The Shredding of the Heiner Inquiry Documents and matters arising therefrom
Kevin Lindeberg
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;4O 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)65.2 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.76.2 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.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?""The use of such public monies can become nothing more than "political slush funds" or "hush-up money." (See Exhibit 56)