Chapter 4 - Term of reference (b)
The second part of the terms of reference require the
Committee to inquire and report on the implications of part (a) for measures
which should be taken:
(i) to prevent the destruction and concealment by government of
information which should be available in the public interest,
(ii) in relation to the protection of children from abuse, and
(iii) for the appropriate
protection of whistleblowers.
Evidence to the inquiry focused on part (a) of the
terms of reference. The Committee received only one submission, from the
Australian Society of Archivists, which specifically related to part (b). Nevertheless,
the Committee has identified from the material before it a number of specific
issues arising from the Lindeberg Grievance relevant to each part of term of
reference (b). These issues are discussed in this chapter.
(i) prevent the destruction and concealment by government of information
which should be available in the public interest
The Australian Society of Archivists (ASA) highlighted
in its submission several specific issues arising from the shredding of the Heiner
documents relevant to the protection and availability of government
information. These were:
The importance of good recordkeeping practices,
underpinned by sound frameworks and systems;
The importance of fully informed document
appraisal and disposal practices, governed by sound records disposal
The importance of impartiality and statutory
independence for government archivists.
The ASA stated that to prevent incidents such as the
shredding of the Heiner documents, organisations need to put in place sound
procedures for managing their records:
The implementation of sound recordkeeping procedures, based upon
Australian and International best practice, prevent the destruction and
concealment of records and the information they contain.
The ASA stated that agreed principles for good
recordkeeping are promoted in the Australian Standard/International Standard
ISO 15489 - 2002: Records Management. The
National Archives of Australia (NAA) has endorsed this standard for use by all
Commonwealth agencies. The NAA has
also published a manual compliant with the standard to help agencies develop
and implement sound recordkeeping practices. The manual is titled DIRKS (Designing and Implementing
Recordkeeping Systems) - A Strategic Approach to Managing Business Information.
The relevant authority in each State and Territory has
also endorsed the standard as the best practice model for recordkeeping.
The ASA advised that one of the fundamental
accountability issues raised by the 'Heiner Affair' is the basis on which
government archivists give approval to destroy official records. The
evidence given by the ASA suggests that the appraisal process resulting in the
destruction of the Heiner documents was inadequate:
The disposal decision made by the State Archivist in relation to
the Heiner material was an ad hoc decision. It was a decision made in a short
time frame. It was also made in the absence of a records disposal authority.
Records disposal authorities (containing disposal rules and policies) when
applied by archivists to records, produce consistent disposal outcomes. Sound
appraisal regimes, consisting of records disposal authorities, appraisal
criteria, and disposal rules and policies should be put in place to support ... appraisal
process[es] that are open to public scrutiny and are understood and accepted.
manual issued by the NAA gives Commonwealth agencies detailed guidance on the
steps required to develop adequate record disposal authorities. It is
designed to prevent the ad hoc appraisal of individual records, as was the
experience with the Heiner documents.
The NAA has also specified three areas that it expects
Commonwealth agencies to take into account when considering maintaining or
disposing of records. These are:
the requirements of organisational
Of particular relevance, given the Heiner experience,
the NAA states that it expects Commonwealth organisations to maintain records
- it is reasonable
to believe that the records may be required for a judicial proceeding; and
- destruction or
disposal would compromise existing or future claims in relation to the rights
and entitlements of persons with whom the organisation or its predecessors has
dealt, where those rights and entitlements are known or projected at the time
Further, the NAA states:
We will not knowingly authorise disposal, and existing
authorities should not be implemented, while formal processes are in train or
pending to see or use the records concerned.
The ASA acknowledged in its submission that not all
government documents can be retained for the public record, and said that the responsibility
for determining which public records should be kept rests with the archivist. As such, the
ASA argued that to prevent inappropriate destruction of government documents,
the independence of government archivists from political or other interference
should be guaranteed.
The ASA noted that the provisions of the Libraries and Archives Act 1988 (Qld),
in force at the time of the Heiner inquiry did not provide such protection. However,
the ASA recognised that this issue has since been addressed, as the
independence of the Queensland State Archivist was established under the Public Records Act 2002 (Qld). The Act
The archivist and the staff of the archives are not subject to
the control or direction of a Minister or a department in relation to making
decisions about the disposal of public records.
The Committee agrees with the ASA's view that good
recordkeeping is fundamental to government accountability. In the Committee's
view, the shredding of the Heiner documents was an undesirable course of
action, representing substandard recordkeeping and archival practices.
Considering the angst that the shredding continues to generate some fourteen
years later, and the significant time and resources that have been devoted to
the matter by the protagonists and others involved in various investigations,
the Committee adds it support to the findings of the UWB Committee:
Greater consideration ought to have been given to alternative
approaches to resolving the problems associated with the [Heiner] inquiry.
However, the Committee notes that legislative reform in
the relevant jurisdiction, and the endorsement of recordkeeping standards and
best practice guidelines since the time of the Heiner inquiry have addressed
the specific issues raised in evidence.
(ii) in relation to the protection of children from abuse
No recommendations for reforms to prevent child abuse
were submitted to the Committee. The material received by the Committee in
relation to child abuse primarily concerned the details of a sexual assault on
a resident of the JOYC, the inadequacy of investigations into that case and
failure to punish those culpable for the assault. The Committee emphasises that
it does not have a judicial role and cannot adjudicate on particular cases.
Nevertheless, the evidence received by the Committee
suggests serious failures by those with a duty of care to children detained in
the JOYC in the late 1980s and early 1990s. Existing documents indicated that
physical abuse of children occurred, and
submissions and correspondence to the inquiry detailed sexual abuse.
The material received by the Committee points to
several systemic deficiencies in the operation of the JOYC at the time,
Inadequate complaint mechanisms and protection
Inadequately trained staff and underperforming
Deficient supervisory and management practices;
Deficient departmental oversight and response to
identified issues; and
Inadequate monitoring of compliance with
regulations and legislation.
Submitters argued that information available in the Queensland
media prior to the Heiner inquiry indicated that the relevant Queensland
ministers for family services knew about child abuse at the JOYC. Submitters
posited that the Heiner inquiry took evidence on such abuse, and argued that
had the Heiner inquiry been permitted to report, later instances of abuse may
have been prevented.
Submitters also stated that by shredding the Heiner documents, not only had the
abuses been covered up, but evidence which may have been used by victims in
later court actions had been destroyed.
As discussed in Chapter 3, whether allegations of
sexual abuse were covered in the material gathered by the Heiner inquiry has
not been established. The Committee also received differing views as to whether
the shredding of the Heiner documents obstructed potential court actions. Mr
Lindeberg presented the view that the Heiner
documents would have formed admissible evidence:
The [Heiner] documents could also have been used for the
children who were abused as probative contemporaneous records for their court
On the other hand, in correspondence to the Committee, Mr
Barnes stated that the Heiner documents
would not have been admissible:
The suggestion that evidence of child abuse was destroyed or
lost when the documents were shredded is complete nonsense. The records of any
such allegation made to Mr Heiner
could not have been admitted in any civil or criminal proceedings that sought
to prove that such abuse had occurred. On the other hand, if people who
appeared before Mr Heiner
had such evidence they could and still can give [it] to the appropriate law
enforcement authorities. Nothing that was done to the "Heiner
documents" in any way impacted upon that.
Regardless of the legal status of the Heiner documents,
and whether or not the Heiner inquiry covered allegations of sexual abuse, the
Committee concurs with the view that had the alleged abuses been thoroughly
investigated earlier, future incidents may have been averted. The same may be
said of institutional child abuse in all jurisdictions.
In relation to Queensland,
it may be that the shredding of the Heiner documents was genuinely motivated by
the need to protect Mr Heiner
and other witnesses from possible defamation. It remains unclear however, as to
why the Goss Labor government did not establish a fresh inquiry, properly
constituted under the appropriate act, into matters to do with the John Oxley
Youth Centre. Similarly, it remains an unanswered question as to why the Queensland
National government in 1996 did not accept the recommendation of the Morris-Howard
report that a public inquiry be conducted to investigate matters of concern
arising out of Mr Lindeberg's
allegations. Such inquiries may have provided an avenue for the investigation
of the abuses which have now come to light.
The Committee has identified from the submissions and
documents received several systemic issues contributing to the occurrence of
child abuse at the JOYC around the time of the Heiner inquiry. The Committee
notes that these issues have been identified in previous inquiries along with
recommendations for reform. In particular, the Commission of Inquiry into Abuse
of Children in Queensland Institutions (Forde inquiry) made wide ranging
recommendations for reforms in legislation, policy and practice to prevent
institutional child abuse. The
Committee draws attention to the recommendations made by that inquiry, along
with relevant national inquiries which have recommended measures to assist in
reparation for past victims of child abuse.
(iii) for the appropriate protection of whistleblowers
As noted in Chapter 2, the Lindeberg Grievance has its
origins in the treatment of a whistleblower, that is, of Mr
Lindeberg who was dismissed by the QPOA. The
grievance first came before the Senate in the form of a submission to the PIW
Committee, and was later aired more thoroughly before the UWB Committee.
Perhaps indicating the extent to which the nature and substance of the
Lindeberg Grievance has shifted over time, this Committee received scant
evidence relating to whistleblowing, and no recommendations for measures which
should be taken for the protection of whistleblowers.
The sole submission received by the Committee relating
to whistleblowing, from Mr McMahon,
focussed on the specific experience of the submitter and its parallels with the
case was among those investigated by the UWB Committee. While it is beyond the
terms of reference of this inquiry to again review Mr
McMahon's case, from the evidence received
two issues are broadly relevant to term of reference (b). These are: the need
to effectively protect whistleblowers acting across jurisdictions, in this case
a State public servant disclosing breaches of a Commonwealth law by other State
public servants; and the importance to whistleblower cases of preservation and
access to relevant documents.
These two specific issues were also identified and
considered by the UWB Committee. In relation to jurisdictional issues that
committee was concerned to ensure there were no 'gaps' in the legislative protection
afforded to whistleblowers. In relation
to the destruction of evidence, the UWB Committee noted its appreciation of the
difficulties created for whistleblowers, but considered the solutions raised by
witnesses, including reversing the onus of proof, or lowering the legal
standard of proof, were inappropriate.
The PIW Committee report made several recommendations
for the protection of whistleblowers, including that:
...the practice of whistleblowing should be the subject of
Commonwealth legislation to facilitate the making of disclosures in the public
interest and to ensure protection for those who choose so to do.
While no Commonwealth whistleblowing legislation has
been enacted, every state and the Australian Capital
Territory has passed whistleblowing legislation.
Bills relating to the protection of whistleblowers in
the Commonwealth jurisdiction have been introduced into the Senate on a number
of occasions. In June 2001, Senator Murray
introduced the Public Interest Disclosure
Bill 2001. This Bill was referred to the
Senate Finance and Public Administration Legislation Committee (F&PA
Committee) which concluded as follows:
... the Committee recommends that the Public Interest Disclosure
Bill 2001  not proceed in its current form. Nevertheless, the Committee
recognises the need for separate legislation addressing the matter of
whistleblowing and supports the general intent of the Bill.
In December 2002 Senator Murray introduced another
bill, the Public Interest Disclosure
(Protection of Whistleblowers) Bill 2002, which he said sought to refine
the 2001 bill by addressing the issues raised in the F&PA Committee's
In Senator Murray's view the new
bill 'seeks to meet the pressing need to provide protection for those who speak
out against corruption and impropriety'.
It is apparent from the evidence received that that the
treatment of whistleblowers is no longer a central concern of the Lindeberg
Grievance and the limited material submitted gives rise to no new
recommendations in relation to the protection of whistleblowers. As such, should
the Senate wish to initiate reforms in this area, the recommendations of
previous Senate committee inquiries, including the need for Commonwealth
legislation, could be revisited.
The Committee reiterates that its second term of
reference is contingent on the first - that is, the specific implications
arising from the matter of contempt. Given this, and the nature of the
submissions received, the Committee's investigation of the issues and reforms
required in relation to term of reference (b) has inevitably been limited. Where
possible, the Committee has identified specific implications arising from the
Lindeberg Grievance. Should the Senate consider that the issues raised warrant
further investigation, it could of course refer the matters in term of
reference (b) to the relevant Senate standing committees for comprehensive inquiries.
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