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Wednesday, 31 August 1994
Page: 631


Senator PARER (10.25 a.m.) —I also commend the Select Committee on Public Interest Whistleblowing on its excellent report, which I have had limited time to read. As Senator Chamarette has quite correctly said, the terms of reference did not enable individual cases to be spelt out. I refer particularly to the following recommendation made by the committee:

. . . the Committee remains concerned at the number of apparently unresolved whistleblower cases in Queensland and therefore the Committee recommends that the Queensland Government establish an independent investigation into these unresolved cases within its jurisdiction.

The concern I have is that the Queensland government in fact has a vested interest in not having these matters resolved because of prima facie offences associated with the cases which involve it. In fact, the allegations made by the Queensland whistleblowers involve the entire Goss cabinet between 19 February 1990 and 5 March 1990 and prima facie official misconduct within the CJC by high ranking officers now reaching to the Queensland magistrates' bench.

  I point out at this stage that in no way does anything I say reflect on the integrity and character of Robin O'Regan, who is the chairman of the CJC in Queensland. I have known Robin O'Regan all my life and he is a man of the highest integrity and principle. He probably has some sympathy with the Labor Party, which is no reflection on him—it just shows that nobody is perfect. I point out that the concern of the Queensland whistleblowers is that with this matter being resolved within the Queensland government, it is a bit like Caesar making decisions on Caesar.

  There is no doubt, however, that the Senate committee's recommendation is a real catch-22 for the Goss government. I will explain why. This revolved around an inquiry into the Oxley Youth Centre in Queensland and the moving aside of a Mr Peter Coyne. An investigation was carried out by a retired magistrate called Mr Heiner. The investigation was closed down for apparently legal reasons—it was one of those legal messes that those of us who are not legal people cannot fully understand.

  What happened was this: the minister, Anne Warner, on 18 May 1993 told parliament that the Goss cabinet ordered the shredding of these documents `in order to reduce the risk of legal action' against the parties concerned. Minister Warner also informed the parliament on 21 May 1993 that cabinet allegedly followed the advice of the Crown Solicitor and the State Archivist. The minister's department—that is, the government—was officially informed on 15 February by solicitor's letter and fax of Mr Coyne's stated intention to commence court proceedings to gain access to the Heiner documents and tapes. Due and proper notice had been served on the government of foreshadowed litigation. She did not tell the parliament this.

  Union organiser Kevin Lindeberg, who gave evidence and who has been a member of the Labor Party for all or most of his life, officially informed Minister Warner's departmental chief executive, Ms Ruth Matchett, on 23 February 1990 that the unions—the QPOA and the QTU—would be supporting Mr Coyne's litigation. The notion of litigation was not challenged as something new. She knew of Mr Coyne's foreshadowed litigation in which the Heiner inquiry material was the central issue and item of evidence.

  On 23 February 1990, on exactly the same day, the Goss cabinet sought urgent approval to destroy the material only on the basis that it `wasn't required'. By law, cabinet was obliged to inform the State Archivist, a public official, of all the facts so that she could honestly and impartially carry out her public duties to protect public records in the public interest. That is the job of the archivist. To do otherwise, as occurred in this case, was to deliberately mislead a public official for cabinet's own gain—that is, to falsely destroy public records in order to obstruct justice. It would therefore appear to be a prima facie offence under the Criminal Justice Act and the Queensland criminal code.

  The Heiner inquiry documents and tapes were defined as public records. They had a legal status—and, importantly, legal value to Mr Coyne—and therefore, under the Queensland criminal code, should not have been destroyed under the circumstances unless the archivist was misled into believing that they were not required.

  Public officials—for example, the Crown Solicitor and the State Archivist—are obliged to report official misconduct to a proper authority when they become aware of it. The Crown Solicitor is an officer of the court. He cannot engage, assist in or cover up the commission of a prima facie offence and nor can the State Archivist. The Crown Solicitor cannot act for the cabinet on this matter any longer, given the facts, because he would effectively be advising cabinet on how to address a prima facie criminal offence of which he had first-hand knowledge.

  The constitutional and legal crisis can be forced from within the system itself either by making the Crown Solicitor a party to the offence or by forcing him to expose it. He cannot be allowed to sit on the sidelines. Mr Lindeberg has placed a comprehensive freedom of information application before the Crown Solicitor and he must know the prima facie illegality of the shredding. He must be challenged and forced out into the public to declare his innocence and the integrity of his office.

  The Crown Solicitor cannot be party in any way whatsoever to a prima facie offence of attempting to or perverting the course of justice. Cabinet cannot seek independent legal advice away from the Crown Solicitor if he refuses to advise it because that would be using public moneys to cover up an offence. This represents core administrative and political corruption of the highest order. The concern expressed initially was whether the Senate recommendation will be effectively put in place for an independent investigation. A so-called independent investigation has already been carried out. It turns out that the person in question, a Mr Nunan, gave a report that stated that nothing illegal had been done. Mr Nunan was previously a partner of Mr Wayne Goss in the Caxton Legal Centre and has now been appointed as a magistrate. One must wonder about these things.

  There are key questions that must be answered. Minister Warner stated that cabinet allegedly followed the advice of the Crown Solicitor. A fundamental question that must be resolved is: did the Crown Solicitor advise the cabinet to shred public documents required in foreshadowed known litigation in order to reduce the risk of legal action against all the parties involved, including the Crown? If he did, then he advised the Goss cabinet on how to commit a prima facie offence of obstructing justice. If he did not, he must be forced publicly to say so because he is an officer of the court and a public official and the Goss government is attempting to cover up its own offence behind a smokescreen of non-existent crown law advice.

  Was the State Archivist told in the letter of 23 February 1990 from the Goss cabinet about Mr Coyne's due and proper notification of the intention to commence court proceedings and that the Goss government wanted those public records destroyed in order to reduce the risk of legal action against all the parties involved? If not, she must report that she was misled in carrying out her public duties honestly and impartially. The CJC must be made to declare publicly that it is lawful that the Goss cabinet can destroy public records required in known anticipated litigation in order to reduce the risk of legal action against the Crown itself.

  That is the basis of the evidence given by the Queensland whistleblowers. People have been hurt; people have been singled out for all sorts of intimidation. Mr Lindeberg has suffered enormously as a result of evidence that he gave before another committee of this Senate. It would seem to me that, even though I support strongly the recommendations of the committee, one would have to question whether the Queensland government will ever set up an independent investigation into these unresolved cases. If it does not, it is something that should be taken up by the Senate in the next few months.