Chapter 3 - The Allegations

Chapter 3 - The Allegations

S 129 of the Queensland Criminal Code

Introduction

3.1 One of Mr Lindeberg's principal allegations is that Queensland State officials gave false and misleading evidence to Senate committees by knowingly adopting and maintaining a false interpretation of section 129 of the Queensland Criminal Code.

3.2 Section 129 of the Queensland Criminal Code reads as follows:

129 Destroying evidence

Any person who, knowing that any book, document, or other thing of any kind, is or may be required in evidence in a judicial proceeding, wilfully destroys it or renders it illegible or undecipherable or incapable of identification, with intent thereby to prevent it from being used in evidence, is guilty of a misdemeanour, and is liable to imprisonment for 3 years.

3.3 A detailed discussion of the possible application of section 129 of the Criminal Code to the shredding of the Heiner documents may be found in the Morris-Howard Report.[20]

The allegations

3.4 Mr Lindeberg has alleged that:

It is open to conclude that section 129 of the Criminal Code (Qld) 1899 has been deliberately misinterpreted not only to unlawfully benefit another (i.e. the Goss Cabinet, senior bureaucrats, Crown Law legal officers and others) from facing possible criminal charges in respect of the shredding of the Heiner Inquiry documents (and disposal of the original complaints which prima facie falls on Ms. Matchett, certain senior public officials and certain Crown Law legal officers), but, by putting its known false and misleading interpretation, the Senate may have been wilfully obstructed from making full and proper findings and recommendations and treated with criminal contempt in order to cover up crime and advantaged the contemptor.[21]

3.5 Another witness, Mr MacAdam, a Senior Lecturer in Law at the Queensland University of Technology, stated that:

The CJC not only reached their original clearly wrong conclusion but came to the Senate and repeated that clearly wrong conclusion. They have not sought to correct it. As far as I am aware, even to date, the new Crime and Misconduct Commission has not sought in any way to say, 'What we did back there was clearly wrong.'[22]

Interpretations of section 129

3.6 The Queensland State officials' interpretation of section 129 that was put to previous Senate committees is succinctly expressed in a memorandum written by the then Crown Solicitor, Mr O'Shea, which was tabled in the Queensland Legislative Assembly on 30 March 1995. In that memorandum Mr O'Shea commented as follows in relation to evidence given to the Senate Select Committee on Unresolved Whistleblower Cases (UWB Committee) on 23 February 1995:

From media reports, I had the impression that Mr Callinan was submitting that Section 129 of the Criminal Code ... had been infringed by the destruction of the Heiner documents ..., and that there was a large body of law dealing with when a matter is 'pending'.

If that had been his submission, then clearly, it would have been wrong, because never have I heard any Counsel suggest Section 129 could be contravened where the matter in which evidence may be required, is not actually pending in a court.[23]

3.7 After elaborating on his reasons for that opinion, Mr O'Shea concluded:

In short, the law is quite clear as to when a Civil or Criminal proceeding is pending and, as no proceedings were ever commenced on behalf of Mr Coyne, no offence was committed against Section 129.[24]

3.8 The CJC interpreted section 129 in the same way, as is clear from the following exchange between a member of the UWB Committee and an officer of the CJC at a hearing of the on 29 May 1995:

Senator Abetz - The destruction of that potential evidence, as you say, is not a criminal offence because proceedings had not been instituted.

Mr Barnes - I would not expect you to accept my word for it. Mr O'Shea, the Crown Solicitor, and Mr Callinan QC say it is not a criminal offence.[25]

3.9 In relation to the Crown Solicitor's opinion, Morris and Howard concluded that:

For the reasons stated, we respectfully disagree with the Crown Solicitor's view that section 129 only applies if a book, document or other thing is destroyed, or rendered illegible, undecipherable or incapable of identification, at a time when a judicial proceeding is 'pending'.[26]

3.10 With hindsight, the view of Morris and Howard may have been correct, because a court found in 2004 that an offence under section 129 was committed despite the fact that no proceedings were pending (R v. Ensbey).

3.11 Although the interpretation put forward by the CJC and the Queensland Government is therefore now in doubt, the question arises as to whether that interpretation was reasonable. In response to Mr Lindeberg's allegations, the Queensland Ombudsman, Mr Bevan, who was at the relevant time the Deputy Director of the Official Misconduct Division of the CJC, informed the Committee that:

Firstly, it appears that at the relevant time there was no ruling by any court on the interpretation of s.129. That in itself tends to suggest that it was a provision seldom used. In any event, those tasked with interpreting it had to do so in the absence of authority or even guidance from the courts.

Secondly, regard should be had to the sheer implausibility of Mr Lindeberg's allegation. His allegation attacks the integrity of a large number of reputable past and present public officials, including Mr Royce Miller QC....

Thirdly, Mr Lindeberg's reliance upon Ensbey's case as evidence of a conspiracy is self-defeating. Although Mr Lindeberg refers to the interpretation of s.129 in that case by the learned trial judge, he failed to refer or deal with the interpretation of s.129 advanced by the Crown Prosecutor in that case.

It is plain from a reading of the transcript that the Crown Prosecutor himself interpreted s.129 in the same way as officers of the CJC and apparently Mr Miller QC. ...

I take it that even Mr Lindeberg would not suggest the Crown Prosecutor has belatedly joined the conspiracy of those who, according to Mr Lindeberg, deliberately misinterpreted s.129.

The inescapable conclusion is that s.129 was indeed open to more than one interpretation, until such time as a court provided some guidance.[27]

Previous inquiries

Senate Select Committee on Public Interest Whistleblowing

3.12 An allegation that the shredding of the Heiner documents may have been in breach of the Queensland Criminal Code was first brought before a Senate committee by Mr Lindeberg in his submission to the PIW Committee on 14 December 1993. In that submission Mr Lindeberg reported that Mr Coyne had said that a breach of the Queensland Criminal Code had occurred, but he cited sections of the Code other than section 129.[28]

3.13 The CJC in a supplementary submission to the inquiry, dated 24 June 1994, responded to that proposition by stating that the destruction of the documents was not in breach of section 129 because no judicial proceeding was underway.[29]

3.14 Mr Lindeberg returned to the subject in a letter dated 4 July 1994, in which he alleged that 'elements of the offence of "attempting to obstruct justice" (Section 140 of the Queensland Criminal Code) and/or "perverting the course of justice" (Section 132 of the Queensland Criminal Code) can be made out in respect of the shredding'.[30] Mr Lindeberg quoted the judgement of the High Court of Australia in R v Rogerson to indicate that an offence to pervert the course of justice may be entered into although no proceedings before a court or before any other competent judicial body are then pending or are even contemplated by anyone other than the conspirators.

3.15 The PIW Committee did not address the issue in its report. The committee reported, however, that it 'remained concerned at the number of apparently unresolved whistleblower cases in Queensland' and recommended that 'the Queensland Government establish an independent investigation into these unresolved cases within its jurisdiction'. The committee referred in a footnote to the submission and evidence given by Mr Lindeberg (among others).[31]

Senate Select Committee on Unresolved Whistleblower Cases

3.16 Because the PIW Committee's recommendation was not implemented by the Queensland Government, on 1 December 1994 the Senate appointed a select committee, the UWB Committee, to inquire into unresolved Queensland whistleblower cases. The committee's terms of reference enabled it to inquire into and report on 'So much of those unresolved whistleblower cases arising from the report of the Select Committee on Public Interest Whistleblowing as the committee determines necessary to be taken into account ...'[32] The terms of reference specifically included:

the circumstances relating to the shredding of the Heiner documents, and matters arising therefrom;[33]

3.17 A significant body of evidence was submitted to that committee in relation to the shredding of the documents. The committee reported that it received claim and counterclaim by protagonists in this and in other 'cases' on which it took evidence, but that, 'It was never the intention of the Committee, nor was it within its powers, to adjudicate on those cases or to bring redress to those the Committee believed had suffered unfairly.'[34]

3.18 The Queensland Government's position, as stated by the Attorney-General, is reproduced in the report:

Cabinet acted properly and in good faith to rectify a very difficult situation for Mr Heiner, and the staff of the Centre who had provided information to Mr Heiner in confidence.[35]

3.19 The CJC's evidence on this point was that the Crown Solicitor had advised that the material supplied to Mr Heiner could be destroyed, with the following proviso:

This advice is predicated on the fact that no legal action has been commenced which requires the production of those files and that you decide to discontinue Mr Heiner's inquiry.[36]

3.20 When legal action may have been said to have commenced became an important issue in the committee's consideration of the legal justification for the shredding of the documents. Different positions were taken by legally qualified witnesses.

3.21 Mr Barnes of the CJC drew the committee's attention to a response made by the Crown Solicitor to submissions made to the committee by Mr Callinan QC and stated:

[The Crown Solicitor] rejects the suggestion that the destruction of the Heiner documents could amount to an offence against section 129 of the code - the section which prohibits the destruction of evidence - or that there was any conspiracy to defeat justice.[37]

3.22 Mr Barnes also stated that Mr Callinan's junior (Mr Peterson) now also seemed to accept that proposition. In a letter to the committee, Mr Peterson had written:

There was never a submission put forward by Mr Callinan and myself that section 129 of the Criminal Code was infringed.[38]

3.23 However, in response to Mr Barnes' evidence, Messrs Callinan and Peterson, acting for Mr Lindeberg, submitted that the CJC had 'not given serious attention to the implications of destroying documents knowingly in order to avoid or render more difficult litigation. They have ignored these serious matters'. It was suggested that the relevant sections of the Criminal Code were sections 129 and 119.[39]

3.24 The UWB Committee dealt with the evidence concerning a possible breach of the Criminal Code at some length in its report. It reported that, 'The question of when the course of justice begins, and when, therefore, legal action could be said to be pending was one which was hotly debated ...'[40]

3.25 The committee also reported that '... the newly-elected Labor Government consistently sought advice from its chief law officer on aspects of the [Heiner] inquiry and generally followed that advice. The Committee believes it is not appropriate to comment on the merit of that advice.'[41] The committee concluded that, 'With the benefit of hindsight ... the shredding of the Heiner documents may have been an exercise in poor judgment.'[42]

3.26 Mr Lindeberg has criticised that conclusion and has submitted that this Committee should dissociate itself from it.[43]

63rd Report of the Committee of Privileges

3.27 The matter of a possible breach of section 129 was not raised in the 63rd Report of the Committee of Privileges, nor was there any specific mention made of a possible breach of section 129 in the submissions made by the principal witnesses at the inquiry. (However, the statute was alluded to in a paper published by the Australian Association of Archivists, which was attached to Mr Lindeberg's submission.)

71st Report of the Committee of Privileges

3.28 The terms of reference for the Committee of Privileges' inquiry were as follows:

Having regard to the documents presented to the Senate by the President on 25 August 1997, and any other relevant evidence, whether any false or misleading evidence was given to the Senate Select Committee on Unresolved Whistleblower Cases, and whether any contempt was committed in that regard.[44]

3.29 Most of the documents referred to in the terms of reference were correspondence between the Queensland Parliamentary Criminal Justice Committee (PCJC) and the President of the Senate or between the PCJC and the CJC. One significant letter dated 18 August 1997, however, was written to the President by Mr Lindeberg. In that letter Mr Lindeberg made three allegations that were subsequently reported on by the Committee of Privileges. (Mr Lindeberg also referred to seven points made in Mr Peterson's submission made of behalf of Mr Lindeberg to the 63rd inquiry on which it was alleged the UWB Committee was misled. That submission, however, did not make any specific mention of section 129.)

3.30 The three main allegations made by Mr Lindeberg were as follows: First that the CJC told the UWB Committee that Mr Lindeberg's complaints had been investigated to the nth degree, but that it had subsequently made admissions that contradicted that claim. Second, that the CJC had misled the UWB Committee by stating that the PCJC had held two independent inquiries into Mr Lindeberg's complaints. Third, that the CJC had misled the UWB Committee about the role of the State Archivist.

3.31 The CJC responded to these allegations and provided explanations that the Committee of Privileges found satisfactory. The committee found that no contempt had been committed.

3.32 Mr Lindeberg's submission to the Committee of Privileges dealt with the interpretation of section 129 in some detail.[45] He quoted long passages from the Morris-Howard Report and from evidence given and submissions made to the UWB inquiry. However, the committee did not ask the CJC to comment on section 129, and the CJC did not refer to section 129 in its evidence.

Conclusions

3.33 The Committee, having surveyed the evidence, considers that the interpretation of section 129 which was adopted by the CJC and the Queensland Government was probably incorrect. However, the question that the Committee must address is whether the communication of that interpretation to Senate committees amounted to giving false or misleading evidence and, if it did, whether any contempt was committed in that regard.

3.34 The Committee sought guidance on this question from the Clerk of the Senate who provided the following advice:

In the light of the Senate's and the Privileges Committee's finding in past cases of alleged misleading evidence, for a contempt to be found it would have to be established that:

  • the particular interpretation of the law was put to the committees
  • that interpretation was clearly incorrect and untenable
  • the witnesses concerned knew that the interpretation was incorrect and untenable
  • they put that interpretation to the committees with the intention to mislead.

...

If all four elements were proved, the offence which could be held to be a contempt would be established. The committee would have to be satisfied that all four elements had been established before finding that a contempt had been committed.[46]

3.35 The Committee's review of the relevant committee reports and its analysis of the evidence given to the committees that produced those reports show that the interpretation of section 129 was a major issue in only one report, namely, the report of the UWB Committee. Nevertheless, as stated above, a possibly incorrect interpretation of section 129 was put to that Senate committee. The Committee is satisfied that the first criterion for establishing whether contempt may have been committed has been established, namely, that the particular interpretation was put to a Senate committee.

3.36 In relation to the second criterion, some witnesses expressed strong views that the interpretation put forward by the CJC and the Queensland Government was clearly incorrect and untenable. While the Committee has concluded that the interpretation of section 129 put by the Queensland State authorities was probably incorrect, it considers that the interpretation made at the time of the relevant inquiries was not unreasonable, given the lack of precedent and the eminence of the lawyers who held that view. The Committee therefore cannot conclude that the interpretation was clearly incorrect and untenable.

3.37 In relation to the third criterion, the Committee agrees with Mr Bevan, who contended that section 129 was open to more than one interpretation until such time as a court provided some guidance. It has concluded therefore that CJC witnesses at the UWB inquiry did not knowingly put forward an incorrect interpretation of section 129.

3.38 The Committee has concluded that because criteria 2 and 3 have not been met no contempt of the Senate has been committed. For completeness, however, the Committee has also considered the evidence as it relates to the fourth criterion, that is, that those who put the incorrect interpretation to the committees intended to mislead.

3.39 At its hearing the Committee raised the issue of whether previous Senate committees had been deliberately misled with Mr MacAdam, a witness who strongly stated the view that the CJC's interpretation of section 129 was incorrect and untenable:

Senator SANTORO-...Do you think that previous Senate committees have been deliberately misled?

Mr MacAdam-Yes. I clearly believe they have been misled.

CHAIR-Deliberately misled or just misled?

Mr MacAdam-It is hard to say. You could look at it two ways and you could say we had on previous occasions a whole lot of honest bumblers.[47]

3.40 Mr MacAdam went on to say that in his view the interpretations given signified more than incompetence. However, he also stated that he could not say whether the interpretations given were deliberately misleading:

I am not in a position to give hard evidence and to say that I know that the CJC deliberately mislead the Senate. It is a matter of looking at the evidence that is before you, looking at what was said originally, looking at it in the light of what has transpired.[48]

3.41 The Committee has considered the evidence. The interpretation that was put was certainly convenient for the Queensland Government in that it supported the legality of the shredding of the Heiner documents, but that of itself does not prove that the interpretation was put with the intention to mislead.

3.42 Given that the interpretation of section 129 was not as straightforward as some have suggested, and that an incorrect interpretation may well have been put in good faith, it is impossible for the Committee to conclude that there was any intention to mislead.

3.43 The Committee finds that no contempt of the Senate occurred in relation to the interpretation of section 129 of the Queensland Criminal Code.

Public Service Management and Employment Regulation 65

3.44 Also among the 'major incidents of alleged false and misleading evidence', that Mr Lindeberg included in his submission to the Committee was the following:

providing to the Senate a contrived interpretation of ... Public Service Management and Employment Regulation 65.[49]

3.45 The regulation provides for:

'Access to an 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.

(2) The officer shall not be entitled to remove from that file or record any papers contained in it but shall be entitled to a copy of it.'[50]

Request for documents pursuant to Regulation 65

3.46 On 8 February 1990, Mr Coyne's solicitors, citing Regulation 65, had written to DFSAIA to request copies of allegations made against him by JOYC staff through the QSSU. This was some time before the documents were returned to the QSSU and before copies of the documents were destroyed. The solicitor's letter read as follows:

As you know we act for the above persons [Mr Peter Coyne and Mrs Ann Dutney] who wish to exercise their rights as contained in Regulation 65 ...

We specifically request copies of the following documents:

(i) Statements of allegations made to the Department by employees appertaining to complaints against our clients and which may be the subject of Mr Heiner's enquiry; and

(ii) Transcripts of evidence taken either by Mr Heiner or in respect of the complaints which specifically refer to allegations or complaints against our clients.[51]

3.47 The documents were not provided and, eventually, on 22 May 1990, the solicitor was informed that the department was unable to comply with the request because the department did not have in its control any documents of the type described.[52]

3.48 In its 1993 investigation of the shredding of the Heiner documents the CJC asserted that Mr Coyne was not entitled to read or copy the documents because:

These regulations do not say that any adverse items of correspondence received about an officer have to be copied and given to him or her. That right only accrues when it is placed on 'any files or records relating to that officer' or are held on the officer's file... '[53]

3.49 That interpretation may not have properly reflected the intent of the regulation. Mr Lindeberg informed the Committee that an advice provided by the Solicitor General to the DFSAIA on 18 April 1990 read in part:

... Mr Coyne has specifically sought to exercise his rights under Regulation 65. While it may be argued that the statements are not part of a Departmental file held on Mr Coyne, it would appear artificial to say that they are not part of a Departmental record held on him ...

Therefore, if a decision is made not to destroy the statements Mr Coyne would appear to be entitled to read them and to obtain a copy ... [54]

3.50 Mr Lindeberg also quoted a document published by the CJC in 1999 in which the Commission suggested that would-be whistleblowers should:

Consider lawfully obtaining copies of your personnel records on your work performance ... Regulation 16(2) of the Public Service Regulations (1997) authorizes a Queensland Government employee to peruse any departmental file or record held on the employee at a time and place convenient to the Department.[55]

3.51 Mr Lindeberg stated that Regulation 16(2) finds its origins in Public Service Management and Employment Regulation 65. He argued that:

Plainly, the CJC is advising ... public sector employees to do precisely what Mr Coyne was endeavouring to do in early 1990 but which the CJC summarily dismissed by using Mr Nunan's 'limiting' interpretation which neither exists in law or in practice throughout the Queensland Public Service nor in the CJC's own 1999 publication.[56]

3.52 From all this, Mr Lindeberg concluded that:

Instead of the CJC seeking Mr Nunan's interpretation of ... Regulation 65 in 1992-93, it merely had to ask the Families Department for a copy of Crown Law's interpretation. If provided, the CJC would have discovered, according to advice provided on 18 April 1990, that Mr Coyne did have a right to access the original complaints even when they were held away from his personal file because they were about him. This recognised right was denied him by Ms Matchett with the assistance of the Office of Crown Law.[57]

3.53 Mr Lindeberg's conclusion may or may not be correct. However, the alleged denial of Mr Coyne's legal right to the documents and the CJC's interpretation of that right are relevant in this inquiry only to the extent that the Senate may have been misled.

Evidence given to previous Senate committees

3.54 Mr Lindeberg's allegations regarding Regulation 65 have been made to previous Senate committee inquiries. In December 1993, for example, when providing evidence to the PIW inquiry, he submitted that:

The barrister [Mr Nunan] misquotes PSME Regulation 65 ... giving it a narrower interpretation not in practice throughout the Queensland Public Service, and contrary to the Crown Solicitor's advice of 30/6/89.[58]

3.55 In responding to that submission, the CJC stated that:

These regulations give certain rights to public servants when documents relating to an officer are placed on official files or are held on an officer's file. In this case none of the Heiner documents were placed on any officer's file and the regulations therefore did not come into play.[59]

3.56 Mr Lindeberg responded to the CJC's statement as follows:

The regulation does NOT limit access to only documents on the officer's file as the CJC is attempting to assert. It encompasses 'any departmental record or file held on the officer'.

The Heiner Inquiry material was defined as 'public records'. All public records so defined have the potential to become a departmental record or file and a personal file.

The Libraries and Archives Act 1988 only describes departmental records and files as 'public records'. In other words, public records and departmental records and files are legally one and the same thing.

The CJC acknowledges that the Director-General took possession of the material from Mr Heiner. In doing so they immediately became legally 'public records' and 'departmental records or files held on the officer'. Mr Coyne therefore had a statutory right to the material. [60]

3.57 The PIW Committee did not report on this matter, however, for reasons explained in its report, In the Public Interest, and noted earlier in this report.

Select Committee on Unresolved Whistleblower Cases

3.58 The report of the UWB Committee dealt with the facts of the shredding as they were then known. The facts included that Mr Coyne's solicitor had sought access to complaints of JOYC staff in February 1990 under PSME Regulation 65 and that the Queensland Cabinet was aware of that when it decided to shred the Heiner documents.

3.59 In its report presented in October 1995, the committee made an interesting observation in relation to Regulation 65. Having noted that Mr Coyne's solicitor had requested access to the allegations under Regulation 65, the Committee reported that:

In so far as the Committee has been able to determine, no advice was received from the Crown Solicitor on the interpretation of regulation 65 and it is plausible to conclude that after the documents had been destroyed, Ms Matchett decided that such advice was no longer required.[61]

3.60 The committee did not know that Ms Matchett had written to the Crown Solicitor on 19 March 1990 asking for advice about the treatment of the letters of complaint submitted by the Queensland State Service Union to the former Director-General of the Department of Family Services. Those letters were not destroyed with the Heiner documents, although copies of them may have been.

3.61 The Solicitor General provided his advice of 18 April 1990 in response to that letter. As stated earlier, the Crown Solicitor advised that if the documents were not destroyed in accordance with the Libraries and Archives Act, Mr Coyne would be entitled to access them under Regulation 65.

3.62 On 8 May 1990 Ms Matchett informed the Crown Solicitor that she did not intend to take the matter to Cabinet and that she intended to return the letters to the union. She asked for assistance in drafting letters to the unions and to Mr Coyne's solicitors based on her intention. The Crown Solicitor's draft to go to the solicitors was to the effect that the department could not comply with the request under regulation 65 because it did not have the documents in its possession. The letter the department sent to the solicitors on 22 May 1990, however, did not make any reference to regulation 65. (The letter was inaccurate in any event because the copies returned by the Crown Solicitor to the department on 18 April were not destroyed until 23 May 1990.)

3.63 The UWB Committee was highly critical of Ms Matchett's actions in relation to Mr Coyne's request for access to the documents. The committee stated that it regarded 'her final advice to the solicitors as late as 22 May 1990 as unacceptable and reflecting bureaucratic ineptitude at best or deliberate deceit at worst'.[62] Mr Lindeberg stated to this Committee that 'If all the evidence had been provided, it is open to suggest that the Senate may have taken an even sterner view of her deceptive conduct ...'[63]

3.64 It is of course impossible to say now what another committee may have made of Ms Matchett's actions had it known what is now known.

Committee of Privileges

3.65 Why wasn't all the evidence provided to the UWB Committee? It should be remembered that the CJC was the only Queensland instrumentality that was a witness at that committee's inquiry and that the CJC was not purporting to represent the Queensland Government. The CJC could only provide evidence that was within its own knowledge.

3.66 It seems clear that the CJC did not know of the Crown Solicitor's advice of 18 April 1990. The Commission informed the Committee of Privileges that it was not aware of that advice (and some later advices) and the committee accepted that statement. A document submitted in evidence by Mr Lindeberg, which was written by Mr Barnes of the CJC to his superiors on 11 November 1996, provides a further indication that the CJC did not know about the advices. It reads, in part, as follows:

When considering Mr Lindeberg's complaint previously, we were not aware that the original letters of complaint were returned to the union nor that further photocopies of them were destroyed the following day.[64]

3.67 The Committee also finds persuasive the argument put by the CJC in its submission to the Committee of Privileges on 16 August 1996, namely:

As part of its function, from time to time the Commission relies upon information from those who might be described as 'whistleblowers'. Consequently, in this respect, it had an interest, at least equal to the Senate's own, in the subject matter of the Senate Select Committee's inquiries. Having shown the Senate the courtesy of attending upon its Committee hearings, in pursuit of its important inquiry relating to the position of whistleblowers, the Commission had no reason whatsoever to give other than full and candid information by way of assistance. Had the Commission wished to obstruct the Senate, then its officers need not have attended the hearings at all.[65]

Conclusion

3.68 This still leaves the problem of the interpretation of regulation 65 that was adopted by the CJC and was repeated by the CJC to the UWB Committee. As Mr Grundy stated, the report prepared for the CJC by Mr Nunan did not even quote the regulation correctly.[66] Why this occurred is a matter for conjecture. At the UWB Committee hearings in Brisbane the CJC referred to its heavy workload and limited resources, and particularly to the backlog of cases of which the Lindeberg complaint was only one.

3.69 Whatever the reason, there is no evidence that would allow the Committee to conclude that the CJC's view about regulation 65 was intended deliberately to mislead the UWB Committee and to interfere with its ability to report accurately to the Senate. In the circumstances, it is not possible to find that a contempt of the Senate has been committed.

The role of the State Archivist

The allegations

3.70 Mr Lindeberg has claimed that the CJC misled the previous Senate committees by providing a contrived interpretation of the Libraries and Archives Act 1988 (Qld).[67]

3.71 Mr Lindeberg has highlighted as relevant Section 52 of the Act, which obliged public authorities to:

(a) cause complete and accurate records of the activities of the public authority to be made and preserved; and

(b) take all reasonable steps to implement recommendation of the State Archivist applicable to the public authority concerning the making and preservation of public records. (underline added).[68]

3.72 Also relevant is Section 55, which related to the protection of public records. This section, which has since been amended, read as follows:

55.(2) On receipt of a notice referred to in paragraph (a) of subsection (1) [notice of intention to dispose of public records other than by depositing them with the State archives], the State archivist or a person acting on his behalf may-

(a) enter and examine any place wherein the public records are held and-

(i) give directions for the purpose of gaining practical access to the public records to any person he finds there;

(ii) inspect the public records;

(iii) take possession of the public records or such of them as in his opinion should be preserved in the Queensland State Archives;

(b) by notice in writing given to the person in possession of the public records, direct the person to deposit them with the Queensland State Archives in accordance with directions stated in the notice;

(c) if he thinks fit, authorise the disposal of the public records.[69] [emphasis added]

3.73 The context of Mr Lindeberg's claim is that the Office of Queensland Cabinet acted deceptively when requesting the state archivist's approval to destroy the Heiner documents.[70] In his view, the Cabinet should have informed the archivist that a possible legal claim for the documents was known to exist.[71]

3.74 Mr Lindeberg alleges that the failure to inform the state archivist was in breach of the Libraries and Archives Act 1988, the Public Service Management and Employment Act 1988 and the Criminal Justice Act 1989, and constituted official misconduct on the part of those involved.[72] This allegation was contested by the CJC in a number of Senate committee inquiries, which led Mr Lindeberg to allege that the Commission deliberately misinterpreted the role of the state archivist under the Libraries and Archives Act 1988 in its evidence to those inquiries.[73]

Pervious Senate inquiries

3.75 Witnesses gave evidence on the role of the state archivist to each of the four inquiries covered by the Committee's terms of reference. In the PIW and UWB Committee inquiries, Mr Lindeberg commented on the role of the state archivist to dispute the CJC's finding that no official misconduct had been committed by the Cabinet. In the Committee of Privileges inquiries Mr Lindeberg claimed that the CJC's views about the role of the archivist given to earlier inquiries were deliberately misleading.

3.76 The relevant evidence given to the committees and the conclusions reached by those committees are summarised below.

Select Committee on Public Interest Whistleblowing

3.77 Mr Lindeberg first brought his views regarding the role of the state archivist before a Senate committee in his submission to the PIW Committee. He submitted that:

The State Archivist must satisfy him/herself that "those public records" do not represent any "LEGAL VALUE" to anyone before giving approval to shred.[74] (Original emphasis)

3.78 In his submission Mr Lindeberg referred to the finding of the CJC's second investigation into the shredding of the Heiner documents, namely, that no official misconduct had occurred. Mr Lindeberg quoted correspondence from the CJC following that investigation, stating its view of the role of the state archivist:

There is no offence of misleading the State Archivist and under the Act he or she would appear to have an almost unfettered discretion to decide which public records should be preserved and which records can be destroyed. Therefore I can see no breaches of this Act.[75]

3.79 Mr Lindeberg disputed the CJC's finding that no official misconduct had occurred, and submitted that the CJC should not have considered the Libraries and Archives Act 1988 in isolation from other Acts such as the Criminal Justice Act 1989. He again asserted that there was a 'fundamental requirement on all Archivists to ensure that any "public record" does not have any legal value before authorising its destruction'.[76]

3.80 In supplementary submissions to the PIW Committee, the witnesses restated their positions and continued to disagree about alleged breaches of the Act. The CJC reiterated its view as follows:

[The Archivist] was, of course, free to make any enquiries as to any interests that other parties may have had in the documents. There is no suggestion that the Archivist was actively misled by the Cabinet Secretary or any other person with knowledge of the documents. There is therefore no apparent breach of that act.[77]

3.81 Mr Lindeberg again disputed the CJC's view, and stated:

There is every suggestion on the evidence that the State Archivist was actively misled as to the status of the material.[78]

3.82 The PIW Committee did not report on Mr Lindeberg's allegations. Rather, as previously noted that committee recommended that an independent investigation be established by the Queensland Government to inquire into a number of unresolved whistleblower cases in that State.[79]

Select Committee on Unresolved Whistleblower Cases

3.83 Evidence given to the UWB Committee regarding the role of the state archivist generally restated the views already put to the PIW Committee. Mr Lindeberg again asserted that the Queensland Cabinet's failure to inform the state archivist about a potential legal claim for the Heiner documents constituted official misconduct. He reviewed the actions of several officials he considered culpable, including the Premier, Attorney-General and other Cabinet Ministers, the Cabinet Secretary and the Minister for Family Services and Aboriginal and Islander Affairs.[80]

3.84 In its submission, the CJC repeated its view that no official misconduct had occurred:

Contrary to Lindeberg's assertion, there is no statutory duty cast on anybody to provide any specific information to the Archivist about the documents.

In these circumstances, it is the Commission's view that no criminal offence or disciplinary offence of official misconduct was committed by those who communicated with the State Archivist.[81]

3.85 Focusing more specifically on the role of the state archivist during the committee's hearings, Mr Barnes of the CJC stated his interpretation as follows:

The archivist's duty is to preserve public records which may be of historical public interest; her duty is not to preserve documents which other people may want to access for some personal or private reason. She has a duty to protect documents that will reflect the history of the state. Certainly she can only preserve public records, but there is no commonality necessarily between public records and records to which Coyne and other public servants may be entitled to access pursuant to regulations made under the Public Service Management and Employment Act.[82]

3.86 Mr Lindeberg disputed this view, and it became the focus of his and other witnesses' submissions to subsequent inquiries. In a 'submission in reply' to the UWB Committee Mr Lindeberg stated:

The Libraries and Archives Act 1988 while offering the State Archivist what may be deemed as a wide discretion on what may be destroyed, under statutory law interpretation she has no right to "read down" that discretion to only consider a public record's historical value against and in spite of other public interest considerations (eg legal, informational, data values) which pertain to such records under active consideration for destruction.[83]

3.87 The UWB Committee did not report specifically on the role of the archivist under the Libraries and Archives Act 1988. Rather, it reported on the actions of the then Acting Cabinet Secretary and Queensland Archivist as follows:

...the other precondition for their [the Heiner documents] legal shredding was that the approval of the State Archivist was sought and obtained...this was met, though it must be stated that aspects of the process are open to question. In correspondence to the State Archivist in which her approval to shred the documents was sought, the Acting Cabinet Secretary did not specifically mention that the documents were being sought for possible legal action. He did, however, allude to the fact that legal action was a possibility, given the nature of the material gathered. As the State Archivist followed the Government approach that it was inappropriate for officers of the executive government to provide any assistance to the Committee and declined its invitation to give evidence, the Committee is unable to determine whether her decision to approve the shredding might have been varied, had she been specifically informed that one potential litigant did in fact exist'.[84]

Committee of Privileges 63rd report

3.88 The Committee of Privileges in its 63rd report focused on whether the CJC withheld crown solicitor's advices and other documents from previous Senate inquiries. As such, it did not inquire into the role of the state archivist. However, the matter was raised in evidence to the inquiry. Mr Lindeberg's submission set out seven incidents in which he alleged the CJC misled the UWB Committee. One of these incidents concerned the 'Criminal Justice Commission's declaration on the alleged proper role of the Queensland State Archivist'.[85]

3.89 In the submission, Mr Peterson (acting for Mr Lindeberg) argued that over time the CJC had given conflicting interpretations of the role of the state archivist. Mr Peterson submitted that the interpretation put to Mr Lindeberg, following the CJC's second investigation into the shredding, stated that the archivist had an 'almost unfettered' discretion when appraising public records. He contrasted this view with Mr Barnes's evidence to the UWB Committee, which indicated that the archivist had a narrow discretion concerning only 'historical value'.[86]

3.90 Mr Peterson cited a number of professional archivists and authoritative sources who disputed the CJC's interpretation of the role of the state archivist.[87] He also informed the committee that the Queensland State Archives had released guidelines on document appraisal, which refuted Mr Barnes' view. Mr Peterson quoted the following section of the guidelines:

Appraisal may be defined as "the process of determining the value and thus the disposition of records based on their administrative, legal, or fiscal use; their evidential and informational or research value; their arrangement; and their relationship to other records."[88]

3.91 Consistent with its terms of reference, the Committee of Privileges did not ask the CJC to address the allegation that it had provided contradictory and misleading evidence about the role of the state archivist.

Committee of Privileges 71st report

3.92 Unlike the earlier inquiries, the Committee of Privileges in its 71st report specifically considered the allegation that the CJC misled the UWB Committee about the role of the state archivist. Mr Lindeberg's evidence to the committee primarily restated his submissions to previous inquiries. He again cited authoritative sources, including the Australian Society of Archivists and Mr Hurley, a former Australian representative on the International Council on Archives, who disagreed with Mr Barnes' interpretation of the role of the archivist.[89]

3.93 Mr Lindeberg also referred in his submission to two reports not previously mentioned with respect to this allegation. First, he raised the CJC's submission to the Electoral and Administration Review Commission's 1991 review of archives legislation. Mr Lindeberg claimed that this submission revealed that 'the CJC always knew what the proper role of the archivist was'.[90] Second, Mr Lindeberg quoted passages from the Morris-Howard Report, which suggested that the archivist's approval for the disposal of the Heiner documents did not over-ride relevant sections of the Criminal Code.[91]

3.94 The CJC rejected the allegation that its officers had provided misleading evidence to previous committees, stating:

This allegation is based upon differences of opinion about the legal interpretation of the statutory role of the State Archivist. Even if Mr Barnes was completely mistaken in his view about the role of the State Archivist, his expression of an opinion on the topic could never amount to false and misleading evidence.[92]

3.95 The Committee of Privileges concurred with the CJC's view that:

...the expression of a genuinely-held legal opinion about the statutory role of the State Archivist, even if wrong, could never amount to providing false or misleading evidence.[93]

3.96 Accordingly, the Committee concluded that no contempt had been committed.

The current inquiry

3.97 Mr Lindeberg has again alleged that the CJC deceived previous Senate committees concerning the role of the State Archivist.[94] However, there is little new in the information that he has provided. Mr Lindeberg has again disputed Mr Barnes' interpretation of the role of the State archivist, asserting that it 'reduces the State/Federal Archivist's function to an impossible farce'.[95] He has again quoted the interpretations given by CJC officers at different times in different forums, asserting that the interpretations are contradictory.[96] The Australian Society of Archivists (ASA), in its submission has again disagreed with Mr Barnes' view of the role of the archivist and has supported the assertion that CJC officials have taken inconsistent positions at different times.[97]

3.98 However, even if the CJC's view put to the previous inquiries is held to be incorrect, it does not inherently follow that this interpretation was deliberately contrived to mislead the Senate. Mr Barnes informed the Committee that:

I now believe the decision to shred ... the "Heiner documents" was wrong for two reasons:-

  • The general presumption is that public records of any import should be retained unless they ...have no historical or personal value. In view of the circumstances in which the "Heiner inquiry" was commenced and discontinued it is likely that these exceptions could not be met.
  • The hundreds of thousands, if not millions, or dollars of public funds that have since been spent examining all aspects of that shredding could have been spent far more productively. It is in my view a matter of significant public concern that such expenditure continues.[98]

3.99 Mr Barnes also stated that:

I can not be sure that everything I have said on the numerous occasions I have responded to Mr Lindeberg's allegations is completely accurate or even that all of the legal opinions I have expressed accord with the most authoritative sources on all relevant points. I am absolutely certain, however, that I have never deliberately misled the Senate or any other inquirer.[99]

3.100 The Committee did not receive any evidence which would show that Mr Barnes' interpretation at previous inquiries was not genuinely held. The only new evidence submitted by Mr Lindeberg in relation to role of the state archivist concerns the authority of the Queensland Cabinet to seek the archivist's approval for the shredding. Mr Lindeberg has asserted that:

It is open to conclude that the Office of Cabinet was acting beyond its authority, ultra vires, that is unlawfully, when seeking to have the Heiner Inquiry documents destroyed because the records were always in the ownership of Ms. Matchett pursuant section 12(3)(r) of the Public Service Management and Employment Act 1988. All parties ignored this obligation (on her) to"...maintain proper (departmental) records".[100]

3.101 Mr Lindeberg claimed that 'the CJC appears to have overlooked' this matter.[101]

3.102 While the new evidence might contribute further to a view of the legality or propriety of the shredding, it does not support Mr Lindeberg's allegation that the CJC knowingly provided false and misleading evidence regarding the role of the state archivist.

The Libraries and Archives Act

3.103 While different views on the role of the state archivist under the Libraries and Archives Act 1988 have been stated and reiterated at previous Senate inquires, little reference has been made to the provisions of the Act. The Act did not specifically define the factors to be considered by the archivist before authorising disposal of public records. It is plausible therefore that different views regarding the role of the archivist could genuinely be held.

3.104 In its submission to the Committee, the Australian Society of Archivists (ASA) noted that criteria for appraising public records, including business needs, organisation accountability and community expectations, have now been formally recognised in the Australian Standard on Records Management.[102]

Conclusion

3.105 The UWB Committee established through its inquiry that the actions of the then Acting Cabinet Secretary and State Archivist, in seeking and authorising approval for the destruction of the Heiner documents, were open to question. Mr Lindeberg asserted in this inquiry that breaches of the Libraries and Archives Act 1988, the Public Service Management and Employment Act 1988 and the Criminal Justice Act 1989 may have occurred. The Committee has not made a judgement on this matter because it is not its role to pursue the UWB Committee's findings further or to investigate allegations of unlawful activity.

3.106 The only relevant aspect of the allegation is that the CJC deliberately misinterpreted the role of the state archivist. Disagreements about the role of the state archivist have now been aired and reiterated before five Senate committees. While there is evidence to suggest that some of the views put to previous inquiries were incorrect, no new evidence has been provided to show that these opinions were not genuinely held. The Committee therefore agrees with the Committee of Privileges' previous findings on this matter, and concludes with regard to this allegation that no contempt has been committed.

Document 13 and the alleged rape file

The allegations

3.107 Mr Lindeberg and other witnesses alleged that the Queensland Government misled the Senate by providing a document, identified as 'Document 13', in an altered form and by failing to provide evidence of the rape of a resident minor at the JOYC. Mr Lindeberg submitted that:

...this alleged criminal contempt, going to a possible conspiracy to defeat justice, took the material form in the following major incidents of alleged false and misleading evidence...

(b) deliberately tampering with evidence as in Document 13 by providing it to the Senate in an incomplete form ...

(c) deliberately withholding known relevant evidence from the Senate ...revealing the crime of pack-rape and criminal paedophilia.[103]

Previous Senate inquiries

3.108 Mr Lindeberg's allegations in respect of Document 13 and sexual abuse at the JOYC are new to this inquiry. The allegations were not raised in submissions to the Committee of Privileges and were not considered in that Committee's 63rd and 71st reports. Neither were the allegations raised with the PIW or UWB inquiries, but Document 13 was submitted to the UWB inquiry by the Queensland Government. The Queensland Government was not a witness at that inquiry but did submit copies of some documents. This Committee's consideration of whether previous Senate committees were misled in relation to these documents is therefore confined to that inquiry.

3.109 The UWB Committee did not refer to Document 13 or its contents in its report. Mr Lindeberg assumes that this was an oversight.[104]

3.110 Mr Lindeberg's allegation relates to the form in which Document 13 was provided to that Committee:

The fact that the Senate may not have properly considered Document 13 at the time, or in its report "The Public Interest Revisited", is not the central issue here. The issue turns on what the Senate asked and why it was sent in its known incomplete/tampered state.[105]

What is 'Document 13'?

3.111 Document 13 was provided to the UWB Committee by the Director-General of the Office of the Queensland Cabinet. The document is in the form of a memorandum, signed by Mr Coyne, in which he reported on the disruptive behaviour of three JOYC residents and described an incident that occurred at the Centre on 26 September 1989. The incident involved the handcuffing of three residents in the Centre's secure yard, with two of the residents remaining handcuffed overnight.

3.112 The version of Document 13 provided to the UWB Committee was not complete. Only pages three to five were provided, and the names of the children mentioned in the document had been edited. The following note was included to explain these deletions and alterations:

Parts of this document have not been released to protect the identity of the children involved. The original of this document contains the full names, dates of birth and court history information. Names handwritten on this copy are not the actual names of the children.[106]

3.113 Mr Lindeberg has alleged that the Queensland Government altered Document 13 for reasons other than those presented to the UWB Committee. He claims that the altered document was designed to:

  • inflict a detriment on Mr Coyne, and by association, himself (Mr O'Neil made a similar claim of detriment by association);[107]
  • isolate such detriment to Mr Coyne, by withholding from the UWB Committee that the document was addressed to Mr Coyne's manager; and
  • obstruct the Committee from making full and proper findings.[108]

3.114 These allegations are considered in turn below.

Detriment to Mr Coyne and Mr Lindeberg

3.115 Document 13 provides evidence that Mr Coyne ordered the use of handcuffs to restrain children at the JOYC. It could be thought that Mr Coyne's actions, admittedly in a very difficult situation, were extreme and unwarranted and possibly illegal. Certainly the Forde Commission was of that view.[109] Mr Lindeberg has asserted that this being the case the document was provided to the UWB Committee in order to discredit Mr Coyne and also himself. Mr Lindberg stated:

That document, as far as I know, came out of the blue. I am saying that it came to you for a deliberate purpose-that is, to discredit Mr Coyne before your inquiry and, by association, me because I was perceived to be protecting a prima facie child abuser.[110]

3.116 Document 13 was one of 24 documents provided to the UWB Committee by the Director-General of the Office of the Queensland Cabinet. It is evident that the documents were provided in reply to an invitation from that Committee to respond to evidence provided during the inquiry. The Director-General's covering letter to the UWB Committee stated:

I refer to your letter of 11 May 1995 and to recent public hearings of the Committee.

The attached information is forwarded to your Committee in response to certain issues raised in evidence at the hearings.[111]

3.117 In broad terms, documents 1-9 covered correspondence between the Department of Family Services and the Crown Solicitor; documents 11-15 related to management at the JOYC, including behaviour management problems, the above mentioned handcuffing incident and complaints by staff; documents 16-23 concerned Mr Coyne's secondment and the department's decision not to fill the position of manager at the JOYC; and document 24 addressed specific evidence raised by Mr Lindeberg's lawyers.

3.118 While it may be that Document 13 was not specifically requested by the committee, it is a person's prerogative to provide additional information and documentation to a committee, as a number of witnesses have chosen to do during this inquiry. Such information or documentation may well be submitted to support the arguments of the submitter, but this does not make them inherently false or misleading.

3.119 It is plausible that in the view of the Queensland Government, the documents were provided to assist the UWB Committee by clarifying issues covered during the Committee's public hearings. Such issues included the circumstances giving rise to the Heiner inquiry and the department's treatment of Mr Coyne.[112] For example, at the UWB Committee's hearing of 29 May 1995, the following exchange occurred:

CHAIR - ... I want to deal with before Heiner-before we get to Heiner. It would seem to me that Heiner came about because of something.

Mr Barnes - Certainly.

CHAIR - I would not have thought that the department would have said that, on the basis of somebody saying something, there is a need to have an inquiry of that nature. Nor do I think that the previous minister would have set up the inquiry based on some almost hearsay claim. I would have thought that there would had to have been a series of events that led to the setting up of the Heiner inquiry.

Mr Barnes - I can well understand your expectation in that regard. All I can tell you is that Heiner arose out of - as far as we can ascertain - a single meeting on 14 September 1989... I accept entirely what you are saying -that one would have expected a more gradual build up to that - but the commission is not aware of any more of a gradual build-up because that is something that did not concern the commission.[113]

3.120 The Director-General's covering letter to the UWB Committee tends to indicate that several of the attached documents were intended to provide evidence of the build up to the Heiner inquiry. The Director-General said:

Document 11 is an extract from an independent report on Detention Centres which shows problems with behaviour management at JOYC. Throughout 1989 there were a number of incidents which received wide spread media attention...

Document 13 gives Mr Coyne's account of an incident on 26 September when 3 children, 2 girls aged 12 and 16 and a boy aged 14, were handcuffed to the tennis court fence in the secure yard at John Oxley... Mr Coyne's report illustrates that incidents on 22, 23, 24 and 25 September were the lead up to the incident of 26 September 1989...

Two days after this incident, on 28 September, Mr Pettigrew visited JOYC and met with staff at the changeover of shifts, announced an independent investigation and requested that complaints be confirmed in writing.[114]

3.121 The Queensland Government may have considered Document 13 as valid evidence, giving context to the establishment of the Heiner inquiry and justifying the Department's treatment of Mr Coyne. As such, while Document 13 may well reflect negatively on Mr Coyne, this does not substantiate Mr Lindeberg's allegation that the provision of the document in an altered form was an act of 'criminal contempt, going to a possible conspiracy to defeat justice'.[115]

3.122 In the absence of any supporting evidence, it is difficult to agree with the speculation that Document 13 was designed to discredit Mr Lindeberg and Mr O'Neil by association. If that was the Queensland Government's intention, it does not seem to have worked. The UWB Committee reported that:

The Committee believes that Mr Lindeberg raised the allegations that he did in good faith. Mr Lindeberg is to be commended for bringing to the attention of authorities the matter of the Heiner documents.[116]

Failure to show Mr Coyne was informing his manager

3.123 Mr Lindeberg has alleged that the altered form in which Document 13 was provided to the UWB Committee was designed to isolate the document to Mr Coyne. Mr Lindeberg stated that evidence to the Forde inquiry, showed that the original memorandum was addressed to Mr Coyne's manager in the Department of Family Services.[117]

3.124 Mr Lindeberg argued that a complete version of Document 13 would have provided the UWB Committee with a different view of the incident detailed in the document. He stated:

...its complete form, while not lessening the unacceptability of Mr. Coyne's handcuffing exploits against children, would have broadened the blame both in accepting the handcuffing or failing to curtail his illegal activities.[118]

3.125 The Committee accepts that removing the address information from Document 13 was not necessary to protect the identity of the children mentioned in the document. However, it does not inevitably follow that such information was deliberately removed or that its removal was intended to isolate the document's content to Mr Coyne. As Document 13 came to the UWB Committee from the Director-General of the Office of Cabinet, it is evident that the document had been submitted to the department and had been read by persons other than Mr Coyne. Presumably the UWB Committee would have reached that conclusion; public servants do not write memoranda to themselves.

3.126 Even if the Committee were to conclude that the address on the memorandum had been deleted deliberately, on the basis of the available evidence the alleged motive for removing the address information from Document 13 must be speculative.

Obstructing the Committee's findings

3.127 Mr Lindeberg informed the Committee that:

In my opinion, in withholding those two pages [of Document 13] from the Senate in 1995, the Queensland Government obstructed the Senate Select Committee on Unresolved Whistleblower Cases from comprehensively considering the matter.[119]

3.128 Mr Lindeberg has speculated that if the UWB Committee had been provided with a complete version of Document 13 that would have opened up a new range of questions for the Committee to ask and report on.[120]

3.129 As previously mentioned, the UWB Committee did not consider Document 13 or its contents in its report. In accordance with its terms of reference, the UWB Committee concentrated on 'what it could learn to assist in the formulation of Commonwealth whistleblower protection legislation'.[121] There is no evidence to suggest that receiving Document 13 in an altered form obstructed those considerations.

The rape file

3.130 The Committee received evidence that a JOYC resident was raped by other residents during an outing from the centre on 24 May 1988. A number of documents relating to the incident, including reports by JOYC staff and management, Department of Family Services' reports and police and medical reports were provided to the Committee.[122]

3.131 Witnesses alleged that evidence of the assault was deliberately withheld from the UWB Committee. Mr Grundy, for example, asserted that if the Queensland Government had considered Document 13 relevant to the UWB inquiry, then the department's file on the rape should also have been provided.[123] Mr Lindeberg asserted that the rape evidence should have been submitted because of its supposed link to the Heiner inquiry. He asserted that:

...we also now know that the Queensland Government, by act of omission, withheld the relevant departmental file on the May 1988 pack-rape from the Senate Select Committee on Unresolved Whistleblowers Cases. It is open to conclude that the Queensland Government must have known that it came under investigation by the Heiner Inquiry too.[124]

3.132 However, the witnesses admitted that there was no conclusive evidence to show that the rape incident was reported to Mr Heiner. Mr Lindeberg stated:

While it is speculative...it is reasonable to suggest that the anonymous whistleblower may have decided to bide his or her time until circumstances arose which allowed the [pack-rape incident] to be raised again. That opportunity appears to have come in the shape of the Heiner Inquiry... It is therefore open to suggest that the unknown Youth Worker disclosed the pack rape to Mr Heiner as a public interest disclosure...[125]

3.133 Witnesses drew the Committee's attention to submissions to the House of Representatives Standing Committee on Legal and Constitutional Affairs (LCA Committee) inquiry into crime in the community, regarding the content of the Heiner documents. The LCA Committee reported, however, that evidence presented to it about the contents of the Heiner documents was 'sketchy and inconsistent'.[126] The LCA Committee stated that the passage of time since the Heiner inquiry had a major influence on the quality of the evidence it received.

3.134 Mr Heiner, in evidence to the LCA Committee, recalled taking evidence on two instances of alleged child abuse, one relating to a child being handcuffed and the other to a child being sedated.[127] He did not recall taking evidence on the rape incident and stated, 'I vehemently deny anybody having spoken to me about a pack-rape'.[128]

3.135 On the other hand, Mr Roch, a former youth worker at the JOYC, believed he had given evidence to Mr Heiner about the rape incident as well as the disposal of the documents.[129] The LCA Committee reported that it had found a number of gaps and inconsistencies in Mr Roch's evidence, including that evidence about the rape and the disposal of the Heiner documents could not have been provided together.[130]

3.136 The LCA Committee concluded that it was 'unable to reconcile the differing accounts regarding evidence of the pack-rape that were given to the Heiner inquiry'.[131] That committee commented that:

The Committee does not question the evidence of sexual abuse and bureaucratic inaction at JOYC, and indeed the fact that 'everyone at the Centre knew about it'. It does not follow conclusively, however, that Mr Heiner was informed about this.[132]

3.137 Evidence provided to this inquiry regarding the rape incident primarily focussed on the occurrence of the assault, inadequacy of the official response and lack of redress for the victim, rather than the alleged misleading of the Senate. For example, Mr Grundy said:

As far as I am aware none of these matters was brought to the attention of the Senate in 1995. Whether they should have been is not for me to judge. I do know, however, that nothing has been done to put these wrongs against the girl to rights...[133]

Conclusions

3.138 Allegations that the Heiner documents were shredded to cover up child abuse at JOYC were not made to previous Senate inquiries. They have now been made years after the events investigated by the committees and are speculative. Mr Le Grand, in response to Mr Lindeberg's allegations said that, 'this development is known to those who practise in criminal law as "recent invention".[134]

3.139 In any event there is no evidence to support the allegation that the Senate was deliberately misled in relation to evidence revealing the crime of pack-rape and criminal paedophilia.

3.140 The Committee has also concluded in relation to the Queensland Government's submitting an edited version of Document 13 to the UWB Committee that there is no evidence that this was done for any sinister reason. The reasons given for the edits seem reasonable, firstly because there was no reason for publishing the names and records of the persons involved and secondly because the fact that the memorandum came from the Premier's Department demonstrates that it had been received by persons in DFA.

3.141 Even if the Committee had concluded otherwise there would remain two difficulties in relation to the finding of contempt. First, the Queensland Government was not a witness at the inquiries. Second, the Clerk of the Senate advised the Committee that:

A closely related question is whether any finding of contempt may be made against state officials. On one view, the rule of comity between jurisdictions in the federation, which is the basis of the practical, if not legal, immunity of state office holders from compulsion, would also entail that findings of contempt may not be made against them.[135]

3.142 In the absence of any substantive evidence to support the allegations, the Committee cannot conclude that the UWB Committee was misled in relation to 'Document 13' and the rape file. It finds that no contempt was committed in that regard. Nevertheless, the nature of the evidence submitted in relation to these allegations is very disturbing and is addressed later in the report under term of reference (b)(ii).

Deed of Settlement

3.143 Mr Lindeberg's fourth 'major incident' in the alleged contempt of the Senate is the failure of the Queensland authorities to disclose the 'true nature' of the deed of settlement entered into between the Queensland Government and Mr Coyne. Mr Lindeberg submitted that the Queensland authorities misled the Senate by:

(d) failing to properly disclose to the Senate the true nature of the February 1991 Deed of Settlement between Mr Peter Coyne and the State of Queensland concerning certain "events" at the John Oxley Youth Detention Centre, which both parties agreed to never publicly disclose in exchange for the payment of taxpayers' moneys after threats were made by certain persons against State public officials to take the matter to the CJC, in particular to investigate.[136]

The allegation

3.144 In his submission Mr Lindeberg quoted from a letter written by the late Mr Greenwood QC, who was acting for Mr Lindeberg, that the wording in the Deed of Settlement:

'... the events leading up to and surrounding his relocation from the John Oxley Youth Detention Centre' was about or could be argued to cover incidents of alleged child abuse in the period before the Heiner Inquiry was established.[137]

3.145 Mr Lindeberg's submission reviews the events leading up to the signing of the Deed of Settlement and states that certain QPOA officials threatened departmental officials that they would take the 'entire saga' of the JOYC to the CJC (and other bodies) unless certain moneys were paid. Mr Lindeberg concludes that, because the department agreed to pay money that Mr Coyne was not entitled to, the department demonstrated that it had a vested interest in gagging everything and keeping past embarrassments in-house.[138] He made the following allegation:

...it is therefore open to conclude that public officials (and others) involved in the Deed of Settlement's wording knew that the word 'events' was a necessary conspiratorial euphemism for 'incidents concerning the abuse of children in care'. It was seen to be an essential guarantee to legally bind all parties (particularly from the Crown's perspective after Mr Coyne had threatened to go to the media about his treatment and sudden secondment) to silence in order to protect themselves so that the truth of what had happened at the Centre under Mr Coyne's management and who knew about it was never publicly revealed.[139]

Previous inquiries

3.146 The only Senate inquiry in which the deed of settlement was examined was that conducted by the UWB Committee, although Mr Lindeberg made a submission to the PIW Committee in 1993 which included the following information:

On 10/1/91 a meeting occurs between the Department and QPOA. Union threatens to take 'the Coyne Case' to the CJC on the grounds of official misconduct over the shredding and Mr Coyne's treatment unless (i) the Department discloses details of the job interview for Manager of the JOYC; or (ii) makes it financially worthwhile for Mr Coyne to leave as he was considering purchasing a delicatessen...

Mr Coyne is paid an 'additional' $27,190 to his normal redundancy payment. He is required to sign a Crown Solicitor's settlement deed to remain silent. He was unaware of that stipulation before collecting what he thought was his 'entitlement'. Under duress he signs.[140]

3.147 The PIW Committee did not report on the matter, but the UWB Committee in its inquiry into the shredding of the Heiner documents reported on the payment as follows:

The CJC outlined the matter as follows. Minister Warner had approved the payment on 7 February 1991 as a special payment under section 77 of the Financial Administration and Audit Act 1977. The relevant regulation authorised ministers to make special payments up to $50 000. While such a delegation had been agreed by Cabinet in late 1990, it did not receive the approval of the Governor in Council until June 1991 and hence the payment to Mr Coyne was illegal.[141]

3.148 The UWB Committee was aware that the payment was unlawful because it was told as much by the CJC, and it reported that the appropriateness of a payout by way of compensation was questionable.[142] The committee was also obviously aware of the existence of a deed of settlement and must have been aware of at least some of its details because it reported that the deed contained a confidentiality clause.[143]

3.149 The payment to Mr Coyne was investigated by Morris and Howard who were also concerned about its appropriateness. Although they found that no charge other than that relating to the technical illegality of the payment could be sustained, and that no charges against persons involved in making the payment could be sustained under the Criminal Code, they went on to say that:

... it is open to conclude that 'official misconduct' within the meaning of s.32(1) of the Criminal Justice Act was committed by officers of the Department of Family Services (including the Minister) as regards negotiating and making the payment of $27,190.00 to Mr Coyne ... [144]

3.150 As regards the technical illegality, Morris and Howard found that it was open to conclude that an offence was committed under section 204 of the Criminal Code because the payment involved an unlawful application of public money.[145] As was noted in their report:

There is no doubt that the payment of $27 190.00 to Mr Coyne was unlawful. This was the view reached by the Crown Solicitor on 3 June 1993.[146]

Motives for the payout

3.151 Morris and Howard's explanation of the likely motive for the payment to Mr Coyne was:

The more obvious motive for the agreed 'special payment' to Mr Coyne was, it might be thought, to buy his silence in respect of the Department's conduct, and particularly the Department's conduct relating to the destruction of the Heiner documents.[147]

3.152 They concluded that the real impropriety of the payout related to the fact that the payment was made for an ulterior motive, namely, to buy Mr Coyne's silence.[148] After discussing other possible (and defensible) motives that contributed to DFSAIA officials agreeing to the payment, Morris and Howard concluded as follows:

But in our view it is open to conclude that the same individuals were fully conscious of the fact that they had acted dishonourably, and perhaps illegally, over the destruction of the Heiner documents, the returning of the statements to the QSSU, and the destruction of photocopies of those statements. ... In our view, it is open to conclude that those individuals allowed their own personal interests to guide them in deciding on the disbursement of $27,190.00 of public funds, and accordingly acted in away which can be characterised as involving substantial impropriety.[149]

3.153 It is interesting that Morris and Howard, although they were aware of allegations of child abuse at JOYC,[150] did not suggest that covering these up was a motive for making the (illegal) payment to Mr Coyne. For his part, Mr Coyne informed the UWB Committee that he wanted the department to pay because he had been treated badly.

3.154 Mr Coyne also told the committee that the deed of settlement included a provision that he was not allowed to canvass any of the issues surrounding his relocation from JOYC at Wacol to Brisbane, or the events leading up to or surrounding the relocation with any other officer, etc. He queried why a deed of settlement was needed if there was no connection between his relocation and the Heiner inquiry.[151]

3.155 Plainly, at the time that he gave evidence to the UWB Committee Mr Coyne did not consider that the relevant provision in the deed of settlement related to any incident of child abuse. Mr Lindeberg's assertion, however, is that the payout was intended to conceal child abuse, and that this was deliberately withheld from Senate committees, thus hindering them in their role. He stated that:

Had you [Senate committees] known that within that deed of settlement the events concerned the abuse of children, you would have made better findings about it.[152]

Conclusions

3.156 Neither Mr Coyne nor Morris and Howard seem to have considered that the Deed of Settlement was intended to buy Mr Coyne's silence in regard to incidents of child abuse. Neither did Mr Lindeberg, until relatively recently.

3.157 Mr Lindeberg's allegation that the words of the Deed of Settlement, namely, 'the events leading up to and surrounding his relocation from the John Oxley Youth Detention Centre' were about or could be argued to cover incidents of alleged child abuse was not made to previous Senate inquiries. The explanation for the confidentiality clause in the deed that he gave to the UWB Committee, for example, was that it was intended to cover up the shredding.[153]

3.158 The allegation regarding the Deed of Settlement seems to be based on Mr Lindeberg's assertion that the Heiner documents were destroyed to cover up allegations of child abuse. As the Committee concluded earlier, little is known of what was in those documents, and it is possible only to speculate. It is possible to speculate, as Mr Lindeberg has done, about the reasons for the department insisting on Mr Coyne's signing a Deed of Settlement which included a clause requiring his silence, but there is no evidence to support any such speculation.

3.159 It is not clear in any event in what way the Senate may have been misled. The UWB Committee was aware of the Deed of Settlement and commented on it. The committee may or may not have been aware of all its provisions, but it seems far-fetched to suggest that the 'true nature' of the deed, whatever that may be, should have been disclosed to that committee.

3.160 The Committee cannot conclude that the Senate was misled in any particular in relation to the Deed of Settlement and therefore finds that no contempt has been committed.