Chapter 6
Conclusions
6.1
In this chapter, the committee's conclusions and findings are
summarised.
6.2
There can be little doubt that this is one of the worst cases of
improper interference with the operations of a Senate committee that this
committee has examined. A public servant who behaved in a politically partisan
fashion used the process of a Senate committee inquiry and, with it, the
protection of parliamentary privilege to raise allegations of corruption
against senior government ministers based on a document which, it later
emerged, had been fabricated by that person. The person, Mr Godwin Grech was an apparently well respected and hard working public servant holding a
position in the Senior Executive Service of the Department of the Treasury. Yet,
Mr Grech engaged in correspondence and conversations with fellow politically
partisan individuals, using Commonwealth IT and communications equipment for
the purpose, and apparently working against the Government and in support of
the Opposition and its federal parliamentary leader.
6.3
These matters first came to the committee as terms of reference
directed at establishing whether any adverse actions had been taken against Mr Grech in consequence of his evidence to the Senate Economics Legislation Committee on 19 June 2009. Only later, after revelations that Mr Grech had fabricated the email
that he asserted he believed he had seen, were the second terms of reference,
relating to possible false or misleading evidence and improper interference
with the Economics Legislation Committee, agreed by the Senate.
6.4
While the committee has examined both matters together, the second
terms of reference and the admissions by Mr Grech did not affect its endeavours
to establish the facts in relation to the first terms of reference and to take
all steps to ensure that the protection of witnesses before Senate committees
remained of paramount importance.
Possible adverse actions taken against Mr Godwin Grech in consequence of
his evidence to a committee
6.5
In respect of the matters examined in chapter 3, the committee finds
as follows:
Media harassment
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At the conclusion of the hearing on 19 June 2009, members of the Press Gallery, particularly camera operators and photographers, flagrantly
breached the Presiding Officers' Guidelines for filming and photography in
Parliament House by continuing to film after the adjournment of the hearing and
by filming Mr Grech and Mr Martine as they left the building.
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Although the televising of the hearing was duly authorised, the
Senate Economics Legislation Committee did not apply the relevant Senate
broadcasting resolutions to control the activities of the media present in the
hearing room during the hearing.
-
Mr Grech (and Mr Martine) was subject to undue pressure from the
media during and after the hearing, but there is evidence that Mr Grech invited media attention by his provision of material to a journalist for the purpose of
pre-hearing publicity. Mr Grech did not seek the protection of the committee
from the media.
-
The media attention was a direct consequence of Mr Grech's evidence to the committee.
- There is no evidence that, in their zealousness, camera operators
and photographers intended any harm to Mr Grech or to the operations of the
committee. However, the conduct of the media at and after the hearing was
excessive, inappropriate and in contravention of the rules.
The AFP inquiry
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The AFP inquiry was initiated by the Secretary of the
Attorney-General's Department after consultations with the Attorney-General and
following an approach from the Secretary of the Department of the Prime
Minister and Cabinet.
-
The Secretary of the Department of the Prime Minister and Cabinet
asked the Secretary of the Attorney-General's Department to examine possible
criminal offences and take the necessary action after extensive searches of the
relevant departments' IT systems had failed to locate the alleged email and the
conclusion was drawn that the email was false.
-
In initiating the action which led to the referral of matters to
the AFP, the Secretary of the Department of the Prime Minister and Cabinet
believed that Mr Grech may have been a victim of the false email. This aspect
of the referral was therefore not an action adverse to Mr Grech.
-
Further matters referred to the AFP by the Secretary to the
Treasury were in consequence of the discovery on Mr Grech's computer of
documents indicating possible wrongdoing by him, the search having been
initiated by Dr Henry because of concern about the source of material
published by journalist, Steve Lewis. This aspect of the referral was an action
adverse to Mr Grech.
- The initiation of the AFP inquiry was not primarily motivated by Mr Grech's evidence to the committee.
Disciplinary action by
Treasury
-
Disciplinary action against Mr Grech was initiated after the
discovery on his computer system of incriminating material that suggested that
he had breached the Public Service Code of Conduct.
-
The search of Mr Grech's computer system was initiated by the
Secretary to the Treasury because of concern about the source of material published
by journalist, Steve Lewis.
-
The initiation of disciplinary action was an adverse action.
-
The initiation of disciplinary action was not a direct
consequence of Mr Grech's evidence to the committee.
- In the immediate aftermath of the hearing senior Treasury
officers took all reasonable steps to comfort Mr Grech and provide for his
welfare.
'Backgrounding' of the media
6.6
In respect of action which the committee found to be both adverse
and taken in consequence of Mr Grech's evidence, namely the undue pressure
placed on Mr Grech by camera operators and photographers at and after the
hearing, the committee also found no evidence of any intention on the part of
those camera operators or photographers to cause any harm to Mr Grech or to the
committee's operations. The committee has concluded, therefore, that no
contempt was committed.
Recommendation 1
6.7
In respect of its first terms of reference, the committee recommends:
-
that the Senate endorse the committee's findings in paragraph 6.5
and the conclusion in paragraph 6.6 of the report;
-
that the President of the Senate resume consideration of an
appropriate response to flagrant breaches of the Presiding Officers' guidelines
on filming and photography in Parliament House by members of the media on 19
June 2009, noting the committee's suggestion in paragraph 3.23 of the report;
and
-
that the Chairs' Committee established under standing order
25(10) consider model practices for handling the media at committee hearings,
and the inclusion of additional information about witnesses' rights under the
broadcasting resolutions in the standard information provided to all witnesses,
as discussed in paragraphs 3.14 and 3.15 of the report.
Possible false or misleading evidence to, or improper interference with, a
committee hearing
6.8
In respect of the matters examined in chapter 4, the committee finds
as follows:
False or misleading evidence
by reference to a document later admitted to be false
-
There is evidence that the Economics Legislation Committee was
misled by the references to a document later admitted to be false.
-
Senator Abetz did not give false or misleading evidence to, or
cause any improper interference with, the hearing of the Economics Legislation
Committee. He did not know at the time that it was a false document. The
committee does not dispute that Senator Abetz was acting in good faith in using
material supplied by a source he did not doubt.
-
Mr Stansfield was unaware that the email was false until it was
revealed to be so by the AFP's press release.
-
Mr Godwin Grech provided false information to his Treasury
colleagues on several documented occasions.
-
There are discrepancies between the accounts of events given by Mr Grech and all other persons from whom the committee received submissions.
-
No false or misleading evidence was given by Mr David Martine to the Economics Legislation Committee in respect of the document or in
respect of any other matter. There was no improper conduct by Mr Martine at the hearing.
- The committee does not accept Senator Eggleston's criticism of Senator Hurley's chairing of the hearing.
Other false or misleading
evidence
-
Mr Godwin Grech gave a misleading impression to the Economics
Legislation Committee about the amount of work involved in his advocacy on
behalf of Mr John Grant.
-
Mr Godwin Grech gave evidence to the committee about his dealings
with the journalist, Steve Lewis, that was untrue.
-
Mr Godwin Grech did not disclose to the committee that he had
created a record of the email that he asserts he believed existed.
Collusive pre-arrangement of
questions and answers for an undisclosed purpose
-
Mr Godwin Grech suggested to the Opposition that the Car
Dealership Financing Guarantee Appropriation Bill 2009 should be referred to a
Senate committee for the purpose of getting his 'evidence' about alleged
corrupt conduct by the Prime Minister into the public arena.
-
Mr Godwin Grech met with the Opposition Leader, Mr Turnbull, and Senator Abetz in Sydney for the purpose of showing them the 'evidence' he had
of alleged corrupt conduct by the Prime Minister.
-
Unbeknown to Mr Turnbull and Senator Abetz, Mr Grech's 'evidence' of this alleged corrupt conduct had been created by himself as a record of
an email that he asserts he believed existed.
-
Apart from Mr Grech's recollection, which he asserted may be
faulty or false, there was no evidence put before the committee that an email
resembling Mr Grech's record of it ever existed.
-
There was no inappropriate pre-arrangement by Senator Abetz of questions and answers for the hearing of the Economics Legislation Committee.
-
Questions which may have a political motive are a commonplace and
unremarkable part of the processes employed by senators for holding governments
to account.
Improper use of a hearing
-
The hearing by the Economics Legislation Committee was an
entirely legitimate use of Senate procedures to explore a matter of possible
misfeasance.
-
Unbeknown to all but Mr Godwin Grech, evidence of the possible
misfeasance had been recreated, as a record of an email that he asserts he
believed existed. In this sense, there was an improper interference with the
hearing of the Economics Legislation Committee on the OzCar bill.
Possible interference with Mr Grech in relation to his evidence
-
In respect of the allegation concerning Mr Jim Murphy, the
committee does not dispute Treasury's account.
-
In respect of the allegation concerning Mr Chris Barrett, the
committee does not dispute Mr Barrett's account.
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There is no evidence that improper pressure was placed on Mr Grech in respect of his evidence by any person other than himself, or that any other person
caused any improper interference with Mr Grech in respect of his evidence.
Mr Grech's
fitness to give evidence on 19 June 2009
-
The Department of the Treasury and its senior officers have no
case to answer that in allowing Mr Grech to give evidence, knowing his
difficult state of health and the work pressure he was under, they failed to
respond adequately to the requirements of a Senate committee, thereby causing
an improper interference with the free exercise by the committee of its
authority.
6.9
Although evidence was given to the Economics Legislation Committee
by Mr Grech that was objectively false and misleading, and although the
committee was also misled by references to an email later revealed to have been
fabricated by Mr Grech, this committee has not been able to make findings about
Mr Grech's state of mind at the time he took those actions. A finding of
contempt by misleading a Senate committee depends upon the existence of a
subjective intention to do so. This committee has not been able to conclude
that Mr Grech knowingly and deliberately gave false or misleading evidence, or
that he knowingly and deliberately misled the Economics Legislation Committee
about the basis of its inquiry. This committee is frustrated by its inability
to arrive at a conclusion as to Mr Grech's culpability, both because of the
state of his health, and the practical difficulty of testing the claim of
medical incapacity advanced by his treating doctor. Nevertheless, the committee
is not in a position to dispute the medical evidence of Mr Grech's incapacity
to participate in its proceedings. In these circumstances, the committee is
unable to arrive at a conclusion that a contempt was committed by Mr Grech.
Recommendation 2
6.10
In respect of its second terms of reference, the committee recommends
that the Senate endorse the committee's findings in paragraph 6.8 and the
conclusion in paragraph 6.9 of the report.
George Brandis
Chair
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