REPORT ON AN INVESTIGATION INTO MATTERS ARISING FROM A MINISTERIAL STATEMENT TO THE LEGISLATIVE ASSEMBLY ON 10 APRIL 2001
August 2001
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The Hon. Dr Meredith Burgmann MLC The Hon. John Murray MP
President Speaker
Legislative Council Legislative Assembly
Parliament House Parliament House
SYDNEY NSW 2000 SYDNEY NSW 2000
Madam President
Mr Speaker
In accordance with section 74 of the Independent Commission Against Corruption Act 1988 (as amended), I am pleased to present the Commission's report into an investigation into matters arising from a Ministerial Statement made in the Legislative Assembly on 10 April 2001.
There are no findings of corrupt conduct contained in the report. As the report details, the findings made were based on preliminary inquiries undertaken by the Commission, and no hearings were conducted.
I draw your attention to the recommendation that the report be made public immediately in accordance with section 78(2) of the Independent Commission Against Corruption Act.
Yours sincerely
Irene Moss AO
Commissioner
CONTENTS |
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CONTENTS 3
CHAPTER 1-INTRODUCTION 4
WHAT IS THIS REPORT ABOUT? 4
WHAT ICAC CAN INVESTIGATE 4
WHY ICAC INVESTIGATED 5
HOW ICAC INVESTIGATED 5
SECTION 78(2) RECOMMENDATION 6
CHAPTER 2-WHAT OCCURRED 7
EVENTS PRIOR TO 10 APRIL 2001 7
EVENTS OF 10 APRIL 2001 8
WHEN WAS THE MATTER REPORTED TO POLICE? 12
ACCESS TO A GUN? 13
Section 74A(2) Statement 16
APPENDIX 1-CORRUPT CONDUCT 17
CHAPTER 1-INTRODUCTION |
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On the afternoon of Tuesday 10 April 2001, the Minister for Education and Training, the Hon John Aquilina MP, made a Ministerial Statement in Parliament. The statement concerned certain entries in the diary of a high school student including descriptions of suicide and reference to doing a "replica" of the massacre which occurred at Columbine High School in Colorado in 1999. The Ministerial Statement outlined the action taken by the school principal in response, and indicated the police had been contacted about the matter. Public officials also provided information to the media that the student had or might have had access to a gun.
Immediately after the statement was made, the issues raised by it, the fact that it was made at all, and subsequent events all became the subject of widespread comment and controversy. The controversy focussed on the motivations of the Government in raising this matter, the political and media strategy employed in relation to it, and the statement's impact on the student and the school.
Many of the matters raised by this debate do not relate to corrupt conduct as defined by the Independent Commission Against Corruption Act 1988 (ICAC Act) and are, therefore, not matters which can or should be the subject of ICAC investigation or comment.
Of the issues raised subsequent to the making of the Ministerial Statement, the ICAC concerned itself with two matters that raised possible corrupt conduct.
These matters concerned whether:
· public officials improperly ordered the Police Service to withdraw a media statement which contradicted the Ministerial Statement that police had been contacted; and
· public officials falsified advice to the media that the student had access to a gun.
These two matters were also raised with the ICAC in a series of complaints made to the ICAC pursuant to section 10 of the ICAC Act by Mr Andrew Tink MP, the Shadow Minister for Police.
This report concerns the ICAC's investigation of these two issues.
No findings are made in the report that any person engaged in corrupt conduct. There was no evidence on which to base any recommendations that consideration be given to the taking of criminal, disciplinary or dismissal action against any person.
The facts of what occurred, in so far as they are relevant to the ICAC's investigation, are set out in the following chapter.
The ICAC must operate in accordance with the terms of the ICAC Act.
A principal function of the ICAC is to investigate and expose "corrupt conduct". The term "corrupt conduct" is extensively defined in the ICAC Act. It concerns, among other things, the dishonest and partial exercise of official powers and functions in, and in connection with, the public sector of New South Wales (NSW); and the protection of information and material acquired in the course of performing official functions.
In considering whether someone acted partially it is necessary to show the person had an actual or imputed appreciation that what was being done was, in the circumstances, wrong. In addition, conduct must also constitute or involve a criminal offence, grounds for disciplinary action or dismissal or, in the case of a Member of Parliament, a substantial breach of the applicable code of conduct.
A detailed description of what constitutes corrupt conduct and how the definition is applied by the ICAC is set out in Appendix 1.
The withdrawal of the initial Police Service media statement would not, of itself, be corrupt conduct. If, for example, it was found that the original media advice was incorrect then it would be proper and appropriate that it be withdrawn. Different considerations however, apply if, in fact, the original media statement was correct and a public official brought pressure to bear to have the Police Service withdraw the initial statement and issue a false statement.
Similarly, if information concerning the student having access to a gun was deliberately fabricated by a public official it could constitute corrupt conduct.
The ICAC's investigation was limited to these two matters. Whilst there has been much public debate about the appropriateness of the way in which the Minister and other public officials handled this incident these are not matters for ICAC comment.
The ICAC investigated these matters because it was in the public interest to establish whether there had been any corrupt conduct. The allegations received much media and public attention. The degree of seriousness involved and the desirability of ascertaining what actually did occur made investigation of these issues of compelling public interest.
The ICAC has a number of investigative powers it can exercise under the ICAC Act. In the present case it was not necessary to exercise any of these powers. All relevant parties co-operated fully with the ICAC's investigation.
The ICAC obtained a number of relevant documents from the NSW Police Service and the Department of Education and Training, and conducted records of interview with, and/or took statements from, a number of relevant witnesses. These witnesses were:
· The Hon John Aquilina MP, Minister for Education and Training
· Patrick Low, former Press Secretary to Minister Aquilina
· Walter Secord, Director Communications, Premier's Office
· Richard Booth, Superintendent of Schools, Liverpool District
· Warren Shiell, Detective Sergeant of Police
· John McGregor, High School Principal
· Tracey Arthur, Manager, NSW Police Service Media Unit.
In his correspondence to the ICAC, Mr Tink nominated several NSW Parliamentary Press Gallery journalists who he said could and would assist the ICAC in its inquiries. The ICAC also became aware that a number of other journalists thought they should have been interviewed about the media management of the Ministerial Statement. As will become clear in the course of the report, it was not necessary to pursue these lines of inquiry.
In some cases recollections of some of the events central to the ICAC's investigation differed. It was not always necessary to reconcile all these differences. Where it judged it appropriate to do so, and after they had been interviewed, the ICAC provided some witnesses with copies of the statements or records of interview of others for comment on significant differences in recollection. In some cases where there was conflict this was not done as it was not judged necessary for the purposes of the investigation. Where significant relevant differences remain they are identified in this report.
The information obtained by the ICAC was sufficiently comprehensive to determine what occurred to the extent necessary for the ICAC to discharge its relevant functions under the ICAC Act. This report sets out the relevant factual details and examines the conduct of those involved.
In conducting any investigation, the ICAC undertakes preliminary inquiries at the outset to determine whether the facts bearing on the allegations in question should be further investigated. Further investigation may involve private and/or public hearings. For reasons that will be explained in the course of this report, the ICAC does not consider that it is either necessary or an appropriate use of public resources to conduct hearings in this matter.
In these circumstances the public interest in the matters investigated by the ICAC is best served by publication of this report.
The ICAC recommends pursuant to section 78(2) of the ICAC Act that this report be made public immediately. This recommendation allows either presiding officer of the Houses of Parliament to make the report public, whether or not Parliament is in session.
CHAPTER 2-WHAT OCCURRED |
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At the relevant time, Patrick Low (Low) was Ministerial Press Secretary to the Minister for Education and Training, the Hon John Aquilina MP. He had held this position for approximately ten months. He resigned on 19 April 2001.
During the course of his duties, Low received Serious Incident Reports (SIR) relating to matters of importance occurring within the NSW public education system. It was his practice to advise Walter Secord (Secord), Director of Communications in the Premier's Office, of any SIR which he believed might be of media importance so that any necessary Government response could be co-ordinated.
Low said that on Friday 6 April, he spoke to Secord about three SIRs which he believed were of interest. They included the SIR in relation to a student diary.
This SIR is dated 6 April. It was prepared by an Education Department official in the office of the Liverpool District Superintendent, Richard Booth. It is based on a Critical Incident Report received by him on that date from the principal of the student's school. The SIR refers to a student's diary handed to the school principal containing descriptions of suicide and the killing of other students and staff. It notes the diary makes reference to the killings at a high school in Colorado.
The SIR notes that the principal's discussion with the student indicated evidence of depression, anger and self harm. Under the section of the SIR headed "Action Taken" the following appears:
· Police contacted,
· Contact and immediate counselling session with school counsellor,
· Contact and immediate interview with parent,
· Student discussion with Principal, Parent and Counsellor,
· Arrangements to involve counselling with Youth Mental Health and School Counsellor.
Low says Secord identified this matter as important and asked him if the student had access to a gun:
He said without a gun we could not do the story. He wanted to do the story on the following Tuesday. I agreed to do the story and said I would find out more details.
Low also said that while Secord raised the issue of a gun, there was no suggestion that its existence be fabricated for the purposes of the story:
... [Secord] wasn't suggesting [it] for the intention of saying it - if it was untrue.
Secord did not disagree that Low had first mentioned the SIR to him on Friday 6 April. He said, however, he did not raise the issue of whether the student had access to a gun with Low:
He came - Mr Low came to me with this information. He was the person that mentioned the gun, it was conveyed to me.
Secord could not recall whether the student having access to a gun was raised on 6 April or later, on 10 April.
It is immaterial who first raised whether the student had access to a gun or whether it was raised on 6 April or later. These issues do not bear directly on whether the story about the gun was fabricated for the media. Low says that, at this stage, he did not have any information on whether or not a gun was involved. He accepts, however, that it was his responsibility to properly research the story including whether or not the student might have had access to a gun.
Low says that despite being asked to research the story, by Tuesday 10 April he had still not done anything.
Although I had agreed to find out more about this issue, I did not personally want to do it, as I do not agree with making this kind of thing public.
Low says that at approximately 9:30am on Tuesday 10 April he went to Parliament House and spoke to Secord in Secord's office. According to Low, Secord told him he believed this would be the biggest story of the day and he had put off other Ministers from doing stories so this one would get a clear run. It was at this time that Low realised this was going to be a much bigger story than he had imagined. Nevertheless, Low did not tell Secord that he had not done the necessary research. Low then went to his office.
Secord says that on 10 April he was not only dealing with Low about this matter, but also with a number of other press secretaries working on other speeches for Question Time.
Arrangements had been made to have Richard Booth (Booth), the Liverpool District Superintendent, fax a briefing on the matter to Low. The briefing documents did not make any reference to a gun. They included a transcript of the relevant diary pages. It is not proposed to reproduce those pages, however they contained what the student referred to as "my massacre list" which contained two names "... for starters" and referred to doing "... a replica of the Colorado high school massacre". Some entries make reference to suicide.
At this stage the briefing documents from Booth, including the copy of extracts from the diary, and the SIR were the only information on the matter which Low had. There is no reference in any of this information to the student having access to a gun.
Shortly thereafter Low rang Booth. There is a dispute on the evidence as to whether Low raised the issue of a gun with Booth. Low says he asked Booth if the student had access to a firearm but:
To the best of my recollection Booth was very uncertain but did not say "yes" or confirm it.
Booth confirms he had a telephone conversation with Low. Booth says he confirmed the school principal had notified the police. Booth knew this from a previous conversation with the school principal, John McGregor. He informed Low the student was on approved leave and undergoing counselling. Booth is adamant there was no discussion concerning a gun.
There is a clear conflict between the recollections of Low and Booth as to mention of access to a gun. Ultimately, it is not necessary to resolve this conflict given that even on Low's version there was no confirmation given to him that the student had access to a gun. It clearly remained a matter for him to make further inquiries.
Low accepts that he should have followed up the gun issue with the police rather than an official of the Education Department. He did not do so.
Low says that at about 10:30am, Secord came to his office to ascertain what progress Low was making with preparation of the Minister's Statement. Low says he had "qualms" about making the matter public. He seems to have been concerned about the general desirability of making a public statement on an actual incident of student depression. However, he did not object to proceeding:
I did not have the courage to speak up.
Low typed a number of dot points which he said he and Secord expanded on to form a draft statement. According to Low there was no mention of a gun in this preliminary document. Low said Secord then asked him if he had ascertained whether the student had access to a gun. Low says:
I should have admitted that I had not properly followed this up. I did not have the courage to admit that despite being asked five days earlier to find out more detail, I had failed to do so. Instead I said we should not mention the gun issue, that having a gun was not illegal and we should be careful of defaming this family. I was concerned that he was angry with me for not following it up.
Low said Secord wanted to refer to a gun in the statement. Low says Secord dictated a last line "Could have had access to a gun" which Low typed. However, before printing the document Low says he deleted this line. Secord asked him why the reference had been deleted. Low says he told Secord "I don't think we should talk about a gun". Low said:
I let him believe I had followed it up but did not want to have this detail included in the story.
Secord agreed he had some input into the Minister's Statement being prepared by Low but could not recall specific details. However, he recalled clearly that Low had told him that an Education Department official, who Low did not name, had told Low a gun was involved. He says he relied on Low, whom he believed to have obtained the relevant factual details, to ensure the statement was factually accurate.
Secord said no mention was made of the gun in the statement because:
... it was based on verbal advice from the [Education Department] bureaucrat, who at the time I did not know that person's name.
He could not recall if reference to the gun was kept out of the statement at Low's suggestion.
When Minister Aquilina arrived at his ministerial office he noted that both Low and Secord were at Low's desk. He asked them what was happening and Low showed him the SIR. He says this was the first time he became aware of the matter. There was some discussion about the matter. The Minister believed the matter was one of public importance as it raised serious issues of the effects of adolescent depression. It was agreed Low would prepare a statement.
Minister Aquilina then attended other meetings and did not return to his office until about 12:20pm. He was then handed a draft Ministerial Statement. He read the statement which contained a reference to the Colorado high school massacre. He recollected there were guns and possibly dynamite and hand grenades involved in the Colorado incident. He says he said to Low "this doesn't have anything like that in it". He then described what occurred:
And that's when he [Low] looked at me straight in the face, and he said, "there was a gun". I said, "there was a gun?" I said, "Well how do you know this?" he said, "Richard Booth, District Superintendent, said to me that the police had told him there was a licensed gun in the house." I said, "Oh so well - so that's a, that's a different sort of story". I said, "Don't you think that we then need to put this into the story?".
Minister Aquilina understood from this that information concerning access to a gun originated from the Police Service. It appears subsequent statements attributing the information to the Police Service emanate from this understanding.
According to Low, Minister Aquilina read the draft statement and then asked whether the student had access to a gun.
In his statement to the ICAC, Low said:
Here again I should have admitted I had not properly followed this up. However, the issue now had a life of its own. I did not want to get in trouble by calling it off. I let the Minister believe that the student did have access to a gun.
When interviewed by the ICAC, Low said that he did not positively confirm there was a gun, however, he did nothing to disabuse either Secord or the Minister of the impression he knew they had that the student had access to a gun.
Shortly after 1:00pm Minister Aquilina says he asked Secord and Low how they were progressing with a redraft of the statement. He says Low told him he hadn't been able to confirm the details about the gun. Bearing in mind his previous conversation with Low, the Minister assumed he had not had an opportunity to obtain independent verification from the police. It was therefore agreed that there would be no reference to a gun in the Ministerial Statement. It is important to note that on his evidence Low clearly understood at this time that both Minister Aquilina and Secord believed the student had access to a gun.
Between this time and delivering the statement in Parliament, Minister Aquilina had a brief telephone conversation with the school principal to advise him the issue was going to be raised in Parliament. The gun issue was not raised in this conversation.
Low had no doubt that both the Minister and Secord believed that the student had access to a gun. Indeed both say they understood clearly from Low that the student had access to a gun and this information, which they believed to be reliable, was why they subsequently made reference to this point to media representatives.
At approximately 2:15pm Minister Aquilina delivered a Ministerial Statement in Parliament. This Ministerial Statement was much referred to in subsequent media reports. It is worthwhile to reproduce it in full:
This morning I received details of a very disturbing incident at a New South Wales high school. At the outset I wish to congratulate the school principal for his swift and effective action. For reasons that will become clear, I do not intend to name the principal or the school concerned. His colleagues will be aware of his actions. I have spoken to him today to personally convey my appreciation. Last week three year 10 students at a New South Wales high school went to their principal, with disturbing information regarding another student. The student involved is male and aged almost 16. He has no history of violent or destructive behaviour at the school.
The three year 10 students handed in a diary they had obtained from that student. That diary contained graphic passages describing a massacre list, descriptions of suicide and plans to kill other students during a school assembly that was to take place the next day. In the student's words he intended carrying out "a replica of the Colorado high school massacre". The diary also included a "hit" list of names of teachers and students at the school. In addition there were descriptions of the school hall and other buildings. After a brief reading of the diary, the principal of the school acted immediately. He took the student out of the classroom and police were contacted, [emphasis added] as were the student's family and a clinical psychologist. He is now undertaking counselling and will be working with a mental health unit. No clinical diagnosis is yet available.
This is an extremely serious issue. It is important that we not leap to conclusions about this student. It is not clear whether he would have carried out actions described in the diary, if given the chance. What is clear is that he is in need of assistance. That assistance is now being provided. This is because the school principal took the issue seriously and acted in the best interests of the students and the school. There is a message in this for every parent and student in New South Wales, that is, to make sure that depression or anger is not simply ignored, or considered a phase or part of growing up. If parents are concerned about a child's emotional health or a student is concerned about another student in the class, they should make sure they tell someone - the principal, a teacher or a counsellor.
Honourable members will recall the horrific incident at Columbine High School in the United States of America on 20 April 1999, almost exactly two years ago, when Eric Harris and Dylan Klebold shot and killed 12 students and a teacher. Harris and Klebold had previously written about their plans on an Internet web site 13 months before the attack. At the time that aspect was raised with the Jefferson County Sheriff's Office, but it appears that insufficient action was taken. Local police made plans to search Harris's home but failed to do so. It cannot be suggested that the student in New South Wales would have gone to the lengths of the two American students two years ago. However, a major difference between the United States of America and Australia is that, in this case, the issue was taken seriously and dealt with appropriately by the school principal.
A number of matters directly arising from this statement have been the subject of public debate. However, only the reference to the police being contacted immediately the school principal became aware of the contents of the diary is relevant to the ICAC's investigation.
There can be no question the Minister believed, and was entitled to believe, the matter had been reported to the police. The SIR refers to the police being contacted on 6 April. Booth had told Low the police had been called but had not attended. Low relied on the accuracy of this information, as indeed he was entitled to, in preparing the Ministerial Statement.
Following the statement, media reports emerged saying that the incident had not been reported to police before the Ministerial Statement was made. These reports were apparently based on advice from the Police Service. On the afternoon of 11 April, the NSW Police Service Media Unit (Police Media Unit) issued a correction saying that the matter had been reported to police prior to the Ministerial Statement. This gave rise to suggestions that pressure had been put on the Police Service to back up the Minister's Statement.
The issue for the ICAC to consider is whether in fact the matter had been reported to the police prior to the statement being made to Parliament. If not, the issue arises as to whether improper pressure was brought to bear on the police to withdraw their initial media statement that there was no record of the school principal having called the police.
WHEN WAS THE MATTER REPORTED TO POLICE?
The Ministerial Statement received much media attention both on 10 April and subsequently. Media representatives contacted the Police Media Unit about the matter in the hours after the Minister's Statement in the Legislative Assembly. At this time, the Police Media Unit issued a verbal statement to the media that:
At this stage there is no record of a police investigation into this matter.
This was subsequently reported by media outlets as a statement that the matter had not been reported to police prior to the making of the Ministerial Statement.
In fact the incident had been reported to police by the school principal on 6 April.
John McGregor (McGregor), the school principal, told the ICAC he telephoned the Green Valley police station at 2:55pm on 6 April. He is able to be precise as to the time as he had obtained the call charge details from Telstra which show a call was made from his telephone to Green Valley police at this time. He did not record the identity of the person to whom he reported the matter and the police do not have a record of the report or the identity of the person who spoke with McGregor.
McGregor told ICAC he spoke with a person he believed to be a female who he believes identified herself as a general support officer. After introducing himself he says the following conversation occurred:
I said words to the effect of, "I am concerned about some words I read in a student's' diary. I have informed my superintendent. I have interviewed the student and his father." The female asked, "Is there any danger at the school." I said, "No. The boy and his father have gone home." She said, "We don't have any cars available at the moment, could you come in sometime next week and give a fuller statement." I said, "Yes, that'll be fine. I am more concerned about the state of the kid than what is actually written in the diary." During this conversation there was no mention of the student's identity nor was there any discussion about any weapons. I believe I may have outlined some of the passages from the diary to her.
The fact McGregor agreed to attend the police station to provide a more detailed statement the following week may explain why no official police record appears to have been made of the incident at this time.
No time was fixed for McGregor to attend the station. He says he intended to go on Tuesday 10 April. Unfolding events that day overtook that plan.
When police were first contacted by the media on the afternoon of 10 April the absence of any official report led them to advise that, at that stage, there was no record of the matter being investigated by police.
McGregor was contacted by the police on the evening of 10 April and confirmed he had contacted the police on 6 April.
On 11 April Detective Sergeant Warren Shiell (Shiell) of Green Valley police attended the school and spoke with McGregor. McGregor confirmed he had contacted the Green Valley police station on 6 April, but could not recall with whom he had spoken. McGregor told him he had arranged for a counsellor to speak to the student.
Shiell obtained a copy of the SIR and the relevant diary entries. He then returned to the Green Valley police station where he recorded an official report on the police computer system. He also completed name checks of the student and family members in relation to criminal history or firearm licences. No criminal history or firearm licences were found in the search. Later he spoke with the counsellor who told him that he had spoken with the student and his family and counselling would continue.
As no criminal offence had been committed, appropriate action had been taken by McGregor, and the student was receiving counselling, it was determined that no further police action was required.
On receipt of a situation report from Green Valley police on 11 April, the Police Media Unit prepared a statement to be issued verbally to the media. It was intended that the statement say:
That police have met with the principal of the school and discussed the matter. The diary entries have been reviewed and no further action will be taken. There has been no suggestion of a weapon at any stage.
Later that day, the Manager of the Police Media Unit, Tracey Arthur (Arthur), became aware that the following statement was also being provided verbally:
Police had no record of being contacted by the school and police made contact with the school after hearing reports in the media.
Arthur told the ICAC she alerted the Police Minister's Press Secretary to the error, and decided to release a written statement to correct the inaccurate verbal statement. The written statement issued by the Police Media Unit read:
The statement issued by the Police Media Unit earlier today, April 11, 2001, in relation to the school diary incident, was incorrect.
Advice from local police was that police were first contacted by the principal concerned on April 6, 2001.
Police have met with the principal involved and discussed the matter.
Police have reviewed the diary entries and no further action is required.
This statement corrects and replaces the earlier statement made by the Police Media Unit.
The police acted properly in issuing this media release, confirming the incident had been reported on 6 April and withdrawing any suggestion that it had not been reported to police prior to the Ministerial Statement.
It is quite clear from the facts that no improper pressure was brought to bear on the Police Service to withdraw the initial media statement. The initial media statement gave the impression that the incident had not been reported to police on 6 April - an incorrect impression. The fact no official record had been made of the report explains this initial denial. In the circumstances it was appropriate the initial media statement was withdrawn and replaced by a media release. It follows that there is no issue of any corrupt conduct in relation to this matter.
The other relevant issue for the ICAC concerns mention of access to a gun. There was no mention of the student having access to a gun in the Ministerial Statement. This information was conveyed to the media separately. Low was present in the Chamber at the time the Minister made the statement. Secord was downstairs advising journalists about the story. He said that by way of background he told the media there was a suggestion there was a gun involved.
He told the ICAC:
The information was provided to me by Mr Low and I presented it to the Press Gallery in good faith.
As Secord acknowledged that he had briefed journalists on the gun, and this aspect of the story was subsequently reported, there was no need to verify this with members of the Press Gallery. The question for the ICAC is on what basis did Secord provide the information to the journalists.
Secord said he relied on information provided by Low. When interviewed by the ICAC he said:
Mr Low had worked in, in my office in the Premier's Office, and he had been a trusted employee, an accurate employee and knowing Patrick's previous track record, that if he said something I would believe him, but the bureaucrat - Patrick said several times to me during the course that the bureaucrat, that the bureaucrat had said that there was a gun involved, so Patrick being - I work, worked with Patrick, Patrick is a trusted employee, I trusted Patrick's judgement.
At the end of Question Time, Low left the Chamber and then spoke to some media representatives about the story. He said he did not raise the gun issue with them but he was asked about it. He said he told them:
Off the record I've heard that story. On the record it is not a matter for Education to confirm.
Later that day Minister Aquilina was interviewed about this matter on a radio program. During the course of that interview he was asked whether the student had access to a gun and responded that he understood the student could have access to a gun. He says he based this statement on what he had been told by Low.
Statements made by Minister Aquilina and Secord on 10 April to the effect the student had or might have had access to a gun were based on their understanding that such information had been obtained by Low.
There is a clear difference between the evidence of Low on the one hand and Secord and Minister Aquilina on the other. Low denies he positively asserted there was a gun, but allowed Secord and the Minister to "assume" there was. Secord and the Minister say Low positively asserted that he had been told the student did have access to a gun.
In so far as the conduct of Minister Aquilina and Secord is concerned it is not necessary to resolve this conflict. Even on Low's own version he knew they believed the student had access to a gun, and that such belief emanated from their discussions with him. When interviewed by the ICAC about whether he told them he had confirmed the student had access to a gun Low responded:
No. I gave them that impression, but I didn't [confirm it].
Knowing that the Minister and Secord had an incorrect impression which they had gained from him, Low should have taken steps to provide accurate information. He did not do so.
To the extent that Minister Aquilina and Secord relied on what Low told them, or what they understood Low to have told them, about the student having access to a gun, there is no issue of corrupt conduct. Apart from any other considerations the test under section 9 of the ICAC Act would not be met. This requires the conduct to involve a criminal or disciplinary offence, grounds for dismissal or, in the case of Minister Aquilina, a substantial breach of the applicable code of conduct. Nor would section 8 be applicable as it could not be said that either had an actual or imputed appreciation that statements made by them concerning access to a gun were false. Both relied on advice they were entitled to rely on.
Low says that he had not acted with any ill intent. He says, however, that:
I had caused a great deal of trouble by not properly researching this story, and leaving it until it was too late to call the story off.
Low says he did not act with the intention of causing any trouble. It is clear from Low's own account of his conduct in this matter that he at least acted negligently in allowing Minister Aquilina and Secord to labour under the misapprehension the student had access to a gun.
At the time of these events Low appears to have been under personal emotional pressure for reasons not associated with his work. It is not necessary for the purposes of this report to go into the detail of these. This pressure seems to have affected his performance and may, at least in part, explain why he did not take the elementary steps of either definitely ascertaining whether the student had access to a gun or clearly advising Secord and Minister Aquilina he had not done so. It is understood he continues to be affected by this pressure.
The issue remains whether Low's conduct could be categorised as corrupt within the definition in the ICAC Act. The process by which a determination of corrupt conduct is made in a particular case involves three essential steps. First, findings need to be made of the relevant basic facts. Secondly, there is a need to classify the factual matters in order to be able to determine whether the conduct in question falls within section 8 of the ICAC Act. This includes a determination of whether there was an actual or imputed understanding that what was done was wrong. The third stage is to determine whether the conduct satisfies section 9 of the ICAC Act.
As indicated above there is disagreement in the evidence as to whether Low positively asserted the student had access to a gun or allowed Minister Aquilina and Secord to assume this to have been the case. On the one hand, Minister Aquilina and Secord each state that Low positively asserted that the student had access to a gun. On the other hand, Low says that he did not do this - instead, he says that he allowed the Minister and Secord to believe that there was a gun, and did nothing to correct this misleading impression.
On the evidence presently before the Commission, it is unlikely that Low would change his version of events under examination at a hearing. Furthermore, Low's legal representative has indicated that he is presently not fit to undergo the stress involved in a hearing.
Even if his present version of events were not accepted, the question remains as to whether Low had the requisite mental element or state of mind at the time for his conduct to be corrupt. Negligence, for example, is not sufficient to meet the requisite test of actual or imputed knowledge that what is being done is wrong (see ICAC's Report on Investigation Into The State Rail Authority - Trackfast Division (September 1992) and Report on Purported Termination of Employment of Jeffrey Horner and Edwin Chenery by Southern Mitchell Electricity (January 1996)).
It emerges from his evidence that Low felt under significant pressure at the time, and this would have to be taken into account in any assessment of his state of mind at the relevant time.
Finally, one possible consequence of a finding against Low might be some form of disciplinary action against him. As he has resigned his position as a result of this incident, there appears little point to any consideration of disciplinary action.
In summary, it is by no means clear that the time consuming and resource intensive exercise of further investigation, including hearings, would result in any finding of corrupt conduct against Low, or that if it did there would be any practical consequences, given that he has resigned. In these circumstances the ICAC does not consider the public interest would be well served by such an exercise.
No finding of corrupt conduct is made in relation to Low.
Section 74A(2) of the ICAC Act requires the ICAC to include in its report a statement in respect of each "affected" person as to whether or not in all the circumstances the ICAC is of the opinion that consideration should be given to:
(a) prosecution for a specified criminal offence
(b) taking of specified disciplinary action
(c) taking of action against a public official with a view to dismissal
An affected person is one against whom, in the ICAC's opinion, substantial allegations have been made in the course of the investigation.
To the extent that any person named in this report might be an affected person, the ICAC states that it is not of the opinion that consideration should be given to taking any action against them. In stating this opinion it is noted that Low has resigned his position and is no longer employed as a public official.
APPENDIX 1-CORRUPT CONDUCT |
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Corrupt conduct is defined in section 7 (s7) of the ICAC Act as any conduct which falls within the description of corrupt conduct in either or both subsections (1) or (2) of section 8 (s8) and which is not excluded by section 9 (s9) of the ICAC Act. An examination of conduct to determine whether or not it is corrupt thus involves a consideration of two separate sections of the ICAC Act.
Section 8
The first (s8) defines the general nature of corrupt conduct. Section 8(1) provides that corrupt conduct is:
(a) any conduct of any person (whether or not a public official) that adversely affects, or that could adversely affect, either directly or indirectly, the honest or impartial exercise of official functions by any public official, any group or body of public officials or any public authority, or
(b) any conduct of a public official that constitutes or involves the dishonest or partial exercise of any of his or her official functions, or
(c) any conduct of a public official or former public official that constitutes or involves a breach of public trust, or
(d) any conduct of a public official or former public official that involves the misuse of information or material that he or she has acquired in the course of his or her official functions, whether or not for his or her benefit or for the benefit of any other person.
Section 8(2), specifies conduct, including the conduct of any person (whether or not a public official) that adversely affects, or that could adversely affect, either directly or indirectly, the exercise of official functions by any public official, any group or body of public officials or any public authority, and which, in addition, could involve a number of specific offences which are set out in that subsection. Such offences include: official misconduct (including breach of trust, extortion and imposition) (s8(2)(a)); bribery (s8(2)(b)); and obtaining or offering secret commissions (s8(2)(d)).
Partiality in the exercise of official functions is potentially a broad concept. A decision which favours a person may be regarded as "partial" but should not come within s8(1) simply because it is "wrong" in administrative law terms or negligent in a civil law sense. In considering s8 the ICAC takes into account the state of mind of each person whose conduct is in question. The ICAC considers whether there was an actual or imputed appreciation that what was being done was, in the context in which it was done, carried out for a reason that is unacceptable (see Mahoney J A in Greiner v ICAC (1992) 28 NSWLR 125, at 162). This does not however mean that, simply because a person does not at the relevant time believe that his or her conduct is corrupt, the ICAC is precluded from making an adverse finding (see Gleeson C J at 140). Apart from dishonest conduct, conduct beyond negligence, but not amounting to dishonesty in the accepted meaning of that term, may be conduct within section 8(1) of the ICAC Act if, for example, it amounts to a reckless disregard of indicators of dishonest or partial behavior by others. Conflict between an official's duty and his personal interest is also significant. Emphasis was placed on this later aspect by Gleeson C J in Greiner.
Section 9(1) provides that, despite s8, conduct does not amount to corrupt conduct unless it could constitute or involve:
(a) a criminal offence, or
(b) a disciplinary offence, or
(c) reasonable grounds for dismissing, dispensing with the services of or otherwise terminating the services of a public official, or
(d) in the case of conduct of a Minister of the Crown or a Member of a House of Parliament -a substantial breach of an applicable code of conduct.
In applying the provisions of s9 of the ICAC Act it is appropriate to recall the approach outlined by Priestley JA in Greiner. His Honour said that the word `could' was to be construed as meaning `would, if proved'. In the course of discussing the proper construction of s9(1)(a) of the ICAC Act, he said:
"Despite s8, conduct does not amount to corrupt conduct unless, in the case of a criminal charge which could be tried before a jury, the facts found by the ICAC as constituting corrupt conduct would, if the jury were to accept them as proved beyond reasonable doubt, constitute the offence charged ..."
Such a construction is applicable to ss9(1)(b), (c) and (d).
A finding of corrupt conduct against an individual is a serious matter. It may affect the individual personally, professionally or in employment, as well as in family and social relationships. In addition, there is no right of appeal against findings of fact made by the Commission nor, excluding error of law relating to jurisdiction or procedural fairness, is there any appeal against a determination that a person has engaged in corrupt conduct. This situation highlights the need to exercise care in making findings of corrupt conduct.
In Australia there are only two standards of proof: one relating to criminal matters, the other to civil matters. Commission investigations, including hearings, are not criminal in their nature. Hearings are neither trials nor committals. Rather, the Commission is similar in standing to a royal commission and its investigations and hearings have most of the characteristics associated with a royal commission. The standard of proof in royal commissions is the civil standard, that is, on the balance of probabilities. This requires only reasonable satisfaction as opposed to satisfaction beyond reasonable doubt, as in criminal matters. The civil standard is the standard which has been applied consistently in the Commission. However, because of the seriousness of the findings which may be made, it is important to bear in mind what was said by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336:
"... reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters `reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences." (at 362)
This formulation is, as the High Court pointed out in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170, to be understood:
"... as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct." (at 171)
See also Rejfek v McElroy (1965) 112 CLR 517, the report of McGregor J into Matters in Relation to Electoral Redistribution in Queensland in 1977 and the report by the Hon W Carter QC into An Attempt to Bribe a Member of the House of Assembly (Tasmania) in 1991.
As indicated above, the first step towards making a finding of corrupt conduct is to make a finding of fact. Findings of fact and determinations set out in this report have been made applying the principles detailed in this appendix.
