Court of Appeal (WA)|2011-09-14|Before: Martin CJ

THE STATE OF WESTERN AUSTRALIA -v- BURKE [2011] WASCA 190 (14 September 2011)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : THE STATE OF WESTERN AUSTRALIA -v- BURKE [2011] WASCA 190

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Citation : THE STATE OF WESTERN AUSTRALIA -v- BURKE [No 3] [2010] WASC 110

Criminal law - State appeal - Trial by judge alone - Judgments of acquittal entered upon a submission of no case to answer by the respondents - Applicable test where a submission of no case to answer is made in a criminal prosecution which depends upon circumstantial evidence

Criminal law - Government contractor - Duty not to make disclosure of official information - Criminal Code (WA) s 81

Criminal law - Public officer - Official corruption - Criminal Code (WA) s 83

Criminal law - Proviso in Criminal Appeals Act 2004 (WA) s 33(2a) - Whether no substantial miscarriage of justice had occurred as a result of the trial judge's erroneous decision that none of the respondents had a case to answer

Criminal Code (WA), s 1(1), s 7, s 31, s 81, s 83, s 266(2)

Criminal Law and Evidence Amendment Act 2008 (WA)

Public Officers' Superannuation Benefits Recovery Act 1998 (Qld), s 4, s 6

Leave to appeal granted on grounds 1, 4, 5, 6 and 7

Judgments of acquittal on counts 1, 2, 3 and 4 set aside

New trial ordered on counts 1, 2, 3 and 4 before a differently constituted court

First Respondent : Mr G R Donaldson SC & Ms P M Tantiprasut

Third Respondent : Mr M T Ritter SC & Ms C H Meighan

Agnew v The Queen [2003] WASCA 188

Bosselman v United States 239 F 82 (2d Cir 1917)

Callaghan v The Queen [1952] HCA 55; (1952) 87 CLR 115

Cortis v The Queen [1979] WAR 30

Director of Public Prosecutions (Cth) v Hogarth (1995) 93 A Crim R 452

Director of Public Prosecutions (Cth) v Pirone (1997) 68 SASR 106

Director of Public Prosecutions (Vic) v Marks [2005] VSCA 277

Director of Public Prosecutions (Vic) v Zierk [2008] VSC 184; (2008) 184 A Crim R 582

Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135

Grant v Headland (1977) 17 ACTR 29

Johnston v Director of Public Prosecutions (1989) 97 FLR 424

Morrison v Kiwi Electrix Pty Ltd [1998] WASCA 203; (1998) 19 WAR 482

Pense v Hemy [1973] WAR 40

Questions of Law Reserved on Acquittal (No 2 of 1993) [1993] SASC 4152; (1993) 61 SASR 1

R v Bailey [2003] QCA 506

R v Hodgetts & Jackson [1990] 1 Qd R 456

R v Moran [2007] QCA 428

R v Smith [1960] 2 QB 423

Rompotis v The Queen (1996) 18 WAR 54

The State of Tasmania v Johnston [2009] TASSC 60; (2009) 197 A Crim R 152

The State of Western Australia v Burke [No 3] [2010] WASC 110

The State of Western Australia v Montani [2007] WASCA 259; (2007) 182 A Crim R 155

United States v Fasolino [1978] USCA2 757; 586 F 2d 939 (2d Cir 1978)

United States v Polakoff 121 F 2d 333 (2d Cir 1941)

Willers v The Queen (1995) 81 A Crim R 219

1 MARTIN CJ: For the reasons given by Buss JA, with which I agree, this appeal should be allowed, the notice of contention dismissed, the judgments of acquittal on counts 1, 2, 3 and 4 of the indictment set aside, and a new trial ordered on each of those counts before a court differently constituted.

2 BUSS JA: On 11 August 2009, an indictment was presented against the first respondent (Mr Burke), the second respondent (Mr Grill) and the third respondent (Mr Hondros), which alleged:

(1) On 25 September 2006, at Perth, Nathan John Hondros, a government contractor, without lawful authority made an unauthorised disclosure to Brian Thomas Burke, in that he disclosed official information, namely a letter from the Hon Jonathon Ford MLC to Senator Eric Abetz, in circumstances where Nathan John Hondros was under a duty not to make the disclosure.

(2) Between 8 October 2006 and 12 October 2006, at Perth, Nathan John Hondros, a public officer, without lawful authority or a reasonable excuse acted corruptly in the performance or discharge of the functions of his office or employment so as to gain a benefit for Brian Thomas Burke, Julian Fletcher Grill and others.

(3) In the alternative to Count 2, on 11 October 2006, at Perth, Nathan John Hondros, a government contractor, without lawful authority made an unauthorised disclosure, in that he disclosed official information, namely a draft version of the Pearl Oyster Hatchery Policy: Phase III, in circumstances where he was under a duty not to make the disclosure.

(4) Between 8 October 2006 and 12 October 2006, at Perth, Brian Thomas Burke and Julian Fletcher Grill counselled or procured Nathan John Hondros, a public officer, without lawful authority or a reasonable excuse to act corruptly in the performance or discharge of the functions of his office or employment so as to gain a benefit for Brian Thomas Burke, Julian Fletcher Grill and others.

(5) In the alternative to Count 4, between 8 October 2006 and 12 October 2006, at Perth, Brian Thomas Burke and Julian Fletcher Grill counselled or procured Nathan John Hondros, a government contractor, to make, without lawful authority, an unauthorised disclosure, being disclosure of official information, namely a draft version of the Pearl Oyster Hatchery Policy: Phase III, in circumstances where Nathan John Hondros was under a duty not to make the disclosure.

3 Count 1 alleged a contravention of s 81(2) of the Criminal Code (WA) (the Code), count 2 a contravention of s 83(c) of the Code, count 3 a contravention of s 81(2) of the Code, count 4 a contravention of s 83(c) read with s 7 of the Code, and count 5 a contravention of s 81(2) read with s 7 of the Code.

4 Count 3 was in the alternative to count 2. Count 5 was in the alternative to count 4.

6 On 20 April 2010, the trial commenced in the Supreme Court before Murray J sitting alone and without a jury.

7 The State opened its case and led evidence from numerous witnesses over 10 sitting days between 20 April 2010 and 4 May 2010.

8 When the State closed its case, a submission was made on behalf of each of the respondents, pursuant to s 108 of the Criminal Procedure Act 2004 (WA) read with s 117 and s 119(1) of that Act, that there was no case to answer.

9 After hearing submissions from counsel for the State and counsel for each of the respondents, the trial judge reserved his decision. On 10 May 2010, his Honour held that there was no case to answer in respect of each of the counts in the indictment. He published written reasons. See The State of Western Australia v Burke [No 3] [2010] WASC 110. His Honour therefore entered a judgment of acquittal on each count.

10 The State appeals to this court, pursuant to s 24(2)(e)(i) of the Criminal Appeals Act 2004 (WA), against the trial judge's decision in respect of counts 1, 2, 3 and 4 (but not count 5).

11 The State relies on seven grounds of appeal. On 16 August 2010, Mazza J granted leave to appeal on grounds 2 and 3, and referred the application for leave to appeal on grounds 1, 4, 5, 6 and 7 to the hearing of the appeal.

The test to be applied in determining a submission of no case to answer

12 The test to be applied by a trial judge in determining a submission of no case to answer at the close of the prosecution case has been considered and discussed in numerous authorities. See, for example, May v O'Sullivan [1955] HCA 38; (1955) 92 CLR 654; R v Bilick (1984) 36 SASR 321; Morrison v Kiwi Electrix Pty Ltd [1998] WASCA 203; (1998) 19 WAR 482; The State of Western Australia v Montani [2007] WASCA 259; (2007) 182 A Crim R 155. The question is not whether, on the evidence as it stands, the accused ought to be convicted, but whether, on the evidence as it stands, he or she could lawfully be convicted.

13 In Bilick, the Full Court of the Supreme Court of South Australia considered the application of the test in a case which depends on circumstantial evidence. King CJ (Mohr J agreeing) said:

The same test is to be applied to deciding a submission of no case to answer in a case depending upon circumstantial evidence as in a case depending upon direct evidence, although the manner of its application will be different. The question to be answered by the trial judge is whether there is evidence with respect to every element of the offence charged which, if accepted, could prove that element beyond reasonable doubt. Where there is direct evidence of the actus reus and that evidence is capable of supporting an inference of mens rea, there is a case to answer except in the extreme case, as perhaps of testimony which is manifestly self-contradictory or the product of a disorderly mind, envisaged by the Privy Council [in Haw Tua Tau v Public Prosecutor [1981] 3 WLR 395] in which the direct 'evidence' is so incredible as to amount to no evidence. Where the case is a circumstantial or partly circumstantial case and therefore depends on inferences, the question may be expanded so that it becomes: On the assumption that all the evidence of primary fact considered at its strongest from the point of view of the case for the prosecution, is accurate, and on the further assumption that all inferences most favourable to the prosecution which are reasonably open, are drawn, is the evidence capable of producing in the mind of a reasonable person satisfaction, beyond reasonable doubt, of the guilt of the accused? That, as it seems to me, was the question which the learned trial Judge was required to answer in deciding on the submission of no case to answer (337).

See also Morrison (489 - 491); Montani [39] - [40].

14 In Questions of Law Reserved on Acquittal (No 2 of 1993) [1993] SASC 4152; (1993) 61 SASR 1, King CJ (Bollen J agreeing) referred to the Bilick test and re-stated the principles, in summary form, as follows:

If there is direct evidence which is capable of proving the charge, there is a case to answer no matter how weak or tenuous the judge might consider such evidence to be. If the case depends upon circumstantial evidence, and that evidence, if accepted, is capable of producing in a reasonable mind a conclusion of guilt beyond reasonable doubt and thus is capable of causing a reasonable mind to exclude any competing hypotheses as unreasonable, there is a case to answer. There is no case to answer only if the evidence is not capable in law of supporting a conviction. In a circumstantial case that implies that even if all the evidence for the prosecution were accepted and all inferences most favourable to the prosecution which are reasonably open were drawn, a reasonable mind could not reach a conclusion of guilt beyond reasonable doubt, or to put it another way, could not exclude all hypotheses consistent with innocence, as not reasonably open on the evidence (5). (original emphasis)

15 In Questions of Law (No 2 of 1993), King CJ noted that suggestions had been made by counsel in the course of argument that certain expressions used in Gebert v The Queen [1992] SASC 3637; (1992) 60 SASR 110 may not be consistent with the principles his Honour had re-stated. In Gebert, the appellant appealed against his conviction on a charge of conspiracy to commit armed robbery. The Court of Criminal Appeal of South Australia upheld the refusal of the trial judge to rule that there was no case to answer. Mullighan J wrote the reasons of the Court of Criminal Appeal and King CJ and Olsson J agreed with them. Mullighan J said:

If the evidence in the Crown case cannot exclude any reasonable hypothesis consistent with the innocence (Peacock v The King [1911] HCA 66; (1911) 13 CLR 619), then the evidence is not capable in law of proving the charge beyond reasonable doubt and there is no case to answer. In the present context that means that if the evidence cannot exclude any reasonable hypothesis that the appellants were guilty of some conspiracy other than as charged, there is no case to answer (115 - 116).

16 In Questions of Law (No 2 of 1993), King CJ explained that passage in Mullighan J's reasons in Gebert, as follows:

The emphasis in that passage is on the word 'cannot' twice appearing. That word denotes incapacity. There is no implication that it is for the judge to decide whether any hypothesis consistent with innocence is reasonable. There is no case only if the evidence lacks the capacity to lead a reasonable mind to reject all such hypotheses as unreasonable. At 116-117, Mullighan J crystallised the question to be answered in relation to the particular issues in that case as follows:

'The question is whether the evidence and the inferences which could safely be drawn are capable of excluding any reasonable hypothesis that there was an agreement to commit some other crime.'

That formulation is clearly not intended as an exhaustive formulation of principle. It was sufficient for the purpose of the case. There was no intention on the part of the Court to modify the test in Bilick which Mullighan J was purporting to apply. Stated more fully the formulation would have referred to the acceptance, for this purpose, of the evidence for the prosecution and to the inferences as being those most favourable to the prosecution. The word 'safely' is used in the sense of 'reasonably' and is, of course, not intended to suggest that it is the function of the judge to consider whether any verdict of guilty would be unsafe. That is plainly not his function: Doney v The Queen (supra) (at 215). If there is evidence capable in law of supporting a conviction, the case must go to the jury. The question of the safety of any consequent verdict of guilty is for the Court of Criminal Appeal (5 - 6). (emphasis added)

17 Senior counsel for Mr Hondros, in his oral submissions (appeal ts 71 - 72), referred to Gebert in support of the proposition that it is for the trial judge to decide, on a no case submission, whether any hypotheses consistent with innocence are reasonable. Senior counsel for Mr Grill referred to Gebert in his written submissions (WAB 54). None of the counsel who appeared cited Questions of Law (No 2 of 1993).

18 I respectfully agree with King CJ's explanation in Questions of Law (No 2 of 1993) of Mullighan J's reasons in Gebert and with King CJ's re-statement of the principles.

19 Accordingly, where a submission of no case to answer is made in a criminal prosecution which depends upon circumstantial evidence, the trial judge should rule on the submission on the basis of such inferences as are reasonably open on the evidence and as are most favourable to the State. The trial judge should not choose between such inferences. He or she is concerned only with whether a reasonable tribunal of fact, properly instructed, could conclude beyond reasonable doubt that the accused is guilty or, to put it another way, could exclude all hypotheses consistent with innocence as not reasonably open on the evidence.

20 This test applies where the tribunal of fact is a jury and, also, where the tribunal of fact is a judge in the context of a trial before a judge alone without a jury. See Morrison, where the principles formulated by King CJ in Bilick were followed in relation to the decision of a magistrate that there was no case for the respondents to answer.

21 At all material times, Mr Hondros was a 'ministerial officer', as defined in s 3(1) of the Public Sector Management Act 1994 (WA). He was appointed under s 68(1) of the Public Sector Management Act to assist the Honourable Jonathon Ford MLC who was, at all material times, the Minister for Fisheries of Western Australia. Mr Hondros was employed as Mr Ford's chief of staff under a written contract of employment dated 5 September 2006. See s 68(2) and s 68(3) of the Public Sector Management Act.

22 At all material times, s 9 of the Public Sector Management Act applied to Mr Hondros. Section 9 reads:

The principles of conduct that are to be observed by all public sector bodies and employees are that they -

(a) are to comply with the provisions of -

(i) this Act and any other Act governing their conduct;

(ii) public sector standards and codes of ethics; and

(iii) any code of conduct applicable to the public sector body or employee concerned;

(b) are to act with integrity in the performance of official duties and are to be scrupulous in the use of official information, equipment and facilities; and

(c) are to exercise proper courtesy, consideration and sensitivity in their dealings with members of the public and employees. (emphasis added)

23 The term 'public sector body' is defined in s 3(1) of the Public Sector Management Act to include, relevantly, 'ministerial office'. The term 'ministerial office' is defined in s 3(1) to mean 'one or more ministerial officers appointed to assist a particular political office holder'. The term 'political office holder' is defined in s 3(1) to include, relevantly, a Minister of the Crown. The term 'ministerial officer' is defined in s 3(1) to mean a person appointed under s 68 as a ministerial officer.

24 At all material times, Mr Hondros was obliged under cl 9.1 of his contract of employment to comply with 'the principles of official conduct set out in [the Public Sector Management Act], as well as the Western Australian Public Sector Code of Ethics and the Department of the Premier and Cabinet's Code of Conduct'.

25 Also, at all material times, Mr Hondros was obliged under cl 3 of his contract of employment to perform 'the functions as are from time to time specified by the Minister or the political office holder'.

26 At all material times, Mr Burke was a former Premier of Western Australia and Mr Grill was a former Cabinet Minister of this State. Each of them had been a member of Parliament for many years, but had ceased to hold office well before the events giving rise to the counts in the indictment.

27 At the material time, Mr Burke and Mr Grill worked together as consultants and lobbyists.

28 Section 81 of the Code is contained in ch XII of pt III. Section 83 is contained in ch XIII of pt III.

29 Part III is headed, 'Offences against the administration of law and justice and against public authority'. Chapter XII bears the heading, 'Disclosing official secrets'. Chapter XIII bears the heading, 'Corruption and abuse of office'.

(a) any publication or communication; and

(b) in relation to information in a record, parting with possession of the record;

government contractor means a person who is not employed in the Public Service but who provides, or is employed in the provision of, goods or services for the purposes of -

(a) the State of Western Australia;

(b) the Public Service; or

(c) the Police Force of Western Australia;

information includes false information, opinions and reports of conversations;

official information means information, whether in a record or not, that comes to the knowledge of, or into the possession of, a person because the person is a public servant or government contractor;

public servant means a person employed in the Public Service;

(a) the disclosure by a person who is a public servant or government contractor of official information in circumstances where the person is under a duty not to make the disclosure; or

(b) the disclosure by a person who has been a public servant or government contractor of official information in circumstances where, were the person still a public servant or government contractor, the person would be under a duty not to make the disclosure.

(2) A person who, without lawful authority, makes an unauthorised disclosure is guilty of a crime and is liable to imprisonment for 3 years.

Summary conviction penalty: imprisonment for 12 months and a fine of $12 000.

Any public officer who, without lawful authority or a reasonable excuse -

(a) acts upon any knowledge or information obtained by reason of his office or employment;

(b) acts in any matter, in the performance or discharge of the functions of his office or employment, in relation to which he has, directly or indirectly, any pecuniary interest; or

(c) acts corruptly in the performance or discharge of the functions of his office or employment,

so as to gain a benefit, whether pecuniary or otherwise, for any person, or so as to cause a detriment, whether pecuniary or otherwise, to any person, is guilty of a crime and is liable to imprisonment for 7 years.

32 Count 1 relates to the disclosure by Mr Hondros to Mr Burke, on 25 September 2006, of a letter from Mr Ford to the Honourable Senator Eric Abetz, the then Minister for Fisheries, Forestry and Conservation of the Commonwealth.

33 The letter related to the management of a southern and a northern fishery for which Western Australia and the Commonwealth share responsibility.

34 A major difficulty in the management of the northern fishery was poaching by foreign fishermen. There was an issue between Mr Ford and Senator Abetz as to whether the Commonwealth was taking adequate steps to prevent the poaching.

35 The impact of poaching upon Australian fishermen and the regulation by the Commonwealth and Western Australian Governments of the northern fishery was described by the trial judge, as follows:

One of the issues was the taking of sharks, for their fins particularly, to the extent that the numbers of fish were reduced by what were regarded as the depredations of overseas fishermen. It put pressure on the Australian and WA regulation of locally based fishermen, and the result was measures to preserve the fishery by reducing their catch, and the number of days in any given month of the season when they were entitled to fish. The numbers of locally based fishermen were small, but they were in the habit of petitioning the Minister for financial assistance when Government action to restrict their fishing rights had adverse economic consequences for their business [94].

36 Mr Ford's letter to Senator Abetz was headed, 'JOINT AUTHORITY MANAGED FISHERIES ACCESS TO THE AUSTRALIAN GOVERNMENT'S $220 MILLION "SECURING OUR FISHING FUTURE" PACKAGE'.

37 Mr Ford requested Senator Abetz to allow 'operators in the two Western Australian Joint Authority managed fisheries (the Joint Authority Southern Demersal Gillnet and Demersal Longline Managed Fishery and the Joint Authority Northern Shark Fishery) to access' this financial package.

38 As to the southern fishery, Mr Ford said, amongst other things:

As you are aware, substantial management changes have recently been introduced into the Joint Authority Southern Demersal Gillnet and Demersal Longline Managed Fishery. As a result, and in addition to other fishing adjustments faced by them, the operators in this fishery have effectively incurred effort reductions of approximately 40%. Introduction of these management changes and effort reductions has resulted in the two operators with the greatest share of units and largest catch history in the fishery facing extreme adjustment pressures. As a result the fishing businesses of these two operators are likely to suffer substantial losses for several years into the future.

While it is accepted that the fishery is managed under State law, I consider that there is a clear obligation for the Commonwealth to provide some financial assistance to assist with the required adjustments (BAB/GAB 484).

39 As to the northern fishery, Mr Ford said, amongst other things:

The impact of illegal foreign fishing in the Joint Authority Northern Shark Fishery means that consideration is also being given to significant changes in the way that fishery is managed. It is already considered that the extent of illegal foreign fishing in this region means that neither the ecological sustainability of the fishery nor the conservation of certain vulnerable species can be assured. Therefore, to ensure that the operations of the domestic fishing fleet are not compounding the adverse effects of the illegal foreign fishing this and other domestic fisheries in the region (eg trochus) may need to be closed.

In this situation, and in the context of the Commonwealth's responsibility to control and prevent illegal foreign fishing, there is a strong case to argue that the 'Securing our Fishing Future' package should be available to compensate fishers in these northern fisheries or provide them with financial assistance to help them meet any associated adjustment requirements. Certainly, if the Joint Authority Northern Shark Fishery needs to be closed to ensure the conservation of species placed at-risk by the illegal foreign fishing, I believe that the Commonwealth would have an obligation to contribute to funding any related compensation, adjustment or buy back costs (BAB/GAB 485).

40 Brian Scimone and John Triantafyllou were Western Australia based fishermen who made representations personally to Mr Ford for financial assistance. Also, they engaged Mr Burke to assist in advancing their case.

41 In or about mid-2006, Mr Ford and Mr Hondros became aware that Mr Burke was acting for Mr Scimone and Mr Triantafyllou. Mr Ford was endeavouring to deal with their applications for financial assistance.

42 On 18 August 2006, Mr Ford made a ministerial statement to the media. He said that the northern fishery would remain open and that new management controls were being prepared. The statement referred to Mr Ford's frustration that the Western Australian authorities could not obtain a clear indication from the Commonwealth as to the true impact of poaching on the fishery. The statement also referred to correspondence with Senator Abetz in relation to their joint responsibility for the management of the fishery.

43 On 25 September 2006, Mr Burke telephoned Mr Hondros. Mr Hondros was unavailable. Mr Burke left a message. In the message, Mr Burke requested Mr Hondros to send him a short email 'about the position in respect of the fishing discussions we had'. The trial judge made these observations about the message:

It is clear that Mr Hondros knew what that meant because, on the same date, he obtained from Ms Comrie, an administrative [assistant] in the office of the Minister, who acted primarily as Mr Hondros's personal assistant, an electronic version of the undated letter which had been written to Senator Abetz by Mr Ford, as Minister for Fisheries, in which he expressed views about a number of issues concerning fisheries which were jointly managed by the State and the Commonwealth [97].

44 His Honour then summarised what, in his view, were the essential aspects of the letter from Mr Ford to Senator Abetz:

The particular topic was a request to allow WA fishermen in the jointly managed fisheries access to the Australian Government's $220M fund entitled, 'Securing our Fishing Future'. That was a request made, among other fisheries, in respect of the Joint Authority Northern Shark Fishery in which Mr Burke's clients were engaged. The letter presents arguments in an endeavour to persuade the Federal Minister to the point of view being put by Mr Ford that WA fishers should have access to those funds which, as I understand the evidence, among other things, would provide money which might be used to meet compensation claims made by fishermen who suffered financially as a result of tightening management controls [98].

45 Mr Ford gave evidence at the trial that he regarded a letter written by him to another Minister as a confidential communication which only he might release publicly. However, Mr Ford said that his letter to Senator Abetz did not contain anything of substance that was not already publicly released information [99].

46 On 25 September 2006, Mr Hondros, without the knowledge or consent of Mr Ford, sent Mr Burke an email. Mr Hondros attached to the email the electronic copy of Mr Ford's letter to Senator Abetz which Mr Hondros's personal assistant, Claire Comrie, had sent him. The contents of this email were reported by Mr Burke to his clients [100].

47 The email from Mr Hondros to Mr Burke is the disclosure with which count 1 is concerned. The portion of the email which is relevant to count 1 is this:

Jon Ford has also written to Abetz seeking access for these fishermen to the Commonwealth's 'Securing our fishing future' package, which is a $220 million buy-out of Commonwealth fisheries (the shark fishery is a joint Cth-WA fishery). I have attached that letter and will let you know when we have a response. This might also be of some assistance if Abetz agrees (BAB/GAB 482).

48 The Pearling Industry Advisory Committee (PIAC) is part of the statutory structure for the governance of the pearling industry in Western Australia.

49 PIAC was established under s 38 of the Pearling Act 1990 (WA). It provides advice to the Minister or the chief executive officer (CEO) of the Department of Fisheries concerning the pearl industry and, in particular, hatchery activities in this State.

50 The trial judge made these observations in relation to people who were 'members' of PIAC, and people who were 'observers' to PIAC, in 2006:

The members of PIAC ... were ministerial appointees, but it is evident that the industry nominees and appointees were substantially drawn from major industry participants. They included Mr Kelly, the CEO of the Paspaley group, Mr Nicholas Paspaley and Mr George Kailis of the Kailis group. Mr Smith, an 'independent' ministerial appointee, was PIAC's chairman. Mr Rogers [the CEO of the Department of Fisheries] was an ex officio member of PIAC.

In addition, a number of people were appointed as observers to PIAC, and the practice seems to have permitted them not only to attend meetings, but, when called upon, to make a contribution to debate. Those observers included Mr McCallum, the CEO of the [Pearl Producers Association], Mr Barton of the NT Fisheries Department, and Ms Kennedy, a senior officer in the WA Department of Fisheries, acting as Principal Management Officer (Pearling). There were other departmental observers including, for example, Dr Hart and Dr Jones, officers of the Department of Fisheries who would provide technical advice, and Ms McCrea, the manager of the Pearling and Aquaculture Program at the Department of Fisheries. From time to time, witnesses before me described PIAC as not only an advisory committee, but as a body which tended to act as an industry lobby group. Perhaps, given the membership, that was not surprising [122] - [123].

51 By s 24(1) of the Pearling Act, the Minister may issue, from time to time, 'for the assistance of the CEO [that is, the chief executive officer of the Department] and the information of the pearling industry a policy statement consisting of guidelines in respect of matters considered by the Minister to be of significance' in relation to licences and the general administration of the Act in connection with pearling and hatchery activities.

52 In March 2005, Mr Ford became the Minister for Fisheries and Mr Hondros became his chief of staff. At that time, the then current pearl hatchery policy had been in place since 1992. It was embodied in Ministerial Policy Guideline No 17. The policy was designed to develop the hatchery process within the industry, but it was outdated and due to expire at the end of 2005. At the beginning of 2005, a new hatchery policy was being developed [126].

53 The development of the new pearl hatchery policy comprised three phases.

54 Phase I, which had already occurred, involved the review of the successes, failures and inadequacies of the previous policy.

55 Phase II culminated in Fisheries Department Occasional Publication No 27, which was released publicly in September 2005. This document considered the various options for the establishment of a new pearl hatchery policy. It was available for public comment. Comments were received, especially from participants in the industry [127].

56 Three options were under consideration. The trial judge described them, as follows:

Essentially three options were discussed. The first would see existing quota levels maintained. I was told that that was unpopular with everyone. The second proposal was to increase quotas for hatchery farming, recognising that because existing quotas for the fishing of wild stock were at about the limit of the fishery's capacity to sustain the current level of fishing, it was in the area of hatchery development that increases in quota would need to be made.

The overwhelming consensus in the industry, unsurprisingly having regard to what I have already written about the dominance in the industry of major participants, favoured pro rata increases in licence quotas. That would preserve the position of the larger participants as against smaller producers. The third proposal, favoured by the small producers, would see the increases in quota administered on a case by case basis, but recognising that small producers needed relatively greater increases in quota if they were to remain viable in the changing economic circumstances to which I have referred [128] - [129].

57 Phase III began with PIAC preparing a policy document to be presented to Mr Ford for his adoption or endorsement, after he had received advice from the Department. If the document was adopted or endorsed by the Minister, it would be published as a Fisheries Department Occasional Publication and be available generally within the industry and to the public at large [130] - [131].

58 His Honour described the next stage in the process, as follows:

The policy would then be the basis for a new policy guideline formulated within the framework of amendments to the Pearling Act or the enactment of new legislation [132].

59 The trial judge recounted the history of the development of the Phase IIII policy document up to 10 October 2006:

It appears that the Phase III policy document emerged from PIAC in November 2005, although the document also bears the date February 2006. At about that time, it was therefore submitted to Mr Ford for his endorsement. As I understand Mr Ford's evidence, that was the recommendation of the CEO of the Department, Mr Rogers. The Phase III policy is set out in a comprehensive document. Unsurprisingly, in view of its origin, it presents what is described in the document as the consensus of the industry. I need not discuss its terms, and it is sufficient to note the essential thrust of the policy, as set out in the report, as follows:

1.1 No new licences - except where a person or corporate entity acquires quota from an existing quota holder. There is no barrier to entry for new entrants into the pearling industry as the secondary market exists and functions well.

1.2 Changes to legislation to ensure that all future allocations are pro-rata and administratively allocated in line with combined current hatchery and wild quotas.

1.3 Industry to have a formal role of advising on timing and allocation of quota. The details of business rules would need to be determined by industry (exhibit 4).

Mr Ford's evidence was that he read the document carefully and took some time to understand it. He was not happy with the policy direction recommended. It seemed to him to be weighted in favour of the major participants in the industry, which he described as the Paspaley/Kailis interests. It did not permit the interests of small WA producers to be fostered, he thought, and it did not provide adequately for a particular interest which Mr Ford had in fostering the participation in the industry of indigenous groups and people.

Nonetheless, after a time, Mr Ford endorsed the policy and it became publicly available. On 25 May 2006, he signed and sent letters advising his acceptance of the policy to all concerned in the industry who needed to know ...

Shortly after [Ms Kennedy] became the Acting Principal Management Officer (Pearling) she received and reviewed the endorsed Phase III policy document. She was centrally placed in the Department in relation to the processes to which I have referred above. For example, it was she who provided the departmental liaison with PIAC, upon which body she was an observer. She would draft background papers for PIAC, attend meetings, draft PIAC's policy recommendations, and forward those recommendations to the Minister's office, together with advice which she would prepare for Mr Rogers, to be provided to the Minister in relation to PIAC's recommendations or otherwise.

So it was she who was primarily responsible for implementing the endorsed Phase III policy, and when she received the document she formed the view that it required amendment, not substantively, but so that it would be in harmony with legislative drafting instructions for amendments to the legislation which were in the course of preparation in the Department. As she said, the changes which she thought were required were 'operational in nature'. They did not concern the underlying principles of the policy, but dealt with the practicalities of their implementation. So far as she dealt with the Minister's office, it was Mr Hondros who was her contact.

On 15 September 2006, Ms Kennedy circulated by email to Mr Rogers, her immediate superior (as I understood it), Ms McCrea, the Manager of the Pearling and Aquaculture Program in the Department, and Mr McCallum [the chief executive officer of the Pearl Producers Association], a copy of the Phase III policy with suggested revisions 'to deal with the separation of fishing and first operation seeding rights and the concept of secure rights under the PMB [Pearling Management Bill]'. She asked for their comments (exhibit 158).

As I understand it, Ms Kennedy then proposed that the amended document would be placed before PIAC for its consideration at the October meeting of that body. The changes she made are tracked in the document, and, in its amended form, it can be compared with the original. In cross-examination Ms Kennedy was taken through the changes she had proposed. She agreed that none were of a substantive character.

...

The next step in the process was to take the Phase III policy, as amended, to the PIAC meeting which was held on 6 October 2006. Exhibit 162 includes all the documentary material, including the Phase III policy document prepared by Ms Kennedy which was provided to PIAC and discussed. The record shows that, apart from ten members of PIAC, including Mr Rogers, who were present, there were six observers and a minute secretary in attendance. From the Department, apart from Ms Kennedy and her superior, Ms McCrea, Dr Jones and Dr Hart were present. The other two observers were Mr Barton, from the NT, and Mr McCallum.

...

Following that meeting, Ms Kennedy made the various small changes required, and circulated the document within the Department, to Mr McCallum and to the members of PIAC. She received no further advice that changes were required ... [134] - [149].

60 The trial judge referred, in the passage set out at [50] above, to the Pearl Producers Association (PPA). At all material times, Brett McCallum was the executive officer of the PPA. The PPA was established to represent pearl producers. Its membership comprises Western Australian and Northern Territory fishing and hatchery licence holders who pay membership fees. In 2006, of the 17 licensees in Western Australia, only one, being a small producer known as Arrow Pearls, was not a member. His Honour found that the decisions of and submissions to Government made by the PPA were 'very much influenced by the views of the major producers' [117].

61 When Dr Gallop was the Premier of Western Australia, he imposed a ban upon any member of his government and any government officer having any contact with Mr Burke or Mr Grill. In January 2006, Dr Gallop resigned as Premier and as a member of Parliament. Mr Carpenter then became the Premier. Soon afterwards, he removed the ban from members of his government.

62 At all material times, Mr Burke and Mr Grill had represented Kelvin Waldron-Brown. Mr Waldron-Brown appears to be generally known as Kel Brown. He is the principal of a pearling business. This business has been conducted through various entities, some of which are known as Nor-West Seafoods Pty Ltd, Nor-West Pearls, West Australian Southsea Pearls or Pilbara Pearls [79].

63 Mr Brown is a small producer. The trial judge described the views of Mr Brown in relation to the pearling industry, as follows:

People like Mr Kel Brown were apparently of the view that, to remain viable producers, they needed to increase their production and, by aggressive marketing, endeavour to increase their market shares. As I understand it, the large producers were not averse to increased quotas, but argued for the maintenance of a policy which would see any increases given proportionately to existing holdings to enable them to maintain their competitive power in the local industry [120].

64 At all material times, Mr Brown had retained Mr Burke and Mr Grill to assist him in lobbying for changes to government policy in the pearling industry; in particular, to improve the prospects of Mr Brown and other small producers in remaining viable in the industry [157].

65 Mr Brown had also retained the services of John Nicholls, an economist. Mr Brown had sought Mr Nicholls' assistance in preparing a case to be put to Mr Ford with a view to obtaining an easing of the restrictions on competition in the pearling industry, and achieving a restructuring of the industry so that it was more favourable to small pearl producers. Mr Nicholls was very familiar with the pearling industry and the structures of government administering the industry. He was also well acquainted with the governmental and political processes involved in the adoption of policy and its implementation [108] - [110].

66 In early to mid-2006, Mr Burke was endeavouring to make contact with Mr Ford as part of his lobbying activities on behalf of Mr Brown. This was complicated by the existence of a personal animosity by Mr Ford towards Mr Burke. The trial judge described this animosity and Mr Burke's attempts to lobby on behalf of Mr Brown:

There is evidence that in the early part of 2006, Mr Burke was in regular contact with Ms Archer MLC. She was a member of Parliament for the mining and pastoral region, as was Mr Ford. She too had an interest in the pearling industry, on behalf of her constituents, and it is evident that Mr Burke was using his friendship with her to endeavour to arrange a meeting with Mr Ford, or otherwise to advocate the case of Burke's client, Mr Brown, and incidentally to advance the interests of the other small WA producers.

Mr Ford's evidence was that, from time to time, Ms Archer would pester him to meet with Burke, towards whom Ford had a personal animosity, such that he made it clear to Mr Hondros that those who engaged Burke as a lobbyist did themselves a disservice, in Ford's eyes, because even if their case had merit, Mr Ford would feel unable to advance it or provide a remedy if there was any prospect that Burke may be able to claim the credit for achieving that result.

The evidence shows that Burke was making efforts, through third parties, to make contact with Ford throughout the earlier part of 2006. There was a flurry of activity in May, particularly around the time of the release of the Phase III policy, and in early June, when the commercial association between the Paspaley and Kailis interests became public. There is evidence that, despite the tone of the publicly released Phase III policy, Mr Brown's contacts with the Minister enabled him to report that Mr Ford seemed sympathetic to their case. Burke had discussions with Mr Brown, Ms Archer and Grill about how best to make a case to be submitted to Ford [158] - [160].

67 By early August 2006, Mr Burke had persuaded Mr Hondros to arrange an appointment for him with Mr Ford. Mr Ford gave evidence that he agreed to meet with Mr Burke. Mr Ford hoped that if he met with Mr Burke then contact between Mr Burke and Mr Hondros would cease and Shelley Archer MLC would stop pestering him. The meeting was held on 16 August 2006 at Mr Ford's ministerial office. It was attended by Mr Ford, Mr Hondros, Mr Burke and Mr Grill [161] - [163].

68 Mr Ford said in evidence that he made no specific commitment to Mr Burke and Mr Grill at the meeting, but he did indicate that he was sympathetic to the need to structure the industry so as to permit the advancement of the interests of small producers [163].

69 Mr Ford gave evidence that in the days shortly after the meeting on 16 August 2006, Mr Hondros asked him if he could provide a copy of the Phase III policy to Mr Burke and Mr Grill. Mr Ford said that he told Mr Hondros that he could give them a copy because it had been released publicly. It appears that Mr Hondros did not in fact provide Mr Burke and Mr Grill with a copy of the document at that time. On the evidence, Mr Brown already had a copy [166].

70 On 7 September 2006, Mr Hondros sent an email to Mr Burke (exhibit 63). The email said, relevantly:

I'm still working out a way that Jon Ford can unpick the appalling parts of the current pearling regime (including issues around quota). Would I be able to quietly seek your advice on that in the near future, if that's not too much of an imposition? (BAB/GAB 457)

71 The trial judge made the following observations in relation to this passage in the email:

Two things would seem to be clear. Mr Hondros recognised that he was not supposed to have contact with Burke (it will be recalled that Mr Ford's principal reason for holding the meeting on 16 August was that there might then be no more meetings with Burke). Secondly, there would seem to be no reason to suppose that Mr Hondros's request for advice was not genuine. It seems that he was having difficulty devising an amended policy to put to the Minister to take to Cabinet, by his own efforts. I shall return to the significance of this, but one can understand his difficulty.

Mr Ford had given him the responsibility of progressing the formulation of a new pearl hatchery policy to give effect to the Minister's views. He could not get advice as to how to go about that directly from PIAC or from the PPA, because he knew the predominant industry view was not that espoused by the Minister. He knew he could not go to the Department because he was aware that the CEO, Mr Rogers, also espoused the predominant industry view. On the other hand, he knew of the interest of Burke and Grill, and that Mr Nicholls had been recruited to advise and support Brown's case [172] - [173].

72 On 26 September 2006, Mr Burke requested Mr Nicholls to send him a short and simple policy that might be adopted by Mr Ford. On 28 September 2006, Mr Nicholls sent Mr Burke a document. The essence of the policy embodied in the document was this:

The allocation of additional future hatchery shell entitlement and seeding rights will be:

(a) administered to provide, as a priority, a basis for a viable future operation among the small entitlement holding producers in this State under likely prospective market conditions and for encouraging participation by the indigenous community; and

(b) granted so as to not add unnecessarily to industry costs in the face of increasing overseas competition (BAB/GAB 503).

73 On 3 October 2006, Mr Grill sent Mr Nicholls' draft policy document to Mr Hondros. At the time, Mr Burke was absent from Perth. Mr Grill offered to meet with Mr Hondros upon Mr Burke's return to Perth to discuss the draft [177].

74 Mr Hondros accepted this offer. On 5 October 2006, he telephoned Mr Grill [178]. The conversation, which was intercepted and recorded by investigators with the Corruption and Crime Commission (CCC), was, relevantly, as follows:

HONDROS: ... Mate uhm I'd love to catch up uhm early next week if I could.

GRILL: Great.

HONDROS: Uhm.

GRILL: Where do you want to do it, up at my place, down at your office?

HONDROS: I wouldn't mind coming to see you guys just

GRILL: ... good.

HONDROS: I know that uhm, er, you know, my boss will, if we could do it sometime Monday when my boss is in cabinet it would be sort of a bit easier for me uhm you know save explaining what I'm up to, if you know what I mean so.

GRILL: Good.

HONDROS: Uhm.

GRILL: So uhm, I think we could probably do it at ten thirty.

HONDROS: Ten thirty sounds good, I'm down at er Fisheries at nine for er for a briefing on a separate matter so ten thirty might, might slot in perfectly.

GRILL: Great.

...

HONDROS: Okay I'll be able to give you a run down of er where I'm up to, also where I'm up to with er, with [Jon] so uhm

GRILL: Great.

HONDROS: [It's], [it's] positive but tricky, I think is the best way to er, to look at it, yeah. Okay, mate.

GRILL: Great, see you then.

HONDROS: Look forward to seeing you there (BAB/GAB 522 - 525).

75 Accordingly, arrangements were made for Mr Hondros to meet with Mr Burke and Mr Grill at Mr Grill's home in Perth, on 9 October 2006 at 10.30 am.

76 Mr Hondros made a note in his diary to the effect that on 9 October 2006 he had a 'Private Appointment (Doctor)' between 10.30 am and 11.00 am.

77 Mr Hondros met with Mr Burke and Mr Grill, as arranged. The conversation was intercepted and recorded by investigators with the CCC [181].

78 At the meeting, Mr Hondros informed Mr Burke and Mr Grill of the current status of the draft Phase III policy and why amending the policy to improve the position of small producers in relation to the allocation of quotas was 'possible but hard':

BURKE Mate what do you think about this pearling business, Julian sent me a note saying it's possible but hard?

HONDROS Ah possible but hard, should I give you a run down where I'm,

BURKE Yeah.

HONDROS I think I'm up to? Ah I think [Jon] is ah turned around to the point where he sees the, the sense in the argument that if he proceeds down the path he's proceeding down it's gunna damage ah, you know the small producers in the industry and ah you know the quality of the, the WA you know side of the,

BURKE Yeah

HONDROS of the bargain. Ah he's got ah, he's he's got a number, a number of problems in front of him. Firstly, his first problem that he thinks err what he's got, Roger's pushing hard for the alternative, he's got uhm the industry on his pearling industry advisory committee pushing hard, ah for, what they've proposed in the legislation, uhm, and he's got ah, ah you know he's got ah, I guess an imperative that comes out of the Premier's Office, and from the Premier to not create any fuss or stink about anything what so ever. That er, that's holding him back. Ah, all on top of that err he's made a ah, you know he's made a statement to industry regardless of you know what he said I think in the meeting ah with you and Julian, that he will endorse the hatchery policy ah and uhm look at putting it in legislation. Ah that was, that was sometime ago. Ah since then the industry's had its restructure and Kailis and Paspaley are working closer together ... (BAB/GAB 581).

79 Mr Grill suggested at the meeting that they look at the draft Phase III policy, as endorsed by Mr Ford, and see 'how with a few words' the policy could be changed to accommodate the interests of the small producers. The following exchange occurred:

HONDROS Yeah. Do you think uhm, do you think it's ah it's ah step too far, and they'd sniff it out too quickly if you if you make it indigenous interests and you know for the interests of the industry or?

GRILL I think we've got to make it a bit wider. What I was going to suggest is we ah actually have a look at the hatchery policy that he's

HONDROS Yeah.

GRILL informally endorsed.

HONDROS Yeah.

GRILL And just see how with a few words

HONDROS Yeah.

BURKE we can change

HONDROS I can get a copy of that.

BURKE Yeah that's a good idea Julian.

GRILL Would you send that?

BURKE Would you send that to Julian?

HONDROS Absolutely. Absolutely (BAB/GAB 585 - 586).

80 A little later at the meeting, there was discussion about how the draft Phase III policy might be approved by Cabinet after it had been amended by Mr Burke and Mr Grill:

HONDROS [I]t's, it's a matter of how to unpick it and frame it so he can actually get it right.

BURKE I reckon what happens is this, that when you get the decision from Rogers, it comes to you, Julian will look and I'll look at the guidelines that you send us.

HONDROS Yeah.

BURKE We'll send them back to you

HONDROS Mm hm

BURKE Then you take those to cabinet after [Jon's], don't send them back to Rogers

HONDROS No no I won't

BURKE Just take them straight to cabinet and let cabinet endorse them and then if the industry wants to kick up a fuss, it has to then do two things.

HONDROS Mm mm

BURKE Argue about the

HONDROS Yep.

BURKE content of the guidelines but secondly

HONDROS Yeah.

BURKE throw back in every cabinet minister's face that he or she made a wrong decision.

HONDROS Yes.

BURKE And once you get it through

HONDROS Yeah.

BURKE they're not going to want to do that, cos no one likes to admit they're wrong.

HONDROS That's right, (laughs) especially cabinet, yeah.

GRILL Yes.

HONDROS Okay, that's a great idea.

BURKE So I, if you can get that to us, it will be changed imperceptibly I reckon.

HONDROS Yeah

BURKE And then the other thing is this, if Jon doesn't want to, he needn't.

HONDROS Mm mm

BURKE So if he doesn't want to give x y z or Kel Brown or Bill Smith additional quota he doesn't have to but he's got the authority to do it if he judges he should.

HONDROS Yeah (BAB/GAB 587 - 589).

81 During this discussion Mr Burke referred to 'Rogers'. At all material times, Peter Rogers was the chief executive officer of the Department of Fisheries.

82 Towards the end of the meeting, Mr Burke summarised what had been agreed upon:

BURKE Alright mate that's good. Thanks for your time with that and if you can get that policy to Jul, guidelines to Julian, we'll do em and send it back to you and make it as imperceptible as possible. But I wouldn't then just send it back to Rogers or anywhere else.

HONDROS No that's a great idea. I'm gunna uhm, I've asked the question about when they'll be translated into ah guidelines and we'll just take the guidelines to, Cabinet.

BURKE And change what we want yeah. Goodo.

HONDROS You know, which is unusual but they won't know about it before we do it.

BURKE Not at all.

HONDROS And they've plenty of chance to be consulted prior to whatever.

BURKE Oh yeah, yeah, No I think it's very fair, and it, I can tell you from my own experience that there's plenty of precedent. Happened lots of times when I was Premier.

HONDROS Mm mm (BAB/GAB 593).

83 As the meeting was finishing, the following exchange occurred:

BURKE And, when d'you reckon these guidelines'll go up?

HONDROS Ah, I'd say they, they're preparing them now I think but, I I think they've got the ah, ah they've got the accelerator off pending, a decision from [Jon] on the legislation. So I will, I'll get em to proceed with the guidelines.

BURKE Quicker the better.

HONDROS quicker the better, uhm, and ah, y'know

GRILL So in that context do, do we need to tweak the guidelines or tweak the policy?

HONDROS Ah oh look I'll shoot through to you the uhm, the policy

GRILL Yeah.

HONDROS that'll, that'll give you an understanding about where

GRILL Right.

HONDROS it'll merge in the guidelines, as soon as the guidelines appear anyway.

GRILL Okay mate.

BURKE But the guidelines must be in the legislation anyway.

HONDROS No. No no, their their plan is to say, ah, you take the, take hatchery policy, that'll uhm, that'll create the, provisions in the, in the guideline, and moving from there they'll become legislation (BAB/GAB 597 - 598).

84 On 9 October 2006, after the meeting with Mr Hondros, Mr Burke sent an email to Mr Brown, with a copy to Mr Nicholls and Mr Grill. In the email, Mr Burke said, relevantly:

Julian and I had a good meeting with Nathan Hondros today.

Nathan will be forwarding the Draft guidelines for the Hatchery Policy to Julian with an understanding that Julian and I will advise on how they might be amended to protect and enhance small producers.

You might like to ring Julian for further details (BAB/GAB 599).

85 On 10 October 2006, Mr Hondros requested Joanne Kennedy, who at that time was the Principal Management Officer (Pearling) at the Department of Fisheries, to send him an electronic version of the draft Phase III policy. She sent Mr Hondros an email on that date to which she attached the latest draft. Ms Kennedy's email reads:

As expected, PIAC considered the Phase III Hatchery Policy again on Friday. The main aim of these discussions was to amend the policy document to make it consistent with the separation of fishing and first operation seeding rights as proposed in the PMB drafting instructions. These amendments don't effect the essence of the policy. They do however greatly simplify its implementation.

I am currently in the process of finalising the required amendments with PIAC members. The finalised version will be sent to the Minister in the near future, but in the meantime I have attached the document currently being considered by the Committee.

Please note that as some minor changes may still be necessary before the final document is sent to the Minister by the PIAC Chair, it would be desirable for this version not to be released publicly (BAB/GAB 601).

86 As mentioned above, at the material time, Ms Kennedy attended meetings of PIAC as an observer and provided the committee with information and advice, as required, in respect of its deliberations on agenda items (ts 586).

87 On 11 October 2006, Mr Hondros sent an email to Mr Grill, to which he attached the latest draft Phase III policy forwarded by Ms Kennedy. Mr Hondros's email states:

As discussed, please find attached the latest incarnation of the Phase III Hatchery Policy, as prepared by PIAC and the Department of Fisheries (BAB/GAB 687).

88 On 26 October 2006, Mr Grill sent an email to Mr Nicholls, with a copy to Mr Brown and Mr Burke, which reads:

Here is the lastest [sic] draft of the Hatchery Policy. I was going to have a look at them on the weekend to ascertain how we could subtly amend them to meet our objectives.

Your input would be very much appreciated.

Naturally, this must be kept in confidence (BAB/GAB 687).

89 On 30 October 2006, Mr Grill telephoned Mr Nicholls. The conversation was intercepted and recorded by the CCC. During the conversation, the following exchange occurred about 'subtly amending' the latest draft Phase III policy and ensuring that the draft, with the 'subtle amendments', was not returned to anyone but the Minister:

GRILL: Yeah, I think we, we should address it but I'd think our job, you and I, if we could just sit down and just see how we can gently amend the guidelines um to um change it so that it's acceptable to our client. Um there's a chance we can get an amended document up but I think the um changes need to be fairly subtle.

NICHOLLS: Yeah.

GRILL: Does that make any sense to you?

NICHOLLS: Yeah, it does. Wonder what impact subtlety is going have unless the ...

GRILL: Well it probably won't go back to that group.

NICHOLLS: Decision makers seize on it that's all.

GRILL: It probably won't get back to that group if we can work it properly. It's just something for the Minister.

NICHOLLS: Yeah.

GRILL: But I don't see that a, the industry should be taken out of his hands and that's what that document does.

NICHOLLS: Absolutely. I'm surprised the Minister's surrender.

GRILL: Yeah.

NICHOLLS: Yeah all over to you Paspaley. You tell me what you want.

GRILL: Yeah (BAB/GAB 690).

90 On 7 November 2006, Mr Grill met with Mr Nicholls. Their conversation was recorded by the CCC. They discussed possible amendments to the latest draft Phase III policy.

91 On 13 November 2006, Mr Grill sent Mr Burke, Mr Brown and Mr Nicholls a note he wanted to give 'to Government' in relation to the draft Phase III policy. He also sent a copy of the draft policy itself, which incorporated 'the very modest changes that [Mr Nicholls] and I agreed to recommend' to the draft.

92 The proposed changes incorporated by Mr Grill in the version forwarded by Ms Kennedy to Mr Hondros (and subsequently sent by Mr Hondros to Mr Grill) were, relevantly, as follows:

Policy includes:

1.1 No new licences - except where a person or corporate entity acquires quota from an existing quota holder. There is no barrier to entry for new entrants into the pearling industry as the secondary market exists and functions well.

1.2 Changes to legislation to ensure that all future allocations are pro rata equitable, and in accordance with past history of the industry and administratively allocated in line with the existing first operation seeding rights held.

1.3 Industry to have a formal role in of advising on timing and allocation of quota. The details of business rules would need to be determined by the Minister after consultation with industry (BAB/GAB 807).

THE STATE OF WESTERN AUSTRALIA -v- BURKE [2011] WASCA 190 (14 September 2011)

At a glance

Court

Decision date

Before

Catchwords

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Judgment (621 paragraphs)

THE STATE OF WESTERN AUSTRALIA -v- BURKE [2011] WASCA 190 (14 September 2011)

Legislation Cited (14)

Cases Cited (18)