Further possible false or misleading evidence before select committee on unresolved whistleblower cases

Introduction

1. On 5 December 1997, the following matter was referred to the Committee of Privileges on the motion of Senator Woodley:

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. [1]

2. The present reference is part of a continuing saga which has involved at various times two Senate select committees which undertook inquiries into whistleblowing; the Criminal Justice Commission in Queensland (CJC); the Parliamentary Criminal Justice Committee of the Legislative Assembly in Queensland (PCJC); the President of the Senate; an inquiry conducted on behalf of the Queensland Government by Mr Anthony J.H. Morris QC and Mr Edward J.C. Howard; and the Committee of Privileges. This present report is the second by this committee involving the unresolved whistleblowers committee [2] and the third touching on the CJC. [3]

3. The purpose of the committee in drawing to the attention of the Senate the interrelated nature of the matters referred to it is to indicate the continuing and complex series of inquiries which have exercised the time, resources and minds of a cross-section of the community and various institutions.

Background to inquiry

4. Much of the material of relevance to the committee's current inquiry has been published, reworked or reconstituted in several forums. The genesis of the inquiry is a matter which is now nearly a decade old. This committee does not intend to go into the detail of the matter, which was canvassed, not so much in its 63rd report which had a very limited remit, but in a specific document which the committee decided to publish with that report. The primary focus of that document, which was prepared by Mr R.D. Peterson, on behalf of Mr Kevin Lindeberg, involved the destruction of certain documents relating to a case of possible improper removal of a Queensland public servant from his position. The most comprehensive account of both the moral and the legal questions arising from the destruction of those documents is contained in the report by Mr Morris QC and Mr Howard, entitled An investigation into allegations by Mr Kevin Lindeberg and Allegations by Mr Gordon Harris and Mr John Reynolds, which was presented to the Queensland Government in October 1996.

5. This committee in its 63rd report acknowledged its debt to the Morris/Howard report, and does so again in respect of the present reference:

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. [4]

6. The relevance of all this material to the committee's present inquiry derives from a letter, dated 4 December 1997, from Senator John Woodley to the President of the Senate, drawing attention to an exchange of correspondence between the PCJC, this committee and the President herself, which she tabled on 25 August 1997. [5] Having regard to the exchange of correspondence, Senator Woodley suggested that a question arose, following receipt of further evidence after the President had tabled the correspondence, that the CJC had misled the second of the Senate whistleblowers committees. This second committee, entitled Senate Select Committee on Unresolved Whistleblower Cases, [6] had been established as a result of the report of the original Senate Select Committee on Public Interest Whistleblowing.

7. The President gave precedence to the matter of privilege, and it was referred to the committee on 5 December, the last sitting day of 1997.

Role of the Committee of Privileges

8. This committee's initial involvement in respect of the CJC occurred when the following matter was referred to it on 25 June 1996:

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. [7]

9. That reference involved allegedly false or misleading evidence given by the CJC about the number and availability of advices given by the Queensland Crown Solicitor's Office, and awareness of documents held by the Queensland Department of Family Services and Aboriginal and Islander Affairs. Having examined that specific matter, the Committee of Privileges concluded that, because the CJC was unaware of documents in the possession of other organisations, no deliberate concealment had occurred. It therefore determined that no contempt had been committed by the CJC in respect of the matter referred to it. [8] As indicated above, [9] the committee decided that a comprehensive submission received on behalf of Mr Kevin Lindeberg should be published, on the basis that it provided the context in which the committee had made its finding that a contempt had not been committed.

10. As the 63rd report indicated, the committee specifically did not canvass the wider issues involved in the Heiner document matter, but concentrated on the question which it was asked by the Senate to consider. Following the committee's report, the Heiner documents matter was in effect removed to another jurisdiction. The Queensland Government established a Commission of Inquiry, chaired by the Honourable Peter Connolly and Mr Kevin Ryan, to examine the CJC. The CJC's role in the Heiner matter was canvassed before that inquiry. There the matter might have remained except that, as a result of a ruling of the Queensland Supreme Court, the Connolly/Ryan inquiry was disbanded.The question of possible CJC misleading evidence was then referred to the PCJC in Queensland, which initiated the aforementioned correspondence with the President of the Senate and the Committee of Privileges. In summary, the Chairman of the PCJC suggested it was the duty of the Senate and the Committee of Privileges to examine the question of possible misleading evidence. [10] Notwithstanding what the committee regards as cogent reasons for the relevant inquiries to be undertaken by the PCJC, as outlined in the correspondence tabled by the President, [11] the Senate finally resolved to refer the matter to this committee.

Conduct of inquiry

11. 12. Before the Committee of Privileges had an opportunity to meet, on 7 January 1998 Mr Kevin Lindeberg, who had initiated the committee's previous inquiry on the matter, sent to it a document of some 60 pages [12] which was in effect an expansion of the submission previously made on his behalf by Mr Peterson, and published with the 63rd report. Mr Lindeberg's submission declared that the new material which he had provided in the expanded version proved that the CJC “lied to the Unresolved Whistleblower Cases Committee (Murphy Select Committee) in 1995 over the PCJC's alleged handling of [his] complaint”, [13] and that the CJC had not properly investigated allegations he had made concerning the shredding of the Heiner documents. He then went on to suggest that there were other “serious instances” [14] which warranted investigation.

13. The committee also received several unsolicited submissions, from the Australian Society of Archivists relating to policy on destruction of documents, and from various whistleblower groups and supporters of Mr Lindeberg. All documents received by the committee, despite their limited relevance to the specific question it has considered, are published in a separate volume. This is to enable persons with an interest in the matter to establish to their own satisfaction the basis of the committee's conclusions.

14. The committee first met to consider the matter on 24 February 1998. Having received and acknowledged the several submissions referred to, the committee wrote to the CJC seeking any comments it wished to make on the matter referred, and enclosed all the material which the committee had received from the Senate and from these unsolicited sources.

Response by Criminal Justice Commission

(a) General comment

15. In its response of 16 March 1998, the CJC noted “the problems which the receipt of voluminous and unsolicited material” [15] must cause for the committee. The Chairperson of the CJC, Mr F.J. Clair, went on to point out that it was:

difficult for the Commission to know exactly which allegations it is expected to answer, as the material in question relates to a complex matter which developed over many years, occupied days of evidence and generated thousands of pages of submissions and complaints. [16]

The CJC also made the point that it was:

unfair to the Commission and its officers, and a waste of your Committee's time, for the same allegations to be endlessly re-cycled, dressed up with slight variations so that Mr Lindeberg can claim that “fresh examination” is warranted. [17]

(b) Response to specific allegations

16. In the response, the CJC addressed three specific allegations which may be distilled from Mr  Lindeberg's letter to the President of the Senate of 18 August, [18] and which were also addressed in his submission to this committee. The Committee of Privileges has decided to quote in full that part of the CJC submission which is directed to the three allegations, subject to certain excisions indicated in the text. The full submission is published in the volume of submissions and documents.

Mr Lindeberg's Allegations

Mr Lindeberg summarises his three allegations on page 4 of his letter to the President dated 18 August 1997 as follows:

(1) The CJC told the Murphy Select Committee that it had investigated my complaints to the “nth degree”. The CJC has now made admissions which contradict that claim.

Mr Lindeberg has misrepresented the evidence given on this topic to the Senate Select Committee on Unresolved Whistleblower Cases. At page 2 of his letter, Mr Lindeberg states that the “nth degree” evidence was given by Mr R O'Regan QC, then Chairperson of the Commission, on 23 February 1995 at page 6 of the Hansard. In fact, it is clear from the Hansard that Mr O'Regan was not even speaking about Mr Lindeberg's case when he made a comment about the “nth degree”.

On the first sitting day of the Senate Committee on Unresolved Whistleblower Cases in Brisbane, Mr O'Regan made a general opening statement on behalf of the Commission ... Mr O'Regan did not refer to any specific cases and in fact stated ... that he had no first-hand knowledge of the matters specified in the Committee's terms of reference. He went on to say generally of the matters under consideration by the Committee:

I repeat that the Commission wishes to be constructive. We have nothing to hide. We support genuine whistleblowers. They deserve the support of the community and protection of the law. However, if it appears that this inquiry is being conducted not to assist in the development of whistleblower legislation but to reinvestigate cases already investigated to the nth degree, to score political points or to publicise ancient grievances against the Commission, I assure you our cooperation will certainly be withdrawn.

At page 2 of his letter, Mr Lindeberg ... categorises this general statement as an “unequivocal assurance” by Mr O'Regan “that [the Lindeberg] case had been investigated to the nth degree”. In fact, Mr Lindeberg's case was only one of many in respect of which the Commission was asked to provide evidence during the hearings conducted by the Committee, and it is impossible to tell from the passage quoted above which, if any, of those specific cases Mr O'Regan might have been referring to. In fact, the context of the comments indicates that Mr O'Regan was not referring to any specific case. He was making a general comment about the further investigation of previously investigated matters, indicating, with some prescience, that there had to be a sensible end to the process.

Mr O'Regan's comments clearly do not amount to false or misleading evidence about Mr Lindeberg's case, nor in fact do they even relate specifically to it. Even if Mr O'Regan had been talking specifically about Mr Lindeberg's case, his statement was clearly conditioned by the word “if”, meaning that he was speaking hypothetically and in the abstract. In addition, the question of whether or not a matter has been thoroughly investigated is a matter of opinion, and an expression of opinion on such an issue could only in the rarest circumstances constitute false or misleading evidence.

In the Commission's submission, your Committee would be satisfied that this allegation is: trivial, based upon a mischievous misinterpretation of the evidence given in this matter, and without foundation.

2. The CJC misled the Murphy Select Committee into believing that the PCJC held two independent inquiries into my allegations finding no official misconduct. The PCJC's own research shows that no such inquiries were ever conducted.

This allegation is based upon a paragraph in the introductory section to the CJC's submission to the Senate Committee on Unresolved Whistleblower Cases in February 1995. The paragraph in question dealt with Mr Lindeberg's complaints and with the complaints of two former police officers, Messrs Harris and Reynolds.

It is important to note that the paragraph complained of was part of the “executive summary” to the Commission's submission. In the 106-page detailed submissions which followed the Committee was provided with fuller details of the manner in which the PCJC had dealt with both the Lindeberg and the Harris and Reynolds matters. It is unfair to consider the paragraph referred to by Mr Lindeberg in isolation, without taking into account the full submissions made and the evidence subsequently given on this topic.

It is also important, in the Commission's submission, to note that the paragraph complained of was an attempt to summarise in general terms what had occurred in relation to two different matters, which had been dealt with by the PCJC in quite different ways.

The passage in question reads as follows:

In the discharge of its functions the PCJC has on two separate occasions inquired into, and found to be without foundation, allegations of the kind placed before the Senate Select Committee on Public Interest Whistleblowing by Mr Kevin Lindeberg and Mr Gordon Harris in evidence and by submission. These allegations are reflected in paragraphs (a) and (b) of the Terms of Reference of this Committee. In each case those inquiries were commenced because of complaints made, initially to the first PCJC chaired by Mr Peter Beattie MLA and subsequently to the second PCJC chaired by Mr Ken Davies. Each PCJC was differently constituted and on each occasion found that the allegations made could not be sustained. In the case of the Lindeberg complaints, the inquiries were conducted by the PCJC itself. In the case of the Harris allegations, the first PCJC had the benefit of independent investigation conducted by two senior and experienced NSW police officers, while the second PCJC had the assistance of a leading Queen's Counsel from the criminal bar.

Mr Lindeberg's complaint involves taking a pedantic and narrow view of the interpretation of the term “inquiries” and also misinterpreting the effect of this passage. His complaint seems to be basically that it was inaccurate to say that the PCJC had held “inquiries” in relation to his matter, as the PCJC had not conducted inquiries in the sense of having witnesses interviewed and issuing a public report with findings (as was done in the case of the Harris/Reynolds matter). But of course, it is clear from the fuller submissions which the Commission made and subsequent evidence given by officers of the Commission that it was never claimed that the term “inquiries” was used in that sense in dealing with Mr Lindeberg's matter.

The issue was clarified during evidence by Mr Le Grand and Mr Barnes of the Commission who were questioned by the Senate Committee on Unresolved Whistleblower Cases about the manner in which the PCJC considered Mr Lindeberg's complaints:

Mr Le Grand: As well as our monthly appearance before the PCJC, persons who are dissatisfied with the operations of the CJC often approach the PCJC. Over the period of PCJC, we have had several hundred queries from the PCJC for reports on various investigations we have undertaken. ....

Senator Chamarette: And did the PCJC take you up on this particular case [the Lindeberg case], to go through it again?

Mr Le Grand: Yes it did.

Mr Barnes: On two occasions, I recall.

(Hansard, 23 February 1995, p 121)

This evidence, when combined with the paragraph of the submission complained of, clearly conveyed to the Committee that on two separate occasions the PCJC had called for a report from the Commission to answer complaints from Mr Lindeberg. This is the usual manner in which complaints against the Commission are dealt with by the PCJC. The Commission reports to the PCJC, which then reports back to the complainant. The Commission is not given a copy of the PCJC's report to the complainant. If the PCJC has continuing concerns, it pursues the matter by further correspondence or by listing it for consideration at one of the joint CJC/PCJC meetings held (at that time) every month. This is the practice which has been adopted over many years, and officers of the Commission should be entitled to rely upon it.

In the Lindeberg case, the Commission had provided written reports in response to inquiries from its independent overviewing body, and was entitled to consider that no wrongdoing on its part was found as a result of the PCJC's inquiries, as no adverse findings had been conveyed to the CJC in the three years following Mr Lindeberg's first complaint in 1992.

The fact that this was the effect of the Commission's submission was confirmed by the detailed submissions which followed the paragraph complained of. For example, at pages 37-8 of its submission, ... the Commission set out its dealings with the PCJC in 1992 in relation to Mr Lindeberg's complaint. In this section, the Commission made it clear that the PCJC's inquiry in relation to Mr Lindeberg's complaint amounted to seeking a written report from the Commission on the subject. Mr Lindeberg's own “Submission in Reply” to the Senate Committee of Unresolved Whistleblower Cases of 3 July 1995 set out at pages 36-7 his version of the way in which the PCJC had dealt with his complaints. ... He complains that the PCJC on two occasions dealt with his complaints by doing no more than seeking a written report from the CJC. He confirms that two differently constituted PCJC's dealt with his complaints in this way, one chaired by Mr Peter Beattie MLA and one chaired by Mr Ken Davies MLA. He made it clear that he did not consider that calling for a report amounted to conducting an inquiry, and complained even at that early stage that the Commission's submission to the Senate Committee to that effect was “misleading and untruthful”.

It is clear that the Committee would have been left in no doubt as a result of these submissions about the form which the PCJC inquiries in relation to Mr Lindeberg's complaints took. It is also clear that the allegation of false evidence by officers of the Commission about the PCJC inquiries has already been considered by the Committee in 1995, who obviously did not consider that a valid concern had been raised, let alone that referral to the Privileges Committee was warranted.

The Commission's detailed submissions also set out the manner in which the PCJC dealt with the Harris/ Reynolds complaints. ... Again, this would have left the Committee in no doubt that a different type of inquiry (involving using investigators to interview witnesses and briefing private counsel to advise) was undertaken by the PCJC in respect of the Harris/Reynolds matters, whereas Mr Lindeberg's complaints were inquired into by way of calling for written reports from the Commission.

The statement that “In the case of the Lindeberg complaints, the inquiries were conducted by the PCJC itself” is meant to convey no more than the obvious fact that outside counsel and independent investigators were not used by the PCJC in that matter, but rather that the PCJC conducted its inquiries in the usual manner by calling for a report from the Commission.

In the Commission's view, there is nothing inaccurate in describing the process by which two separate PCJC's have required the Commission to provide written reports to them on Mr Lindeberg's allegations as “independent inquiries”. The PCJC is certainly an independent body overviewing the operations of the Commission, and the Concise Oxford dictionary gives the meaning of “inquire” as “to make search (into matter), to seek information”, and the meaning of “inquiry” as “asking; question; (official) investigation”.

The Commission's own Act clearly provides that to “investigate” a matter for the purposes of the Act includes to “examine and consider” a matter (see section 3, Criminal Justice Act 1989), and there is certainly no doubt in the present case that the PCJC examined and considered Mr Lindeberg's complaints on several occasions.

The Commission has not been privy to all of the correspondence between the PCJC and Mr Lindeberg, but the PCJC's correspondence with the Privileges Committee on this topic seems to confuse the issue further by accepting Mr Lindeberg's misinterpretation about what the paragraph complained of was attempting to say, rather than referring to the full submissions and evidence of the Commission to interpret what was said.

The Commission was clearly entitled to state that Mr Lindeberg's complaint had been inquired into or investigated twice by the PCJC. In view of the fact that in the three years since the complaint was first made to the PCJC no adverse finding had been conveyed to the CJC, it was also entitled to submit that the PCJC had not found the complaints to have any substance. The submissions and evidence of the Commission on this topic were neither false nor misleading.

3. The CJC misled the Murphy Select Committee concerning the proper role of the State Archivist pursuant to the provisions of the Libraries and Archives Act 1988 (Qld). The evidence put forward by the CJC in this regard has been absolutely rejected by the Australian Society of Archivists in its June 1997 public statement, and also earlier rejected in March 1996 by Mr Christopher Hurley, former Chief Victorian Archivist and Australian representative of the International Council on Archives.

This allegation is based upon differences of opinion about the legal interpretation of the statutory role of the State Archivist. Even if Mr Barnes were 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 or misleading evidence. This is especially so when Mr Barnes made it clear in his evidence before the Committee that the Commission's view was based on legal advice it had received from an independent barrister:

Mr Lindeberg has a view about the obligation of the archivist. The commission does not share that view. Its view is based on legal advice it obtained from the barrister it retained to do the job. (Hansard 23 February 1995, p137)

In the Commission's respectful submission, 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. [19]

17. The Committee of Privileges does not normally incorporate in its own reports submissions made by only one party to the matters referred. In this case, however, it considers that the CJC's summary of the allegations, and the answers provided to those allegations, represent its own analysis and conclusions in relation to the matters before it.

(c) Comment on remaining material

18. Before discussing the allegations, the CJC sought from the Committee of Privileges advice as to whether there were allegations in the remainder of the material forwarded to the CJC in respect of which the committee required a response. The CJC submission continued:

A brief review of the documents indicates that they largely amount to expressions of opinion in support of the allegations made by Mr Lindeberg, but contain no additional evidence. Many of the submissions are directed towards the substance of Mr Lindeberg's original complaints or contain submissions about reform of the archives legislation, rather than addressing issues relevant to the functions of the Committee of Privileges. [20]

The Committee of Privileges, having examined the material provided to it, agrees with this statement. It has therefore not attempted to formulate its own allegations, or to pursue any further “incidents”, as outlined in Mr Lindeberg's submission, involving the CJC under its present terms of reference.

(d) Proposed future action

19. The CJC submission concluded as follows:

The Commission is surely entitled to some finality in this matter. In the circumstances, I would respectfully seek, in fairness to the Commission and its officers, a finding from the Committee that, absent genuine and substantive fresh evidence, it does not intend to inquire again into any of the allegations contained in the documents tabled on this occasion about false and misleading evidence being given by officers of the Commission to the Senate Committee on Unresolved Whistleblower Cases. [21]

The Committee of Privileges would like to give effect to this plea. In this regard, it draws attention to and endorses the comments made by the chair of the committee, speaking as a private senator when the matter was referred on 5 December 1997, that “This to me has been a waste of time and resources of the Privileges Committee once again”. [22] Unfortunately, however, it cannot accede to the CJC's request, in that if a matter of privilege is referred to it by the Senate it must undertake the appropriate investigation.

Conclusion

20. The committee is satisfied that the CJC has addressed the primary allegations put forward both in the documents laid before the Senate on 25 August 1997 and in the subsequent submission by Mr Lindeberg, noting that the remaining documents it received were non-specific and declaratory only. It concludes that all other matters raised by Mr Lindeberg involve opinions and assumptions which are not established by the evidence he has provided.

21. The committee reiterates its view, expressed in the 63rd report, that the most appropriate avenues for examination of matter of the kind referred to it are state institutions. It considers that it is not the role of the Senate or its committees to adjudicate on these matters and suggests that any further attempts to refer such matters to it take into account comments made not merely by the Committee of Privileges and the CJC but also by the Senate Select Committee on Public Interest Whistleblowing which reported to the Senate in August 1994 [23]. Furthermore, it endorses the views expressed by the President of the Senate in her correspondence with the PCJC [24] that, if that committee is sufficiently concerned about the matters raised by Mr Lindeberg, it has a capacity to conduct its own inquiries without reference to evidence before the Senate select committee.

Finding

22. The Committee of Privileges has found that such allegations as were identified in the material before it, that misleading evidence was given to the Senate Select Committee on Unresolved Whistleblower Cases, have been satisfactorily answered by the Criminal Justice Commission. Accordingly, on the evidence the committee has again found that no contempt has been committed by the Commission.

Robert Ray
Chairman

Endnotes

[1] Journals of the Senate, 5 December 1997, p. 3238.

[2] The first report is the Senate Committee of Privileges 63rd report, dated December 1996, entitled Possible false or misleading evidence before Select Committee on Unresolved Whistleblower Cases, (Parliamentary Paper No. 360/1996).

[3] Matter at present before Committee of Privileges.

[4] Senate Committee of Privileges 63rd report, op. cit., p. 3, para. 9.

[5] Submissions and Documents, pp. 2-15.

[6] The Public Interest Revisted: Report of the Senate Select Committee on Unresolved Whistleblower Cases, October 1995, (Parliamentary Paper No. 344/1995).

[7] Journals of the Senate, 25 June 1996, p. 385.

[8] Senate Committee of Privileges 63rd report, op. cit., p. 7, para. 27.

[9] See paragraph 4.

[10] Submissions and Documents, pp. 25-26.

[11] See especially letter from the President to the Chair of the PCJC, dated 15 April 1997, Submissions and Documents, p. 22.

[12] Submissions and Documents, pp. 43-103.

[13] ibid., p. 46.

[14] ibid., p. 46.

[15] ibid., p. 188.

[16] ibid., p. 188.

[17] ibid., p. 189.

[18] ibid., p. 31.

[19] See also Submissions and Documents, pp. 189-193.

[20] Submissions and Documents, p. 189.

[21] ibid., p. 194.

[22] ibid., p. 39.

[23] In the Public Interest: Report of the Senate Select Committee on Public Interest Whistleblowing, August 1994, (Parliamentary Paper No. 148/1994), p. 5.

[24] See footnote No. 11.