BOOK REVIEW
Secret State by Julian Grill Speech given by Steven Penglis SC (researched by Tom Penglis) at official launch on 3 February 2022
Of “reputations”, in Poor Richard’s Almanack, 1750, Benjamin Franklin wrote “Glass, China, and reputation are easily crack’d, and never well mended”. In Othello, Act 2 Scene 3, William Shakespeare wrote “Reputation, reputation, reputation! Oh, I’ve lost my reputation! I’ve lost the immortal part of myself, and what remains is bestial”. Although covering a far larger canvas, at its core, Julian Grill’s book Secret State is a detailed account of events which occurred in this State between 2005 to 2012, the likes of which should never have occurred and, importantly, the likes of which must never be allowed to occur again. The scene is aptly set by the opening 2 paragraphs of the book. “This is a story about justice. Or, more correctly, injustice. Rampant, blatant, ruthless injustice conducted by the apparatus of State of Western Australia in a nation that prides itself on embracing all of the protections of an enlightened Western society. It is a story of remorseless and unjustified pursuit of two individuals and their most unfortunate friends and associates, carried out with all the covert investigative and penal powers of an autocratic regime. It is also the narrative of the shameful carnage visited upon a collection of civilians, innocent public officers and their shocked families.” Put simply, with respect to what Julian calls the “Smiths Beach” inquiry and then the “Lobbyist” inquiry, only one person was ever convicted with respect to any of the CCC’s investigations. That conviction was for giving false evidence to the Commission and resulted in a small fine. In other words, the matters which the Commission investigated did not result in any convictions. However, through its processes, and what in my opinion may fairly be described as a “scorched earth policy”, the CCC decimated the reputations of many innocent people. That occurred largely because of two things. First, as lawyers well know, there is a fundamental difference between a Commission and a Court. As Julian notes in the book, parties appearing before the Commission (which is no more than an
administrative body publishing no more than an opinion) enjoy hardly any of the rights afforded to a litigant, particularly an accused in criminal proceedings. In particular, the rules and procedures that have been established over centuries to protect the judicial process and those who are subjected to it, do not apply. Secondly, and without the protections afforded in court proceedings, many of the examinations took place in public. That then resulted in allegations made against persons appearing before the Commission being fair-game for the media, which, as Julian’s book demonstrates, regularly reported such matters with little balance. To be clear, Julian, rightly in my view, does not suggest that the CCC should be abolished. To the contrary, he acknowledges it performs a critically important function in our modern democracy. Nor in my view does the solution lie in affording persons appearing before the Commission greater rights (although that would clearly assist). Rather, I am firmly of the view that the only way of avoiding anything coming close to a repetition of the damage to reputations laid bare in Julian’s book is to permanently close the doors on the CCC conducting public hearings. The statutory discretion to do so must be removed. So how was all this possible? Well, the starting point is the first Corruption Commission in Australia, namely the New South Wales ICAC. It was based on the Hong Kong ICAC, founded some 15 years earlier. The Hong Kong ICAC did not hold public hearings. Notwithstanding, the New South Wales Parliament decided to empower the Commission with a discretion to order public hearings if satisfied in all the circumstances that it is in the public interest to do so. Whilst the Act identifies certain matters which the Commission must consider, in the end the discretion is at large (i.e. subject only to it being exercised having regard to and consistent with the overriding objectives of ICAC). Along with Queensland, the WA CCC legislation adopted the same approach, namely providing that the Commission may “open an examination to the public if, having weighed the benefits of public exposure and public awareness against the potential for prejudice or privacy infringements, it considers that it is in the public interest to do so”: section 140. This does not apply to organised crime investigations (which must be held in private).
The Independent Broad-Based AntiCorruption Commission legislation in Victoria is far more prescribed. It requires IBAC to reach a view to hold public hearings “on reasonable grounds” and only if “there are exceptional circumstances” and where “a public examination can be held without causing unreasonable damage to a person’s reputation, safety or wellbeing”. The imposition of a requirement for any decision to hold a public hearing to be “on reasonable grounds” (i.e. an objective test) provides a much higher threshold that needs to be satisfied in the Eastern States and WA. It would therefore be easier (but not easy) to challenge such a decision in Court. In stark contrast to other states is South Australia. The governing legislation of the SA ICAC provides that all examinations relating to corruption in public administration must be conducted in private: there is no discretion to hold public hearings. The Act does empower the Commissioner to make a public statement in connection with a particular matter, but only if, in the Commissioner’s opinion, it is appropriate to do so in public interest (after having regard to the various matters the Act requires to be taken into consideration). The reasoning behind the private hearings was best explained by the Hon Thomas Kenyon in the second reading speech for the SA ICAC Act: “Investigations into corruption conducted by the ICAC will be conducted in private. This is because persons under investigation by the ICAC have not been charged with any criminal offence. As is currently the case with criminal investigations undertaken by SA Police, a suspect is publicly identified once an investigation is completed and a charge or charges have been laid (subject of course to any suppression order that may be in place). To make an investigation undertaken by the ICAC into
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