CRIMINAL JUSTICE COMMISSION
- The Criminal Justice Commission (CJC) operates as an independent statutory law enforcement authority. It acts as standing commission of inquiry under the Criminal Justice Act 1989. It holds a position of great public trust. It has authority, under certain circumstances, to use coercive powers to adduce incriminating evidence from persons not ascribed to normal policing/investigative processes. It is accountable to Parliament (and the people) through the all-party Parliamentary Criminal Justice Committee (PCJC), and required to regularly report to that Committee and be subject to questioning. In order to prevent any abuse of its power, Parliament required pursuant to section 22 of the Criminal Justice Act 1989 that:
"The commission must at all times act independently, impartially, fairly and in the public interest."
- The CJC's handling of my complaints which alleged suspected official misconduct reaching as high as Her Majesty's Executive Government, a Minister of the Crown, senior public officials and others has not been in accord with its lawful duty as required under section 22 of the Criminal Justice Act 1989 and may give rise to a reasonable suspicion of official misconduct within the CJC itself. The prime reason for this Petition and its respectful requests of Honourable Members of the Queensland Parliament finds its origins in that breach of trust and its paralyzing effect on other arms in our system of government. The statutory obligation to act independently and impartially cast on other accountability agencies appears not to have been honoured faithfully thereby allowing the CJC's flawed findings in this matter to go unchallenged over the years to the advantage of certain public officials involved. The administration of justice has not been served because of their failure in not acting independently and impartially according to law in this matter;
- That my CJC complaint (lodged on 14 December 1990) in respect to the "Coyne case" - ie the Shredding - encompassed possible misconduct, either collectively or singularly, by (a) senior DFSAIA public officials; (b) a Minister of the Crown; (c) the Executive Government of Queensland; and (d) others (ie QPOA union officials), when destroying the Heiner Report (ie (e) parts of the Heiner Inquiry transcript - documents - pertaining to Mr Peter Coyne; and (f) the original complaints). It was unknown by me until the tabling of the Morris/Howard Report on 10 October 1996 in Parliament that my CJC complaint actually involved three (3) unlawful disposals, not just the one ordered by the Queensland Cabinet on 5 March 1990;
- That my misconduct complaint was more serious than I understood it to be when first lodged with the CJC, was (or should have been) always plainly obvious "on the papers" held by the DFSAIA to any investigating public official whose duty permitted or gave access to relevant "Heiner Inquiry" public records, and who was obliged to act "…independently, impartially, fairly and in the public interest" (eg CJC officials and police). That is in the nature of whistleblowing when a suspicion of wrongdoing exists. The full extent of the misconduct was (or should have been) always plainly obvious to any public official who was made aware of them (the relevant DFSAIA "Heiner Inquiry" public records) through my use of normal administrative processes (eg the FOI Commissioner), and who was obliged to act in accordance with section 37(2) of the Criminal Justice Act 1989 to report all suspected official misconduct once becoming aware of it;
- That on 31 May 1991 the CJC dismissed my complaint. Its investigation consisted of writing just one letter to the Cabinet Secretary on 12 April 1991 seeking information on the shredding. It accepted, without question, his response of 29 April 1991 which indicated that the shredding had occurred following Cabinet receiving approval from the State Archivist to shred. [NB. A copy of the letter to the CJC was sent to DFSAIA Director-General Ruth Matchett by the Cabinet Secretary which (intentionally or otherwise) had the effect of forewarning her to the existence of a complaint over the shredding];
- That on 27 June 1991 I challenged the accuracy and thoroughness of the CJC's investigation. A series of nine (9) relevant questions was put concerning (a) accounting for Mr Coyne's legal action continuum; (b) the role of the State Archivist and what she was told; (c) Public Service Management and Employment Regulation 65's interpretation; and (d) the additional payment of $27,190.00 and its purpose. I said the matter could not be closed until those questions were satisfactorily answered;
- That on 23 August 1991 the CJC informed me that Cabinet had informed the State Archivist that the documents "…weren't required" and following her approval, they were shredded. In response I asked the CJC on 29 August 1991 another series of relevant questions declaring that until they had been properly addressed the matter could not be considered closed. The CJC did not respond for months. Over six (6) years later when I accessed my personal CJC file at the Connolly/Ryan Inquiry in early July 1997, I discovered that CJC/lawyer investigating officer Mr Richard Pointing (obliged by law to comply with the provisions of section 22 of the Criminal Justice Act 1989)
"…This man is irrational and nothing which this Commission can do or say will satisfy him. I recommend that no reply to this letter be sent as it will only encourage further unnecessary correspondence with him."
- That on 26 March 1992 being dissatisfied with the CJC's thoroughness in handling my complaints, I lodged a complaint with then PCJC Chairman Mr Peter Beattie MLA expressing no confidence in the CJC and its "..pseudo investigation." The PCJC requested a report from the CJC. On 14 April 1992 then CJC Chairman Sir Max Bingham QC provided a report compiled by Mr Pointing. The Report contained (a) misrepresentation of the facts; (b) mis-stating of the chronology; and (c) omission of facts. On 13 and 26 May 1992, the PCJC was supplied with comprehensive submissions from me addressing the untruths in the CJC's Report. Instead of all PCJC members being permitted to examine my concerns, Mr Beattie sent my material back to the CJC for a response;
- That around the beginning of August 1992 the CJC, purportedly "…purely by chance," contracted then barrister at the private Bar Mr Noel Francis Nunan to review my complaint. It was unknown to me at the time - but known by others in the legal fraternity - that he was (a) a (former) known activist in the Australian Labor Party (ALP); (b) former member of Labor Lawyers; and (c) former committee associate, both as lawyers, of then Queensland Premier the Hon Wayne K Goss MLA at the Caxton Street Legal Service some years earlier. Despite a prima facie conflict of interest in respect of a perception of bias and the necessity of Justice not only "…being done but being seen to be done " in a matter that had the potential to produce a major constitutional crisis in Queensland's Government if substance were to be found in my complaint, neither did the CJC withdraw his commission nor did Mr Nunan, as a barrister at the private Bar, declare to me (or Mr Coyne) his former close association with the same political party under his examination which formed the then Queensland (ALP) Government after being out of office for 32 years;
- That on 12 August 1992 an interview at CJC Headquarters occurred between Mr Nunan and myself. It was not witnessed by anyone else but tape-recorded except for some 20 minutes of conversation which occurred after the tape ran out. Mr Coyne had been interviewed the previous day (11 August 1992) by Mr Nunan who, according to Mr Coyne, said immediately upon their meeting in the CJC foyer:
"…There will be absolutely no solace in this matter for you or Mr Lindeberg. This is a complaint against the Cabinet." (See Senate Select Committee on Unresolved Whistleblower Cases Hansard p548 5 May 1995)
- That during our interview Mr Nunan made the following statement, in respect of his having read a submission by Mr Desmond O'Neill in the CJC's possession which covered the shredding and related matters involving political cronyism and prima facie misappropriation of monies from the Queensland Professional Officers' Association Superannuation Fund [QPOASF]: "…He (ie Mr O'Neill) paints a grand conspiracy. If I had to choose between a cock-up and a conspiracy, I'd choose a cock-up every time." After the tape recorder stopped, when presented with certain facts concerning Mr Coyne's (and the unions') legal action regarding seeking access to the documents in question in court, Mr Nunan said:
"…What do you want me to do, charge the entire Cabinet with criminal conspiracy for perverting the course of justice?"
- That on or about 28 August 1992, having requested a copy of the interview tape of Mr Nunan and obtaining his consent on 12 August 1992 but not taking it before leaving the CJC - and after overcoming subsequent objection from Mr Michael Barnes, CJC's Chief Complaints Officer, Official Misconduct Division, to supply it - I collected it (File No 502/03/01/016) from the CJC. I discovered that someone had tampered with it. The following words spoken by Mr Nunan had been erased:
"…He (ie Mr O'Neill) paints a grand conspiracy. If I had to choose between a cock-up and a conspiracy, I'd choose a cock-up every time."
At that point my trust in the CJC's obligation to act honestly and impartially pursuant to section 22 of the Criminal Justice Act 1989 was thrown into doubt; (See Point 194);
- That on 16 November 1992 the Electoral and Administrative Review Commission (EARC) then Chairman Mr David Solomon was informed in my submission on "Archives Legislation" of certain matters arising from my CJC interview on the Heiner shredding. He was told that if it (the shredding) were found to be "improper rather than illegal" then it would have grave implications on the Queensland public service and community generally. It was suggested that an unacceptable precedent may be established rendering EARC’s work and position meaningless;
- That on 20 January 1993 the CJC found no official misconduct in (a) the shredding; or (b) the additional payment of $27,190.00. In making its findings, the CJC: (i) fabricated evidence concerning Mr Coyne's retrenchment allegedly (but totally inaccurately) being based on stress related ill health; (ii) misquoted and misinterpreted Public Service Management and Employment Regulation 65; (iii) mis-stated section 129 of the Criminal Code (Qld); (iv) misrepresented the role of the State Archivist; (v) failed to apply the law comprehensively; (vi) failed to interview other key witnesses; and (vii) failed to obtain records held by the department;
- That on 26 January 1993 Mr Barnes was asked by me following receipt of the CJC findings: (a) who was the officer who carried out and wrote up the CJC’s investigation of 20 January 1993; (b) who briefed him; (c) who selected him; and (d) who was the CJC officer responsible for the first CJC report of 14 April 1992. On 29 January 1993 Mr Barnes refused to release any information on the request, save in exceptional circumstances. He wanted to know why I wanted the information so that he could consider the matter further. I refused to tell him why, and pursued different channels to get to the truth;
- That on 7 April 1993 I informed the PCJC that I rejected totally the CJC's 20 January 1993 findings but was unable to respond until certain administrative processes, over which I had no control (ie freedom of information), had been completed. The public record shows that my freedom of information processes did not conclude until 30 May 1997. During that prolonged FOI process I experienced suspected unlawful conduct and dissembling despite my determined effort to access relevant public records disclosing illegal conduct "on the papers" affecting the administration of Queensland; (See Morris/Howard Report pp216-217);
- That on 11 September 1993 Mr Nunan, when a barrister at the private Bar, made an unsolicited phone call to my home. He instantly called me "a pathetic bastard" three times. He then went on to threaten me with defamation action if I continued to claim that he did not act impartially. He described the shredding as "a political decision." The intimidating call was reported to the CJC the following day, in the form of a statutory declaration, but the CJC rejected my concerns on 24 September 1993 saying that (i) Mr Nunan "is not and has never been" a CJC officer; and (ii) it was a private phone call;
- That in 1994 and 1995 the CJC defended its investigation into my complaints before the Senate Select Committee on Public Interest Whistleblowing and the Senate Select Committee on Unresolved Whistleblower Cases respectively when the Senate was working on the formulation of Commonwealth whistleblower protective legislation. The CJC claimed that its investigation had been done to the "…nth degree";
- That in 1995, before the Senate Select Committee on Unresolved Whistleblower Cases when commenting on my concern (and that of others) about Mr Nunan's appointment, the CJC said in its February 1995 submission (pp38-39):
"…This appointment has been criticised by Lindeberg and others on the basis of Nunan's alleged political allegiance. Such an allegation smacks of McCarthyism. In a democratic, pluralist society, the Commission finds such criticism abhorrent. The Commission is unconcerned with a person's political preferences; it is only concerned with his or her integrity and professional competence";[Note Point 106];
- That in June 1996 Mr Coyne and I lodged a grievance with the Senate alleging that the CJC had misled the Senate Select Committee into Unresolved Whistleblower Cases when it assured the Committee that all the relevant documents pertaining to Mr Coyne's solicitors letters of 8 and 15 February 1990 had been provided. In mid-May 1996, FOI Commissioner Albietz (with agreement by the Departments (a) DFSAIA; and (b) Justice and Attorney-General) released records to me held on files pertaining to the Heiner Inquiry and Mr Coyne's legal claims which had been withheld for years. The sudden release occurred within days of the Queensland Government appointing Messrs Morris QC and Howard to examine my complaints "on the papers" held by various departments. The documents contained incriminating evidence "on the papers." Given that CJC had assured the Senate that it had investigated my complaints to the "nth degree", it was reasonably held that the CJC must have seen these relevant documents but withheld them in evidence to the Senate, thereby misleading it;
- That on 17 August 1996 the CJC assured the Senate Committee of Privileges that a state of ignorance existed concerning its knowledge about the existence of documents provided by me (and Mr Coyne) to the Senate Committee of Privileges as examples of misleading the Senate Select Committee on Unresolved Whistleblower Cases. The CJC claimed:
"…The letters to which he (ie Lindeberg) refers have never been seen by the Commission, have never been in the possession of the Commission, are not now in the possession of the Commission and the Commission has been unaware of their existence until their existence was revealed by the contents of your letter under reply…"
- That on the basis of that assurance, and in the absence of any contrary evidence, the Senate Committee of Privilege in its 63rd Report found the CJC not in contempt of the Senate;
- That in July 1997 in evidence before the Connolly/Ryan Judicial Review into the Effectiveness of the CJC, in response to a submission by counsel Roland D Peterson, on behalf of Mr Coyne and myself [Exhibit 394], the CJC made the following admissions at page 16 in its submission:
"In paragraph 5.6, the submission expresses concern that relevant documents held by the Department of Family Services were not accessed by the Commission in early 1991. The Commission accepts that, in hindsight, it could have investigated the matter more extensively and could have gained access to documents which may have led it to come to a different conclusion about certain aspects of this whole affair. In view of the huge number of hours expended by Commission staff and other public officials in dealing with this matter since, it would clearly have been preferable for this course to have been adopted"; (Underlining added)
- That on 12 March 1999, Mr Barnes admitted, in a signed statement to FOI Commissioner Albietz, that before giving evidence to the Senate Select Committee on Unresolved Whistleblower Cases in 1995 (that is, around late December 1994 or early January 1995) he visited DFSAIA and examined the "Heiner Documents" files. He found no misconduct. His visit had never been disclosed before. It is understood that the Heiner files were kept under lock and key in DFSAIA Director-General's Office, overseen by Mr Donald A C Smith. They were the same files examined by Messrs Morris QC and Howard 18 months later in mid-1996. They found "open to conclude" criminal conduct against those two senior public officials;
- That at page 19 in the Morris/Howard Report, when viewing the files held by DFSAIA, the barristers said:
"…At a particular stage in the course of our investigation, it became apparent to us that there appeared to be considerable substance in Mr Lindeberg’s allegations, particularly as regards the destruction of the Heiner documents. When we examined this aspect of the matter more closely, we formed the view that – for the reasons now set out in Part II of this Report – substantial grounds exist for suspecting that serious criminal offences were committed in connection with the destruction of the Heiner documents…."
- That it therefore remains open as to what Mr Barnes actually saw and what he was looking for because he has subsequently told The Courier-Mail (18 August 1999 p12 Journalist Mr Bruce Grundy) that he did not see incriminating evidence, but did see matters of suspected child abuse on which the CJC did not act because the incidents were more than two (2) years old when discovered. Mr Barnes has now publicly admitted examining the DFSAIA/Heiner Inquiry files which the CJC assured the Senate Committee of Privileges in 1996 and the Connolly/Ryan Judicial Inquiry in 1997 that it had never seen or examined, therefore:
(A) What did Mr Barnes see, and what was he looking for?
(B) How many visits actually occurred, when and who did he tell, and were they authorised by the Commission?
(C) Why didn't he discover the illegal disposal of the original complaints and their photocopies on 22 and 23 May 1990 respectively?
(D) Why didn't he see the deceit engaged in by (i) DFSAIA Director-General Ms Ruth Matchett; (ii) Mr Donald Smith; and (iii) the Office of Crown Law?
(E) Why didn't he react to a senior public official deliberately misleading a solicitor in a matter of legal rights;
(F) Were the files culled before he was shown them if he saw nothing illegal when 18 months later Messrs Morris QC and Howard found "open to conclude" criminality almost immediately when examining the same files?
(G) Why didn't the Commission, as a law enforcement agency, on the unresolved evidence of suspected child abuse found on the files act in early 1995 instead of it having to wait until 1999 for the Forde Inquiry to examine it fully?
(H) Why did the CJC claim publicly on 25 May 1998 in the media release that it knew nothing about the child abuse during its investigation into the shredding when it did know as early as late 1994/early 1995 through Mr Barnes' visits?
(I) Why did it take over five years to publicly disclose his visit/s, and why doesn't the CJC/Lindeberg file [provided to the Connolly/Ryan Inquiry in July 1997] record any such visit/s?
(J) Did the CJC deliberately mislead (a) the Senate Committee of Privileges in August 1996; and (b) the Connolly/Ryan Inquiry in July 1997, or was Mr Barnes failing to inform his accountable officers in the CJC about his real state of knowledge and visits?