Analysis part 6 – The Premiers Evidence

4th of September 2022

We need to look at some of the evidence as to whether a crime has been committed.

In this instalment, we will deal with the evidence of the Premier of Victoria, Mr Daniel Andrews, or more accurately, such as that evidence made available is. We say this because most of the Premier’s evidence was not published by IBAC. However, that part of the transcript reproduced in the Operation Watts report was made public on relevance grounds. We would have thought that all the evidence the Premier gave was relevant and should be released.

Our comments, therefore, only relate to the published evidence by the Premier, and on that restriction, we believe the Premier has been unfairly treated.

Unfair because there is no ability to understand whether the context of his answers is fairly represented or reasonable, and we cannot understand just what the overall veracity of the examination was. Therefore, we and the broader public can only draw conclusions based on what is available.

From the outset, what has surprised us is the demeanour of the Premier, as reflected in those evidentiary transcripts reproduced by IBAC. The Premier’s usual self-assured demeanour displayed by him almost daily in the media was replaced with stilted responses, repetition and uncertainty.

We may be assessing the evidence unfairly, but the Premier did, in our opinion, give the impression he was a man under considerable pressure during his IBAC examination.

Another surprise to us was the Premier admitting that the Red Shirts and Branch stacking issues staff were employees of the State, used for party-political activities, and he did nothing about it.

Was this not the nub of the whole Watts inquiry?

We regard his admissions as very telling because it raises concerns about the view proffered by the Ombudsman that the Premier was only “immersed[1]“ in the Red Shirts scheme and that this somehow exonerates him from any liability.

According to the Cambridge online dictionary, ‘Immersed’ means “to become completely involved in something”.

The Ombudsman is an experienced lawyer and bureaucrat. Therefore, we are entitled to presume that the word ‘immersed’ was not a mistake. Nevertheless, this language choice for the Ombudsman raises genuine concerns about the Premier’s involvement in the Red Shirts scheme.

It is therefore relevant to examine the evidence published in the Watts Report in more detail. Set out below is evidence of the Premier accompanied by  italicised CAA comments

Watts Report page 30 Item 146 –

According to the Watts report – Premier Andrews was not one of the MPs found by the Red Shirts investigation to have ‘participated’ in the scheme.

CAA- An unreasonable assumption based on the evidence.

 In our view, IBAC and the Ombudsman have adopted an inappropriately narrow view of the meaning of “participated”, defined as ‘to take a share or part’ (Cambridge), and Mr Andrews gave evidence that he did take part.

By his admission, he was also ‘knowingly concerned’, having referred Mr Somyurek to Mr Lenders, who was administering the scheme for the parliamentary ALP. This admission is arguably ‘mens rea’ (a guilty mind).

The statement also alludes that there were other MP’s who participated in the scheme, but there appears no appetite to prosecute any of them. Raising the issue of why not, if they were immersed?

In his evidence to the present investigation, Mr Andrews was asked about Mr Somyurek’s evidence.

MR ANDREWS: I had a very brief encounter with Mr Somyurek at the end of a caucus meeting. I have detailed this, I think not long after or, sorry, at an earlier point when this was a matter of media enquiry. It was a very brief encounter and I referred him to John Lenders.

That is my – that’s my recount, my recall of that particular encounter, brief and really only an issue of referral, and I don’t believe that he raised anything other than he didn’t – he raised – I don’t even know that he raised concerns, other than that, you know, he might have gone on to raise concerns with me, but I directed him to Mr Lenders.

CAA- The Premier seems confused and vacillating. He points IBAC to Mr Lenders, just as he admitted in his evidence that he pointed Mr Somyuek to Mr Lenders. The Premier knew of Mr Lenders’ involvement, and the Premier is the leader of the State. He cannot absolve himself of further investigation simply by pointing IBAC to the person who administered the scheme. IBAC does not mention the investigative steps it took concerning Mr Lenders. IBAC’s approach does not remotely qualify as a basic investigation but as an abrogation of its responsibility.    

COUNSEL: Did you use an expression akin to, ‘Do you want to win an election or not’?

MR ANDREWS: I don’t believe so. I have a clear recollection, given the brevity of the encounter, and I’m not – that’s not language that I use. I think people who know me would not see me speaking in those terms, would not describe me as someone who speaks in those terms. […]

CAA – The Premier demonstrates an excellent recall of what is described as a brief encounter after a caucus meeting in 2014 5-6 years ago. This dramatically contrasts with other evidence he has given in other inquiries, where he could not recall matters 1-2  years ago, although that is not relevant in this matter. It may, however, have relevance to his character. His failure to recall details of other contentious matters. Must now be questioned

The use of the phrase “I don’t believe so.” is an equivocation on the part of the Premier and warranted a much more forthright examination by IBAC, especially as the Premier then immediately followed those words with the claim to having a “clear recollection” of what he then described as a brief “encounter”. 

In its very best light, this evidence by the Premier is contradictory. On that basis, the Premier should have been required to provide his full recollection to IBAC of the conversation between himself and Mr Somyurek during this brief “encounter”. But he wasn’t because IBAC, for whatever reason, did not do its job correctly.

IBAC appears to have ‘run dead’ on its examination of the Premier concerning what is a pivotal aspect of the allegations lodged by Mr Somyurek.

Instead, IBAC, in essence, allows the Premier to claim that anonymous “people who know (him)” would not see him speaking in those terms. In other words, the Premier claims he doesn’t talk like that. Because of the importance of this testimony to the credibility of the Premier’s evidence, it was important that IBAC test the Premier’s claims exhaustively. Their failure reflects poorly on them.

COMMISSIONER: Do you at the time feel you had an understanding of the essence of Mr Lenders’ scheme?

MR ANDREWS: I probably did. I had no concerns at that time given, you know, I wasn’t acting to stop him doing it. But this issue of whether I spoke in those terms or essentially justified or was unconcerned with serious issues of probity and integrity that Mr Somyurek raised with me, that is not my recollection of that conversation and nor is that the evidence that he provided to the privileges committee at the time. A very brief encounter and I referred him to John. […]

CAA– This response is an unambiguous admission of knowledge of the use of Parliamentary staff. The evidence that he wasn’t acting to stop him (Lenders) strengthens his claim that he had no concerns, which is counterintuitive. He had an understanding of the Lenders scheme but had no concerns – this evidence brings into question the Premier’s competence.

COUNSEL: Were you aware of what Mr Lenders was proposing in a general sense?

MR ANDREWS: Yes.

COUNSEL: And were you aware that it involved electorate officers doing party-political work?

MR ANDREWS: I’m not sure whether it was – well, I was aware that it was about engaging staff to be involved in campaigning. My recollection is that at no point did I have a sense that what was being proposed was not in accordance with the rules or advice from Parliamentary Services. My memory of it is that it was – pooling arrangements have been part of parliamentary parties for quite some time, our party and others. I expect I viewed it in those terms…

CAA- In this exchange, his omissions become more strident. Admitting he was aware of staff being engaged in campaigning. He further aggravates the matter by alleging everybody else is doing it (the schoolyard defence), but no evidence of that was given. Rather than relying on ‘a sense’, it would have been proper to check with the Parliamentary Services.

As damming as this evidence may be, evidence given before IBAC is generally privileged. This means that it cannot be used in a criminal prosecution of the witness except in minimal circumstances. However, the evidence can be used in an external criminal investigation as an intelligence source for further inquiries that may turn up admissible evidence.

Our Integrity bodies have decided that the Premier has not committed a breach to warrant criminal charges or further investigation.

They have argued that rather than criminality, he was just immersed in the artifice, which somehow absolves him of criminal responsibility and accountability.

The same rationale could be applied to Tony Mokbel with his drug empire or the Outlaw Motor Cycle Gangs (OMG’s) leaders. However, those leaders are probably only immersed in the illegal activity of the clubs and should not be held to account for their organisation’s criminal endeavours.

No matter the endeavour, the organisation leaders carry the responsibility and accountability for their organisations.

In our view, evidence published by IBAC and the Ombudsman is sufficient to warrant consultation with the Office of the Director of Public Prosecutions. Yet no such consultation ever took place. This raises questions about the joint operation’s thoroughness, competence and integrity. It also raises questions about the lawyers within IBAC and the Ombudsman’s Office acting ultra vires (acting beyond ones legal powers) by usurping a role that was not properly theirs – the prosecutorial decision of the Director of Public Prosecutions

Whether any of those involved should be held to account in a Court of Law is a matter for the DPP. A Court has the role of deciding guilt or innocence, not Integrity bureaucrats.

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