Is the Public Service Politicised?
QUEENSLAND CROWN SOLICITORThe Crown Solicitor is a public servant bound by provisions of the Criminal Justice Act 1989 and Queensland Criminal Code. He is also an officer of the court sworn to uphold the law, and cannot assist in the commission of an offence or the cover up of an offence.
Hard evidence shows that the Crown Solicitor provided the Goss Government with advice on several occasions regarding the Heiner Inquiry itself and the status of the material gathered and placed into the possession of the Government.
In his client/solicitor relationship when offering advice to the Goss Government, the Crown Solicitor was faced with swiftly changing legal circumstances which unquestionably made some or part of his advice both inevitably redundant or more relevant.
The desire, legitimate or otherwise, to dispose of the Heiner documents changed profoundly from being an apparently legally innoxious act to one which had the legal constraints of due process imposed on it once Mr Coyne's solicitor officially informed the Government on 19 February 1990 of his client's course of justice involving court proceedings and the exercise of his statutory right to the documents.
How the Goss Government and the Crown Solicitor individually and/or collectively recognised and reacted to that profound change in events and consequent change of status to the Heiner documents is a core issue in this affair. It touches the Rule of Law.
In the face of the evidence, and indisputable foreknowledge of Mr Coyne's course of justice publicly acknowledged Minister Warner and her senior Departmental officers, did the Crown Solicitor advise that public records required in known foreshadowed litigation be destroyed in order to reduce the risk of legal action, or did he advise otherwise?
This key question cannot remain unanswered. Under these circumstances, it is suggested that silence on this key point from the Crown Solicitor, notwithstanding his solicitor/client relationship, is contrary to overriding statutory obligations as a public servant under the Criminal Justice Act 1989 and Queensland Criminal Code, and as an officer of the court.
9.1 On 23 January 1990 the Crown Solicitor gave advice to the Department but Mr Coyne had no demand on the Heiner documents at the time.
9.2 On 16 February 1990 the Crown Solicitor gave advice to the Goss Government. (Note Exhibit 6) It did not recommend the destruction of the material, and nor did it address Mr Coyne's notice of foreshadowed court proceedings. The Goss Government refused to table this advice in Parliament in early September 1994 claiming "legal professional privilege" but later revealed it to political journalist Mr Tony Koch of "The Courier- Mail" who claimed, in an article, that it supported the Government's action. (See Exhibit 88 & Section 12 : Office of The Information Commissioner)
9.3 On 19 February 1990 Minister Warner and Ms Matchett received Mr Coyne's notice of foreshadowed litigation.
9.4 In letter dated 29 September 1994 from the Department of Justice and Attorney-General addressing Mr Lindeberg's FOI application of 8 August 1994 the following extract is taken:-7. Copy of briefing document/s from DFSAIA to Crown Law pertaining to:-(See Exhibit 57)(i) official notification received by the DFSAIA dated 15 solicitors (Rose Berry Jensen) informing the acting Director-General Ms Ruth Matchett of Mr Coyne's "intention to commence court proceedings" (to gain access to the material).Exempt s43(1) legal professional privilege. The document correspondence to the Crown Solicitor from DFSAIA created for the sole purpose of seeking confidential legal advice, and which would be exempt from the production in legal proceedings.
9.5 In letter dated 29 September 1994 from the Department of Justice and Attorney-General addressing Mr Lindeberg's FOI application of 8 August 1994 the following exact has been taken:-20. Copy of any Crown Law advice to DFSAIA between 23 February 1990 and 30 May 1990 pertaining to the Heiner Inquiry material and any person (eg Mr Coyne) or body (ie Queensland registered trade union seeking statutory access to the material.(See Exhibit 57)
Exempt s43(1) legal professional privilege. The document is legal advice provided by the Crown Solicitor to DFSAIA created for the sole purpose of giving confidential legal advice, and which would be exempt from the production in legal proceedings.
9.6 Mr Lindeberg on 2 October 1994 under the Freedom of Information Act 1992 appealed for an internal review of the Department's initial decision seeking to extend the date in section 20 back to 19 February 1990 (See Point 9.5) and wanting to know "the dates" on the correspondence referred to in the Department's letter of 29 September 1994.
9.7 On 17 October 1994 Internal Review officer (Dr) K S Levy, Deputy Director-General of the Department of Justice and Attorney-General upheld the original decision that not one public record of all the material requested could be released, and made the following statement:-"Having sought independent counsel's advice in respect to the application of law to the documents which are subject to your request, I affirm the decision of Ms Barratt of 29 September 1994. I consider that all of the information contained in the documents, including the dates, is exempt under section 43(1) of the Freedom of Information Act."9.8 The Goss Government led Parliament to believe that the last Crown Solicitor's advice it received was 16 February 1990 when Points 9.4 and 9.5 refutably indicate that there was later advice addressing Mr Coyne's foreshadowed litigation in response to the Department's briefing document to the Crown Solicitor pertaining to the solicitor's letter dated 15 February 1990 received by the government on 19 February 1990.
QUEENSLAND POLICE SERVICEUnder the Police Service Administration Act 1990 and oath of office all police officers are duty bound to investigate allegations of crime "without fear or affection, malice or ill-will."
The Queensland Police Service is another so-called proper authority to which whistleblowers may take allegations of official misconduct or corruption.
This case brings into question the execution of those sworn duties.
11.1 In late August 1993 Senator John Watson, Chairman of the Senate Select Committee on Superannuation (SSCS) tabled in the Australian Senate its 8th Report "Inquiry into the Queensland Professional Officers Association Superannuation Fund."
11.2 The SSCS's unanimous recommendations were:-Recommendation 1: "The Committee recommends the early implementation of legislation to increase the prudential control and supervision of superannuation funds."11.3 On Page 59 Point 9.12 the SSCS 8th Report states:-
Recommendation 2: "The Committee recommends that the Queensland Attorney-General and Minister for Justice investigate the circumstances surrounding the loss of the four Benefit Request Forms. Further, the Committee recommends that the Queensland Government review its archiving policy to ensure that all evidence tendered to quasi-judicial bodies is retained.""The Committee finds it strange that given all the documents produced and examined in the course of this inquiry, it is the crucial Benefit Request Forms which are missing. In oral evidence, NML (National Mutual Life) agreed this was odd (See 4.34 of Report). The possibility of the intentional removal of the documents, by a person (or persons) unknown, cannot be ignored. Particularly is the Committee concerned because it is possible that these documents may have contained evidence of conduct intended to mislead the fund administrator."11.4 The four QPOASF members who accessed their superannuation monies were: Messrs Donald Martindale, Gordon Rutherford, Kerry Daly and Ms Roslyn Kinder. (See Exhibit 58) 11.5 On Page 20 Point 3.39 & 3.40 the SSCS 8th Report states:-"However, the NML witness contended that NML's recollection was that each of the four beneficiaries gave "leaving the service" as the reason for withdrawing from the fund and that Roslyn Kinder was the authorised officer who signed the Benefit Request Forms.""The Committee observes that, if these recollections are true, then, having regard to the fact that none of the four beneficiaries were leaving service, clearly the transfers were contrary to the trust deed provisions. The Tower Perrin Review supports this conclusion."11.6 In late August/early September 1993, the Attorney- General Mr Dean Wells sought advice from the Crown Solicitor regarding the SSCS's Recommendation 2, and was advised that the appropriate body to handle the matter was the Queensland Police Service.
11.7 On or before 8 September 1993 the Director- General of the Department of Justice and Attorney- General wrote to the Queensland Police Commissioner Jim O'Sullivan regarding SSCS recommendation 2. Police File (MS93/25262) commenced on 8 September 1993.
11.8 On 15 October 1993 in State Parliament the Queensland Attorney- General and Minister for Justices Dean Wells in response to a question on SSCS Recommendation 2 from the Deputy Leader of the Opposition Mr Kev Lingard MLA informed Parliament that it had been referred to the police for any investigation.
11.9 On 12 November 1993 Mr Kev Lingard MLA issued a media release "Goss Turns Blind Eye To Corruption" regarding SSCS's Recommendation 2 and the Heiner document shredding. The media release was not taken up by mainstream media.
11.10 Mr Kev Lingard MLA wrote to Queensland Police Commissioner Jim O'Sullivan on 13 December 1993 recommending that Messrs Kevin Lindeberg and Des O'Neill, witnesses to the SSCS Inquiry, be contacted to assist the police in their investigation into the circumstances surrounding the four missing documents.
11.11 Messrs Lindeberg and O'Neill suffered prima facie reprisals at the hands of the Board of the Queensland Professional Credit Union Limited following their evidence to the SSCS, and lodged grievances with the SSCS. On 17 December 1993, following a unanimous recommendation in the SSCS 11th Report (December 1993), with the concurrence of the Senate, then President Kerry Sibraa referred the matter of possible contempt to the Senate Committee of Privileges.
QPOA Superannuation/Heiner Shredding and Queensland Police Service Meet:
11.12 On 7 April 1994 Mr Lindeberg was interviewed by Oxley CIB Detectives Les Melville and Cameron Sharp regarding the missing documents. Mr Lindeberg placed additional evidence of the illegal shredding of the Heiner documents with the police during the interview.
11.13 On 8 April 1994 Mr Lindeberg wrote to Queensland Police Commissioner Jim O'Sullivan seeking assurance that the police investigation would not be limited in any way, and that the investigation would not only look for the documents but why they may have went missing in accordance with concerns in Point 9.12 of the 8th SSCS Report. Mr Lindeberg also informed the Police Commissioner that evidence was given on the illegal shredding of the Heiner documents. (A copy of the letter sent to Senator John Woodley [SSCS member]).
11.14 Police Commissioner O'Sullivan acknowledged receipt of letter of 8/4/94, and referred it to Acting Chief Supt Vic Rossow Metropolitan South Region Brisbane to handle. On 26 April 1994 A/Chief Supt Rossow indicated from the information given "it would appear there has been official misconduct by government officials. This is an area which falls within the folio of the Criminal Justice Commission." (See Exhibit 59)
11.15 Mr Lindeberg contacted A/Chief Supt Rossow by phone and he arranged for Oxley CIB Det. Sgt Don Mabbutt to take detailed evidence on 24 May 1994 from Mr Lindeberg on possible rorting of the QPOASF and the Heiner documents shredding and matters arising therefrom.
11.16 On 24 May 1994 Mr Lindeberg gave detailed evidence to Det Sgt Mabbutt. The interview lasted for 3 to 4 hours, and was taped.
11.17 On 25 May 1994 Mr Lindeberg provided documents relating to the QPOASF matter and lists of witnesses who should be interview regarding both matters. Det Sgt Mabbutt indicated that he would provide a report and forward it to his superiors for further consideration.
On 31 August 1994 Senator Jocelyn Newman Chair of the Senate Select Committee on Public Interest Whistleblowing tabled her Unanimous All-Party Report which called on the Goss Government to hold Independent Reviews into certain unresolved Queensland Whistleblower Cases, including "The Lindeberg Case." On 1 September 1994 The Queensland Premier Declined the Senate's Request.
11.18 On 14 September 1994 Mr Lindeberg was interviewed in his home by three detectives from the Fraud and Corporate Crime Squad, led by Detective Sgt Peter Gleeson. (See Police File: MS93/25262 - Fraud Squad Ref 94/089). Detective Sgt John James and Snr Const Darren Padget are the other police officers. The interview lasted approximately 3 hours, and was taped. Mr Lindeberg once again gave detailed evidence regarding:(i) the prima facie rorting of the QPOASF; and11.19 Mr Lindeberg provided the police with the key letter of 23 February 1990 from the Goss Government to the State Archivist containing misleading information which he maintained provided hard evidence of an offence under the Queensland Criminal Code and Criminal Justice Act 1989. The police informed Mr Lindeberg verbally on 14/9/94 that they are unsure how the handle the shredding and related matters as it involved complaints against the Goss Government and CJC. Police asked Mr Lindeberg what he and the Opposition intended to do next on the case.
(ii) the shredding of the Heiner documents and related shredding matters including the CJC's handling of the complaint.
The Heiner Document Shredding and Queensland Police Commissioner Meet:
11.20 On 15 September 1994 Mr Lindeberg wrote directly to Police Commissioner Jim O'Sullivan setting out "the twelve (12) indisputable facts associated with the shredding" - given the police officers' stated concern to Mr Lindeberg as to how police could handle this case. (Note Point 11.19) Copies sent to Senators Cheryl Kernot (later tabled in the Australian Senate by Senator John Woodley 10/10/94), Warwick Parer, Christabel Chamarette, Mr Rob Borbidge MLA, Mrs Joan Sheldon MLA, Whistleblowers Action Group, Mullins & Mullins Solicitors, and Queensland Justices and Community Legal Officers' Assn [QJA]). (See Exhibit 60)
11.21 Commissioner O'Sullivan acknowledged receipt of letter, and informed Mr Lindeberg by letter dated 19 September 1994 that his letter had been referred to Assistant Commissioner State Crime Operations Command for continued investigation.
11.22 On 10 October 1994 Queensland Senator John Woodley delivered a major speech in the Australian Senate on the shredding.
11.23 On 12 October 1994 on State Government/Family Services' property "Yungabah" a meeting occurred in work time between Minister Warner, Ms Matchett and Departmental Divisional Heads to discuss "Issues Politically Damaging". Listed for discussion, inter alia, is "Heiner/Coyne/Lindeberg." The meeting was convened by "The Consultancy Bureau Pty Ltd of 80 Albert Street Brisbane." (See Exhibit 61)
11.24 On 15 October 1994 Mr Lindeberg alerted the Commissioner O'Sullivan to the "Yungabah" meeting pointing out it involved people at the centre of the case, and indicated the shredding was the subject of a continuing police investigation. Mr Lindeberg asserted that it reasonable to assume that the meeting was designed to agree on containing strategies. (See Exhibit 62)
11.25 On 22 November 1994 Mr Lindeberg informed the Police Commissioner that the Deputy Information (FOI) Commissioner Mr Greg J Sorensen granted him access on 21 November 1994 to certain public records, in particular the Crown Solicitor's advice, dated 16 February 1990. Contrary to the Government's public statements, Mr Lindeberg asserted the advice did NOT support the shredding. He also enclosed a copy of the advice, and copies of two letters dated 2 August and 6 September 1994 sent to the FOI Commissioner regarding the shredding.
11.26 Acting Assistant Commissioner Wayne King, State Crime Operations Command, on 24 November 1994, informed Mr Lindeberg that the QPOASF investigation was to continue but as the CJC was the appropriate body to investigate the Heiner documents shredding, and as it had done so to its satisfaction, the police investigation was to discontinue. (See Exhibit 64)
On 1 December 1994 Senator Warwick Parer moved in the Australian Senate to establish a Committee to be known as the Senate Select Committee on Unresolved Whistleblower Cases. The Heiner Document Shredding and Matters arising therefrom was one specific Term of Reference.
11.27 On 29 December 1994 Mr Lindeberg received a letter from Detective Senior Sergeant Merv Swindells of the Fraud and Corporate Crime Squad, Queensland Police Service acknowledging Mr Lindeberg's letter of 22 November 1994, alerting him to Act/Asst Commissioner King's letter of 24 November 1994, and informed him that another decision on 22 December 1994 was taken (See Exhibit 65):"It was the decision of the Committee that the informa tion you have supplied be referred to the Criminal Justice Commission."11.28 On 7 January 1995 Mr Lindeberg wrote to Commissioner O'Sullivan stating that the complaint was not just about the shredding alone, but also related shredding matters including misappropriation of public monies and the conduct of past and present CJC officers in handling the case. The Commissioner was told that it was totally inappropriate for the case to be referred back to the CJC, and that all the facts of the case would be placed before the Senate Select Committee on Unresolved Whistleblower Cases which had the shredding as a specific term of reference. (See Exhibit 66)
QUEENSLAND AUDIT OFFICEThe Queensland Audit Office (QAO) provides an independent external audit service for all Queensland public sector entities. It is answerable to Parliament, and carries out it duties within the provisions of the Financial Administration and Audit Act (FAA) 1977.
What the QAO officially found in respect of the payment in this case, is cloaked in secrecy, hidden behind confidentiality provisions of the Act (s92) but the following events occurred which resulted in the CJC declaring that it was "unauthorised" and the Crown Solicitor claiming it was "technically recoverable". The Department wrote it off as "a loss" after asserting its lawfulness throughout.
7.1 On 22 January 1993 after Mr Lindeberg received the CJC's second findings of 20 January 1993 declaring the payment "lawful" as an "ex gratia/special payment" under the provisions of the FAA Act 1997, he phoned Mr Len Dudman Assistant Auditor-General to verify the payment. Mr Lindeberg identified himself and gave certain details.
7.2 On 28 January 1993 Mr Lindeberg visited Mr Dudman in Forestry House Brisbane and handed over a limited number of supporting documents. Mr Dudman discovered a late entry in the DFSAIA's audit records for the relevant financial year. He requested that Mr Lindeberg remain silent about the QAO's involvement as other material may be shredded, and their officer in that Department would be alerted to carry out an investigation.
7.3 On 29 January 1993 Mr Lindeberg visited Mr Dudman again and handed over all relevant documents pertaining to "the Coyne Case" and shredding of the Heiner documents. He forewarned Mr Dudman of an upcoming Senate Select Committee on Superannuation investigating allegations of rorting the QPOASF when certain matters may be put on the public record.
7.4 Further phone conversations occurred on 5 & 23 February 1993 and 22 March 1993 when Mr Dudman asked whether the CJC had contacted Mr Lindeberg again. Mr Lindeberg stated that no contact had been made.
7.5 On 25 March 1993 Mr Lindeberg informed Mr Dudman that the alleged reason for Mr Coyne's redundancy - ill health - was a fabrication. Mr Lindeberg stated the entire package was therefore "an inducement." He informed Mr Dudman that an experienced DFSAIA Industrial Officer believed the payments were "inducements" because the department never recognised such entitlements. Mr Dudman was told the payment was an illegal act to cover-up the shredding.
7.6 On 11 April 1993 Mr Dudman visited Mr Lindeberg's home. The QAO's investigation (within the secrecy constraints of the FAA Act) was discussed. He told Mr Lindeberg that the DFSAIA could not provide comprehensive documentation relating to the payment, and that the settlement Deed was proving an obstacle to check the bona fidei of DFSAIA officers who were claiming that everything was above board. Mr Dudman said that Minister Warner did not have the authority to authorise the payment as it needed to go to Cabinet, possibly Governor in Council. (Note Point 13.37) (See Exhibit 53)
7.7 On 26 May 1993 Mr Lindeberg wrote to Mr Dudman enclosing an amended flow sheet "The Shredding of the Heiner Inquiry Documents" inter alia.
7.8 On 28 May 1993 Mr Dudman phoned Mr Lindeberg and pointed out that the payment "might be" a technical breach of the FAA Act. Mr Lindeberg wrote to Mr Dudman on 6 June 1993 noting the conversation, but adding, inter alia, that the payment was an inducement. (See Exhibit 54)
7.9 On 30 July 1993 Mr Michael Barnes CJC Chief Complaints Officer wrote to Mr Lindeberg and advised that on information received from the Auditor-General the legality of Mr Coyne's redundancy payment had been re-examined. Mr Barnes stated in part:"The Commission is now advised that the Minister acted upon advice that she was entitled to make such a payment of the amount of $27,190 to Mr Coyne. It is clear that, had the Cabinet decision of 17 December 1990 been properly approved, the payment would have been lawful. The Commission accepts that the payment was, in the circumstances, not authorised." (Note Point 13.37)7.10 Mr Barnes informed Mr Lindeberg that the Department had been given advice by the Crown Solicitor that the money "was technically recoverable by the Crown." The Department maintained that Mr Coyne was entitled to the sum calculated, and had decided to regard it as "a loss", and Mr Barnes stated:"...the Commission remains of the view that there is no reasonable basis for a suspicion of official misconduct on the part of any person holding a position in a unit of public administration in relation to this payment and intends taking no further action in relation to this matter." (See Exhibit 55)7.11 On 15 August 1994 Mr Lindeberg wrote to Mr Dudman referring to his previous letters, and the misappropriation of public monies to payoff a public servant to cover-up official misconduct. Mr Lindeberg wanted to know what the QAO had done, and what its current stance was.
7.12 On 19 August 1993 Mr Dudman wrote and informed Mr Lindeberg that the investigation had concluded and that he was precluded by s92 of the FAA Act 1977 "confidentiality" from divulging or communicating information obtained during the course of an audit. He stated that the shredding was outside the QAO's jurisdiction resting with DFSAIA.
7.13 On 23 August 1993 Mr Lindeberg responded to Mr Dudman outlining the sequences of events relating to the payment, and illustrating that key public officials KNEW what they were doing at the time even though may be claiming ignorance now. Mr Lindeberg posed the question:"Can public monies be handed out by Ministers of the Crown for NO reason, breach the relevant Act and award, and written off as "losses" by their Directors- General with the blessing of the independent QAO?"7.14 On 25 August 1994 Mr Dudman acknowledged Mr Lindeberg's letter and expressed regret that he could offer no further comment on the issue.
"The use of such public monies can become nothing more than "political slush funds" or "hush-up money." (See Exhibit 56)
ELECTORAL AND ADMINISTRATIVE REVIEW COMMISSION:The Electoral and Administrative Review Commission (EARC) was established in the aftermath of the Fitzgerald Commission of Inquiry as one of its key recommendations along with the establishment of the CJC. Its first chairman was Mr Tom Sherman. It was to formulate draft legislation on various issues aimed at safeguarding against systemic corruption, and report to Parliament through the Parliamentary Electoral and Administrative Review Committee (PEARC).
EARC was another so-called proper authority to which whistleblowers could report wrong-doing. Mr Lindeberg used "the Peter Coyne Case/Shredding of the Heiner documents" as a case study illustrating systemic corruption and offering recommendations in various issue papers including:
(i) the Protection of Whistleblowers;The precedents set for Queensland's public (and legal) administration flowing out of the shredding currently acceptable to EARC, CJC, and apparently the Queensland Police Service must raise questions regarding EARC's successful fight against systemic corruption.
(ii) Archives Legislation;
(iii) the Codes of Conduct for Public Officials;
(iv) the Separation of the Department of Justice and Attorney-General's Department.
4.1 On 16 January 1991 Mr Lindeberg wrote seeking a confidential meeting with EARC Chairman Mr Tom Sherman to discuss the formulation of a submission on EARC's Issue Paper No 10 "The Protection of Whistleblowers" in light of his personal whistleblowing experience with the QPOA. (See Exhibit 42)
4.2 On or about 28 January 1991 Mr Lindeberg met Mr Sherman and discussed his proposed submission and the circumstances surrounding his dismissal. The shredding of the Heiner documents was discussed, and involvement of the CJC. The meeting was witnessed by Mr Greg J Sorensen EARC Project Officer (See Point 12.6) responsible for EARC's proposed whistleblower protection draft legislation. Mr Lindeberg resolved to put in two submissions:(i) coded for publication;4.3 On 19 February 1991 Mr Lindeberg enclosed his first draft submission to Mr Greg Sorensen, and mentioned in his letter that the CJC was investigating the shredding. (See Point 12.6 Office of the Information Commissioner). (See Exhibit 43)
(ii) naming names but to remain confidential.
4.4 On 22 February 1991 Mr Lindeberg enclosed his two submissions to Mr Sherman, and discussed his whistleblowing experience in a letter. The shredding was highlighted again. (See Exhibit 44)
4.5 In April 1991 EARC published "The Protection of Whistleblowers" - Public Submissions - which included Mr Lindeberg's coded submission (No 11).
4.6 On 2 October 1991 Mr Lindeberg presented Mr Howard Whitton EARC Project Officer with two submissions (one coded for publication, and the other naming names for EARC's confidential files) on EARC's Issue Paper No 15 "The Codes of Conduct for Public Officials" using the shredding as a case study. Although given to understand that his coded submission would be published Mr Sherman apparently vetoed it, and did not allow Mr Lindeberg's name to appear as a contributor in the Report published in October 1991.
4.7 On 6 November 1991 Mr Lindeberg wrote to Mr Sherman asking why "it would not be in the public interest or fair to make it (his coded submission) available for public examination."
4.8 On 26 November 1991 Mr Sherman informed Mr Lindeberg that it would be unfair to make public his submission without first allowing the people identified with the events to respond. EARC did not consider that such action was warranted in this case.
4.9 On 8 December 1991 Mr Lindeberg challenged Mr Sherman's (EARC's) position because the case was relevant and supported by evidence. He stated that he found "the Commission's decision and its conduct in this important matter utterly remarkable."
4.10 On 23 April 1992 Mr Lindeberg wrote to EARC Acting Chairman Colin A Hughes (Mr Sherman resigned to become head of the National Crime Authority [NCA]) presenting a submission on Issue Paper No16 "Archives Legislation" using the shredding as case study. He posed questions of alleged criminality associated with the shredding, and what duties were required of the State Archivist under the circumstances, and even EARC itself. An edited version was placed on EARC's public computerised register. (EARC Folio No 38) (See Exhibits 45 & 46)
4.11 On 21 May 1992 Acting EARC Chairman Colin Hughes wrote to Mr Lindeberg referring to his submission. He said that EARC did not propose to take any action on the matters referred to in his submission, and quote from EARC Act 1989:"S9(2). The Commission is concerned only with systems, principles particular instances of alleged inefficiency, dishonesty or partiality except to the extent that such instances indicate or suggest deficiency in existing systems, principles or practices.4.12. On 12 June 1992 Mr Lindeberg wrote to Mr Matt Foley MLA Chairman of the EARC Parliamentary Committee regarding "The Codes of Conduct for Public Officials". Mr Lindeberg argued that public sector unions's first officer (ie the elected President) was more often than not a public servant, and often placed on secondment (permanent or temporary) with the union for the duration of their elected period. Such officers often remained on the Government payroll. Mr Lindeberg proposed that:
(3) The Commission is not authorised by this Act to require or direct the alteration of systems, principles or practices or the revocation, reversal or alteration of any decision taken."(i) public sector union officials should be bound by a code of conduct which mirrored as closely as possible the public service, and4.13 Mr Lindeberg stated in his letter (See Point 4.12):
(ii) "public sector" unions should be subject to the official misconduct provisions of the Criminal Justice Act 1989."...how can "the public interest" be protected by ensuring that such an (union) official will always act with integrity and impartiality, if, for instance, political expediency for the union and/or for the protection of a public official (eg Minister or CEO) by inaction or collusion may become the modus operandi?4.14 On 16 November 1992 Mr Lindeberg wrote to the new EARC Chairman Mr David Solomon re "Archives Legislation" and his (Lindeberg's) concerns regarding the CJC's possible attitude towards the shredding. (See EARC Folio 80/74) He enclosed a copy of his letter to Sir Max Bingham QC dated 14 August 1992 (See Point 3.32). In his letter to Mr Solomon Mr Lindeberg stated in part:
Does the obligation a public (union) official, in the aforementioned scenario, to report "official misconduct" to a proper authority still apply, and does a failure to do so create an offence in itself? To whom does such an official owe loyalty? The union, the Government, or "the public interest?""If the CJC were to make a finding based on the proposition that actions complained of were simply "improper" - as distinct from "illegal" - there would be grave consequences for the Queensland Public Service and the community generally.4.15 On 4 June 1993 Mr Lindeberg presented a submission on Issue Paper "The Separation of the Department of Justice and the Attorney- General's Department" addressed to Mr Solomon EARC's Chairman. Mr Lindeberg argued that the Departments should not be joined. He made the following points:
Such a decision would also have implications for EARC. Precedents would be established on issues flowing out of "the Peter Coyne Case" such as would render EARC's work and position pointless. The existence of such precedents would make it impossible for EARC to establish structures guaranteeing open and accountable Government operating "in the public interest."""The important role of the State Attorney-General in respect of being the chief law officer of the Crown operating in the public interest is somewhat akin to the reserve powers of the Governor General of Australia to ensure ultimate accountability to the law and the people.and Mr Lindeberg added:
Both roles have the capacity to be highly controversial, and crucial, when unforeseen circumstances come together to create a situation which causes such a public official (ie the Attorney- General and/or Governor General) to choose between two competing masters. It can be an awesome task with major political consequences, and often not fully comprehended until it faces a particular crisis in government.""The fundamental issue that EARC needs to face in this important matter is that the Executive must and will always act lawfully.Mr Lindeberg concluded his submission:
A situation may arise when Executive, for political expediency, might knowingly break the law and be challenged over the act, albeit by only one aggrieved citizen. The entire system would become vulnerable because there is no total separation of powers beneath the level of the Judiciary.
What then becomes the real public interest test: the legal rights of one citizen, or the survival of "the system?"""The amalgamation of both Departments will not stop one of history's rare incidents arriving centre stage on Queensland's political stage and its ultimate cost to the community and confidence in our public institutions and government may be far, far greater than any administrative savings envisaged or realised with the amalgamation."
4.16 On 8 August 1993 Mr Lindeberg presented a final submission on Issue Paper No 17 "Archives Legislation." Mr Lindeberg used the shredding, and set out the so-called twelve (12) "acceptable precedents" the shredding now meant to Queensland's public administration and legal system. (See Section 30 p33- 34 The Ramifications & Recommendations "Unprincipled Conduct In Many High Places MkII" Submission 74 Senate Select Committee on Public Interest Whistleblowing).
4.17 Mr Lindeberg wrote in his final EARC submission of 8 August 1993:"EARC's commission ends in a matter of days. A public seminar is even to be held to discuss its work. According to public statements, it has completed the numerous essential tasks outlined in the Fitzgerald Commission of Inquiry Report. The tasks, in simple terms, were designed to ensure that Queensland obtained a more effective, open and accountable Government and Public Service working in the public interest. It has attempted to make our system fail- safe against corruption and official misconduct.Mr Lindeberg had cause to speak personally to EARC's last Chairman Mr David Solomon about the content of his final submission only days before his commission ended. Mr Solomon can speak for himself about the shredding and its ramifications.
The simple question remains: Has EARC succeeded?
It would be a grand irony indeed that after hundreds of submissions and numerous reports and at the same time as its commission and doors closed on Capital Hill, one of the final submissions placed on EARC's files illustrated continuing public sector official misconduct and corruption making much of its commission and work pointless."
QUEENSLAND STATE ARCHIVISTThe State Archivist is a statutory officer whose public duties in respect of public records are established in the Libraries and Archives Act 1988. Ms Lee McGregor, the State Archivist is also bound by the provisions of the Criminal Justice Act 1989 and Queensland Criminal Code to act honestly and impartially in the public interest in the performance of her duties.
As a principle, she has no duty in a contract of employment to engage in any unlawful act which may happen to be desired by her employer for whatever reason.
The key question facing Ms McGregor is was she told of Mr Coyne pending legal action, and if not, why, and what does she intend to do about it in accordance with her public duty.
10.1 Under the Libraries and Archives Act 1988 there is no definition of what constitutes "a departmental file or record." The description used is "public record." Unquestionably once a document attracts the description of "public record" under the Act, it has the potential to be either "a departmental record or file held by the Department on the officer." This makes PSME Regulation 65 pertinent to this affair because Mr Coyne lodged a solicitor's letter dated 8 February 1990 with the Department wanting to exercise his rights as per PSME Regulation 65 when the Department had possession of the documents.
10.2 In February 1989 a schedule was produced by Queensland State Archives for the purpose to set minimum retention periods which are legally binding on all councils in Queensland in accordance with the Libraries and Archives Act 1988.
The purpose of the official document "General Records Disposal Schedule for Local Government Records in Queensland" in the preface states:-
10.3 The document states the following category considerations in the retention of public records:
- identify and make provision for the preservation for those Local Government records that form part of Queensland's archival heritage.
- identify and authorize the disposal of nonpermanent records no longer required for legal, administrative and financial purposes.
Legal Value states:-
- Legal Value;
- Financial Value;
- Administrative Value;
- Informational Data Value."These are records which involve long and short term rights of the council or of private citizens and which are enforceable by the courts, eg contracts, tender documents, building approval permits, leases, title deeds etc. In many cases these are required by law to be kept for a specified period. In other cases it may be possible to dispose of the record after the transaction is completed. In general, the record should be retained long enough to ensure that the rights of the council and of any individual concerned are fully protected."10.4 On the morning of 23 February 1990 by faxed letter from acting Cabinet Secretary Mr Tait, Ms McGregor was asked for URGENT advice on the approval of destruction of the Heiner documents which the Goss Government decided were "no longer required or pertinent to the public record." Mr Tait had the Heiner documents delivered to Ms McGregor that same morning. (Note Exhibits 8 & 13)
10.5 Ms McGregor was NOT told in the official written communication dated 23 February 1990 from the Goss Government that:-(i) a firm of solicitors, acting for public servant Mr Peter Coyne, had served notice on the Department/Government by letter dated 8 February 1990 seeking access to the Heiner documents in accordance with Mr Coyne's statutory right under PSME Regulation 65;(Note Exhibits 4 & 5)
(ii) a firm of solicitors, acting for Mr Coyne, had served notice of foreshadowed court proceedings by letter on the Department/Government dated 15 February 1990 and received by the Goss Government on 19 February 1990 in which the Heiner documents was to be the known central item of evidence.
10.6 On the afternoon of 23 February 1990 Ms McGregor faxed approval to destroy the documents to Mr Tait, but noted in her internal correspondence, that the material was defamatory in nature, generally should be retained and the proposed FOI legislation may pose some problems for the Government which such material in the future.
10.7 Ms McGregor had over 100 hours of tapes - public records - and other material to check to satisfy herself that the Heiner documents could be destroyed, and did not represent any legal value to anyone concerned. She made no contact with Mr Coyne.
10.8 Before or after 5 March 1990 when the Goss Government decided to proceed with the shredding on one of the stated reasons "...in order to reduce the risk of legal action...", the State Archivist was not contacted again to reaffirm her approval to destroy the documents which in effect, meant the destruction was of prospective evidence not mentioned in Cabinet's original letter of 23 February 1990 to her.
10.9 Mr Tait, by official letter dated 22 March 1990, conveyed to the State Archivist Cabinet's decision of 5 March 1990 to proceed with the shredding. Mr Tait failed to inform her that one of Cabinet's express reasons was to destroy the records in order to reduce the risk of legal action which may have emanated from and/or depended on their continuing existence.
10.10 On 16/17 May 1990 Mr Coyne contacted the State Archivist to confirm whether the Heiner documents had been destroyed. Ms McGregor, according to her internal memorandum dated 30 May 1990, refused to comment to Mr Coyne beyond suggesting "that his lawyer should deal directly with the Department or with the Crown Solicitor's Office." (Note Exhibit 17 p2)
10.11 On the occasion of Point 10.10. Ms McGregor took the advice of Mr Trevor Walsh, Ms Matchett's Executive Officer in the Department of Family Services and Aboriginal and Islander affairs. Ms McGregor is a statutory officer bound by the Libraries and Archives Act 1988 and Criminal Justice Act 1989 to act honestly and impartially in the public interest. Mr Walsh was not her accountable officer. (Note Exhibit 17 p2)
10.12 Premier Wayne Goss was Ms McGregor's accountable Minister at the time of the shredding.
OFFICE OF THE INFORMATION COMMISSIONERThe Office of the Information (FOI) Commissioner is an independent external review authority accountable only to the Queensland Parliament. The staff are independent of direction from the Queensland Government.
Mr Fred Albietz is both the Information Commissioner and State Ombudsman but in practice the Deputy Information Commissioner Mr Greg J Sorensen appears to have carriage of most if not all FOI matters.
The Freedom of Information Act 1992 depends on the lawful and competent functioning of the Libraries and Archives Act 1988 because without the proper protection of public records, particularly controversial documents, by the State Archivist the Freedom of Information Act can be rendered pointless if important records are destroyed or go missing.
Mr Lindeberg has been forced to use freedom of information in his pursuit of justice. The interpretation of the Act to deny access to certain documents including their existence, and even dates under "legal professional privilege" raises questions of the use of the Freedom of Information Act 1992 by certain public officials and Government to stifle the flow of public information against the public interest - and the pursuit of justice.
This case raises questions for both Acts.
12.1 On 18 January 1993 Mr Lindeberg wrote to Ms Lee McGregor, State Archivist, seeking access to the disposal schedule and related documents associated with the shredding of the Heiner Inquiry documents in accordance the provisions of the Freedom of Information Act 1992.
12.2 24 March 1993 the Administrative Services Department released certain documents associated with the shredding highlighting extraordinary events behind the scenes to destroy the documents by examination of the dates. Access to:(i) the Crown Solicitor's advice of 16 February 1990 was refused because of "legal professional privilege;" and12.3 On 10 June 1993 Mr Lindeberg made an application for an external review by the Information Commissioner of the Administrative Services Department's decision. Mr Fred Albietz, acknowledged Mr Lindeberg's application on 15 June 1993.
(ii) the letter from the Secretary of Cabinet to the State Archivist dated 23 February 1990 was partly released with exempt passages because of "legal professional privilege" and "the disclosure would involve deliberation/s or decision of Cabinet."
12.4 The Deputy Leader of the Opposition Mr Kev Lingard MLA delivered a major speech in State Parliament on 13 July 1993 alleging the shredding of the Heiner documents represented an offence perpetrated by the Goss Government. The Queensland media did not cover the speech. (Note Exhibit 38)
12.5 On 7 September 1993 "The Bulletin" published a lead article on the shredding titled "Shreds of Evidence" written by Mr Greg Roberts. (See pp16-17). (Note Exhibit 39)
12.6 On 20 October 1993 Mr Greg J Sorensen Deputy Information Commissioner (See Points 4.2 & 4.3 EARC) "directed Mr Lindeberg to supply" copies of all documentation in his possession which he considered relevant to the FOI review. (See Exhibit 67)
12.7 On 30 October 1993 Mr Lindeberg supplied Mr Sorensen with copies of:(i) Minister Anne Warner's statement to Parliament on 18 May 1993;Mr Lindeberg stated that he does not have to prove anything under the Freedom of Information Act 1992 as the onus was on the agencies not to comply.
(ii) Minister Warner's answer to a Question dated 21 May 1993 re the Government followed the advice of the Crown Solicitor and State Archivist when destroying the document.
The Goal Posts Set In Place:
12.8 On 9 November 1993 Mr Albietz wrote to Mr Lindeberg stating in part:-"...you intend to allege that document 1, being a letter of advice from the Crown Solicitor to Mr S P Tate (sic), Acting Secretary of Cabinet, dated 16 February 1990, is not exempt pursuant to the provisions of s43(1) of the FOI Act. I understand that the basis of your contention is that document 1 falls within an exception to the principle of legal professional privilege in that you allege that there has been a "conspiracy to pervert the course of justice."The Commissioner placed the onus of proof onto Mr Lindeberg in accordance with High Court of Australia in Attorney-General (NT) v Kearney (1985) 61 ALR 55 to provide his office with "prima facie evidence" in "clear and definite terms." (See Exhibit 68)
12.9 On 19 November 1993 Mr Lindeberg responded to the Information Commissioner outlining ten (10) points and facts, thereby producing "prima facie evidence" and called on him to release the documents. (See Exhibit 69)
12.10 On 2 December 1990 Mr Sorensen "directed" Mr Lindeberg - a private citizen - to hand over a copy of Mr Coyne's solicitors letter dated 15 February 1990 to the DFSAIA. (See Exhibit 70)
12.11 On 9 December 1993 Mr Lindeberg provided copies of (i) Mr Coyne's solicitors letter dated 15 February 1990; and (ii) a copy of Ms Matchett's letter dated 22 May 1990 confirming possession of the solicitor's letter. (See Exhibit 71)
12.12 Mr Lindeberg once again stated that he had provided sufficient "prima facie evidence", and requested release of the documents. He also stated that it was "extraordinary" to find himself, as a private citizen, being "directed" to hand over private records to the Information Commissioner under S72(1) of the Freedom of Information Act.
The Senate Select Committee on Public Interest Whistleblowing/Office of the Information Commissioner Connection:
12.13 On 8 March 1994 Mr Lindeberg gave evidence in the Queensland Parliament to the Senate Select Committee on Public Interest Whistleblowing on the shredding of the Heiner Inquiry documents. Mr Greg Sorensen witnessed his bracket of evidence and later gave evidence himself, as a private citizen, on whistleblowing and protective legislation.
12.14 Mr Mark Le Grand, CJC Director of the Official Misconduct Division provided on 24 June 1994 a response to the Senate Whistleblowing Committee on Mr Lindeberg's bracket of evidence of 8/3/94 (See Point 12.13), and the CJC's position regarding the shredding, related matters including Mr Noel Nunan's role in the matter.
12.15 On 28 June 1994 Mr Lindeberg made a comprehensive FOI application to the DFSAIA covering twenty (20) different aspects of the shredding of the Heiner documents and related matters.
12.16 Mr Lindeberg presented a detailed "Submission in Reply" dated 4 July 1994 to the Senate Whistleblowing Committee on the CJC's response (See Point 12.14). Mr Lindeberg outlined false and misleading evidence, omission of evidence, tampering with evidence, misquoting a key statute by Mr Nunan and other concerns. The Senate Whistleblowing Committee considered both submissions before making its unanimous Report to the Australian Senate.
12.17 On Saturday 16 July 1994 in "The Courier- Mail" the Attorney-General Mr Dean Wells MLA announced that Mr Noel Nunan had been appointed as a Stipendiary Magistrate in Brisbane. (See Points 11.16 & 11.18 Queensland Police Service).
12.18 On 2 August 1994 Mr Lindeberg wrote to the Information Commissioner setting out the significance of the "Cabinet exempt" passage in the letter of 23 February 1990 to the State Archivist from the Cabinet Secretary. He pointed of Mr Le Grand's assertion in his letter to the Australian Senate that:"there is no suggestion that the Archivist was actively misled by the Cabinet Secretary or any other person with knowledge of the documents."He stated if the exempt passage says that the documents "weren't required" then that was prima facie evidence of an offence, and documents should be released. (See Exhibit 72)
12.19 On 8 August 1994, in a letter addressed to Mr Ken O'Shea Crown Solicitor, Mr Lindeberg made a comprehensive FOI application on the Department of Justice and Attorney-General seeking access to public records pertaining to the Heiner Inquiry, its documents and tapes, its shredding and related matters covering 36 different aspects. (Note Exhibit 57)
12.20 On 31 August 1994 in the Australian Senator Jocelyn Newman Chair of the Senate Select Committee on Public Interest Whistleblowing tabled a unanimous report which, amongst other recommendations, called on the Goss Government to establish independent reviews of certain "unresolved Queensland whistleblower cases." One such case highlighted is "the Lindeberg Case." Premier Goss declined the Senate's recommendation.
12.21 On 31 August 1994 in the Senate Queensland Senator Warwick Parer spoke in the debate and highlighted the shredding of the Heiner documents calling it "core administrative and political corruption of the highest order." Queensland Senator Cheryl Kernot, later on, highlighted the shredding and posed fundamental questions for:(i) the CJC;Fallout on the Floor of Queensland's Parliament: 12.22 Following the tabling of the Senate Whistleblowing Committee's Report, debate over the shredding occupied considerable time in State Parliament. The Goss Government refused to table Crown Solicitor's advice it allegedly followed, but Minister Warner on 2 September 1994 tabled the key letter dated 23 February 1990 to the State Archivist. (Note Exhibit 8)
(ii the Crown Solicitor; and
(iii) the State Archivist.
"The Courier-Mail" on 3 September 1994 assured its readership that the Government followed the Crown Solicitor's advice of 23 January 1990 to destroy the material. The Government refused to table the advice in Parliament but showed it to a selected political journalist. That advice was given BEFORE Mr Coyne's legal demands on the material, and when no foreshadowed legal action was notified. (See Exhibit 87)
NOTE WELL: Was "The Courier-Mail" unaware that the Crown Solicitor's advices of 23 January 1990 and 16 February 1990 were redundant and was itself deceived by the Goss Government, and in turn gave deceptively misleading information to the Queensland public? Or, did "The Courier-Mail" demonstrate irresponsibility of great magnitude by not verifying the advices' relevance before publishing?
On 8 December 1994 "The Courier-Mail" editorial described the establishment of the Senate Select Committee on Unresolved Whistleblower Cases as a "Stunt Act."
12.23 Mr Lindeberg obtained a copy and the key passage alluded to in his letter of 2 August 1994 to the Information Commissioner regarding the Heiner documents stated "....is no longer required or pertinent to the public record."
12.24 On 6 September 1994 Mr Lindeberg wrote to the Information Commissioner, pointing out the significance of the letter (See Points 12.22 & 12.23) and referred to his letters of 19 November, 9, December 1993 and 2 August 1994. He placed additional facts on the record and asserted that he'd proven his case so the documents should be released, and stated:-"I also place on record, given the gravity of the situation, your duty under the Criminal Justice Act 1989 to report this prima facie offence to a proper authority immediately in the public interest."(Note Point 12.8) (See Exhibit - tabled in Senate 10/10/94 by Senator John Woodley) (See Exhibit 73)
12.25 On 8 September 1994 Minister Warner publicly confirmed in "The Courier-Mail" that the Government did not receive Mr Coyne's solicitor letter until 19 February 1990, and that it did "not constitute any legal proceedings in any court." (Note Exhibit 7)
12.26 In the same article (See Point 12.25) responding to questions on the solicitor's letters Minister Warner stated "We are saying those letters did not constitute the commencement of legal proceedings. We sought advice about that." (Note Exhibit 7)
12.27 On 29 September 1994 the Department of Justice and Attorney-General responded to Mr Lindeberg's FOI application of 8/8/94 (See Point 12.18). Access to all documents is denied, even "the dates". The Department did however acknowledge "the existence" of two key documents exempt under S43(1) of the Freedom of Information Act "legal professional privilege." They are:- "7. Copy of briefing documents from DFSAIA to Crown Law pertaining to:-(i) official notification received by the DFSAIA dated 15 February 1990 from Mr Coyne's solicitors (Rose Berry Jensen) informing the acting Director- General Ms Matchett of Mr Coyne's "intention to commence court proceedings" (to gain access to the material)."(Note Exhibit 57)
"20. Copy of any Crown Law's advice to DFSAIA between 23 February 1990 (amended back to 19 February) and 30 May 1990 pertaining to the Heiner material and any person (eg Mr Coyne) or body (ie Queensland registered trade union) seeking statutory access to the material."
12.28 On 17 October 1994 (Dr) K S Levy, Deputy Director-General of the Department of Justice and Attorney-General in responding to Mr Lindeberg's application dated 2 October 1994 for an internal review which specifically requested "the dates", stated that the original decisions stood after having sought "independent counsel's advice."
12.29 On 21 October 1994 the DFSAIA informed Mr Lindeberg of its decision regarding his FOI application dated 28 June 1994. (See Point 12.15). The Department held 367 pages on his application, and none was accessible, including dates. On 28 October 1994 Mr Lindeberg applied for an internal review in a letter addressed to Ms Matchett, DFSAIA Director- General, highlighting the issues of dates and certain key documents in his original application of 28 June 1994.
12.30 On 11 November 1994 Mr Lindeberg had tabled in the Australian Senate and Queensland his document titled "A Public Interest Disclosure to all Honourable Members of the Queensland Legislative Assembly and the Queensland People - The Shredding of the Heiner Inquiry Documents and Tapes." The document challenged the Queensland Premier's letter dated 10 October 1994 sent to Senator Jocelyn Newman, Chair of the Senate Select Committee on Public Interest Whistleblowing addressing the Committee's recommendations. (See Exhibit 74)
12.31 On 21 November 1994 Mr Greg Sorensen, Deputy Information Commissioner, wrote to Mr Lindeberg, referred to previous correspondence, in particular his letters of 2 August and 6 September 1994, and stated that the Department of Administrative Services had agreed to grant access to all documents, including the Crown Solicitor's advice to Cabinet dated 16 February 1994. (The document the Goss Government refused to table in State Parliament in September 1994 because of "legal professional privilege"). (See Exhibit 75)
12.32 On 22 November 1994 Mr Lindeberg collected the documents from the Department in George Street Brisbane. The Crown Solicitor's advice was based on a briefing document from Cabinet dated 13 February 1990 and DID NOT recommend the Heiner document's destruction, and DID NOT address Mr Coyne's foreshadowed litigation because of the chronology of events. (Note Exhibit 6)
12.33 On 22 November 1994 Mr Lindeberg wrote to the Information Commissioner seeking an external review of the Department of Justice and Attorney- General's decision and asserted that he (the Information Commissioner) had released the documents sought from the Administrative Services Department after he (Lindeberg) had provided "prima facie evidence" of the offence of obstructing justice. Mr Lindeberg called on the release of other documents particularly items (See Point 12.26). He enclosed copies of letters sent to the Police Commissioner dated 15/9/94 and 15/10/94, and the document dated 11/11/94 (See Point 12.30). (See Exhibit 76)
12.34 On 22 November 1994 Mr Lindeberg wrote to Police Commissioner Jim O'Sullivan pointing out that certain documents had been released after he had provided sufficient "prima facie evidence" of an offence, and enclosed copies of (Note Exhibit 63):(i) letters 2/8/94 and 6/9/94 to FOI Commissioner; and12.35 On 24 November 1994 Acting Asst Commissioner Wayne King State Crime Operations Command Queensland Police Service wrote to Mr Lindeberg informing him that the police would not continue with its investigation of the shredding as the CJC was the appropriate body, and it (CJC) had investigated the matter to its satisfaction. (Point 12.34 letter 3.16 22/11/94 crossed in the post.) (Note Exhibit 64) Changing the Goal Posts:
(ii) the Crown Solicitor's advice dated 16 February 1990.
12.36 On 29 November 1994 the Information Commissioner wrote to Mr Lindeberg informing him that he (the Information Commissioner) "had not accepted that you (Lindeberg) have provided sufficient "prima facie evidence" of the offence of obstructing justice." He cautioned Mr Lindeberg on making any such representations, as the documents were released by negotiation with the agency under the FOI Act. (See Exhibit 77)
12.37 On 20 December 1994 Mr Donald A C Smith, DFSAIA Principal Liaison Officer in the Office of the Director-General wrote to Mr Lindeberg regarding his internal review. He released two further documents over and above those already released by the Administrative Services Department, but would not release the dates. Mr Smith made the following decision regarding the dates and existence of certain documents covered by "legal professional privilege":-"In my view to do so (release the dates) could be misleading and may fulfil little purpose although the latter is not for me to attribute in the hands of the applicant. However, putting those considerations aside, I am of the view that the date of correspondence or even in some cases whether such correspondence exists is within the bounds of section 43(1) and may be material that is subject to legal professional privilege. I therefore do not consider that the dates of such correspondence or even confirmation of the existence or otherwise of correspondence of this nature should be released."12.38 On 27 December 1994 Mr Lindeberg wrote to the Information Commissioner making application for an external review of Mr Smith's (DFSAIA) internal review decision. He extended the alleged offence to include S129 of the Queensland Criminal Code - destruction of evidence. He outlined the indisputable facts, inter alia, and made the following comment on Mr Smith's decision re (See Point 12.37):-"Under the special circumstances associated with this affair, to attempt to deny the existence of certain documents when it is clear through other sources that such documents exist, and then to attempt to withhold the dates of such documents as well, cannot be a fair and reasonable "in the public interest" interpretation of the Freedom of Information Act 1992 (Qld) but a prima facie exercise in abuse of office covered by the Queensland Criminal Code."(See Exhibit 78)
12.39 On 29 December 1994 the Queensland Police Services informed Mr Lindeberg, after receiving his letter of 22 November 1994 it had reconsidered the shredding, and decided to refer the information supplied back to the Criminal Justice Commission. (Note Exhibit 65)
12.40 On 10 January 1995 Mr Greg Sorensen acknowledged Mr Lindeberg's letter of 27 December 1994 and indicated that he had written to DFSAIA for documents.