Source: http://www.qao.qld.gov.au/publications/document/0405report6.htm
Introduction
Each year the Auditor-General receives inquiries or referrals from Members of Parliament and the public about issues concerning the actions of public sector entities which usually relate to concerns expressed about the management of these public resources and often include requests for the Auditor-General to investigate further. Where the Auditor-General considers that the matters raised are significant or in the public interest, these will be reviewed and reported on in the normal way through Reports to Parliament.
In dealing with a number of these referrals I onforward the issue to other public sector bodies such as the Crime and Misconduct Commission (CMC) who are better placed legislatively to action the complaint or issue.
Where a matter has absorbed QAO’s resources or I deem that it should be provided to the Parliament for its information or other action, as appropriate, I do so through my discretionary reporting to Parliament function. After having received a series of related referrals from a Mr Lindeberg I concluded that Parliament should be informed of the general issues raised in the referrals and my position in relation thereto.
In respect of the matters referred to me by Mr Lindeberg, I am firmly of the view that they are outside the scope of an Auditor-General’s statutory mandate.
In examining the issues, I have concluded that independent legal advice was necessary in the circumstances. Accordingly, I sought such advice on three separate occasions with the most recent advice obtained after receiving Mr Lindeberg’s and his solicitor’s comments on the draft report item. Independent private sector legal advice provided to me (by letter of 15 November 2004) on a review of the draft report item and the responses provided by Mr Lindeberg and his solicitor stated —
Re: Allegation By Mr K. Lindeberg
I have read the draft of your proposed report to Parliament and the comments upon it by Mr Lindeberg and his solicitor.
Nothing they have said causes me to change or modify my previous advices to you. They have completely missed the point of your decision not to hold an inquiry and to refer the matter instead to the CMC, i.e. that logistically, and practically, you are ill-equipped to hold such an inquiry, the proper investigative authority being the CMC or the police.
The case of Ensbey referred to by Mr Lindeberg has nothing to do with any reasons you have given for your decision. I have some familiarity with the case … It says nothing relevant to your decision.
The comments in your draft report to Parliament are, in my view, appropriate …
Since May 1993 Mr Kevin Lindeberg has written to QAO on a number of occasions in relation to events surrounding an ex-gratia payment made to a former employee of the John Oxley Youth Detention Centre (JOYDC), Wacol. Mr Lindeberg had been a Union Official representing the former employee in seeking access to the Heiner Inquiry documents.
In commenting on the Government’s motives for destroying the Heiner Inquiry documents, the then Honourable the Minister for Family Services and Aboriginal and Islander Affairs informed Parliament on 18 May 1993 that —
… On 13 November 1989, the former Director-General of the Department of Family Services, following consultation with the former Minister for Family Services, appointed Mr N J Heiner, a retired stipendiary magistrate, to investigate and report on matters relating to the John Oxley Youth Centre. In January 1990, a number of doubts emerged as to the legal basis and authority for Mr Heiner’s appointment and the establishment of the investigation and, hence, the way in which it was being conducted.
… Advice received from the Crown Solicitor indicated that, although Mr Heiner had been lawfully appointed as an independent contractor to perform his tasks, it was clear that because of the way the investigation had been established, there was a lack of statutory immunity from, and thus exposure to, the possibility of legal action against Mr Heiner and informants to the investigation. In establishing the investigation, no regard had been given to the possibility that material gathered by Mr Heiner could be of a potentially defamatory nature. The bottom line was that he himself could be exposed to legal action, and likewise any member of staff who gave information to him. To compound this situation further, the terms of reference given to Mr Heiner for the conduct of the investigation were general in nature and did not require him to make any recommendations as to action that ought to be taken as a result of any conclusions he might reach. In fact, Mr Heiner verbally advised the acting Director-General that he had not intended to make any recommendations. Therefore, the result of this investigation would have been more questions, and no answers.
Having considered the Crown Solicitor’s advice and the limited value of continuation of the investigation, … the acting Director-General, terminated the investigation on 7 February 1990 and directed Mr Heiner to gather and seal all documents related to the inquiries. These documents were delivered to the department’s head office for safe keeping. Cabinet was advised of this action in a submission dated 12 February 1990. Sealing of the documents gathered by Mr Heiner ensured that there could be no further consideration given to the material he had gathered. Neither … the acting Director-General, nor I was aware of the contents of this material. … Terminating the investigation was fair to all staff involved; it was fair to Mr Heiner, and it was fair in that it stopped an investigation which had a dubious legal basis and which was not going to result in any recommendations.
In March 1990, Cabinet authorised that the Heiner Inquiry documents be destroyed.
Mr Lindeberg disputes the Government’s motives for destroying the Heiner Inquiry documents and comments which he has made about this are included in later Sections of this Report item.
In February 1991 the State of Queensland entered into a Deed of Settlement with the former employee (the Claimant) at JOYDC, who had been relocated from Wacol to undertake duties in the central office of the then Department of Family Services and Aboriginal and Islander Affairs in Brisbane.
Under the Deed of Settlement an ex-gratia payment of $27,190 was made to the claimant for costs related to his relocation to Brisbane. The terms of the settlement required that “the events” surrounding and leading up to the relocation remain confidential. While not separately identified, the ex-gratia payment of $27,190 formed part of the total disclosure of such payments made by the Accountable Officer in the Department’s financial statements for 1990–91 which were audited and tabled in the Legislative Assembly on 23 October 1991.
At the time the payment was made, the Director-General’s authority to approve ex-gratia payments was limited to $2,000 with the Minister able to approve amounts up to $6,000 and for outlays in excess of $6,000 the approval of the Governor in Council was required. While the approval to make the ex-gratia payment of $27,190 was given by the then Minister, it should have received Executive Council approval. It should however be noted that in June 1991, four months after payment was made, the Minister’s approval limit was raised to $50,000.
Upon being made aware of the level of approval required for the ex-gratia payment the Director-General, after taking advice from the Crown Solicitor, decided in terms of the powers provided under the Financial Administration and Audit Act 1977, to approve that the amount of $27,190 be regarded as a loss and that it be written off. Disclosure of the write-off was made in the notes to the Department’s audited financial statements for 1993–94 which were tabled in the Legislative Assembly on 20 December 1994.
In making representations to me and at Committee inquiries of the Parliament of the Commonwealth of Australia, Mr Lindeberg has broadly asserted that criminality has occurred as follows —
The recipient of the $27,190 ex-gratia payment has been prevented from discussing known child abuse by the confidentiality provisions of the Deed of Settlement between him and the State.
The ex-gratia payment was an unlawful disbursement of public moneys for an improper purpose.
The Heiner Inquiry documents were knowingly destroyed to prevent the material being used in criminal proceedings related to child abuse.
In writing to me on 11 September 2004, Mr Lindeberg stated —
... the QAO’s only avenue … was a referral to the Queensland Parliament requesting the appointment of Special Prosecutor to investigate the Heiner affair. Any investigation must …
properly inquire what “the events” spoken of in the Deed of Settlement were and why public money was paid to ensure that their character was never publicly disclosed …
It was also open to conclude that the illegal act of shredding of the Heiner Inquiry evidence required for a judicial proceeding could be included in the term “the events”;
The disbursement of public money by the Crown to cover up crime … is not permissible at law;
The alleged criminal conduct concerned —
[1] destroying evidence required for a judicial proceeding;
[2] destroying evidence of known/suspected abuse of children in State care to prevent its use as evidence in judicial proceedings; and
[3] obstruction of justice;
The payment of $27,190 was made against a background of threats, menaces and collusion …
In his letters to me dated 9 February 2004 and 11 September 2004, Mr Lindeberg claimed —
… My original complaint centred on the actual shredding of the Heiner Inquiry documents… to prevent their known use as evidence in known foreshadowed judicial proceedings. In that matter, I held that section 129 of the Criminal Code (Qld) – destroying evidence – had been breached …
… The incorrect interpretation of section 129 of the Criminal Code (Qld) put by the CJC and Queensland Government claiming that a judicial proceeding had to be on foot before it could be triggered was never open to be made … [Case Law in] R v Douglas Roy Ensbey proved my point. It was further entrenched in the Queensland Court of Appeal against the leniency of the sentence against Pastor Ensbey … in June 2004.
In his letter to me dated 19 September 2004 Mr Lindeberg further commented —
… The evidence before you strongly suggests that the Queensland Government, at all relative times, was aware of the abuse of children at the John Oxley Youth Detention Centre …
In my opinion, there is sufficient evidence before you to reach the reasonable view that the term “the events” in the February 1991 Deed of Settlement was about known suspected and/or real abuse of children.
I respectfully ask you to do your sworn duty as an officer of the Parliament and as Auditor-General responsible for the impartial enforcement of the Financial Administration and Audit Act 1977. Accordingly, I respectfully request that you advise the Queensland Legislative Assembly that a Special Prosecutor be appointed as it is the only way forward so that this matter may be properly determined, which, insofar as your statutory function is concerned, will permit public confidence to be restored in the role of the Queensland Audit Office.
The investigation of alleged misconduct and criminal matters is beyond the scope of my mandate under the Financial Administration and Audit Act 1977 and this was confirmed by independent private sector legal advice which stated in February 2004 that —
… It seems to me that you are not equipped to examine these matters. [Mr Lindeberg’s] allegations raise questions of law and questions of fact. Examination of these matters in order to form a view for the purpose of an audit report seems to me to require you to perform a task which would take you beyond your normal audit functions. The matters raised by Mr Lindeberg are more properly examined by a body which traditionally investigates such allegations of improper conduct, ie, the Crime and Misconduct Commission, or the police.
By letter dated 13 February 2004, I wrote to the Chairperson of the Crime and Misconduct Commission (CMC) to seek an assessment of the issues raised by Mr Lindeberg. In responding to me on 11 March 2004, the Chairperson of the CMC concluded —
Mr Lindeberg does not provide any evidence that the 1991 termination payment, was made by the Government of the day to ‘buy the silence’ of [the recipient of the ex-gratia payment] regarding the destruction of the relevant documents or the mistreatment of juvenile detainees of the JOYDC.
... He provides no new evidence.
Having considered Mr Lindeberg’s assertions, legal advice provided to me, the advice of the CMC and the scope of my mandate under the Financial Administration and Audit Act 1977, there is no further action I can take in respect of the matters raised.
In its August 2004 Report, Crime in the Community: victims, offenders and fear of crime, Volume Two, the House of Representatives Standing Committee on Legal and Constitutional Affairs, to which Mr Lindeberg made submissions and appeared as a witness, recommended —
Recommendation 6
The Committee recommends that the Commonwealth gain a commitment from the Queensland Government within the framework of the Council of Australian Governments that the Queensland Auditor-General be given the power to conduct performance audits of Queensland public sector entities comparable to the performance audit power available to the Commonwealth Auditor-General.
It is my view that an expanded mandate would not provide an Auditor-General with the capacity to investigate alleged criminal matters of the nature raised by Mr Lindeberg.
I provided Mr Lindeberg with a draft of my Report on the matters he has raised so that he might give some comment on the item.
On 5 November 2004 Mr Lindeberg’s solicitors responded on his behalf.
In addition, by letter of 10 November 2004, Mr Lindeberg wrote to me setting out his recollection of discussions he had held on 4 November 2004 with my officers regarding the content of the draft Report item.
In my correspondence to Mr Lindeberg, it was advised that any response would be included “either in full or in part”. Having assessed the responses, I have amended the Report item as I consider appropriate.
In this context, Mr Lindeberg’s letter of 10 November 2004 contains assertions that I have not adequately dealt with his issues. His comments in this regard include —
...1.
I insisted that it was more important to get the Report right rather than rush its tabling during a sitting of Parliament before Mr. Scanlan retired. As the QAO was actively pursuing the matter now, no adverse inference would be drawn by me, or my solicitors, if a further delay occurred in order to get the facts right before tabling it. The Report could always be tabled through the Speaker’s Office if Parliament was not sitting when it was ready.
2.
I strongly objected to Mr. Scanlan writing to the Crime and Misconduct Commission (CMC) because it was a protagonist. I asserted that the CMC could not come to the matter impartially. I provided … with a copy of a “highly protected” internal CJC memorandum dated 11 November 1996 in which the CJC had decided, in the wake of the tabling of the Morris/Howard Report in the Queensland Parliament in October 1996, that it could not come to the “Heiner affair” again because its independence had been impugned by Parliament …
… COMMENT: The Draft Report is, in effect, rewriting history. It pays no cognizance whatsoever to what has since been discovered about abuse of children at the Centre, which those in authority always knew of before entering into the Deed of Settlement and at the time of the shredding of the Heiner Inquiry evidence. Any Report to Parliament which fails to mention these facts would be misleading …
… 7.
I challenged the extract of a statement to Parliament by the Hon Anne Warner, Minister for Family Services and Aboriginal and Islander Affairs as taken from State Hansard on 18 May 1993. It presupposed that it was a truthful and complete recounting of the events, when evidence and the law existed proving otherwise. It profoundly disadvantaged me because the statement was open to critical comment as I alleged that the Minister had misled Parliament in certain parts of her statement, and subsequent events had proven my assertion. The QAO was lending its credibility to the statement without my being able to point out the falsehoods in it …
… COMMENT: It is unfair for the QAO to reproduce, in a Report to Parliament in 2004, one extract from Hansard – of which there have been many over the years – against the wealth of material available elsewhere, or, for that matter, also in Hansard under the Borbidge Queensland Government which was strongly critical of the same Minister, the shredding and the payment ie relating to the findings of the Morris/Howard Report. The QAO has made an inappropriate judgement by citing this passage alone and not others strongly supportive of my position. It would be therefore open to conclude that the QAO would be denying me procedural fairness and not acting honestly and impartially if it reproduced this passage of Hansard and ignored others …
Having considered Mr Lindeberg’s assertions, legal advice provided to me, the advice of the CMC and the scope of my mandate under the Financial Administration and Audit Act 1977, there is no further action I can take in respect of the matters raised.