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Legislative Council - Fifty-Fifth Parliament, First Session (55-1)
2022-11-16 Daily Xml
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Independent Commission Against Corruption Investigations

The Hon. F. PANGALLO (16:40): I move:

That this council—

1. Acknowledges former Renewal SA CEO John Hanlon was charged and prosecuted with the criminal offence of dishonest dealing with documents based on false, incomplete and inadmissible evidence obtained by an unlawful ICAC investigation.

2. Notes that:

(a) since 2014, ICAC has been conducting investigations and providing evidence and information briefs to the Director of Public Prosecutions (DPP) without the authority to do so within the original ICAC Act 2012 and the stated intention of the parliament at the time;

(b) there has been a history of failure by ICAC to disclose all evidence available in its referral practices to the Office of the Director of Public Prosecutions (ODPP);

(c) ICAC hid evidence (phone data) for three years supporting Mr Hanlon's version of events;

(d) the DPP acted inconsistently with the prosecuting guidelines;

(e) the DPP relied on incomplete information and inadmissible evidence disclosed by ICAC for the purposes of prosecuting Mr Hanlon;

(f) ICAC had acted unlawfully in obtaining evidence for the purpose of a prosecution by breaching international law and ignoring commonwealth and internal ICAC legal advice and that a court ruled it was inadmissible and excluded; and

(g) the humiliating collapse of the case against Mr Hanlon, Ms Georgina Vasilevski and others has caused serious reputational damage to ICAC, the ODPP, the South Australian criminal justice system and the legal profession.

3. Calls on the Attorney-General to initiate measures to compel ICAC to disclose all evidence to SAPOL and the ODPP.

4. Calls on the Attorney-General to introduce legislation to establish a special commission of inquiry into ICAC and the ODPP with powers, in addition to the Royal Commissions Act 1917, requiring any notice issued by the commissioner must be answered, notwithstanding any common law or any act of parliament.

I rise to speak on my motion. It is a matter concerning grave miscarriages of justice and the integrity of our criminal justice system and our faith and trust in it and of the integrity agencies themselves, and that must now be of great concern to all South Australians. Quis custodiet ipsos custodes—that is Latin for 'Who will guard the guards themselves?' It refers to a situation in which a person or body having power to supervise or scrutinise the actions of others is not itself or themselves subject to supervision or scrutiny.

That phrase could well be applied to such a body in South Australia: the Independent Commission Against Corruption and the statutory officers who run it and have run it. They think they are untouchable, protected—or so they thought—by the secrecy clauses that were built into the act designed to protect the integrity of their investigations, not for them to also be abused, as we now know has occurred.

Woe betide anyone who speaks up against them and exposes the wrongs they have caused to individuals, as I have done. They will orchestrate a public campaign in their favoured media to shut you down and attempt to discredit you any way they can. I am living proof of that. I have remained mute for 12 months while they have gone about trashing the will of the parliament.

It is quite unprecedented, seeing a statutory officer continue to attack the supreme authority they answer, making demands they have disguised as recommendations to alter the new act, including a review. If there is to be a review, it has to be into their conduct, their operations, their management of the agency. ICAC is not above the parliament and it is not above the law.

The undermining began shortly before parliament unanimously passed my legislation to reform ICAC and its function, and it continues. The catalyst was the select committee into reputational harm and damage caused by ICAC investigations, which heard shocking evidence of ICAC's incompetent investigations against public officers, including police, and the tragic consequences these failed witch-hunts had on the innocent—although, as I will point out later from public comments made by the current ICAC commissioner, Ann Vanstone KC, being found innocent or not guilty does not necessarily mean you have not done the crime, that you are really off the hook, that the stain of an accusation is that easily erased.

Commissioner Vanstone told the National Anti-Corruption Commission committee in Canberra last month, 'There's no room to draw from an acquittal that someone was not guilty of that crime, that they were innocent of that crime.' What hope is there for them with a cold legalistic attitude like that? In contrast, I will point you to comments made by Judge Adam Kimber to the select committee, that is, 'If you walk out of court being found not guilty you are entitled to be presumed innocent of those charges.'

More on that later, and some comments Commissioner Vanstone made in the public arena, and to the Senate, which should disturb us and send cold shivers down the spines of our public servants, like this to an unflummoxed David Bevan on ABC 891 on 17 August this year. Again, allow me to quote Ms Vanstone:

It seems to me that public interest is better served by getting into the agency and, as I have said, looking at what the problems are. What gave rise to that corruption? Asking the agency to deal with a person who might have been involved with nefarious conduct, preferably getting rid of that person or moving that person, fixing the system that was able to be exploited, and getting on with their work, because if a person is suspended because they have been charged with a criminal offence, they are probably suspended on full pay. They might be suspended or waiting for their trial, and that might take three years. Meanwhile, the agency is also in suspension not knowing what's going to happen. They've got a problem of filling that spot, so the public interest seems to me mostly to be better served by dealing with the problem as quickly as we can, and allowing the agency to fix it and move on.

So if you are caught in their web why waste money from the public purse? Simply cut them loose. Sacking them is the cheapest solution, she muses. What happened to due process? That happened to an innocent man, the highly respected and experienced former CEO of Renewal SA, John Hanlon. As one senior barrister said to me, and again let me quote:

They are using extraordinary powers reserved for criminal offences, and then without trial just sack someone because they can never prove it in a court. She is basically saying that because all their prosecutions have failed they should have just been allowed to go in there and sack people who should never have been sacked because ICAC said so. It's shocking. It's unbelievable.

I will just make this other note in relation to Ms Vanstone's attitude towards this place and the legislation that we passed unanimously last year. She made a rather sneering remark before the Senate in her introduction last month where she said, 'I want to make a few brief points about the South Australian ICAC, if I can call it that.' What does she call it? What does she mean by that?

My interest in ICAC's conduct began soon after I was elected to parliament when aggrieved constituents contacted me knowing my background and the fact that I was willing to listen and do something about it if their complaint had some merit. It did have merit, lots. Even I was flabbergasted at what has been going on since 2014 and still to this very day. Why had not anyone turned a spotlight on it? Were they afraid of the consequences of speaking out? I was not. I have always reported without fear or favour and I bring that ethic into this place.

I did have one member in this place warn me, 'Be careful. Don't tread on powerful toes. They will come after you,' and they did, in ways I did not expect. They lobbied to have me thrown off the Crime and Public Integrity Policy Committee. As colleagues would know, I will not hold back from asking probing, robust questions, no matter who they are or who they think they are. They inferred publicly that I and all of us who supported my bill were corrupt because the legislation would protect corrupt members of parliament and corrupt police officers.

Voracious media like the ABC and InDaily lapped it all up and amplified the public pile on. They showed little interest in hearing the stories of the victims of ICAC or the unethical manner in which ICAC had conducted their investigations—the very reasons we had to look at the original act. But what about them? Who is going to guard the guards against their own corrupt actions?

It is why we needed to establish the new office of the Inspector with strong powers and independent oversight over integrity agencies and government authorities, as well as the parliament. We needed to replace the reviewer because the powers of the reviewer to examine complaints were extremely limited to maladministration. They were bordering on the benign. Serious corruption or malfeasance was out of their reach. The current commissioner appears to have an issue with the new role, telling TheAustralian Financial Review in April this year, and I quote:

The new legislation establishes an independent office of an ICAC Inspector that has greater powers than the ICAC. The case for the Inspector was built upon the idea that the ICAC regularly abused its powers. There is no evidence that this has ever occurred.

That is what she said. Those comments appeared in the orchestrated hatchet job on me on 21 April this year using The Australian Financial Review's Michael Roddan, a Walkley winner, no less, who easily swallowed the narrow, ill-informed and jaundiced narrative that clearly was inspired by the wounded ICAC sympathisers wanting to blow up our parliamentary processes and integrity, to teach us a lesson—modern-day Guy Fawkeses, to use an analogy.

The published story, which I will seek to table here, was a load of absolute bollocks, a beat-up, and I should know a beat-up when I see one. It defamed a dead man, a highly respected and decorated police officer, Chief Inspector Doug Barr, who did not have the opportunity to prepare his final defence to the findings and criticisms levelled at him by former ICAC commissioner Bruce Lander KC.

More disturbing, however, Mr Roddan appears to have been given access to a copy of Recruit 313, a sensitive, classified document, part of which carried no privilege. I have my suspicions about where that came from. I am confident the leak did not come from a member in this place or from the Crime and Public Integrity Policy Committee. It did not come from the rival news organisation, The Advertiser, Mr Roddan castigates, which did have a copy that it could not publish or distribute.

It certainly did not come from one of the people with an interest in the report, the widow of Doug Barr, who took his life three years ago because of the enormous toll the protracted investigation, which was undertaken by the same incompetent investigator in several failed cases, including that of Mr Hanlon—Andrew Baker—and the length of time it took to be finalised by Mr Lander.

It is doubtful anyone in SAPOL would have leaked it, considering its explosive contents involving high-profile officers. So where did Mr Roddan get it? Then assume that the favoured case, as he calls it, was the sole reason we passed the legislation based on the suicide of Mr Barr—that it was done based on fake news.

Roddan steered clear of all the other damaging revelations and compelling matters corroborating ICAC's appalling conduct. No approach had been made, as far as I am aware, to the many other witnesses and serious cases highlighted in the select committee's tabled report. It might have taken the gloss off his obtuse agenda.

With debate on a bill for a federal integrity agency in progress in the federal parliament, Mr Roddan could not help himself from taking another misinformed swipe at me and this parliament last Monday, the day before ICAC's nadir in the District Court in its latest deplorable botched case involving Mr Hanlon.

Out of courtesy and balance, as a journalist should do, I sent a series of questions to Mr Roddan, indicating I was going to raise matters in parliament this week. No response. In fact, the Australian Financial Review has not even mentioned the humiliating collapse of Mr Hanlon's case. Not a word. Why would it? It makes Mr Roddan's one-sided editorialising look extremely foolish.

The Advertiser's respected chief court reporter, Sean Fewster, is one of the very few journalists in this town to acknowledge the gravity of what has occurred and has diligently followed Mr Hanlon's tortuous passage through the court system.

Soon after being appointed, Commissioner Vanstone told the Crime and Public Integrity Policy Committee, of which I was Chair, on 10 December 2020 that she was not afraid of examination or scrutiny. 'We expect it,' she said. Okay, although obviously not from my select committee into reputational harm and damage caused by ICAC investigations.

Before even one word of evidence was given to that committee Commissioner Vanstone vehemently expressed her opposition to it—was opposed to it. Here is an excerpt of what she said to put her position into some context:

I have read Hansard of 2 December, and I see that the committee is to examine, among other things, damage, harm and adverse outcomes relating to ICAC investigations and prosecutions which have ensued. I confess that I am perplexed at this initiative, absolutely perplexed. I ask myself: what is the point of this? Anyone reading the transcript of Hansard might infer that ICAC operates outside a regulatory framework and acts like cowboys and neither of those things is true in the least. Nothing could be further from the truth.

Oops—those words may haunt her. Mr Hanlon's case, as I am about to reveal in some unbelievable detail, gives lie to that statement, along with demolishing ICAC's own core values, which it brags about on its website, things like:

We conduct ourselves without fear or favour and make decisions according to law.

Accountability

We are responsible for our actions and decisions. We use our resources responsibly. We scrutinise ourselves as vigorously as we scrutinise others.

Integrity...

Can it honestly say, with what we now know, that any of that was applied in Mr Hanlon's case? It is akin to one of those Hollywood conspiracy miscarriages of justice movies, like Alfred Hitchcock's classic The Wrong Man, in which Henry Fonda played a man whose life falls apart after being falsely accused of stealing. Hitchcock summed it up like this:

I thought the story would make an interesting picture if all the events were shown from the viewpoint of the innocent man…

Like In the Name of the Father, based on the Guildford four, where four innocent men were sent to jail for life for deadly pub bombings in Britain. It is like The Hurricane, about black boxer Rubin Carter, framed for a murder he did not commit. Then there is one of my favourites, Paul Newman's Absence of Malice, which was promoted as 'In America, can a man be guilty until proven innocent?'

Well, you could not find a better plot than the sad and deeply disturbing Hanlon saga: a distinguished, high-profile senior government executive wrongly accused of rorting business trips by a group of vexatious underlings with a score to settle. They go to a pollie with a political axe to grind, the then member for Bragg and future Attorney-General Vickie Chapman, who then goes to ICAC, which then becomes hellbent on proving he did it, with absolutely no evidence—even if it fabricates that evidence and breaches international laws to justify its expensive pursuit.

Just to tickle the irony, even the pursuers decide to take a side trip overseas, at the taxpayers' expense, to fill their idle time away. The accused loses all in his battle: top job, reputation in ruins, dignity destroyed, mentally mangled and heavily in debt. He is in such rapid refall that he contemplates suicide daily. It is a common theme in ICAC investigations. So, as a movie, you could promote it as a sequel to Absence of Malice. The title in South Australia: 'Can a man be guilty until proven innocent?' The answer to that is an emphatic yes, because that is how ICAC appears to deal with its investigations, all the way back to 2014's Operation Bandicoot, involving those police officers assigned to Sturt Mantle.

Fortunately, under the new laws and undertakings provided by the DPP to the High Court—never reported on here by any of the media—ICAC must now refer cases to South Australia Police, who would be far more cognisant of complying with the rules of evidence and lawful investigative practices, such as in investigations involving foreign governments. You would sooner put your trust in the police—and this was always the intention of parliament.

A scan through the second readings of the original 2012 bill by the then Attorney-General John Rau and others will demonstrate this, albeit it was not specifically set out as it probably should have been. But then again, under the old law, ICAC had the discretion to investigate you, me, members in this place and public servants for corruption, merely for a trifling traffic matter.

Having been made aware during the select committee of what ICAC had done, I knew that the John Hanlon-Georgina Vasilevski matter—Georgina being John's former work colleague, whose career, like John's, is in absolute tatters—would be the landmark case for ICAC's failures. It is the watershed in ICAC's bungle-ridden history and highlights its investigative incompetence and gives some explanation as to why so many of its witch-hunts have failed miserably in the courts, particularly after some accused, like Mr Hanlon, refused to accept feeble plea bargains that were really face-saving exercises for ICAC and the DPP in having to deal with extremely flawed briefs.

If I were still a journalist, the scandalous abuse of power and public money would easily top the stories I have done, spanning 46 years. It is that bad. I have not seen this level of dishonest and corrupt activity within a government agency, let alone one dealing with corruption. Their nefarious endeavours cannot simply be cast aside and justified as some form of noble cause corruption.

As we know, there have been others. As one of the most learned and respected legal eagles in this state whispered to me, 'Frank, it's just the tip of the iceberg. There's much worse to come.' Pardon the analogy, but let us remember it was an iceberg that sank the unsinkable Titanic. I still cannot explain why many journalists in this town are so reluctant to investigate serious miscarriages of justice that challenge the very foundations of the rule of law, the public's trust in integrity organisations and the credibility of powerful figures in positions of authority and influence—unless you are a politician, of course; then you are fair game, they will reason.

Make no mistake: this is one of the state's biggest criminal justice scandals. Even I was stunned and disturbed by the extent of the deceitful dishonesty in this case. The Independent Commission Against Corruption and the Office of the Director of Public Prosecutions, two institutions we believed we could trust, have both been caught out abusing their powers and trying to break and destroy John Hanlon, once a proud and renowned public servant.

The state has failed to uphold the noble principles of being a model litigant. It has brought its own agencies, the criminal justice system and the legal profession into disrepute. This needs to be restored as a matter of urgency, and the only way to do that is through an independent inquiry with an investigator who has powers stronger than a royal commission and maybe a clean-out of the culture within.

There is no excuse whatsoever for what they have done to Mr Hanlon and his family. His legal bill is now well over half a million dollars. He showed me his latest invoice for a two-week period for $133,000 covering the recent farcical pre-trial hearings where the damning new evidence that had to be disclosed late, days before the trial, that confirmed his innocence emerged.

The horrific ordeal came close to killing him. What if he did suicide before he knew the eventual outcome? Would they simply close the case and be thankful none of their dirty secrets would be exposed? They could not beat an innocent man, thanks to the unstinting support of his family, including his loving wife, Jenny, their daughters, Millie and Kate, and his brilliant legal team led by David Edwardson KC and Matthew Selley.

Someone must be accountable for the disgraceful actions, the utter abuse of power. You know the saying: power corrupts and absolute power corrupts absolutely—absolutely, it does. To give you a better and accurate understanding, I will need to take you through some of the integral steps of Mr Hanlon's case with documents that are publicly available on the court file and documents I have personally viewed. It is important that they can be seen rather than left buried to put this horrific abuse of power into proper and accurate perspective. This story must be told, then South Australians will begin to fully comprehend why parliament had a responsibility to act last year.

Allow me to explain how this witch-hunt unfolded and then went pear-shaped. It is an anatomy of an ICAC fiasco. In 2017, Mr Hanlon justifiably reprimanded four staff in his office for bullying a young woman suffering from a serious eating disorder. Among their cruel pranks and taunts, they placed a skeleton doll dressed in black on the woman's desk just as she was preparing to be married. This action, as you would expect, greatly distressed a woman already with a mental condition.

Disgruntled, they sought revenge. They set about destroying Mr Hanlon and his former colleague Georgina Vasilevski's careers and reputations with unsubstantiated complaints that both had gone on trips to the Melbourne Cup, and Mr Hanlon to Germany to holiday with his family, while doing no work and at taxpayers' expense.

The key part of the ICAC investigation went like this. I shall provide and refer to particular documents that were tendered to support what I am about to outline. I will seek to table them—and there are many—following my remarks. Let me start. On 28 June 2019, Mr Hanlon is interviewed by ICAC. He is interviewed formally under criminal caution by ICAC investigator Andrew Baker about a business trip he took to Germany as CEO of Renewal SA from 19 September 2017 to 30 September 2017, where John was accused of misuse of public funds and deceptive dealing with documents.

Amanda Bridge, another of the investigators, references to knowledge of a mutual assistance request. This is a request that needs to be made to a foreign government to enable investigators to go and interview potential witnesses. In this affidavit, dated 3 November 2022, Bridge makes a notation in her affidavit to AFP liaison, which she describes it as relating to AFP assistance in Germany. This was on 23 July 2019, prior to leaving for Germany. Bridge admits to being now aware of MAR prior to departing to Germany—this was on 23 July 2019, in an AFP liaison notation in the affidavit. She admits to being aware of the requirements of MAR prior to departing to Germany and that she had not made an application for MAR due to conversations she had with police and ICAC staff due to potential delays.

On 25 February 2020, there is a MAR note. Bridge had MAR on a to-do list, which was never acted upon. Bridge admits that upon her return she sought legal advice from ICAC legal counsel Victoria Greenslade on 2 October, which advised on MAR procedure and requirements as well as a MAR application itself.

I refer now to cell phone extraction of Mr Hanlon, 7 August 2019. Cell phone data is extracted from Mr Hanlon's phone and reviewed. There is a memo containing CCR data info tracking John's phone while he was in Germany in 2017: 'obtained and viewed'. It was an original matrix of John's whereabouts which demonstrates exculpatory evidence that John was where he said he was. This original matrix was never disclosed. I have seen it. It bears absolutely little resemblance to an alternative doctored version of it without the exculpatory evidence, and that was instead produced and briefed to the DPP. I seek leave to table that document.

Leave granted.

The Hon. F. PANGALLO: This is the document. I will make it clear that in the original document there are two significant columns showing that Mr Hanlon was actually in the vicinity of where he was visiting as part of his work assignments or duties and also another column showing that his family were a great distance away from him.

Those two significant columns were removed from the table that was presented as evidence, and it was only discovered late in the piece, on 4 November, after a subpoena had to be issued. Why was it not discovered earlier? It was doctored evidence. Only through a subpoena was this original matrix revealed. As I have said, I have seen it and it bears little resemblance to the one submitted in the ICAC brief.

Amanda Bridge was the investigator with conduct over this evidence. This evidence also formed the basis for her request to travel to Germany. So there you have it: they have evidence before they travel that Mr Hanlon was telling the truth about where he went. That is after they have seized his phone and those of his family, so they know that this is where he had been and where his family were, yet they still decide they are going to take a trip to Germany to go and talk to people.

On 13 August 2019, there was an Amanda Bridge memo to Commissioner Lander requesting to go to Germany. Mr Baker, through a submission by Bridge, sent a memorandum titled 'Matter 2018/3882 Inquiries in Germany' to the commissioner outlining a plan to travel to Germany to investigate a 2017 work trip John Hanlon took while acting as CEO of Renewal SA.

At this stage, Bridge was aware of the CCR data evidence, which was consistent with Mr Hanlon's evidence of his whereabouts. This evidence was later removed from the CCR matrix developed by Bridge and IT staff member Libby Kelly, who never gave an affidavit, a statement of her role in this. On 15 August, there is a Baker memo to Commissioner Lander agreeing with the request to go to Germany. In this memo Baker states:

Having reviewed that memorandum [from Bridge] I agree that inquiries suggested by Amanda are appropriate and required for the successful prosecution of Mr Hanlon.

Let me read that to you again:

Having reviewed that memorandum [from Amanda Bridge] I agree that inquiries suggested by Amanda are appropriate and required for the successful prosecution of Mr Hanlon. The matter is significant in respect of the position that Mr Hanlon held and given the media publicity and attention that has been given to this matter in parliament, particularly by Tom Koutsantonis MP.

Let me emphasise what Mr Baker says:

It is important that it result in a successful prosecution.

This shows that ICAC is recognising positive or advantageous political wins as a reason to pursue the matter. Remember, this is despite the CCR evidence showing evidence to the contrary of that allegation and being also opportunistic of positive news. We saw that in Operation Bandicoot. I want to note that in Judge Liesl Chapman's reasoning in R v Bell she finds that it is not part of ICAC's function to brief the DPP for the purpose of a prosecution. The High Court agreed it was inappropriate for ICAC to brief the DPP, and this is an example why.

On 31 August 2019, Amanda Bridge, in an effort to compel witnesses to meet with them, was asked by Alice Grindhammer to stop contacting her, questioning the legitimacy of the request. I quote this from Ms Grindhammer:

We find this request very strange, especially since we have confirmed to you multiple times now that we have never met this person. We are now doubting the legitimacy of this request. Can you please provide proof of (a) the legitimacy of your request and (b) legitimacy of the body that you are representing.

I really do not know whether to laugh at this because I think some seasoned investigators, perhaps even in SAPOL, would be rolling their eyes at this. In response, Mr Baker outlined the reasoning for their investigation and by extension requested they go to a link on the ICAC website. He did not endeavour to seek out further authority from within ICAC or from any other form of government agency in proving the legitimacy of the investigation.

He requested they meet with him on 10 September at 10am. They did not want to meet with him because they did not know whether he was legitimate. So what does he do? He refers them to the ICAC website to have a look and see who they are, to see if they are legitimate. They needed much more than that—far more than that. They just received an email from halfway around the world from somebody sitting in an office who claims he has the authority to come over there to interview them. Of course, they should have known and did know that this required an international clearance, an MAR.

This is just another pre-travel red flag showing that there are proper international channels by which this process is supposed to take place. Grindhammer ultimately refused to be part of the inquiries due to questioning the legitimacy of ICAC's presence and purpose. An inference can be drawn that Grindhammer was actually probably made aware of the proper MAR channels that were not being executed by ICAC.

I will go to correspondence from 3 September 2019. This is the commissioner at the time, Mr Lander's response to an email to a German company that they were interested in also getting statements from, called Mindspace. It went to Mindspace's general counsel. I have seen a copy of Mr Lander's emails responding directly to legal counsel of Mindspace, justifying ICAC's presence and its request to speak with employees. The contents show Mr Lander making a statement of fact to the effect that Mr Hanlon used public funds when in fact the basis of the trip was a personal holiday to visit family living in Germany.

Mr Lander does not make an allegation here. He only alleges that there was a business trip undertaken by Mr Hanlon, but asserts as fact that Mr Hanlon had factually used public funds. This demonstrates an apprehended bias of Mr Lander as to a predetermined guilt and this could be an example of actual or perceived apprehension of bias.

I now turn to an affidavit by Mr Andrew Baker, with references to knowledge of the MAR and a trip to Germany with unauthorised affidavits from German witnesses between 7 and 19 September 2019. Andrew Baker and Amanda Bridge travel to Germany. An affidavit of Baker, dated 2 November 2022—2 November 2022; remember, this thing has been going on for a number of years—confirms those dates.

Baker admits to considering reaching out to German authorities; however, states that after conversations with Bruce Lander, the commissioner, it was decided they did not need to. He admits being aware of mutual assistance requests as the proper legally authorised protocol to take when seeking to obtain witness evidence from German nationals. Australia has no bilateral treaty with Germany, making this process a matter of national security.

Baker and Lander decided on their own authority that it would be too time-consuming and cumbersome to use this lawful process. That is quite serious—quite serious. Just think about it, Mr Lander is a KC and was a former judge. Surely, he should have known or done something. Baker admits in this affidavit that it was decided that prior to travel to Germany he (someone without a legal background) formed the view that section 66(1) of the Evidence Act 1929 permitted him to take an oath or affidavit outside South Australia, that there were a range of people available to them to witness an affidavit and that they were going to make an appointment with the Australian Embassy, the Consular-General, to get witnessing of the affidavits done by a notary public. The investigation locations refer to—you can refer to the affidavit filed by Amanda Bridge.

There is something to note here: ICAC spent something like $20,000 on this trip, $15,000 more than what they accused John Hanlon of misappropriating from the South Australian government. This is damning given the very light schedule in week two of the trip itinerary, and Baker asked for a full 14 days. I would not mind going to Hamburg one day, Mr President, a famous place where The Beatles played, but if you look at the schedule that has been tendered as evidence of what the ICAC investigators did: one week they did work and the second is virtually blank.

I will go to Mr Andrew Baker's affidavit of 12 September 2019. Mr Baker emails Mr Lander about difficulties they are having with getting witness affidavits notarised. Mr Lander advised Mr Baker to have Bridge witness them with a view to attend the Australian Embassy at a later date to have them re-signed and formalised. Could this be the cowboy attitude that Ms Vanstone says does not happen in ICAC, because it certainly starts to look like that to me.

This shows that Baker, Bridge and Mr Lander were cognisant—aware—of the need to have the statements formalised in accordance with domestic and international laws in order for them to be admissible in a South Australian court. They thought they could retrofit the evidence rather than follow the known due process, and this on 18 September 2019 in an Andrew Baker affidavit. So Mr Baker and Ms Bridge attend the Australian Embassy in Berlin with two witnesses for the purpose of having several witnessing of affidavits.

At the embassy, they spoke with the Australian Consular-General, Peter Sams, who, understandably, was annoyed with them both in that he was not aware through official channels of their reasons for being there. They were told that they had not got the correct authority to obtain these statements and that they needed to go through the Australian Federal Police, who would then go through Interpol, who would then go through German authorities. German authorities would then appoint a German prosecutor to take the statements.

As you would expect from somebody who knew the law, Mr Sams refused to assist with the witnessing of affidavits. Despite this being clear at the time, it was also understood by Baker that this process, or at least something similar, was required, taking into mind that he and Mr Lander discussed this very issue before their departure to Germany. Ms Bridge then went on to sign these statements with the knowledge that they could not be in admissible form for the purpose of a prosecution in a South Australian court. I will just point out to you that Ms Bridge is a former police officer.

I will go back to the reasons that the new legislation asks that ICAC now refer matters to the South Australian police, and then the South Australian police investigate and prepare a brief for the DPP—not the way it was here where ICAC went straight to the DPP with their flimsy, flawed file. I am quite confident that, under the current arrangements, if all this happened and it was referred to the police, the first thing the police would have done was check on how this could be done. They would have checked with the AFP, they would have checked with the authorities, because they know the process.

Clearly, Mr Baker, apparently a former police officer, and Ms Bridge, former police officer, were unaware of all this, but when they did become aware of it still did not pursue it and still decided to go to Germany. Again, if this is not a cowboy attitude I do not know what is. This is all happening during the time of Mr Lander being in charge of ICAC.

I will now go to Mr Baker's affidavit of 24 September 2019. Mr Baker met with Commissioner Lander to discuss the issue of the witness statements. The commissioner requested a legal team be tasked with confirming the correct protocols for this to be complete. It was with Rod Jensen, the director of legal services, who then appointed junior lawyers to look into it. Now they start trying to cover their tracks.

On 27 September, came ICAC legal counsel's request for advice on MAR to the ICCCA, which is the International Crime Cooperation Central Authority. Before you head off overseas and you are seeking an MAR, this is the body you need to go through. ICAC's legal officer Victoria Greenslade made an inquiry, on the direction of Mr Baker, to the ICCCA to obtain MAR advice on 27 September. This is after they have come back.

On 1 October 2019, came the ICCCA's legal advice regarding the MAR. The response from the ICCCA outlined comprehensively the MAR process, including compliance with the Foreign Evidence Act, which is a commonwealth act, in order for witness statements to be admissible in an Australian court jurisdiction. That advice followed the same advice provided by Mr Sams, which was that a German state prosecutor or federal German or state police officer take and swear the statement by the witnesses before a court in Germany.

The collected material then needs to be passed back to the German central authority to then be conveyed to the AGD in Canberra for certification. This was the advice Baker, Bridge and Lander formally received from the commonwealth Attorney-General's Department, conveyed in no uncertain terms to them from their own internal ICAC legal document. They then elected, recklessly or otherwise, to ignore this advice and put the material into a brief which was then sent directly to—guess who? The Office of Director of Public Prosecutions. Again, I point out that if they had gone to the police I am sure they would have pointed out the appalling failures here.

On 2 October 2019, there was ICAC counsel's formal legal advice to ICAC investigators Baker and Bridge on MAR requirements. It is like this: the response from the commission legal officer advised of the same process, which was advised on 18 September by Mr Peter Sams. An email of that advice from ICAC's legal officer, Victoria Greenslade, was explicitly clear about the MAR process and the admissibility of foreign evidence, noting the application of the Foreign Evidence Act 1994, a commonwealth act, and advice relating specifically to the admissibility under section 66(1) of the Evidence Act 1921 of South Australia.

It was at this time that Bridge formed the view, despite the legal advice, that an MAR would not be necessary and that they would proceed with the statements as they were. At this stage Bridge, Baker and Lander have been made aware of MAR on multiple occasions, and that dated back to before their departure. What is going on here? What is actually going on here?

On 28 November 2019, in a Bridge affidavit outlining the German evidence—this is where Ms Bridge created a new matrix leaving out the cell data which confirmed John Hanlon's version of events. I have seen that document; I have seen the original document. The original document should have been discovered. It should have been disclosed to the DPP. It should have been disclosed to the defence. If it was, this whole charade would have started to fall over. But, no, ICAC were committed. They were in too deep. They had to make their case, didn't they?

In November 2019, there was ICAC's first brief of Mr Hanlon's Germany evidence to the DPP. The first set of ICAC investigation briefs were sent to the DPP for advice. ICAC failed in its disclosure to put the DPP on notice that the German evidence had been obtained contrary to German law and in breach of the MAR obligations of the commonwealth.

In the reasons that were handed down this week in court by Judge Heffernan, he just outlines what happened here. Again, as I have pointed out, they have failed to properly disclose this to the office of the DPP. They were preparing a case. They were looking at preparing a prosecution. Why would you not tell them that you had or had admitted this vital evidence and that you had inadmissible statements from witnesses? Where all this is going just beggars belief. As has been seen above, ICAC investigators knew of the MAR obligation yet decided not to engage with the process and put the evidence that they had anyway.

On 3 March 2020, there is an ICAC Berlin brief to the Office of the DPP. Not much happened in 2020 because of the pandemic outbreak. On 7 August 2020, there was a judgement in the R v Bell SADC 107 matter. It was a defendant application for a stay of proceedings. The application for a stay was ultimately dismissed by Her Honour; however, she made some consequential findings about ICAC and the DPP relationship. Judge Chapman made a ruling in R v Bell that questioned ICAC's statutory power and capability to directly brief the DPP and made a distinction between the function and the powers of ICAC. I will later file some documents in relation to that judgement as well.

Judge Chapman comments at paragraph 55 on page 13, 'What is stark in its absence is any relevant mention of the DPP in the ICAC Act.' She further questions parliament's intention at paragraph 56, asking: did parliament intend for a referral of the matter for prosecution to be via SAPOL to the DPP? This is with respect to section 36 of the act, under 'Prosecutions and disciplinary action', in which subsection (a) provides:

…refer a matter to the relevant law enforcement agency for further investigation and potential prosecution;

Judge Chapman, as she was at the time, noted that within the ICAC Act itself the definition of 'law enforcement agency' did not include the Office of the DPP. Judge Chapman again refers to referral pathways for ICAC to the DPP, in paragraph 81 on page 19. I will quote a little bit of that:

There being no referral power direct to the DPP. There is no mention of a referral of a matter in accordance with the ICAC Act to the DPP or a prosecuting agency.

Upon her construction of the application of the act as it was at this time, in May 2017, Her Honour Judge Chapman formed the view that ICAC has no power to refer this matter directly to the DPP. The matter should have been referred to SAPOL, pursuant to section 36(1)(a) of the ICAC Act as it existed then.

In helping to form this view, Her Honour sought to understand the parliament's intention at the time of drafting and found the following to support her view—the second reading speech in the Parliament of South Australia, in Hansard, for the Independent Commissioner Against Corruption Bill, paragraph 86, and I will just skim over that. What was said there was:

Under the process set out in this Bill, once a matter investigated by the ICAC has been referred to SA Police for determination as to whether, based on the evidence collected by the ICAC, a charge or charges are to be laid, the normal processes and procedures of a criminal prosecution will apply. In other words, subject to any suppression order, the charge or charges and identity of the accused will then become public and the matter will proceed as per any other criminal offence, through the criminal justice system to finalisation.

Judge Chapman also found that section 56A of the ICAC Act, use of evidence or information, enables the ICAC to provide information and evidence obtained during a corruption investigation directly to the DPP for the purpose of any criminal proceedings, but such provision of information does not amount to a referral for prosecution. If ICAC intends to refer the matter for prosecution, it should have done so via section 36, which is to go through SAPOL.

Commissioner Vanstone, as the incoming commissioner only one month later, would or should have been acutely aware of this ruling as it had implications for the operations of ICAC and some of its key cases.

I will now go to September 2020, when there was the change of the ICAC commissioner. The Hon. Ann Vanstone commenced her role, then on 3 December 2020, with Ms Vanstone already ensconced as the commissioner, there were the matters of Bell v The Queen, R v Bell and ICAC v Bell in the Full Court. In the judgement, the Full Court of the Supreme Court took a different view to Judge Chapman's interpretation with respect to ICAC's powers under the act to make referrals directly to the DPP in the course of the application. At paragraph 185, the court noted the following:

Given the requirement contained in subsection 8(3) that a person appointed as Commissioner be a legal practitioner and the very nature of the office of the Commissioner, it is likely that the legislature expected that the Commissioner would disclose to the Director all disclosable material in accordance with the common law duty of disclosure by the Crown.

I will read that again:

…it is likely that the legislature expected that the Commissioner would disclose to the Director all—

all—

disclosable material in accordance with the common law duty of disclosure by the Crown. The Director could decline to prosecute if the Commissioner did not disclose all disclosable material. The Court could stay a prosecution in the absence of such disclosure. More importantly, on the construction of the Act advanced by Mr Bell, if the Commissioner had conducted an investigation and then referred the matter to SAPOL for further investigation and prosecution, sections 10A and 11 of the DPP Act would not apply to the Commissioner.

I will also later table that document, Bell v The Queen. It is noted as JH13. It is the Full Court of the Supreme Court judgement.

I then move to 10 December 2020, when the Hon. Ann Vanstone appeared before the Crime and Public Integrity Policy Committee, of which I was the Presiding Member. Ms Vanstone declared that her first impressions formed of the office were that it is 'very well organised and very well run, and that's a tribute to my predecessor, the Hon. Bruce Lander QC (at the time) and a tribute to his deputy and now my deputy, Michael Riches, and all the leaders at the office'. I will note here that Mr Riches, not long after, left ICAC and took up an appointment as the head of the Northern Territory ICAC. That is where he is now. Ms Vanstone goes on to say:

I am extremely impressed with the culture. They are a good group of committed, diligent individuals who respect the organisation and its charter, and they operate with great integrity. If South Australia knew a lot more of the office and how it's run and the sort of people who staff it, they would be proud.

We already know what happened in Mr Hanlon's case months before, well before Ms Vanstone has taken over the office. We know that they breached international law. We know they took shortcuts to try to bring the prosecution to a head. I am just not sure why the commissioner would not have reviewed that case.

I then move to 5 February 2021. The DPP filed a charge against John Hanlon and Georgina Vasilevski in the South Australian Magistrates Court. Mr Hanlon was arrested and charges were laid against him. The outline of prosecution's submissions as to request for oral examination of witness and as to the presence of a case to answer was filed. This charge was based on the brief of evidence provided by ICAC to the DPP from late 2019 to 3 March 2020, which included inadmissible evidence, which was known to ICAC, its investigators, but which did not form part of the disclosure.

They had already provided a brief of evidence, which included the inadmissible evidence which confirmed that they had broken international law. Within the brief was the altered cell phone data tracking matrix, which was edited not to include the evidence which supported Mr Hanlon's version of events. It is shameful.

On 18 June 2021, the DPP dropped charges against Mr Hanlon and there was some evidence from the now Treasurer, the Hon. Stephen Mullighan. The prosecutor, Peter Longson, conceded at a committal hearing that the evidence and the charges that are particularised on could not be proven beyond reasonable doubt. The charges were then dismissed. Peter Longson conceded to Magistrate Simon Smart that his evidence did not go far enough to prove that the travel was for personal rather than work purposes. On the same day, Mr Mullighan gave evidence that he approved Mr Hanlon's trip, and nothing was amiss with the details.

There are articles from InDaily and the ABC which, again, form part of the documents I will file. It is marked as JH16. It is worth noting here that by this stage the DPP had made multiple attempts to settle with Mr Hanlon, to do a plea deal. We already know what has transpired here, although of course Mr Hanlon and his lawyers are oblivious to that, as are those of Ms Vasilevski.

On 12 May 2021, came the ICCCA advice to the DPP on the MAR. The DPP became aware of the MAR process when the ICCCA wrote to the deputy director to advise of MAR's requirements, stating:

MAR required in all circumstances. No contact should be made with a witness or prior to a MAR being made. Examination via AVL requires consent of the person and the involvement of the German court.

That will be another document, JH10 in R v Hanlon, the Deputy Director of Public Prosecutions who was at the time made aware of it. That, as we know, was Sandi McDonald, now Judge McDonald.

On 7 September 2021, the deputy director files an ex officio in the District Court. A decision was made to file ex officio information to lay charges of (1) abuse of office and (2) the dishonest dealing with documents—there were two of them. It is ironic, is it not? A dishonest dealing with documents, and we already know that they themselves had dishonestly dealt with documents. The ex officio was based on no new evidence and did not contest an error of law made in the magistrate's decision to dismiss the prosecution.

It is made quite clear in a document from the Magistrates Court that the power to lay ex-officio information—just to get it right, this is in the reasons for not allowing an adjournment and not making the witness statements admissible in court by Judge Heffernan. He makes it clear that the power to lay ex-officio information was used recklessly. I will quote what he said:

It must nonetheless be observed that the onus on the prosecution to make necessary the arrangements in an appropriate manner was particularly acute, given the power to lay an ex-officio information was used after erroneous concessions by the prosecutor of the trial and that there was at least an implied assurance from the prosecution to both the court and the defendant that this matter was ready to proceed to trial on the occasion that it was listed, 22 October 2022.

This means that all the necessary witnesses were ready and available by that date, so what changed then to warrant and justify the ex officio? Prosecution guidelines were not followed, by the looks of it. His Honour continues in his recent judgement, reflecting:

A MAR has not yet been made by the prosecution at time of the proposed trial, October 2022. It seems inevitable that German authorities will at some point become aware of the fact that a significant investigation has taken place within its borders in what it regards as a breach of its sovereignty.

There is Judge Heffernan pointing out what ICAC had already known for a great period of time—they already knew that. I seek leave to conclude my remarks.

Leave granted; debate adjourned.

Sitting suspended from 17:59 to 19:45.

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