1. On 25 June 1996, the following matter was referred to the Committee
of Privileges:
Whether any false or misleading evidence was given to the Select
Committee on Unresolved Whistleblower Cases, and, if so, whether any
contempt of the Senate was committed in that regard. [1]
2. The reference to the Committee was given precedence by the then President,
Senator the Hon. Michael Beahan, following the matter being raised by
Senator Shayne Murphy, as former chair of the Select Committee on Unresolved
Whistleblower Cases. When giving precedence to the matter the President
made the following statement:
Senator Murphy, as former chair of the Select Committee on Unresolved
Whistleblower Cases, has received submissions which allege that deliberately
misleading evidence was given to that committee. The submissions state
that the existence of certain documents was deliberately concealed from
the committee when evidence was given relating to the existence of the
documents.
Normally, the committee concerned would investigate any such suggestions,
but in this case, the committee has ceased to exist after the presentation
of its final report.
As past cases and reports of the Privileges Committee indicate, the Senate
has always taken very seriously any allegation that deliberately misleading
evidence has been given in the course of a Senate inquiry. [2]
3. The questions raised by Senator Murphy concerned allegedly misleading
evidence given by the Criminal Justice Commission (CJC) about the number
and availability of advices given by the Queensland Crown Solicitor, and
awareness of documents held by the Queensland Department of Family Services
and Aboriginal Islander Affairs (DFSAIA), in relation to what came to
be known as the Heiner documents case. The correspondence and associated
papers forwarded to the President by Senator Murphy had been provided
to him by Mr Kevin Lindeberg and Mr Peter Coyne, both of whom had been
involved in the Heiner documents matter. [3]
4. This case was one of a series considered by a Senate Select Committee
on Unresolved Whistleblower Cases, [4]
established in December 1994 following a general report made by an earlier
Committee on Public Interest Whistleblowing. [5]
The terms of reference of the second committee were as follows:
So much of those unresolved whistleblower cases arising from
the report of the Select Committee on Public Interest Whistleblowing
that the Committee determines necessary to be taken into account for
framing the proposed Commonwealth legislation on whistleblower protection
already recommended by the Select Committee on Public Interest Whistleblowing,
with particular regard to:
(a) the circumstances relating to the shredding of the Heiner
documents and matters arising therefrom;
(b) the circumstances relating to the alleged protection of
an allegedly corrupt senior police officer at the expense of other
police, and matters arising therefrom; and
(c) the role and conduct of the Criminal Justice Commission,
and of present and former officers of the commission;
and whether these cases should be taken into account in framing
the proposed Commonwealth legislation on whistleblower protection, as
recommended by the Select Committee on Public Interest Whistleblowing.
[6]
5. The Unresolved Whistleblowers Committee invited submissions from,
inter alia, the Premier of Queensland, the CJC, Mr Lindeberg and
Mr Coyne. Substantial submissions were received from the CJC, Mr Lindeberg
and Mr Coyne; the Queensland Government responded by means of a brief
statement in the Queensland Parliament on 21 February 1995 by
the then Attorney-General, Mr Dean Wells, who also tabled a more
detailed statement. Both were provided to the Unresolved Whistleblowers
Committee. [7] The statements outlined
reasons for the Queensland Government's opposition to the inquiry –
that, inter alia, the Heiner documents matter had been extensively investigated
and no wrongdoing had been found; and the alleged offences related to
the internal affairs of Queensland and decisions made by State agencies
and officials, who were accountable to the Queensland Parliament, not
the Senate. Assistance to the inquiry by officers of the executive government
in their official capacity was refused. The Queensland Government did,
however, provide the Unresolved Whistleblowers Committee with a great
deal of assistance in the form of documentation.
6. The CJC, as an independent statutory body, opted to cooperate with
the Unresolved Whistleblowers Committee. The CJC accepted that the Unresolved
Whistleblowers Committee had a constitutional right to explore the 'so-called'
unresolved whistleblower cases to the extent necessary to assist in the
framing of Commonwealth legislation on whistleblower protection: it predicated
its assistance on the point that the Unresolved Whistleblowers Committee's
purpose was 'to discover problems and difficulties encountered in the
investigation of the nominated matters, and not to conduct a wholesale
re-investigation of the matters'. [8]
CJC officers appeared before the Unresolved Whistleblowers Committee on
five occasions and provided eleven submissions or responses.
7. Questions relating to documents known as the Heiner documents have
been raised in a number of venues over a period of several years, and
have been the subject of inquiries, not merely by the two Senate Whistleblower
Committees, but also by the Criminal Justice Commission of Queensland.
As indicated above, [9] the Whistleblower Committees did not have
access to full evidence on the matter. At the outset of its inquiry, it
was unclear to the Committee of Privileges whether the CJC had access
to all appropriate information.
8. On 7 May 1996, the State Government of Queensland asked two senior
barristers to make a report, inter alia, on the following terms of reference:
To provide written advice to the Premier of Queensland as to
whether ... it is in the public interest of the State of Queensland
that a public inquiry be conducted to investigate and report upon any
or all of the following matters:
(a) Allegations made by Mr Kevin Lindeberg that:
(i) The decision of the Queensland Cabinet on 5 March 1990
to destroy records of interview and related material gathered by
retired Stipendiary Magistrate, Mr Noel Heiner, in the course of
an inquiry into the John Oxley Youth Centre, Wacol, and its manager,
Mr Peter Coyne, in late 1989 and early 1990, was illegal. [10]
9. Their comprehensive report, signed on 8 October 1996 and tabled in
the Queensland Parliament on 10 October 1996, gives a full account of
the Heiner documents matter, and rather than attempt to describe again
the issues involved, the Committee draws attention to that report. [11]
10. Briefly, the Heiner documents were records of interview and related
material gathered by retired stipendiary magistrate Noel Heiner in the
course of the inquiry, which was terminated early in 1990. The documents
were destroyed on 23 March 1990 following the Cabinet order of 5 March 1990.
11. The reason for the involvement of the Committee of Privileges derives
from an assertion by two witnesses before the Select Committee on Unresolved
Whistleblower Cases. The first witness, Mr Kevin Lindeberg, had discovered
through FOI requests in Queensland that several advices by the Crown Solicitor
existed, in addition to advices given to the Unresolved Whistleblower
Committee.
12. He therefore alleged that the CJC had misled the Unresolved Whistleblower
Committee because the CJC had advised in a memorandum of 13 September
1995, in response to a question whether Crown Solicitor's advices were
'properly accounted for', that 'these documents have been provided to
the Committee'. [12]
13. Advices from the Crown Solicitor were provided to the Unresolved
Whistleblowers Committee by the Queensland Government (and, variously,
by others) as follows:
- Advice dated 18 January 1990
- Advice dated 19 January 1990
- Advice dated 23 January 1990
- Advice dated 16 February 1990
- Advice dated 22 February 1990
- Advice dated 26 February 1990.
14. The first four major advices were provided to the Unresolved Whistleblowers
Committee on 21 February 1995; the fifth and sixth on 31 July 1995.
The advices of 22 and 26 February 1990 concern the acceptability
of draft correspondence and do not materially affect the issues. An earlier
advice from the Crown Solicitor to the Director-General of the Department
of Family Services, dated 30 June 1989, was also provided to
the Unresolved Whistleblowers Committee by the CJC on 15 August 1995.
In its response of 13 September 1995, the CJC referred to Crown Law
advices of 20 January, 8 February and 20 February 1990.
[13] Advices of those dates were not
seen by the Unresolved Whistleblowers Committee.
15. Mr Lindeberg alleges that, on the basis of material released to him
under FOI, further advices exist. He points to a further letter from Ms
Ruth Matchett, at this time Acting Head of the DFSAIA, to the Crown Solicitor,
dated 19 March 1990; a letter dated 18 April 1990
from the Crown Solicitor to Ms Matchett; a further letter from Ms Matchett
to the Crown Solicitor, dated 8 May 1990; and a letter dated
18 May 1990 from the Crown Solicitor to Ms Matchett. [14]
This allegation is supported by matching entries in FOI information maintained
by the Department of Justice. [15]
16. The second witness, Mr Peter Coyne, drew attention to what he regarded
as a misleading response by the CJC to matters he had raised in evidence
before the Unresolved Whistleblowers Committee. The CJC had given reasons
for its conclusion that the Heiner documents could not be said to be 'files
"held on" Coyne'. Mr Coyne drew attention to a file on him held
in the DFSAIA, and declared that the CJC had access to the documents.
[16]
17. In accordance with its usual practice, the Committee wrote to the
Chair of the CJC, Mr Lindeberg and Mr Coyne inviting submissions
on the matter. The CJC's submission was prepared by Mr Walter Sofronoff
QC on its behalf. In summary, the submission advises that the reason that
no further Crown Solicitor's advices were given to the Unresolved Whistleblowers
Committee was that the CJC was not aware of their existence. Nor was it
aware of the existence of the documents referred to by Mr Coyne. [17]
18. Mr Lindeberg has provided the Privileges Committee with a substantial
submission, also prepared by counsel, Mr R.D. Peterson, on his behalf.
The submission canvasses in detail a range of matters associated with
the shredding of the Heiner documents. [18]
In considering the matter specifically before the Committee, the Committee
was assisted by the detailed submission, which placed the matter in the
context of the long-running saga of the destruction of the documents.
19. Mr Coyne did not respond to the Committee's invitation to make any
further comment, but the Committee had available to it the documents he
originally sent to Senator Murphy, and which were tabled in the Senate
by the then President. [19]
20. Given the context in which the Committee has reached its decision,
it has decided to publish the submission on behalf of Mr Lindeberg, together
with the submission on behalf of the CJC. The Lindeberg submission has
been edited to the extent that one sentence has been excluded on the grounds
of invasion of privacy of other individuals.
21. The Committee has also sought comment from certain persons named
in Mr Lindeberg's submission, in accordance with Privilege Resolution
1(13). The persons concerned have made preliminary responses which are
included in the volume of submissions and documents. [20]
It is likely that they will make more extensive responses in due course,
and it is the Committee's present intention to table any such responses
when received.
22. It is normal practice for the Committee to exchange submissions of
the principals involved in the matter, but in view of its conclusion,
based on the submissions before it and its own examination, it decided
that any such exchange was not necessary in this case.
23. In the course of its inquiry, the Committee had forwarded to it several
submissions relating to the conduct of the CJC generally. One such submission
had relevance to certain matters raised in Mr Lindeberg's submission,
and the Committee has decided to publish this also. [21]
No other submissions appeared to the Privileges Committee to relate at
all to the specific questions raised by Mr Lindeberg and Mr Coyne
with Senator Murphy, namely, the question whether the CJC had given false
evidence to the Unresolved Whistleblowers Committee as specified by both
persons.
24. The Committee gave consideration as to whether its present terms
of reference were sufficiently broad as to warrant or justify its acceptance
of the submissions for the purpose of its present inquiry. In the time
since the submissions were sent to it, the Committee has noted that a
separate, independent, inquiry into the operations of the CJC has been
established in Queensland, while questions relating to the Heiner documents
have been the subject of the report to the Queensland Government, referred
to above [22] as a source of substantial
information to the Committee. The report recommends that these questions
be further investigated. [23]
25. It appears to the Privileges Committee that state bodies are the
more appropriate avenues for examinations of this kind, and indeed the
Committee's view is reflected in original recommendations of the Public
Interest Whistleblowing Committee, which regarded intrastate examination
as desirable. [24] For these reasons,
and taking into account advice given by the Clerk of the Senate to the
barristers who prepared the report on the Heiner matter concerning restrictions
on the use by other bodies of material received as evidence by Senate
committees, [25] the Privileges Committee has concluded that
the most appropriate course is to return all submissions to their authors
without receiving them as evidence and without determining whether such
submissions are relevant to the Committee's terms of reference. The Committee
notes that the submission of the documents to it was itself privileged.
26. As previously observed, [26] the
only question raised in the documents initially provided in support of
the matter referred to the Committee, that is, whether any false or misleading
evidence was given to the Select Committee on Unresolved Whistleblower
Cases, was whether the Criminal Justice Commission had deliberately concealed
Crown Solicitors' advices and other documents in respect of the Heiner
matter. In the absence of any evidence to the contrary, and consonant
with its own preliminary judgment before the CJC submission was received,
the Committee of Privileges has no reason to conclude other than that
the CJC was unaware of the extra communications within and between the
Crown Solicitor's Office and the Department of Family Services and Aboriginal
Islander Affairs. The Committee is thus satisfied, on the evidence before
it, that no deliberate concealment occurred.
27. Accordingly, the Committee of Privileges has determined that no contempt
has been committed by the Criminal Justice Commission in respect of the
matter referred to it on 25 June 1996.
Robert Ray
Chair
Footnotes
[1] Journals of the Senate, 25 June 1996,
p. 385.
[2] Senate Hansard, 24 June 1996, p.
2030.
[3] Submissions and Documents, pp. 1-27.
[4] The Public Interest Revisited: Report
of the Senate Select Committee on Unresolved Whistleblower Cases, October
1995. (Parliamentary Paper No. 344/1995).
[5] In the Public Interest: Report of
the Senate Select Committee on Public Interest Whistleblowing, August
1994. (Parliamentary Paper No. 148/1994).
[6] Journals of the Senate, 1 December
1994, pp. 2638-9.
[7] Senate Select Committee on Unresolved Whistleblower
Cases, Submissions, supplementary submissions and other written material
authorised to be published, Volume 1.
[8] ibid, Volume 2 (page 6 of CJC submission,
February 1995).
[9] Paragraph 5.
[10] Report by Anthony J.H. Morris QC and Edward
J.C. Howard to the Honourable the Premier of Queensland and the Queensland
Cabinet of an Investigation into Allegations by Mr Kevin Lindeberg, October
1996, p. 1.
[11] ibid.
[12] Senate Select Committee on Unresolved
Whistleblower Cases, Submissions, supplementary submissions
and other written material authorised to be published, Volume 2.
[13] ibid, volumes 1 and 2.
[14] Submissions and Documents, pp.
2-6.
[15] ibid, pp. 12-17.
[16] ibid, pp. 23-24.
[17] ibid, pp. 116-120.
[18] ibid, pp. 28-115.
[19] ibid, pp. 23-27.
[20] ibid, pp. 176-181.
[21] ibid, pp. 121-175.
[22] Paragraph 9.
[23] Morris/Howard report, op. cit, p. 218,
para. 37.
[24] In the Public Interest, op. cit,
p. 5.
[25] Morris/Howard report, op. cit, pp. 13-15,
para. E3.
[26] Paragraph 23.