Morris Howard Extract
It is in the public interest of the State of Queensland that a public inquiry be conducted to investigate and report on the matters of concern which we have identified arising out of the allegations made by Mr. Kevin Lindeberg
25. In our view, the public of Queensland has a right to know why it has taken six years to bring to light some of the more startling evidence contained in this Report. Perhaps the most obvious example, although it is only one of many, is the evidence showing that on 23 May1990, photocopies of statements, originally obtained by the Department of Family Services from the QSSU, were destroyed by Mr. Smith of Ms. Matchett's office - the day after Mr. Coyne, his solicitors, and his union (the POA) had each been solemnly assured by Ms. Matchett that the Department "does not have in its possession or control any documents in the nature of complaints leading to the investigation", and that "there is none of the above mentioned class of documents on any file or record of my Department which relates to Mr. Coyne". So far as we have been able to ascertain:
25.1 The Criminal Justice Commission either did not discover, or overlooked, the fact that photocopies of statements had been destroyed on 23 May 1990;
25.2 That fact was not revealed at any of the proceedings of either Senate Select Committee; and
25.3 Despite intensive efforts by Mr. Lindeberg to obtain access to relevant documents under the Freedom of Information Act, the particular document disclosing the destruction of those statements on 23 May 1990 has never been made available to Mr. Lindeberg, or to anyone else outside the Department of Family Services.
Whilst we are of the view that the events which occurred between January 1990 and February 1991 involved very grave and serious matters, we are even more concerned that those matters have remained successfully covered up for so many years. In what is commonly referred to as the "post-Fitzgerald era", there are many people in our community who feel a measure of confidence that serious misconduct by senior public officials cannot go undetected. Even the Criminal Justice Commission's strongest supporters, like Mr. Clair and Mr. Beattie, must now have cause to reconsider their confidence in the exhaustiveness - to say nothing as to the independence - of the Commission's investigation into this matter.
If a public inquiry achieves nothing else, we would hope and expect that a public inquiry would recommend steps and procedures to ensure that allegations of the seriousness of those made by Mr. Lindeberg are, in the future, adequately scrutinised and dealt with.
Long Term Benefits
28. The final criterion which our Terms of Reference require us to take into account 'The likelihood that any such inquiry will result in long-term benefits for the State of Queensland, either by:
"(i) Proposing mechanism for the prompt and satisfactory resolution of similar allegations in future cases; or
'(ii) Identifying and proposing solutions for structural problems within the administration of justice in Queensland, which have allowed allegation to remain unresolved."
29. It would be inappropriate for us to pre-empt any proposals or recommendations which may be made by a person conducting a public inquiry, if one is established. However, it seems to us that, in any such public inquiry, there are a number of issues which may require to be addressed.
30. One such issue is the adequacy of the Criminal Justice Commission's investigation of Mr Lindeberg's allegations. As that question is not within our Terms of Reference, we do not propose to comment beyond observing that, in light of the evidence secured in the course of our investigation, there must be serious doubts as to the adequacy or competence the Criminal Justice Commission's investigations into the same issues.
31. The fact that relevant evidence escaped the attention of two separate Senate Select Committee inquiries is also a matter of some concern. Whilst the Criminal Justice Commission - in our respectful view - very properly participated fully in the inquiries conducted by the Senate Select Committees, the fact is that the then Queensland Government declined to do so. One can understand, and accept, that there are very compelling reasons why the government of a State should decline to participate in an inquiry conducted by a House of the Federal Parliament. But, considerations of "State rights" aside, if a matter is regarded by a House of the Federal Parliament as being of sufficient public importance to justify applying its own time and resources towards an investigation of that matter, one might be forgiven for thinking that a State government - and particularly a State government which has nothing to hide - would welcome the assistance of a Federal Parliamentary authority to resolve matters of public concern. It may be that a public inquiry will recommend that, in future, a somewhat different attitude should be taken by the Queensland Government where a House of the Federal Parliament invites the assistance of the Queensland Government in seeking to resolve matters of public interest and concern.
32. Again, whilst it is not a matter coming within our Terms of Reference, we are also somewhat alarmed to discover that - notwithstanding substantial efforts by Mr. Lindeberg to obtain access to relevant documents under the Freedom of In formation Act - some of the more significant documents appear to have remained concealed in the files of the Department of Family Services. Again, the most obvious example is Mr. Smith's notation dated 23 May 1990, relating to the destruction of photocopies of statements originally obtained from the Queensland State Service Union. That notation is made on a letter from Mr. O'Shea to Ms. Matchett dated 18 April 1990, which in turn bears a stamp reading "FOR LEGAL INSTRUCTION". Presumably, the letter itself was withheld under the Freedom of Information Act, because it contained legal advice from the Crown Solicitor to the Acting Director-General of the Department of Family Services. But, whilst there may have been justification for withholding the letter itself, it does not appear to us that there could have been any possible justification for withholding the hand-written notation made by Mr. Smith on 23 May 1990. We should make it clear that we do not criticise officers of the Department of Family Services involved in dealing with applications under the Freedom of Information Act, as we are very conscious of the administrative difficulties under which they operate. Nonetheless, the fact that this particular notation has remained concealed within the tiles of the Department of Family Services causes concern that the Freedom of In formation Act is not operating as effectively as it was intended to; and, as a result of any public inquiry, it may be thought appropriate to address the question whether the Freedom of Information Act requires amendment in order to ensure that such concealment (whether deliberate or accidental) cannot occur in future cases.
One final matter which may be thought deserving of consideration by any public inquiry is the question whether the provisions of the Libraries and Archives Act, and the procedures adopted by the State Archivist in applying the provisions of that Act, are adequate to prevent the inappropriate destruction of public records. Again, it would be inappropriate for us to pre-empt any views which maybe formed by a person conducting a public inquiry into these matters. However, one possibility which occurs to us is the introduction of a statutory requirement that, prior to destroying any public records, the person seeking to destroy them must sign a certificate to the effect that:
33.1 All information provided to the State Archivist in support of an application for authorisation to destroy the relevant records is true and correct;
33.2 The certifying officer's not aware of any facts or circumstances, relevant to the exercise of the State Archivist's statutory powers, which have not been disclosed to the State Archivist;
33.3 The certifying officer has no reason to suppose that the records in question are or may be required for evidence in any pending or future proceedings of any judicial tribunal; and
33.4 The certifying officer is not aware of any outstanding application to inspect the records, by any person who has a lawful right to do so (for example, under the Freedom of In formation Act, or under RegOS - now fleg.103 - of the Public Service Management and Employment Regulations).
For the reasons stated, we are of the view that there are very compelling considerations in favour of the establishment of a public inquiry in relation to the matters which we have identified as being matters of concern arising out of Mr. Lindeberg's allegations.
The only counterveiling consideration, against establishing a public inquiry, is the cost of that exercise. In considering this question, we imagine that the Government will have regard to the significant public expenditure which previous governments - and other bodies such as the Criminal Justice Commission - have committed to inquiries in relation to matters of comparable seriousness. For example (and we mention these instances only as examples):
35.1 The recent Carruthers Inquiry, established by the Criminal Justice Commission involved allegations of possible criminal offences very much less serious than those raised by Mr. Lindeberg's allegations. As we understand the situation, at the conclusion of the Carruthers Inquiry, a submission was made by counsel assisting that the evidence may disclose offences under s 155 of the Electoral Act 1992, involving a maximum penalty of 85 penalty units or two years' imprisonment. By contrast, the offences which may arise in respect of Mr. Lindeberg's allegations include offences attracting maximum penalties of seven years' imprisonment (Criminal Code, s.132) and three years' imprisonment (Criminal Code, s.129). The analogy is, we th ink, a relevant one, given that both the Carruthers Inquiry and Mr. Lindeberg's allegations raise the possibility of the commission of criminal offences by persons who were at the relevant time or subsequently became, Ministers of the Crown.
35.2 Matters canvassed at the Fitzgerald Inquiry, which subsequently gave rise to the prosecution and conviction of Mr. Austin, Mrs. Harvey and Mr. Lane, involved allegations of the misuse of public funds in amounts comparable with, and in some instances less than, the sum of $27,190.00 paid to Mr. Coyne. Again the analogy is a relevant one, since those payments were made by Ministers of the Crown.
35.3 The so-called "Travel Rorts Inquiry" by the Criminal Justice Commission, relating to the expenditure of Parliamentary travelling allowances, involved - in most instances - very much smaller amounts than the sum of $27,190.00 paid to Mr. Coyne.
36. In our view, it is appropriate for the Government to have regard to matters which previous governments, and bodies like the Criminal Justice Commission, have regarded as being sufficiently serious to justify the establishment of public inquiries. In a comparative sense, we are of the view that the seriousness of the matters of concern which we have identified, based on Mr. Lindebergs allegations, is comparable with the seriousness of matters which previous governments, and which bodies like the Criminal Commission, have regarded as sufficiently serious to justify the establishment of public inquiries.
37. Accordingly, we are of the opinion that:
37.1 It is in the public interest of the State of Queensland that a public inquiry be conducted to investigate and report on the matters of concern which we have identified arising out of the allegations made by Mr. Kevin Lindeberg; and
37.2 Such a public inquiry should be established.