Independent Commission Against Corruption

Adjourned debate on motion of Hon. F. Pangallo:

That this council—

1. Notes that the Inspector for ICAC, Mr Philip Strickland SC, delivered reports to parliament of reviews into investigations into complaints on the following matters investigated by ICAC:

(a) review of PIR 18/E17253 and complaint of Mr Michael Fuller, April 2024;

(b) review of the investigation and prosecution of Mr Trent Rusby, April 2024;

(c) review of the investigation of Chief Superintendent Douglas Barr, April 2024; and

(d) the investigation and prosecution of John Hanlon, June 2023.

2. Notes that the parties named in the reports have registered with the Hon. F. Pangallo detailed submissions in writing, complaining that the reviews were attended by:

(a) abuse of power;

(b) failure to exercise power;

(c) failure to provide procedural fairness and natural justice;

(d) exceeding jurisdiction;

(e) mistakes of fact undermining probity of the reports; and

(f) failing to make findings of 'misconduct' and/or 'maladministration' in public administration in the face of clear and undisputed evidence.

3. Calls on the Attorney-General to act on the recommendations contained in the 2021 Report of the Select Committee on Damage, Harm or Adverse Outcomes resulting from ICAC Investigations.

4. Calls on the Attorney-General to order an independent judicial review, with an officer appointed from interstate with the powers of a royal commissioner, into the inspector's reports/reviews/findings in the matters of Mr Hanlon; PIR 18/E17253 and complaint of Mr Michael Fuller; the investigation and prosecution of Mr Trent Rusby; and the investigation of Chief Superintendent Douglas Barr.

The Hon. F. PANGALLO (21:05): On 29 April this year, the Office of the Inspector for ICAC handed down its review into the investigation and prosecution of Mr Trent Rusby. It was one of three reports the inspector had tabled. By way of background, Mr Rusby, the director of transport, safety and regulations at the Department of Planning, Transport and Infrastructure had been investigated in 2014 by ICAC for corruption in public administration, along with others.

The allegations were misuse of government credit cards and misuse of government property for personal use by employees of the Department of Planning, Transport and Infrastructure. There was also the wrong assertion that a trip that Mr Rusby had undertaken to Kangaroo Island with some of his colleagues was nothing more than a boys' fishing trip on the taxpayers' purse.

The Advertiser was tipped off about the story and it was given the nod to be published by the then commissioner, Bruce Lander KC. The subsequent story, given feature page prominence, with the most prominent photograph of those charged being Mr Rusby, contained sensational claims that they had stolen an Aladdin's cave of goods. To any reasonable thinking person reading that story, myself included, you could only conclude that there was a significant value of goods owned by the government that was misappropriated.

This was a false narrative created to give prominence and publicity to an ICAC investigation. When you see the actual list of items supposedly pilfered by these light-fingered Ali Babas of DPTI, it is laughable. This was never corrected by either The Advertiser or ICAC. Mr Rusby was charged with four corruption offences by the DPP on a referral by the then ICAC Bruce Lander KC: one of failing to act honestly in his job and three of theft. There was no basis for the charges against him, no evidence to support them and, consequently, they were thrown out of court, leaving Mr Rusby's reputation destroyed to this day—10 years later.

A Google search instantly brings up his personal nightmare. He says he is the only Trent Cameron Rusby in the world. He is required to get a police criminal check for every job he applies for, then has to tell those potential employers his history. Even trying to get a job as a casual local pool guard requires a clearance. It remains there on his record.

As Mr Rusby puts it, this is what the ICAC, DPP, the media and the ICAC inspector failed to fully understand: the extent of the reputational harm and damage caused by their doing will last forever. The inspector did criticise Mr Lander for making basic mistakes arising from a poorly constructed investigation and then referring or recommending that the Office of the DPP prosecute Mr Rusby because it was in the public interest.

Incredulously, Mr Lander and ICAC are absolved of any wrongdoing. There was no adverse finding of misconduct in public administration maladministration by Mr Lander, and, even more astonishing, all the media attention and public commentary by Mr Lander had not caused undue prejudice—damage—to Mr Rusby's reputation. Then again, it is extremely rare to see one legal practitioner strongly criticise another. Remember that Mr Lander was a Federal Court and Supreme Court judge in three separate jurisdictions and is a King's Counsel. Incidentally, today happens to be his 78^th birthday; I wish him a happy birthday.

He had the expertise to make an accurate and informed assessment on the available evidence against the accused, particularly Mr Rusby, before a brief was prepared for the DPP. Had that brief gone to SAPOL, as stipulated in the reformed ICAC Act, it is doubtful they would have proceeded with a prosecution given the lack of evidence to substantiate the charges against Mr Rusby.

The former ICAC, Ann Vanstone KC, excused Lander's poor judgement in thinking there was a reasonable prospect of a conviction as showing 'fair minds could differ on the question', even though Inspector Strickland submitted there was no prima facie case existing, noting, like Vanstone, that reasonable minds may differ. She rejects Strickland's criticism to refer the matter to the DPP in her response to Strickland's tabled reports in a statement on 1 May. Then, after her resignation, she told ABC radio:

We had the independent umpire and he said what he said, anyone can read those reports and there is very little criticism of Mr Lander and his office in those…

I read Mr Strickland's comments differently. It is strong criticism that Mr Lander should never have referred Mr Rusby for prosecution with the others. After all, there was not a shred of evidence against him. He was innocent of any wrongdoing, and that was not picked up by anyone in ICAC or the Office of the DPP.

What about those in the community who might have already made up their reasonable minds reading The Advertiser's coverage or conducting a Google search? Strickland says he was not satisfied that the referral to prosecution caused undue prejudice. How can that possibly be? Not only was he innocent and stole nothing but ICAC's decision to authorise a journalist to publish the story before Rusby's court appearance, in which Mr Rusby's photograph was the most prominent, smacked of a publicity stunt.

Mr Strickland does not seem able to correlate the difference between the ICAC investigation, which was an appropriate step to take, and the subsequent referral to the DPP, with the enormous media exposure given to it and to Mr Rusby. Mr Rusby should never have been implicated and charged in the first place. If he was not, he would not have been part of the newspaper story, but Mr Strickland does not think all this caused him harm—really? Does he really understand the powerful reach and lingering impact of such media exposure? Mr Rusby will never be able to escape it and scrutiny while it remains accessible online.

This is where the enormous damage has been done, and I cannot fathom how Mr Strickland can think there is nothing in it. Had it been a story of an alleged theft investigation and was published naming names without it being linked to an ICAC investigation, Mr Rusby would have had an excellent case to go to the civil courts and sue for defamation, where I am sure he would have won a handsome settlement. But because it was a criminal matter, he is unable to seek any redress, either financially or by way of an apology. This is why he is deserving of some form of compensation from the government, despite Mr Strickland's findings, which in my view are biased.

I found it puzzling that in his report Mr Strickland did not bother taking a statement from the journalist who broke the story, to try to ascertain how the journalist came to be told about it or who told him. We are led to believe the journalist approached ICAC seeking authorisation to publish before the accused fronted court, where their identities would have been revealed. Why did not Mr Lander demand to know how that information of an ICAC investigation was given to a journalist? After all, it was an offence for someone to disclose an ICAC investigation. We will never know what was discussed, because Mr Strickland chose not to go there in his review.

As for the review itself, there are many missing links to his investigation. The most astonishing revelation starts at paragraph 64 on page 17 and ends on page 19 at paragraph 72. It has to do with probably one of the most important pieces of exculpatory evidence: an audit of the department to be carried out by the complainant, which was requested by ICAC's own investigator. This audit report was to specify what was stolen or missing, improper purchases and who was responsible. It was to clearly identify lines of inquiry for the investigator so that he could carry out his investigation plan. What happened? The reporters could not provide the audit on time, with the investigator taking statements five months after the investigation had started.

Strickland goes on to say that it was never clear whether ICAC had ever received this important piece of evidence, because Strickland was unable to find a complete version of it at ICAC, in the DPP's files or on the court files. What was going on here? How on earth could you lose this significant document, that is, if it even existed or was provided? If it was provided, it should have been entered into ICAC's database. This is amateur hour, Keystone Cops stuff, if it was not so serious and to the detriment of Mr Rusby in particular. But there was no explanation in his review about why this had happened—not good enough.

Mr Rusby and his wife, Leah, were interviewed by Mr Strickland or, as Mr Rusby puts it, cross-examined and making them feel they were under suspicion again. Mr Rusby and his wife told Strickland the truth, but Mr Rusby said the inspector was more interested in and focused on finding defences and excuses for ICAC and for Mr Lander and the investigators appointed, while taking scant notice of the physical and psychological damage and ongoing hurt it has caused them.

Strickland makes no reference to Mr Rusby's post-traumatic stress disorder resulting from that failed prosecution. He has been on stress leave for the past 12 months, suffering from traumatic injuries and trauma-related panic disorder, extreme anxiety, panic attacks, nightmares, depression, headaches and poor physical health as a result of his ordeal at the hands of ICAC. I seek leave to table the psychological report and clinical notes for Mr Rusby prepared by his registered psychologist, Dr Reneshree Govender, which details a life and career that has all but been destroyed.

Leave granted.

The Hon. F. PANGALLO: Yet, Mr Strickland did not note Mr Rusby's distressing condition was worthy of a mention in his review—it is not fair. Rather than me read it into Hansard, I would like to move to table Mr Rusby's own responses to critical paragraphs in Strickland's report he disputes.

Leave granted.

The Hon. F. PANGALLO: I will, however, read a letter sent to me by Mr Rusby on 31 May 2024—and I believe sent also to you, Mr President—comprising 14 bullet points in which he accuses Mr Strickland and his then deputy and now acting inspector, Mr Stephen Plummer, of denying him natural justice:

Sir,

The Report was tabled in this House on about 30 April 2024 and the following points noted:

1. The Inspector failed to provide transparency and right of reply by denying my access to Mr Lander's transcript of evidence (email correspondence attached);

2. The denial to me of access to Mr Lander's testimony is authored by Mr Stephen Plummer, the Deputy inspector who had no power or authority to make such a decision. Mr Strickland had as Inspector no power under Schedule 4 of the ICAC Act to delegate any function to his Deputy;

3. The denial under the hand of Mr Plummer was therefore of no legal consequence. I have been denied natural justice by not being afforded the personal consideration of the inspector;

4. As such, the Inspector denied me the opportunity to reference in any submission (to the inspector) passages in Mr Lander's statement, in support of the following critique in points 5 to 11 inclusive;

5. The Inspector clearly identifies a significant error by the ICAC, specifically Mr Lander (Paragraph 19 & 317);

6. The Inspector having identified the error by Mr Lander fails to recommend referral of Mr Lander to an appropriate body for investigation;

7. The Inspector fails to consider the gravity, and include in his report, evidence provided by myself and my wife, in support of the damage and harm caused to my reputation, and subsequent loss of earnings, as a direct result of the ICAC error, specifically Mr Lander's error;

8. The Inspector, by failing to make recommendations for referral to an investigative body, has limited any opportunity for me in seeking future financial compensation from State Government;

9. The Inspector fails his review by allowing (accepting) Mr Lander to move blame from the ICAC to the DPP with regard to the function of checking a brief of evidence prior to it being referred by the ICAC to the DPP;

10. The Inspector has succeeded in part by identifying some of the wrongdoings by the ICAC, namely, that there was never any evidence to support a reasonable prosecution against me, that Mr Lander made an error by referring a brief of evidence (with no evidence) to the DPP, with my name included;

11. Had Mr Lander administered his function correctly, I would not have been the victim of the media attack on my name and reputation, regardless of the DPP's involvement;

12. The time frame allowed to me, a person not legally trained, was a denial to me of procedural fairness and natural justice;

13. A consequence of this has been the tabling of a Report with findings which are currently unchallenged by me;

14. My only opportunity to put my challenge in the same forum as the Report is this, my appeal to you Mr President for the tabling of this my citizens reply.

Trent Rusby

31/05/2024

Anyway, 'So what?' says Ms Vanstone. Ten years on, there is nobody involved in that investigation who is still working at the commission, and she says it is a totally different organisation. One just shakes one's head in bewilderment that the inspector could come to such a conclusion.

But it should not come as a surprise, considering no individual was found responsible for the bungled Hanlon investigation, despite the inspector finding that the institution itself was guilty of maladministration. It was badly managed. That was the extent of it.

I will maintain that his report was a biased snow job to protect the integrity of the agency and its management and staff from any further embarrassment. As Mr Strickland told a parliamentary committee, someone else may have found differently. After all, reasonable minds may differ, but not in this case. It is unreasonable.

Again, I am quite conscious of time, that it is at a premium tonight and that the government is wishing to finalise two bills. While I do have just one more case review to consider and speak about, I will not go through it tonight and I seek leave to conclude my remarks.

Leave granted; debate adjourned.