E12/2107/0821PUB04763 CREDO/SPICER PUBLIC 06/08/2014 pp 04763-4806 HEARING COPYRIGHT INDEPENDENT COMMISSION AGAINST CORRUPTION THE HONOURABLE MEGAN LATHAM PUBLIC HEARING OPERATION CREDO AND SPICER Reference: Operation E12/2107/0821 TRANSCRIPT OF PROCEEDINGS AT SYDNEY ON WEDNESDAY 6 AUGUST, 2014 AT 10.00AM Any person who publishes any part of this transcript in any way and to any person contrary to a Commission direction against publication commits an offence against section 112(2) of the Independent Commission Against Corruption Act 1988. This transcript has been prepared in accordance with conventions used in the Supreme Court. 06/08/2014 4763T E12/2107/0821 THE COMMISSIONER: This public inquiry is being conducted for the purposes of an investigation of an allegation or complaint of the following nature, whether between April 2009 and April 2012 certain Members of Parliament including Christopher Hartcher MP, Darren Webber MP and Christopher Spence MP and others including Timothy Koelma and Raymond Carter corruptly solicited, received and concealed payments from various sources in return for certain Members of Parliament agreeing to favour the interests of those responsible for the payments and whether between December 2010 and November 2011 certain Members of 10 Parliament including Christopher Hartcher MP, Darren Webber MP and Christopher Spence MP and others including Raymond Carter solicited, received and failed to disclose political donations from companies including prohibited donors contrary to the Election Funding Expenditure and Disclosures Act of 1981 and whether Eightbyfive, a business operated by Timothy Koelma, entered into agreements with each of a series of entities including Australian Water Holdings Pty Limited whereby each respective entity made regular payments to Eightbyfive purportedly for the provision of media, public relations and other services and advice in return for which Christopher Hartcher MP favoured the interests of the respective entity and 20 the circumstances in which false allegations of corruption were made against executives of Sydney Water Corporation and the circumstances in which the 2011 election campaign for the seat of Newcastle was funded by the Liberal Party and whether funds were solicited and received from prohibited donors including Buildev Pty Limited, Nathan Tinkler, Jeff McCloy, Hilton Grugeon and other persons and companies associated with them and whether Members of Parliament including Christopher Hartcher MP and Michael Gallacher MLC solicited and received donations from prohibited donors for use in the Liberal Party 2011 State election campaign including in the seat of Newcastle and whether parties and persons including 30 Buildev Pty Limited, Nathan Tinkler, Darren Williams, David Sharpe, Jeff McCloy and Hilton Grugeon improperly sought to influence certain Members of Parliament by making donations during the 2011 State election campaign and whether Members of Pty including Christopher Hartcher MP and Michael Gallacher MLC used or attempted to use their power and influence improperly to confer or attempt to confer benefits upon donors to the Liberal Party in the 2011 State election campaign and the circumstances in which two campaigns were conducted against the sitting Member of the seat of Newcastle Jodi McKay MP, including the publication and distribution of misleading information and whether certain persons were 40 involved in organising or attempting to organise and/or funding those campaigns including Joseph Tripodi MP, Ann Wills, Nathan Tinkler, Darren Williams, David Sharpe and members of the Newcastle Alliance and whether Members of Parliament including Joseph Tripodi MP used or attempted to use their power and influence either to improperly confer benefits or attempt to improperly confer benefits upon certain parties and persons including Buildev Pty Limited, Nathan Tinkler, Darren Williams and David Sharpe in respect of a development of a coal terminal proposed at the Port of Newcastle and whether Members or associates of the Liberal 06/08/2014 4764T E12/2107/0821 Party of New South Wales used or attempted to use the Free Enterprise Foundation as a means of receiving and disguising donations from prohibited donors in the lead up to the 2011 election campaign and whether certain companies and persons including Buildev Pty Limited, Boardwalk Resources Pty Limited, Nathan Tinkler, Darren Williams, David Sharpe and Troy Palmer used or attempted to use the Free Enterprise Foundation as a means of making donations to the Liberal Party with the intention of attempting to improperly influence certain Members of Parliament. 10 The general scope and purpose of the public inquiry is to gather evidence relevant to the matters being investigated for the purposes of determining the matters referred to in section 13(2) of the ICAC Act. The standard directions issued in July of 2013 continue to apply to this hearing, relevantly the directions applying to the use and production of documents in public inquiries confirm the discretion vesting in the Commission to provide confidential electronic access to certain documents that are likely to be tendered as exhibits. Whether that discretion is exercised is dependent upon a number of factors, 20 including the necessity to identify whether an application should be made for a suppression order. Other factors of an operational nature may militate against the grant of access. As the standard directions note as a general rule the Commission does not make documents or other material available in advance of a public inquiry. There are sound reasons for adopting this approach. There are sound reasons for adopting this approach. The Commission is an investigative body not an adversarial adjudicative one. It is not bound by the rules of evidence and it has no power to determine questions of criminal 30 or civil liability. The extent of its obligation to observe the rules of procedure fairness and natural justice is directly related to its power to make findings that reflect adversely upon some persons. The two pillars of those rules are that the Commission base it findings on the evidence and that the Commission listens fairly to any relevant evidence conflicting with a proposed finding and any rational argument against that finding that a person at the inquiry whose interests may be adversely affected by it wish to advance. Of course the ability to advance argument and conflicting evidence is 40 premised upon the relevant person being made aware of the risk of an adverse finding. That function is performed by the framing of the scope and purpose of the inquiry, the opening by Counsel Assisting the inquiry, by the nature of the questioning during the inquiry and by the submissions of Counsel Assisting at the end of the evidence. When a person at risk of adverse findings wishes to advance a positive case by adducing relevant evidence that opportunity will be afforded at every stage of the inquiry subject of course to the availability of a witness who may need to be recalled and subject to any document being given in advance of its use or 06/08/2014 4765T E12/2107/0821 tender to Counsel Assisting. The salient point is that the rules of natural justice and procedural fairness do not require the Commission to treat the inquiry as though it were a trial in a court of law. To that end I will not entertain oral applications during the inquiry which seek access to documents or other material that has not been tendered as an Exhibit or placed on the restricted Website. Such applications take up valuable time that is needed for the appearance of witnesses. Any application seeking advance access to documents must be made in writing to 10 the Commission’s solicitor, Mr Roy Waldon. The applicant will be duly notified in writing of the outcome. It is proposed to place documents upon which Counsel Assisting intends to rely on the restricted Website by the end of this week. To enable that to occur without further delay the documents will be unredacted, therefore I make a suppression order under section 112 of the ICAC Act prohibiting publication of any information capable of identifying the private address, including email address, phone number and banking records of persons referred to in those documents. At an appropriate time the redacted documents will be placed on the public Website. 20 I MAKE A SUPPRESSION ORDER UNDER SECTION 112 OF THE ICAC ACT PROHIBITING PUBLICATION OF ANY INFORMATION CAPABLE OF IDENTIFYING THE PRIVATE ADDRESS, INCLUDING EMAIL ADDRESS, PHONE NUMBER AND BANKING RECORDS OF PERSONS REFERRED TO IN THOSE DOCUMENTS This hearing room is to be decommissioned on 29 August, 2014 in 30 preparation for the Commission’s move to new premises in September. If the inquiry is still on foot it will move to the hearing room on level 21. The inquiry will commence tomorrow at 10.30am and the inquiry will not be sitting on 20 August, otherwise the usual sitting hours will be observed. At the conclusion of the opening I will take a short adjournment. Leave granted to Counsel for the purposes of the hearings in May of this year will continue to apply. I will take applications for leave to appear from other counsel after the adjournment. 40 Yes, Mr Watson. MR WATSON: Commissioner, while I was opening or reopening this inquiry I was going to refer to documents, they‘ll be shown up on the screen in due course, but it’s better if I tender a hard copy, a bundle of those documents. There’s 75 pages in all. I’ll tender that now if I may. THE COMMISSIONER: Yes. The current tranche of the inquiry will adopt an Exhibit designation of Z to avoid confusion with documents 06/08/2014 4766T E12/2107/0821 tendered in the previous inquiry, the previous tranche of the inquiry. So that bundle will be Exhibit Z1. #EXHIBIT Z1 - BUNDLE OF DOCUMENTS REFERRED TO IN COUNSEL’S OPENING ADDRESS MR WATSON: Commissioner, the public inquiry in Operation Spicer 10 adjourned to permit the Commission to undertake further investigation of matters which had been raised within the original terms of reference.