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.

(Continued from 13 November 2024.)

The Hon. F. PANGALLO (22:22): This is the last instalment of my speech on my motion into the three reviews of ICAC investigations by the former Inspector of ICAC, Philip Strickland SC. On 29 April, Strickland tabled his review into the investigation of Chief Superintendent Douglas Barr, who took his life in October 2019 while awaiting the outcome of an ICAC investigation into recruitment nepotism at SAPOL.

The Barr family have always blamed the lengthy delays in Mr Barr receiving written submissions from Commissioner Lander, which were promised to him within two or three weeks after an 11 July examination, for his suicide more than three months later. The investigation had taken a terrible toll on Mr Barr's mental condition. He was a distinguished and decorated senior police officer who had felt his entire world was collapsing in on him, and everything he had worked for was going to be taken away through an adverse finding.

Mrs Barr did not criticise the decision to investigate her husband. Her complaint was how Mr Lander undertook the investigation. Nobody would argue it was appropriate for Lander to investigate Chief Superintendent Barr and others involved in the investigation known as Recruit 313. ICAC certainly uncovered worse conduct by others than what had been levelled at Mr Barr. He did not behave corruptly.

The problem was, and which led to his suicide, Lander telling him as much in the period he had promised, two or three weeks from 11 July at the end of Lander's examination. However, ICAC's counsel assisting took far too long to finalise the submissions and was never likely to meet the deadline Barr expected from his conversations with Lander.

ICAC's senior legal officer told Strickland it was near impossible to complete in such a brief time because of the volume of material. Well, Mr Lander should have known that as an experienced barrister and former judge himself. Commissioner Vanstone told Strickland the period given to Mr Barr was always untenable and she conceded that had the false expectation not been given it may not have been so stressful for Mr Barr. She puts that ever so mildly. Stressful? It was worse than that. They would have and should have known the terrible toll it was exacting on Mr Barr and his family. A secret and suffocating ICAC investigation like this one does not have a stressful effect; it has a traumatic effect, a devastating effect.

A distinguished police officer who served his community with distinction is seeing his entire life flashing before him, approaching a dead end because he is unsure what they are going to find. He was assigned the job to find 313 recruits for SAPOL. It proved to be a difficult assignment. Guess what? It is still difficult today to fill hundreds of vacant jobs. Chief Superintendent Barr's mistake was that he asked a panel reviewing candidates to revisit one known to him that they had rejected—there was nothing criminal in that.

I will remind members that Recruit 313 found that another SAPOL officer had tampered with exam results of recruits related to senior SAPOL officers, that there was evidence of nepotism and managing conflicts of interest. If anything, it was more a case of being a disciplinary matter that could have been dealt with internally, no crime committed, but Doug Barr and his family did not know that. Unbeknownst to him, the investigation went from being one of corruption to possible misconduct and maladministration, on which, at the time, Commissioner Lander had no authority to act under the Ombudsman Act until he sought approval.

So Strickland finds that the concerns held by the Barr family over the delays were valid. He accepts the protracted investigation took a psychological toll on Mr Barr. But here is the kicker—and, again, demonstrating that Mr Strickland was never going to make a finding of fault against anyone at ICAC, particularly Mr Lander. Again, just like in the other two matters, Hanlon and Rusby, he decides that despite the three-month delay—remember, this is eating at Mr Barr night and day, 24/7—it did not amount to an unreasonable delay within the meaning of the ICAC Act. 'Within the meaning of the ICAC Act'? This is a clever way to shift any blame.

Did Strickland even consult with an eminent psychiatrist to gain an insight into what Mr Barr may have been experiencing with his mental health? You would think he would have taken the time to take evidence from an expert in mental health to gauge the sort of mental trauma Mr Barr and others subjected to ICAC investigations would experience and how their condition could be better managed and understood—a person of eminence of the likes of Chief Psychiatrist Dr John Brayley, or respected psychiatrist Dr Sandy McFarlane—not make his own judgement. He is a lawyer with no medical expertise as far as I am aware, but that did not seem relevant to him or his minions.

He found no evidence they contravened the code of ethics for the Public Service, no evidence of maladministration in public administration by Mr Lander—funny, that. He could not bring himself to find any one person in ICAC, let alone Lander, liable or responsible for his finding of misconduct and maladministration in the Hanlon case. 'It was systemic,' he said. It was the organisation of the place that was responsible for all this mismanagement of investigations, even if Lander once wrote that the buck always stops at the top when it comes to misconduct and maladministration in public office. Mr Barr was told in his summons that he was being investigated for exactly what Strickland found was going on at ICAC. It was worse at ICAC but nobody was going to be blamed for it. Perhaps a display of comedy here.

The death of Mr Barr was because of direct failure of communication between him and Mr Lander. Legally, Mr Lander may have been cleared of any wrongdoing but morally his delay proved catastrophic. Strickland went looking for every excuse to not lay any blame on ICAC's conduct—another whitewash. Maybe fairer minds might have found differently.

He accepted Lander's evidence that it was not appropriate to tell a person who did not even know they were not going to be prosecuted because it would cause that person—now, wait for it—undue stress. Mr Barr could not have been under more stress. Strickland concluded that Mr Barr should have at least been informed of the delays in finalising the counsel assisting submissions. To be told would have lifted an enormous weight off his shoulders and that of his long-suffering family. He may not have gone down that terrible tragic path.

Under the act as it existed before the reforms, Mr Barr could not even tell a medical practitioner why he was under so much stress. Mr Barr could not even tell his own children why he was so depressed, why he was not at work. Thankfully, we changed that in the reformed act, not that some in this place may have noticed that.

The family told a parliamentary committee they still hold Mr Lander responsible for the death of their loving husband and father. They still hold that view despite Strickland's findings. Mrs Barr is still hurt and traumatised about what happened to her, to her husband and to her family, and then the unannounced police raid which seized items and pieces of his uniform while he was still alive and on his way to the Royal Adelaide Hospital's intensive care unit where he remained for five days before the life support was terminated.

She told me she believes Mr Strickland was looking at ways to exonerate ICAC and Mr Lander, and does not feel the family will ever get any justice for the way he had been treated. This motion on Mr Barr is not about the appropriateness of the investigation; it is about the devastating effect that avoidable three-month delay had on him in the end.

In April 2022, TheAustralian Financial Review carried a one-sided feature which I suspect was a coordinated ICAC-inspired hit job to discredit my inquiries into ICAC. It was highly critical of me and my parliamentary committee, accusing me of creating fake news surrounding Mr Barr's death in order to justify the ICAC changes. Nothing could be further from the truth. I have strong suspicions who was behind this. The interstate reporter never had the courtesy to respond to my questions as to how he was given a copy of the still confidential Recruit 313 report, and subsequently published confidential excerpts from it.

There is substantial evidence that committee has taken publicly and in camera, which many in this place—apart from committee members—would not have read, despite forming their own views on those reforms. They will get a unique perspective if they did or if they met and spoke with any of those victims. That committee took substantial evidence from dozens of witnesses, including several other failed cases long before we heard from Mr Barr's family.

The genesis of that inquiry was not Mr Barr's death; it was the bungled ICAC investigation into the police officers at Sturt Mantle, known as Operation Bandicoot—innocent police officers who were investigated on hearsay of stealing items from crime scenes. The prosecution case against them fell apart.

Their reputations were damaged, even before they were charged and went to trial, by egregious prejudicial comments made in the media on the day of their arrest, and followed by both Commissioner Lander and former Police Commissioner Gary Burns. They were deemed guilty in the media interviews they gave in gloating about their arrests, and an investigation which was later shown to be terribly flawed.

ICAC as an institution seems to still be in some serious turmoil based on recent correspondence I have received from retired barrister Michael Fuller, whose matter I spoke about at the introduction of this motion. He writes with some concern directed at the Attorney-General which I will read from here. The heading is:

To the Attorney-General. My indictment of you as minister responsible for the basket case which is ICAC.

He writes:

1. Under your oversight ICAC is now a Ship of State without a Captain or Second in Command (both having already abandoned ship), only an Ensign left—Ben Broyd, whom you have appointed as 'Acting ICAC'.

Mr Fuller asks:

2. How did this happen?

3. It happened because you have failed as Attorney General and Minister responsible for ICAC to anticipate the contingency that Vanstone would resign her office as ICAC at short notice in protest at your conduct in not supporting her as she perceived it.

4. That failure to anticipate has exposed your unacceptable, by any standard, failure to insure against that contingency by the appointment of a Deputy ICAC to fill the vacancy in the interim since 30 June 2023.

5. This failure in office and function as Attorney General I now reveal…

6. [These are the] particulars of this my indictment of you as a failure in office…

Particulars:

8. On 5 July 2023 ICAC announced the appointment by you and cabinet of former Supreme Court Justice Michael David as 'Acting ICAC' for a number of weeks while ICAC Vanstone was absent from office on leave.

9. There was no other announcement by ICAC or by you in explanation for the necessity of an appointment of Michael David as 'Acting Commissioner'.

10. On 6 September 2024 ICAC Vanstone's notice of intended resignation as ICAC became effective.

11. On 6 September 2024 you announced the appointment of Ben Broyd, a legal officer in ICAC, as 'Acting ICAC' from 7 September 2024 until 2 March 2025.

12. Once again no other announcement in explanation for the necessity of an appointment of Ben Broyd as an 'Acting Commissioner'.

13. Hidden by these announcements was a secret withheld from publication of a truth known to you, to Cabinet, to OPI Emma Townsend, to ICAC Vanstone and to Ben Broyd.

14 That secret I have exposed in e/mail 10 November 2024 to Acting ICAC Ben Broyd and to OPI Emma Townsend, which I now request the Hon. Frank Pangallo to [table].

I seek leave to table that email.

Leave granted.

The Hon. F. PANGALLO: I continue:

15. This e/mail immediately followed an exchange of e/mails starting with my e/mail to Paul Alsbury in the mistaken belief that he was still in office as Deputy ICAC.

16. I ask the Hon. [Frank] Pangallo to now…[table] that exchange commencing with my e/mail to Paul Alsbury and then the response, particularly the words 'Mr Paul Alsbury is no longer employed by the Independent Commission Against Corruption'.

I seek leave to table that email.

Leave granted.

The Hon. F. PANGALLO: I continue:

17. What I ask is the reason for not saying that Paul Alsbury resigned as Deputy ICAC effective 30 June 2023 well before his term was due to expire 13 February 2025?

18. The answer of course is to conceal an embarrassing truth that Paul Alsbury resigned notwithstanding that his resignation would leave a vacuum in office while ICAC Vanstone was on leave.

19. One inference which can be reasonably drawn from the known facts is that there was tension if not antagonism between Alsbury and Vanstone at the time.

20. An embarrassing (to you) result of the Vanstone resignation is that there has been no Deputy ICAC in place since 1 July 2023 to date, to seamlessly occupy the vacuum in office thereby created.

21. The point about this vacuum in the office of Deputy ICAC is that had there been no vacuum then by virtue of Sect 9(6) ICAC Act there would have been no requirement for you and Cabinet to have at any time appointed an Acting ICAC—

Sect.9(6) The Deputy Commissioner may—

(a) Act as the Commissioner during any period for which—

(i) no person is for the time being appointed as the Commissioner, or

(ii) the Commissioner is absent from, or unable to discharge, official duties; and...

22. It is also the case that Sect. 9(1) ICAC Act requires that 'There is to be a Deputy Commissioner responsible for assisting the Commissioner as directed by the Commissioner.'

23. Sect 9 ICAC Act requires that there at all times be a Deputy ICAC in office. It is your duty in the office as Attorney General to ensure that this is the case.

24. Your failure to appoint a Deputy ICAC since 1 July 2023 to date is hardly compliance with Sect (9) ICAC Act.

25. You, because of this failure in compliance with Sect 9 ICAC Act, became potentially exposed to a future Vanstone resignation as ICAC and an accusation of dereliction in office by any enquirer.

26. I am that enquirer.

27. You could have, but did not appoint Emma Townsend to office as Deputy ICAC.

28. There was precedent in the elevation of Michael Riches to Deputy ICAC from Director OPI.

29. You have in the whole of the period from 1 July 2023 to date (a period of 16 months and counting) passed over Ben Broyd for appointment as Deputy ICAC, inferentially as not sufficiently credentialled, and now in extremis you appoint him Acting ICAC.

30. What a boil upon the face of the body politic!

31. If this was not enough Vanstone blames your lack of support for her resignation.

32. See her interview with [David] Bevan on ABC Radio 2 days after announcement of her intended resignation effective 6 September 2024.

33. 'I must say my relationship with him (sic you) I think has never recovered from him failing to say in Parliament that he had confidence in me in the midst of the Hanlon matter which was of course a matter that Commissioner Lander dealt with.'

Mr Fuller goes on to say:

34. You failed to manage her.

35. This failure has had consequences.

36. In the manner of her going she has bequeathed to you an ICAC, a poisoned chalice from which no eminent person, only the reckless and unsuitable, will chance to drink

37. You have not been open honest and frank with the public, instead have masked your dereliction in office by appointment of 'Acting ICAC' (twice) without any explanatory statement.

38. There is now an ICAC with no Commissioner and no Deputy with an Acting ICAC passed over twice for promotion to Deputy ICAC.

39. A sad and sorry tale.

Mr Fuller goes on:

40. Now you have appointed an ICAC Inspector Sam Abbott.

41. To do what I rhetorically ask?

42. We have a caretaker ICAC who like a Government in office upon the calling of an election can make no substantial decisions.

43. We have an OPI which cannot expect any complaint to it assessed as corrupt conduct and referred to the caretaker ICAC to be dealt with unless and until there is a permanent appointment of an ICAC or Deputy ICAC.

44. And now an ICAC Inspector to review what conduct of ICAC I ask?

45. The Inspector is a cart not merely in front of the horse, there is no horse of any description in sight!!

46. Your incompetence in office is now exposed for all to see.

47. ICAC HAS BECOME A BASKET CASE UNDER YOUR SUPERVISION AS ATTORNEY GENERAL AND MINISTER RESPONSIBLE.

48. A Judicial enquiry as recommended by the 'Harms Committee', which I have been calling for now for some time, is required to shine a light on the dark places in law enforcement at SAPOL…and ICAC under Lander and Vanstone since its creation.

49. I refer you to my recent correspondence with Ben Broyd and Emma Townsend attached to this indictment as demonstration that both are now demonstrably conflicted.

I seek leave to table that correspondence where both are urged to forward to the Attorney the OPI case management system entries, portions of which are recited in former ICAC Inspector Strickland's review of the reference to him of 'PIR 18/E 17253'.

The ACTING PRESIDENT (The Hon. J.E. Hanson): Hon. Mr Pangallo, just one thing: are you seeking to table a lot of—

The Hon. F. PANGALLO: It is the third and last email.

The ACTING PRESIDENT (The Hon. J.E. Hanson): So this is the last document you are seeking to table?

The Hon. F. PANGALLO: Yes.

Leave granted.

The Hon. F. PANGALLO: Mr Fuller continues:

51. The refusal of each to engage with me and respond to my entreaty to forward to you the evidence of unlawful conduct is a legal impasse that only a Judicial Enquiry can in the public interest now resolve.

52. You have the political responsibility to make this happen.

53. To any such enquiry should now be added the recent scandalous and expensive exercise by ICAC Inspector Strickland in sickening substitute of sophistry for honest intellectual reasoning to find no conduct of anybody at ICAC worthy of even referral for disciplinary process over 4 Reviews.

54. You should do something or lower your head in shame!

It is signed by Michael Fuller, 25 November 2024. With that, I now commend my motion to the chamber.

Debate adjourned on motion of Hon. N.J. Centofanti.