it had done so to its satisfaction, the police investigation was to discontinue. (See Exhibit 64)
On 1 December 1994 Senator Warwick Parer moved in the Australian Senate to establish a Committee to be known as the Senate Select Committee on Unresolved Whistleblower Cases. The Heiner Document Shredding and Matters arising therefrom was one specific Term of Reference.
11.27 On 29 December 1994 Mr Lindeberg received a letter from Detective Senior Sergeant Merv Swindells of the Fraud and Corporate Crime Squad, Queensland Police Service acknowledging Mr Lindeberg's letter of 22 November 1994, alerting him to Act/Asst Commissioner King's letter of 24 November 1994, and informed him that another decision on 22 December 1994 was taken (See Exhibit 65):"It was the decision of the Committee that the informa tion you have supplied be referred to the Criminal Justice Commission."11.28 On 7 January 1995 Mr Lindeberg wrote to Commissioner O'Sullivan stating that the complaint was not just about the shredding alone, but also related shredding matters including misappropriation of public monies and the conduct of past and present CJC officers in handling the case. The Commissioner was told that it was totally inappropriate for the case to be referred back to the CJC, and that all the facts of the case would be placed before the Senate Select Committee on Unresolved Whistleblower Cases which had the shredding as a specific term of reference. (See Exhibit 66)
Mr Fred Albietz is both the Information Commissioner and State Ombudsman but in practice the Deputy Information Commissioner Mr Greg J Sorensen appears to have carriage of most if not all FOI matters.
The Freedom of Information Act 1992 depends on the lawful and competent functioning of the Libraries and Archives Act 1988 because without the proper protection of public records, particularly controversial documents, by the State Archivist the Freedom of Information Act can be rendered pointless if important records are destroyed or go missing.
Mr Lindeberg has been forced to use freedom of information in his pursuit of justice. The interpretation of the Act to deny access to certain documents including their existence, and even dates under "legal professional privilege" raises questions of the use of the Freedom of Information Act 1992 by certain public officials and Government to stifle the flow of public information against the public interest - and the pursuit of justice.
This case raises questions for both Acts.
12.1 On 18 January 1993 Mr Lindeberg wrote to Ms Lee McGregor, State Archivist, seeking access to the disposal schedule and related documents associated with the shredding of the Heiner Inquiry documents in accordance the provisions of the Freedom of Information Act 1992.13
12.2 24 March 1993 the Administrative Services Department released certain documents associated with the shredding highlighting extraordinary events behind the scenes to destroy the documents by examination of the dates. Access to:(i) the Crown Solicitor's advice of 16 February 1990 was refused because of "legal professional privilege;" and12.3 On 10 June 1993 Mr Lindeberg made an application for an external review by the Information Commissioner of the Administrative Services Department's decision. Mr Fred Albietz, acknowledged Mr Lindeberg's application on 15 June 1993.
(ii) the letter from the Secretary of Cabinet to the State Archivist dated 23 February 1990 was partly released with exempt passages because of "legal professional privilege" and "the disclosure would involve deliberation/s or decision of Cabinet."
12.4 The Deputy Leader of the Opposition Mr Kev Lingard MLA delivered a major speech in State Parliament on 13 July 1993 alleging the shredding of the Heiner documents represented an offence perpetrated by the Goss Government. The Queensland media did not cover the speech. (Note Exhibit 38)
12.5 On 7 September 1993 "The Bulletin" published a lead article on the shredding titled "Shreds of Evidence" written by Mr Greg Roberts. (See pp16-17). (Note Exhibit 39)
12.6 On 20 October 1993 Mr Greg J Sorensen Deputy Information Commissioner (See Points 4.2 & 4.3 EARC) "directed Mr Lindeberg to supply" copies of all documentation in his possession which he considered relevant to the FOI review. (See Exhibit 67)
12.7 On 30 October 1993 Mr Lindeberg supplied Mr Sorensen with copies of:(i) Minister Anne Warner's statement to Parliament on 18 May 1993;Mr Lindeberg stated that he does not have to prove anything under the Freedom of Information Act 1992 as the onus was on the agencies not to comply.
(ii) Minister Warner's answer to a Question dated 21 May 1993 re the Government followed the advice of the Crown Solicitor and State Archivist when destroying the document.
The Goal Posts Set In Place:
12.8 On 9 November 1993 Mr Albietz wrote to Mr Lindeberg stating in part:-"...you intend to allege that document 1, being a letter of advice from the Crown Solicitor to Mr S P Tate (sic), Acting Secretary of Cabinet, dated 16 February 1990, is not exempt pursuant to the provisions of s43(1) of the FOI Act. I understand that the basis of your contention is that document 1 falls within an exception to the principle of legal professional privilege in that you allege that there has been a "conspiracy to pervert the course of justice."The Commissioner placed the onus of proof onto Mr Lindeberg in accordance with High Court of Australia in Attorney-General (NT) v Kearney (1985) 61 ALR 55 to provide his office with "prima facie evidence" in "clear and definite terms." (See Exhibit 68)
12.9 On 19 November 1993 Mr Lindeberg responded to the Information Commissioner outlining ten (10) points and facts, thereby producing "prima facie evidence" and called on him to release the documents. (See Exhibit 69)
12.10 On 2 December 1990 Mr Sorensen "directed" Mr Lindeberg - a private citizen - to hand over a copy of Mr Coyne's solicitors letter dated 15 February 1990 to the DFSAIA. (See Exhibit 70)
12.11 On 9 December 1993 Mr Lindeberg provided copies of (i) Mr Coyne's solicitors letter dated 15 February 1990; and (ii) a copy of Ms Matchett's letter dated 22 May 1990 confirming possession of the solicitor's letter. (See Exhibit 71)
12.12 Mr Lindeberg once again stated that he had provided sufficient "prima facie evidence", and requested release of the documents. He also stated that it was "extraordinary" to find himself, as a private citizen, being "directed" to hand over private records to the Information Commissioner under S72(1) of the Freedom of Information Act.
The Senate Select Committee on Public Interest Whistleblowing/Office of the Information Commissioner Connection:
12.13 On 8 March 1994 Mr Lindeberg gave evidence in the Queensland Parliament to the Senate Select Committee on Public Interest Whistleblowing on the shredding of the Heiner Inquiry documents. Mr Greg Sorensen witnessed his bracket of evidence and later gave evidence himself, as a private citizen, on whistleblowing and protective legislation.
12.14 Mr Mark Le Grand, CJC Director of the Official Misconduct Division provided on 24 June 1994 a response to the Senate Whistleblowing Committee on Mr Lindeberg's bracket of evidence of 8/3/94 (See Point 12.13), and the CJC's position regarding the shredding, related matters including Mr Noel Nunan's role in the matter.
12.15 On 28 June 1994 Mr Lindeberg made a comprehensive FOI application to the DFSAIA covering twenty (20) different aspects of the shredding of the Heiner documents and related matters.
12.16 Mr Lindeberg presented a detailed "Submission in Reply" dated 4 July 1994 to the Senate Whistleblowing Committee on the CJC's response (See Point 12.14). Mr Lindeberg outlined false and misleading evidence, omission of evidence, tampering with evidence, misquoting a key statute by Mr Nunan and other concerns. The Senate Whistleblowing Committee considered both submissions before making its unanimous Report to the Australian Senate.
12.17 On Saturday 16 July 1994 in "The Courier- Mail" the Attorney-General Mr Dean Wells MLA announced that Mr Noel Nunan had been appointed as a Stipendiary Magistrate in Brisbane. (See Points 11.16 & 11.18 Queensland Police Service).
12.18 On 2 August 1994 Mr Lindeberg wrote to the Information Commissioner setting out the significance of the "Cabinet exempt" passage in the letter of 23 February 1990 to the State Archivist from the Cabinet Secretary. He pointed of Mr Le Grand's assertion in his letter to the Australian Senate that:"there is no suggestion that the Archivist was actively misled by the Cabinet Secretary or any other person with knowledge of the documents."He stated if the exempt passage says that the documents "weren't required" then that was prima facie evidence of an offence, and documents should be released. (See Exhibit 72)
12.19 On 8 August 1994, in a letter addressed to Mr Ken O'Shea Crown Solicitor, Mr Lindeberg made a comprehensive FOI application on the Department of Justice and Attorney-General seeking access to public records pertaining to the Heiner Inquiry, its documents and tapes, its shredding and related matters covering 36 different aspects. (Note Exhibit 57)
12.20 On 31 August 1994 in the Australian Senator Jocelyn Newman Chair of the Senate Select Committee on Public Interest Whistleblowing tabled a unanimous report which, amongst other recommendations, called on the Goss Government to establish independent reviews of certain "unresolved Queensland whistleblower cases." One such case highlighted is "the Lindeberg Case." Premier Goss declined the Senate's recommendation.
12.21 On 31 August 1994 in the Senate Queensland Senator Warwick Parer spoke in the debate and highlighted the shredding of the Heiner documents calling it "core administrative and political corruption of the highest order." Queensland Senator Cheryl Kernot, later on, highlighted the shredding and posed fundamental questions for:(i) the CJC;Fallout on the Floor of Queensland's Parliament: 12.22 Following the tabling of the Senate Whistleblowing Committee's Report, debate over the shredding occupied considerable time in State Parliament. The Goss Government refused to table Crown Solicitor's advice it allegedly followed, but Minister Warner on 2 September 1994 tabled the key letter dated 23 February 1990 to the State Archivist. (Note Exhibit 8)
(ii the Crown Solicitor; and
(iii) the State Archivist.
"The Courier-Mail" on 3 September 1994 assured its readership that the Government followed the Crown Solicitor's advice of 23 January 1990 to destroy the material. The Government refused to table the advice in Parliament but showed it to a selected political journalist. That advice was given BEFORE Mr Coyne's legal demands on the material, and when no foreshadowed legal action was notified. (See Exhibit 87)
NOTE WELL: Was "The Courier-Mail" unaware that the Crown Solicitor's advices of 23 January 1990 and 16 February 1990 were redundant and was itself deceived by the Goss Government, and in turn gave deceptively misleading information to the Queensland public? Or, did "The Courier-Mail" demonstrate irresponsibility of great magnitude by not verifying the advices' relevance before publishing?
On 8 December 1994 "The Courier-Mail" editorial described the establishment of the Senate Select Committee on Unresolved Whistleblower Cases as a "Stunt Act."
12.23 Mr Lindeberg obtained a copy and the key passage alluded to in his letter of 2 August 1994 to the Information Commissioner regarding the Heiner documents stated "....is no longer required or pertinent to the public record."
12.24 On 6 September 1994 Mr Lindeberg wrote to the Information Commissioner, pointing out the significance of the letter (See Points 12.22 & 12.23) and referred to his letters of 19 November, 9, December 1993 and 2 August 1994. He placed additional facts on the record and asserted that he'd proven his case so the documents should be released, and stated:-"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."(Note Point 12.8) (See Exhibit - tabled in Senate 10/10/94 by Senator John Woodley) (See Exhibit 73)
12.25 On 8 September 1994 Minister Warner publicly confirmed in "The Courier-Mail" that the Government did not receive Mr Coyne's solicitor letter until 19 February 1990, and that it did "not constitute any legal proceedings in any court." (Note Exhibit 7)
12.26 In the same article (See Point 12.25) responding to questions on the solicitor's letters Minister Warner stated "We are saying those letters did not constitute the commencement of legal proceedings. We sought advice about that." (Note Exhibit 7)
12.27 On 29 September 1994 the Department of Justice and Attorney-General responded to Mr Lindeberg's FOI application of 8/8/94 (See Point 12.18). Access to all documents is denied, even "the dates". The Department did however acknowledge "the existence" of two key documents exempt under S43(1) of the Freedom of Information Act "legal professional privilege." They are:- "7. Copy of briefing documents from DFSAIA to Crown Law pertaining to:-(i) official notification received by the DFSAIA dated 15 February 1990 from Mr Coyne's solicitors (Rose Berry Jensen) informing the acting Director- General Ms Matchett of Mr Coyne's "intention to commence court proceedings" (to gain access to the material)."(Note Exhibit 57)
"20. Copy of any Crown Law's advice to DFSAIA between 23 February 1990 (amended back to 19 February) and 30 May 1990 pertaining to the Heiner material and any person (eg Mr Coyne) or body (ie Queensland registered trade union) seeking statutory access to the material."
12.28 On 17 October 1994 (Dr) K S Levy, Deputy Director-General of the Department of Justice and Attorney-General in responding to Mr Lindeberg's application dated 2 October 1994 for an internal review which specifically requested "the dates", stated that the original decisions stood after having sought "independent counsel's advice."
12.29 On 21 October 1994 the DFSAIA informed Mr Lindeberg of its decision regarding his FOI application dated 28 June 1994. (See Point 12.15). The Department held 367 pages on his application, and none was accessible, including dates. On 28 October 1994 Mr Lindeberg applied for an internal review in a letter addressed to Ms Matchett, DFSAIA Director- General, highlighting the issues of dates and certain key documents in his original application of 28 June 1994.
12.30 On 11 November 1994 Mr Lindeberg had tabled in the Australian Senate and Queensland his document titled "A Public Interest Disclosure to all Honourable Members of the Queensland Legislative Assembly and the Queensland People - The Shredding of the Heiner Inquiry Documents and Tapes." The document challenged the Queensland Premier's letter dated 10 October 1994 sent to Senator Jocelyn Newman, Chair of the Senate Select Committee on Public Interest Whistleblowing addressing the Committee's recommendations. (See Exhibit 74)
12.31 On 21 November 1994 Mr Greg Sorensen, Deputy Information Commissioner, wrote to Mr Lindeberg, referred to previous correspondence, in particular his letters of 2 August and 6 September 1994, and stated that the Department of Administrative Services had agreed to grant access to all documents, including the Crown Solicitor's advice to Cabinet dated 16 February 1994. (The document the Goss Government refused to table in State Parliament in September 1994 because of "legal professional privilege"). (See Exhibit 75)
12.32 On 22 November 1994 Mr Lindeberg collected the documents from the Department in George Street Brisbane. The Crown Solicitor's advice was based on a briefing document from Cabinet dated 13 February 1990 and DID NOT recommend the Heiner document's destruction, and DID NOT address Mr Coyne's foreshadowed litigation because of the chronology of events. (Note Exhibit 6)
12.33 On 22 November 1994 Mr Lindeberg wrote to the Information Commissioner seeking an external review of the Department of Justice and Attorney- General's decision and asserted that he (the Information Commissioner) had released the documents sought from the Administrative Services Department after he (Lindeberg) had provided "prima facie evidence" of the offence of obstructing justice. Mr Lindeberg called on the release of other documents particularly items (See Point 12.26). He enclosed copies of letters sent to the Police Commissioner dated 15/9/94 and 15/10/94, and the document dated 11/11/94 (See Point 12.30). (See Exhibit 76)
12.34 On 22 November 1994 Mr Lindeberg wrote to Police Commissioner Jim O'Sullivan pointing out that certain documents had been released after he had provided sufficient "prima facie evidence" of an offence, and enclosed copies of (Note Exhibit 63):(i) letters 2/8/94 and 6/9/94 to FOI Commissioner; and12.35 On 24 November 1994 Acting Asst Commissioner Wayne King State Crime Operations Command Queensland Police Service wrote to Mr Lindeberg informing him that the police would not continue with its investigation of the shredding as the CJC was the appropriate body, and it (CJC) had investigated the matter to its satisfaction. (Point 12.34 letter 3.16 22/11/94 crossed in the post.) (Note Exhibit 64) Changing the Goal Posts:
(ii) the Crown Solicitor's advice dated 16 February 1990.
12.36 On 29 November 1994 the Information Commissioner wrote to Mr Lindeberg informing him that he (the Information Commissioner) "had not accepted that you (Lindeberg) have provided sufficient "prima facie evidence" of the offence of obstructing justice." He cautioned Mr Lindeberg on making any such representations, as the documents were released by negotiation with the agency under the FOI Act. (See Exhibit 77)
12.37 On 20 December 1994 Mr Donald A C Smith, DFSAIA Principal Liaison Officer in the Office of the Director-General wrote to Mr Lindeberg regarding his internal review. He released two further documents over and above those already released by the Administrative Services Department, but would not release the dates. Mr Smith made the following decision regarding the dates and existence of certain documents covered by "legal professional privilege":-"In my view to do so (release the dates) could be misleading and may fulfil little purpose although the latter is not for me to attribute in the hands of the applicant. However, putting those considerations aside, I am of the view that the date of correspondence or even in some cases whether such correspondence exists is within the bounds of section 43(1) and may be material that is subject to legal professional privilege. I therefore do not consider that the dates of such correspondence or even confirmation of the existence or otherwise of correspondence of this nature should be released."12.38 On 27 December 1994 Mr Lindeberg wrote to the Information Commissioner making application for an external review of Mr Smith's (DFSAIA) internal review decision. He extended the alleged offence to include S129 of the Queensland Criminal Code - destruction of evidence. He outlined the indisputable facts, inter alia, and made the following comment on Mr Smith's decision re (See Point 12.37):-"Under the special circumstances associated with this affair, to attempt to deny the existence of certain documents when it is clear through other sources that such documents exist, and then to attempt to withhold the dates of such documents as well, cannot be a fair and reasonable "in the public interest" interpretation of the Freedom of Information Act 1992 (Qld) but a prima facie exercise in abuse of office covered by the Queensland Criminal Code."(See Exhibit 78)
12.39 On 29 December 1994 the Queensland Police Services informed Mr Lindeberg, after receiving his letter of 22 November 1994 it had reconsidered the shredding, and decided to refer the information supplied back to the Criminal Justice Commission. (Note Exhibit 65)
12.40 On 10 January 1995 Mr Greg Sorensen acknowledged Mr Lindeberg's letter of 27 December 1994 and indicated that he had written to DFSAIA for documents.
The role of the various union office holders cannot be ignored in the shredding of the Heiner documents. The then QPOA President Mr William (Bill) Yarrow, a public servant drawing remuneration from the public purse while on secondment with the union, was highly active in the shredding aftermath affecting Messrs Coyne and Lindeberg.
This case illustrates the potential and real danger to the public interest and exposure of systemic corruption in public administration, when a public sector union becomes too close to a Government and allows prima facie illegal acts against its members, paid officials, the public purse and the rule of law by that Government to go unchecked and even assisted.
The consequences of Mr Lindeberg's dismissal are still known inside the State Public Services Federation [Queensland Branch] (SPSFQ), and the shredding as well. (The SPSFQ became the amalgamated body of QPOA and QSSU in January 1993)
This case shows that public sector unions are effectively part of "the system" which places whistleblowers in considerable or potential jeopardy should they report wrong- doing to them, or when the wrong-doing is of a particular nature as to engender self-interest over principles.
This section shows how the QPOA inflicted injustice on Messrs Coyne and Lindeberg, (both union members) in concert with the Goss Government, after the shredding.
The Shredding Aftermath and Continuing Injustice:
13.1 The key dates involving Mr Lindeberg and the shredding itself are set out in the chronology of events under "The Shredding."14.
13.2 After Mr Coyne was seconded to so-called "special duties" from JOYC he was interviewed sometime in March/April 1990 for the position of Manager of that facility. The chairman of the independent professional selection panel was Mr Trevor Carlyon, then Deputy Director-General of the Queensland Corrective Services Commission (QCSC). That panel recommended Mr Coyne for the position but Ms Matchett refused, and kept the recommendation from Mr Coyne. (This important point should be further clarified from Messrs Coyne and Carlyon.)
13.3 On Wednesday morning 30 May 1990, without warning, Mr Don Martindale, QPOA General Secretary, in the presence of Ms Roslyn Kinder, QPOA Asst General Secretary, sacked Mr Lindeberg. Four (4) reasons were given, including Minister Warner's complaint against him. All the charges were demonstrably contrived. Mr Lindeberg challenged "the Coyne Case" charge, in particular, from the outset. (Note Exhibit 81)
13.4 On Thursday 31 May 1990, QPOA staff, excluding Ms Kinder, conducted the first strike in the union's history over the dismissal. Staff picketed the office with placards, with Mr Coyne joining along with other public servants in support.
13.5 On 1 June 1990 Ms Matchett wrote to the QPOA in response to previous union letters stating that "the Coyne Case" was now closed.
13.6 On 5 June 1990 Mr Lindeberg was "conditionally reinstated" following a QPOA Council Meeting and exposure on the previous evening as a whistleblower on "The 7.30 Report." Mr Lindeberg had to undergo private arbitration by a mutually agreed arbitrator between Messrs Lindeberg and Martindale. In the meantime QPOA President William (Bill) Yarrow was to oversee Mr Lindeberg's work, and was required "to act independently and with integrity" during the dismissal/reinstatement process.
13.7 Only days after Mr Lindeberg's conditional reinstatement, Mr Alan Hogan, Brisbane presenter of "The 7.30 Report" (currently a Producer with "60 Minutes" in Sydney) contacted Mr Lindeberg as the QPOA's media/publicity officer. Mr Hogan was interested in doing a story on the shredding and Mr Coyne's treatment. Mr Lindeberg informed him that his handling of the case had recently been used as a reason to dismiss him on 30 May 1990. Mr Lindeberg said that the story should be told but that Mr Hogan should approach Mr Martindale given the extraordinary situation of sacking an organiser for looking after a union member on the complaint of a Minister over the case.
13.8 Days after being reinstated Mr Lindeberg applied for the vacated position of QPOA Assistant General Secretary. He was shortlisted and interviewed for the position by Messrs Martindale and Yarrow and three other people. He was unsuccessful with Ms Jeni Eastwood being appointed. On 2 July 1990 QPOA President Yarrow informed QPOA Council delegates of Ms Eastwood's selection, and faithfully informed delegates that "all the candidates were of high quality."
13.9 After being contacted by Mr Hogan, Mr Martindale approached Mr Lindeberg to draw up a strategy for the QPOA Executive on whether the union should pursue "the Coyne Case" on ABC-TV, and how else the case should be handled. Mr Martindale, had, only days before, dismissed Mr Lindeberg over his handling of the case.
13.10 Mr Lindeberg drafted a brief memorandum recommending the union should pursue the issue on "The 7.30 Report". The Executive, according to Messrs Yarrow and Martindale afterwards at a meeting with Mr Lindeberg, required more detail. Mr Lindeberg informed them that a prima facie breach of the Queensland Criminal Code had occurred, and the matter was very serious. Both agreed the issue was serious.
The QPOA Executive and Mr Martindale put on Notice over "The Shredding":
13.11 On 12 June 1990 Mr Lindeberg drafted a detailed submission to the QPOA Executive on the shredding. QPOA Industrial Officer Mr Brian Tierney had been allocated DFSAIA matters by Mr Martindale and Ms Kinder and Mr Lindeberg other departments. Mr Lindeberg remains unsure whether his memorandum dated 12/6/90 ever got to a full Executive meeting as the union did not go public, which, given the case, its ramifications and Mr Martindale's past readiness for media exposure was extraordinary.
Mr Lindeberg's recommendations were:-"RECOMMENDATIONS:(See Exhibit 79) (See 3.3.(3) Criminal Justice Commission)The matter should be pursued with vigor either in the media, with the PSMC, and if needs be, with *the Premier. (in view of (B) careful consideration should be given to this owing to its ramifications.)ISSUESA. Public Servants must have an opportunity to defend on specific charges before any action is taken against them. (Coyne was seconded out of JOYC). The PSME Act demands it and "natural justice" does as well.Such an action breaches Government policy showing political interference in the running of a Department which is the province of the Chief Executive."
B. Documents were destroyed whilst legal action was pending on them. A potential breach of the criminal code has occurred.
ThereforeA. did Anne Warner properly inform Cabinet thereby making Cabinet collectively responsible orC. Chief Executives have a responsibility under the PSME Act to ensure staff are treated "equally, justly and fairly" Section 12(3)(9). Coyne was not treated in such a manner.
B. was Cabinet incorrectly informed by the Minister or
C. did the Chief Executive incorrectly inform her Minister.
D. Anne Warner, claimed at a meeting of JOYC staff after Coyne was seconded, that she was the person who ordered it.
The Private Arbitration Charade:
13.12 On 2 July 1990 Mr Martindale made an offer to drop the charges certain conditions. Mr Lindeberg rejected the offer as the conditions indicated guilt on his part which he would not accept, and the conditions were "anti-union in nature." Neither Mr Martindale nor Mr Lindeberg could agree upon a mutually acceptable arbitrator.
13.13 Mr Yarrow attempted to recommend an arbitrator who was acceptable to him and Mr Martindale but Mr Lindeberg refused continually because he was a known employer advocate. On 2 July 1990 the QPOA Council gave Mr Yarrow the power to select an arbitrator but once again he was required "to act with independence and integrity."
13.14 Because no agreement could be reached, Mr Yarrow, a union President, selected an "employer advocate" Mr Joe Patti whom Mr Lindeberg continually rejected but was found acceptable to Mr Martindale. The QPOA industrial staff objected to his appointment but Mr Yarrow rejected their concerns. Mr Yarrow rejected Mr Lindeberg's offer to appoint someone neither party wanted.
13.15 Mr Martindale associated with Mr Patti when Mr Martindale worked approximately one year as an industrial officer with an employer body: The Queensland Confederation of Industry (QCI).
13.15 Mr Lindeberg entered into the arbitration process with the provisos that fairness and equity applied as was stipulated by the QPOA Council Meeting of 5 June 1990.
13.16 On 12 July 1990 Mr Martindale finally put the charges in writing after Mr Lindeberg agreed to undergo the process with the selected arbitrator. Mr Lindeberg had requested the specific charges in writing in early June in accordance with his rights. The charges increased from four (4) to seven (7) including his employment history which was not mentioned on 30 May 1990. Mr Lindeberg maintained that all the charges were contrived. (Note Point 13.8)
13.17 The specific charge relating to the shredding stated:-"Some time ago I made you aware of a complaint I received from Hon A Warner and the fact that she believed your attitude to negotiations with respect to the "Coyne Case" was inappropriate and over- confrontationalist. She claimed that your method of operation showed a lack of understanding for how such negotiations should be conducted. When I raised the issue with you the day that I received the complaint you totally denied the allegation indicating that there was no real problem. I do not believe that to be the case."(Note Exhibit 81)
13.18 On 12 July 1990 Mr Lindeberg, a QPOA member himself, wrote to Mr Yarrow QPOA President, enclosing a copy of the charges, (including Point 13.17) calling on him to consider the ramifications of them on the union. Mr Yarrow told Mr Lindeberg that he "saw no problems with them."
13.19 Unbeknown to Mr Lindeberg and other industrial staff, Mr Yarrow had arranged to meet with Mr Coyne in the city on the other side of the Brisbane River in a restaurant to negotiate on his behalf with the Department over his concerns since the shredding and his secondment. Mr Yarrow insisted that Mr Coyne meet him away from the union office and that he (Mr Coyne) not attend the negotiations. One such meeting occurred on 19 July 1990, seven days after stating that he saw "no problems" with the charges, and five days before Mr Lindeberg had to defend himself before Mr Patti on 24 July 1990. (Note Exhibit 80)
13.20 On 24 July 1990 the Patti hearings occurred. Mr Lindeberg gave evidence on oath and was represented by industrial Barrister-at-law Mr Jim Murdoch. Mr Lindeberg produced evidence to refute each charge. Mr Martindale produced new allegations without notice, and revealed a document which indicated that he'd secretly gone through Mr Lindeberg's personal files in an endeavour to undermine Mr Lindeberg's defence on a particular charge.
13.21 On 1 August 1990 Ms Matchett wrote to Mr Yarrow outlining the agreement reached over Mr Coyne's future. The Department agrees to pay his legal fees, and find a suitable position for him. He must also put in writing the specific issues he will not pursue with or through:(i) Ms Matchett;(See Exhibit 80)
(ii) the Minister;
(iii) the QPOA;
(iv) his solicitor;
(v) the Public Sector Management Commission [PSMC];
(vi) the Director-General of the Premier's Department; and
(vii) the media.
13.22 On 2 August 1990 Mr Patti handed down his report. He could not sustain the charges, inserted "colour" words and made assumptions which deferred to authority throughout his report, and upheld the dismissal on "an alleged irretrievable breakdown in the working relationship." Industrial staff were shocked. (Note Exhibits 81 & 82)
13.23 Messrs Martindale and Yarrow were in Adelaide and gave instructions over the phone to Ms Eastwood, newly employed by days, how to handle the matter. Mr Lindeberg was given half an hour to read the report, then pack his belongings and leave the union immediately. He refused, and would not accept his dismissal until the QPOA Council voted on the Report.
13.24 On 7 August 1990 Mr Lindeberg produced two pamphlets:(i) "The Story Behind The Sacking of Senior Organiser Kevin Lindeberg"; andand distributed them to QPOA Councillors for the Council meeting that evening. Mr Lindeberg also distributed the documents to floors in Family Services Building, and was later told by a Departmental industrial officer, the Office of the Director-General requested copies soon afterwards. (See Exhibits 81 & 82)
13.25 On 7 August 1990 unsuccessful efforts were made by Mr Lindeberg's supporters to delay the dismissal until the Patti Report was read together with Mr Lindeberg's documents. The adoption of the Report was put and accepted 38-28 with proxy votes making the difference. Mr Lindeberg left the meeting and his union employment. Mr Martindale did not attend the meeting but took holidays on Fraser Island. 13.26 It was later discovered that Mr Yarrow actively canvassed proxy votes to uphold the Patti findings, and when challenged he found no conflict of interest despite being required to act "independently and with integrity" during the dismissal/reinstatement process.
The Return: 13.27 In November 1990 Mr Lindeberg obtained temporary employment as a Research Officer in the Department of Housing and Local Government offered by Mr Arthur Muhl, Director of Commercial Development. Mr Muhl later received a phone call from a staff member in the office of the Deputy Premier and Minister for Housing and Local Government Mr Tom Burns MLA asking questions about Mr Lindeberg's appointment.
13.28 In mid-November 1990 Mr Martindale resigned from the QPOA and took up the position of Assistant General Secretary of the Queensland Trades and Labour Council (TLC) with TLC General Secretary Mr Tom Barton. Ms Eastwood took over as acting QPOA General Secretary.
13.29 On 4 December 1990 Mr Lindeberg attended the QPOA Council as an elected delegate. QPOA President Yarrow unsuccessfully attempted to expel him. Mr Lindeberg tabled documents relating to his dismissal, and Council decide to debate the dismissal at its February 1991 Council Meeting.
13.30 On 14 December 1990 Mr Lindeberg lodged his complaint with the CJC. CJC Complaints Officer Mr Peter Jones accepted prepared documents, including matters on the shredding. The QPOA was unaware of Mr Lindeberg's action, as was Mr Coyne.
13.31 After August 1990, Ms Matchett extended Mr Coyne's secondment on "special duties" for another 6 months. Mr Coyne performed no work. Ms Matchett did not inform him about his successful to JOYC Manager. The Department refused to honour its agreement concerning his future employment.(See 13.21)
13.32 In mid-December 1990 Mr Coyne's tolerance broke over his treatment, and he phoned Mr Yarrow demanding action from the union. Ms Eastwood assigned QPOA Industrial Officer Mr Tierney to the case. Through his treatment and isolation Mr Coyne believed his public service career was limited which turned his mind to purchasing a delicatessen. The Department in early 1991 allowed Mr Coyne, while a public servant on paid special leave, to work in the delicatessen to see whether he liked it.
13.33 On 10 January 1991 QPOA Industrial Officers Terry Hamilton and Brian Tierney met with the Department and threatened to take "the Coyne Case" to the CJC unless:(i) the Department showed Mr Coyne documents relating to his application for the JOYC position; or13.34 On 15 January 1991 Mr Tierney visited Mr Lindeberg in the Department and partly informed him about the meeting. Mr Tierney was aware of Mr Lindeberg's activities on the union Council. He said that the QPOA threatened to take the DFSAIA over "the Coyne Case" to the CJC. Mr Lindeberg wrote to the CJC about the meeting.
(ii) made it financially worthwhile for Mr Coyne to leave. The Department chose option (ii) and the union assisted in concocting the payout. (Note Exhibit 19 and Points 6.3 and 6.4)
13.35 QPOA February 1991 Council meeting did not debate Mr Lindeberg's dismissal and resolved to hold a Special Meeting on 26 February 1991.
The Fraudulent Payment: 13.36 In mid-February 1991 Mr Tierney visited Mr Lindeberg again and told him that a "fraudulent" payment was made to Mr Coyne to enable him to purchase his delicatessen. He told Mr Lindeberg that the Department and Union (Minister Warner, Ms Matchett, and Ms Eastwood) were central to the negotiations which he (Tierney) also attended. He told Mr Lindeberg that apparently Mr Coyne needed an extra $30,000 to purchase his delicatessen and "...We just kept calculating until we nearly reached $30,000, and stopped." Mr Coyne was not allowed to attend the meeting. Mr Tierney asked Mr Lindeberg not to blow the whistle on the payment at the QPOA Special Meeting. Mr Lindeberg requested a copy of a letter sent by Ms Eastwood to Ms Matchett confirming the payment of $27,190.00.
13.37 When Mr Coyne collected the cheque from Mr Gary Clarke DFSAIA Director of Finance and Organisational Services, he was told that he had to sign a Crown Law Settlement Deed (no public comment etc) otherwise the money would not be paid. Under duress Mr Coyne signed. Mr Clarke informed Mr Coyne that it was a Departmental cheque to save time rather than go to Governor-in-Council. He informed Mr Coyne that the documents were shredded because the Government thought Mr Coyne was going to sue people. (Note Point 7.9)
13.38 The payment was made up of non-existent Public Service Award (State) conditions ie cash equivalent payments for time off in lieu (TOIL), for excess travelling time, and overtime above a certain classification. Mr Coyne's classification (I-12) did not attract overtime payments. If overtime were to be paid, prior approval had to be obtained. The DFSAIA NEVER PAID cash equivalent for time off in lieu etc. Public servants were required to take time off within a year of accruing the time or simply lose it. The DFSAIA had a strict enforcement of TOIL provisions because Child Care Officers notoriously built up considerable TOIL, and cash settlements would destroy the Department's budget. There was never any expectation of cash for TOIL throughout the entire Queensland Public Service. (Note Exhibit 51)
13.39 The QPOA Special Meeting debated Mr Lindeberg's dismissal but gagged further debate (40- 37) BEFORE Mr Lindeberg could speak. Proxy votes carried the vote. The meeting achieved nothing for justice and ended in turmoil.
13.40 On 1 March 1991 Mr Lindeberg circulated to all QPOA Councillors a leaflet setting certain facts associated with his dismissal, and highlighted the prima facie criminality associated with "the Coyne Case" and the shredding. (See Exhibit 83)
13.41 On 2 April 1991 Mr Lindeberg attended his last QPOA Council meeting as a delegate as his public service contract was to terminate at the end of April/early May. He informed the union's governing body that "anyone who touched "the Coyne Case" and did not act ethically would ultimately bring disrepute upon themselves."
The Cooke Commission of Inquiry & QPOA Meet:
13.42 On 13 May 1991 Commissioner Cooke QC commenced public hearings. QPOA Solicitors (Quinlan Miller & Treston), at a meeting, told Mr Lindeberg that it would be a conflict of interest in attempting to represent him and the QPOA, (and Mr Martindale) at the same time. Mr Martindale obtained separate counsel which the union paid, Mr Lindeberg did the same but was forced to pay for his, save for a limited standard contribution paid by the union of $500.00. The union expenses, according to President Yarrow, amounted to approximately $100,000. (The credit union spent approximately $92,000).
13.43 The public hearings lasted 11 days. Messrs Yarrow and Tierney, although under summons, never reached the witness box because of imposed time constraints. After the inquiry closed, the QPOA and Mr Martindale threatened Commissioner Cooke QC with a Supreme Court injunction from making any adverse findings. The Commissioner agreed not to find on:(i) whether the dismissal was justified or not; andA Possible Portent of Things to Come:
(ii) whether Mr Lindeberg was a good or bad employee.
13.44 In June 1991 Commissioner Cooke QC brought down his 4th Report which included his QPOA recommendations. (See The Cooke Commissioner of Inquiry). Unique to the QPOA over all his other inquiries, the entire transcript was made public in his Report. Additional comment concerning Ms Kinder's evidence in the witness box (Transcript pp 12827- 12829) regarding access to the union's accounts by Ms Lyn de Lange QPOA Treasurer appeared his Report: The Commissioner wrote:"The day after this evidence was given I received the following letter from Miss de Lange who had been sitting in the hearing room during Mr Kinder's evidence:(See 4th Cooke Inquiry Report: June 1991 Vol 1 Commissioner's Report & Recommendations p259)"Dear Mr Cooke, I refer to statements made by Ms R Kinder on 27 May 1991 at the hearings into the activities of the Professional Officers' Association. In reply to questions from you in relation to access of the Treasurer of the Association to the Association's books, Ms Kinder indicated, amongst other things, that the Treasurer was never denied access to the books. The following statement is provided by me in respect of that reply. When I was appointed Treasurer of the Professional Officers' Association in November 1989, I sought an appointment with Ms Kinder to discuss my responsibilities as Treasurer. At that meeting, I asked her if I could have a look at the books. She replied in the negative and gave as her reason that they were "not up to date." Continually, through the period I was Treasurer until March 1990, I made appointments to see Ms Kinder in relation to matters pertaining to my responsibilities as Treasurer and to examine the books of the Association. Always, when I arrived at the appointed time, Ms Kinder was either unavailable, at meetings with Mr Martindale or on the telephone for considerable time knowing I was waiting to see her. During that four months I was Treasurer I made at least four appointments to see her, all to no avail. After the first appointment referred to above, I was so concerned about the matter that I reported the incident to Mr Higham, the then President of the Association. I trust this will assist you in your considerations of Ms Kinder's evidence. I would be happy to sign an affidavit in respect of the above matter."
13.45 In Vol 79 No 2 April/May/June 1991 President Yarrow in the union magazine "The Professional Officer" he described the Inquiry as "a costly exercise which fizzled into a non-event" and "even at the conclusion of public hearings, it was still not clear precisely why the Association was under scrutiny." He informed the members that QPOA Counsel requested on several occasions, particulars on the specific matter for the inquiry to enable focus of the relevant issues. He alleged that those requests were repeatedly refused by Commissioner Cooke QC. (See Exhibit 84)
13.46 On 25 July 1991 QPOA General Secretary Ms Jeni Eastwood wrote to the then Minister for Employment, Training and Industrial Relations Mr Neville Warburton MLA regarding Commissioner Cooke's recommendations from his QPOA investigation. Ms Eastwood stated:"It is the Association's strong and emphatic view that, as a consequence of the Commissioner's undertaking and the very limited evidence heard by the Commissioner during the course of the Inquiry, it is inappropriate for the Commissioner to have made any recommendations and not appropriate for the Government to either give those recommendations any weight or any effect by way of legislation."(Note Exhibit 49)
13.47 Mr Lindeberg was told later by QPOA Junior Vice President Doctor William (Bill) Bor that the letter was despatched BEFORE any Executive or QPOA Council discussion and endorsement occurred. (See 5.18)
13.48 On 7 October 1991 Mr Lindeberg wrote to QPOA President Yarrow and referred to the Cooke Inquiry transcript (20/5/91 pp12249-12255) wherein Commissioner Cooke QC informed QPOA counsel Mr Richard Perry as to the focus of the inquiry. Mr Lindeberg told Mr Yarrow that his statement to the membership was untrue. Mr Lindeberg stated in the letter:"As the elected President of the union you have a clear duty not to mislead the rank and file unintentionally or otherwise. Furthermore, both you and the journal's editor, General Secretary Jeni Eastwood have a duty to comply with Council's directive in respect of the Cooke Inquiry recommendation (ie to publish). As a QPOA member, I call on you, as union President, to stand by the stated facts - acknowledged by the Association's counsel Mr Perry - as to the reasons why Commissioner Cooke saw fit to investigate the QPOA and summonsed various people, including myself, to its Hearings, and to properly inform the membership. I also call on the General secretary Ms Eastwood to publish the Cooke Inquiry recommendations in "The Professional Officer." The membership has a right to know the facts, not to be either misled or kept in the dark."(See Exhibit 85)
13.49 On 8 December 1991 Mr Lindeberg wrote to QPOA President Yarrow re the November 1991 edition of "The Professional Officer" which published the Cooke recommendations together with certain comments. Mr Lindeberg stated in part:"The journal article has distortions and an outright lie in it. Its only accurate comment effectively being the recommendations themselves. The major distortion relates to Commissioner Cooke's decision not to make any findings. The fact that the union and Mr Don Martindale threatened to serve Commissioner Cooke with an injunction to stop any adverse findings received no mention whatsoever. The clear distortion being presented to the membership is that there was never anything in the investigation if he was not prepared to make a finding. In that respect Commissioner Cooke's recommendations 3 and 6 speak for themselves and seriousness with which he judged the whole affair of my sacking."(See Exhibit 86)
13.50 On 12 December 1991 QPOA President Yarrow wrote informing Mr Lindeberg that he stood by what he said in the articles.
The QPOASF Emerges from the Cooke Inquiry Ashes:
13.51 On 13 April 1992 "Business Queensland" published a major article "ATO probes super rorts claim" in which ex-Commissioner Cooke admitted publicly that time constraints didn't allow the QPOASF to be looked at. Mr Lindeberg's dismissal was mentioned in the article.
13.52 On 13 April 1992 Mr Lindeberg wrote to newly elected QPOA President Sean Curley seeking information regarding the administration of the QPOASF and certain assurances that he was not financially disadvantaged.
13.53 At the June 1992 Council Meeting the QPOASF was debated with moves generated to have the fund audited. QPOA President Curley engaged auditors Towers Perrin to examine the QPOASF. (See 8th Report of the Senate Select Committee on Superannuation August 1993 for details).
13.54 In the week of the Barcelona Olympic Games the Goss Government announced how it was to handle Commissioner Cooke's recommendations. The major recommendation flowing out of the QPOA investigation (re amend Criminal Justice Act 1989 to include official misconduct in unions under its official misconduct provisions) was rejected by Premier Goss. He asserted the recommendation was legally flawed. Ms Eastwood's letter (Note Point 13.45) became the focus of attention. A media release by Mr Clive Bubb, of the Queensland Confederation of Industry (QCI) was used by the Premier to support the Government's position.
13.55 On 12 November 1992 Senator Cheryl Kernot (member on the Senate Select Committee on Superannuation) delivered a speech on the Towers Perrin/QPOASF findings of irregularities and unauthorised withdrawals. Senator Kernot indicated that the Senate may probe the fund. (See Senate Hansard p2890)
13.56 On 20 November 1992 Mr Des O'Neill (State Public Services Federation Queensland Executive member) lodged an official request for the Senate Select Committee on Superannuation (SSCS) to investigate the administration of the QPOASF. On 29 April 1993 the SSCS held its first public hearings into the QPOASF, producing a report in August 1993. The shredding was partly highlighted during the April 1993 hearing.
13.57 Four key superannuation documents were discovered to have mysteriously disappeared from:(i) National Mutual Life (NML) after being delivered to and returned by the Cooke Inquiry,13.58. To effect the withdrawals of monies from the QPOASF, under the circumstances as they applied to Messrs Martindale, Rutherford, Daly and Ms Kinder in January 1987 without raising questions from the Fund Administrator NML, could have only occurred if those people resigned their employment as none was in ill- health or of retiring age, or dead. Evidence provided by NML to the SSCS indicated that the missing Benefit Payment Request Forms were ticked "leaving the service". (Note Point 5.4)
(ii) from QPOASF files inside the QPOA, and
(iii) State Archives under the control of Ms Lee McGregor.
The Cost to the Union's Rank and File:
13.58 In August 1993 the SSCS brought down its unanimous findings and recommendations into the QPOASF. Union members had to subsequently reimburse approximately $40,000 to make up the shortfall because of the withdrawals which breached QPOASF Trust Deed, and an additional approximate $30,000 to cover auditing and other costs, additional to $100,000 already incurred at the Cooke Inquiry in 1991.
13.59 On 8 September 1993 Police Complaint File (MS93/25262) was commenced to look into QPOASF Recommendation 2 & Point 9.12 SSCS Report:"the circumstances surrounding four missing Benefit Payment Request forms which may have had information designed to deceive the fund administrator, National Mutual Life."(See Section 11. Queensland Police Service)
1. The ramifications of the shredding on Queensland's public administration and legal system stand as outlined in Mr Lindeberg's submission "Unprincipled Conduct in Many High Places MKII" dated 8 December 1993, pp33-36 "The Ramifications & Recommendations" with particular emphasis on:-
"3. The Criminal Justice Commission be investigated over its handling of the Lindeberg Dismissal (including the matters associated with the prima facie rorting of the QPOASF), the closure of the Cooke Commission of Inquiry when looking into the QPOA, and the Shredding of the Heiner Inquiry Documents and Tapes to establish where the fault lies and take appropriate action to re-establish its (CJC's) independence;
4. The reintroduction of an Upper House in Queensland if 3 finds the CJC has failed totally in its public duties and return all criminal and official misconduct investigations to the Police Department."
2. The ramifications of the shredding on Australia's political and administrative system may yet be unknown as the Senate Select Committee on Unresolved Whistleblower Cases is yet to know what co-operation or otherwise it will receive and experience from the Queensland Government, Criminal Justice Commission and other bodies. This case may enter "unchartered waters". It may yet test the powers of the Australian Senate and State Government with unknown consequences for all in the establishing of truth, providing the facts are pursued to their ultimate requirement.