[3.46PM 10/6/10: Since publishing, Crikey has received a response from The Australian‘s Hedley Thomas, which we have included in full below and will run in tomorrow’s Daily Mail.]

Earlier this week I wrote that the next scene in the (ongoing) battle between The Australian newspaper on the one hand and the Victorian Police and Office of Police Integrity on the other, would be the criminal courts. I was wrong.

The next scene is in fact the front page of the newspaper, and the allegation that Simon Overland was the original source of the leak that aborted a murder inquiry. The underlying allegation is that the Office of Police Integrity is too close to Overland, is a rogue agency, and fatally compromised.

There are kernels of legitimate stories in some of The Australian’s long running campaign on this issue, but evidence has been used selectively, other evidence has been pushed way too far and what is missing is understanding and context. The final result is something warped and dangerous in journalism.

It matters, because Victoria is surely approaching some kind of tipping point when it comes to corruption, its impact and how to deal with it. The battles are getting deadly serious. And in this war all good journalists would want to be on the side of the angels, if there are any in this nasty, mucky saga.

Let’s be clear about the kernel of legitimacy here. Overland did apparently do something questionable, and everyone, not least him and the OPI, would be in a more comfortable position right now if there had been a clean and independent inquiry by someone removed from the mucky politics in Victoria.

And even if it is true that Overland did not breach the law, there is another issue in play – the role of media management in the missteps and failures of the past and present. More on this later.

But to suggest, as The Australian is doing, that what Overland did was the central event in the leaks that led to the abortion of a murder inquiry is quite simply wrong. Key parts of the story are missing from The Australian’s account.

The first thing is that there is nothing new here. As Thomas himself points in the story (if you burrow into it) all this has been written before at the time of the OPI investigation into Operation Briars. Melissa Fyfe of The Age was writing about it last year. There is nothing in Thomas’s story that Fyfe did not write. The Australian’s case rests on the assertion that the story was underplayed.

But the way Thomas writes the story, key pieces of information have gone missing. For example, the fact that Linnell already knew the details of Operation Briars before Overland approached him with the concerns over the French management course issue. Indeed, on the same day that Overland supposedly alerted Linnell to the phone taps, Linnell showed Ashby his computer screen, on which he had the terms of reference of Operation Briars, including the targets.

Here is what Linnell himself said about this in the OPI inquiry.

“I had it (the names of the targets) up on the computer screen and I showed it to him (Ashby).I should have done something (to rectify it), but did I? No.”

This puts what Overland did in its proper context. It was clear to the reporters covering the OPI inquiry that the key event was this showing of the brief to Ashby – an event that had little or nothing to do with what Overland had said to Linnell about the French trip.

After this Ashby talked to Mullett, Mullett talked to colleague Brian Rix and asked him to warn Lalor. And the phones went quiet and the murder investigation was ruined. See here for some of the coverage at the time.

Having gone out on a limb as part of a self-interested campaign, The Australian’s leading journalist Hedley Thomas and editor Paul Whittaker now seem to have convinced themselves they are on to a genuine story – one that The Oz’s own award winning Victorian based reporters, people like Gary Hughes and Cameron Stewart, have until now missed, despite their leading role in covering policing and corruption in Victoria.

It gives me no pleasure to say these things. I have considerable time for Hedley Thomas. I have written glowingly of him in the past. He has that asset of an investigative reporter – that he is like a dog with a bone.

But as we are seeing, that is not always an asset. Thomas’s main sources in this case are the legal teams of Paul Mullett and Noel Ashby, former policemen who, no matter how you look at it, are partisan players and, in the case of Ashby, discredited. They are giving him, and he is accepting, a heavily skewed account. Ashby appears on the front page of today’s paper as an authority on what constitutes integrity.

And here is some of what Cameron Stewart, who was covering the OPI hearings at the time, has written about Mullett in the past:

“Mullett is a straight talking, old-school cop who holds such sway over the state Government that he negotiated a secret pay deal with his union to avoid industrial action in the lead-up to the 2006 election, which returned Bracks. Mullett… has been a fierce critic of the OPI, accusing it of conducting witch-hunts to justify its budget. He says the extent of corruption in the force is greatly exaggerated and he has defended the use of union funds to pay the legal fees of police accused of corruption. Mullett’s critics say his refusal to acknowledge the existence of corruption is typical of a culture within the force that protects mates at all cost, allowing corruption to flourish.”

But now that balanced view of Mullett is missing from The Australian’s reporting. Mullett has become the paper’s ally and key source.

So let’s take a step back, trace events and reveal context. What is going on?

It all began last August when Cameron Stewart got his scoop about the anti terrorism Operation Neath. Stewart obtained leaked information, allegedly from a Victorian Police officer, and took that to the Australian Federal Police. In return for agreeing to delay publication, he was briefed on the detail.

The circumstances of that briefing, and the nature of the deal that was cut, are now the subjects of an investigation by the Australian Commission for Law Enforcement Integrity (ACLEI).

ACLEI and the OPI immediately began an investigation in to the source of Stewart’s leak, as one would expect. Meanwhile Stewart published news of the operation on the very day that raids were conducted and arrests made.

Later that day, Victorian Police Commissioner Simon Overland slammed the paper, and by implication the Federal Police who had briefed Thomas,, saying that because some copies of the paper had been on sale before the raids started, officers’ lives and the operation had been put at risk.

Cut to March this year, when the OPI and the ACLEI showed The Australian its draft report into the leak. The draft report was critical of the paper and of Stewart, and was a clear summary of evidence that would be used to prosecute the alleged source – whose identity had not been hard to determine. Indeed, a key piece of evidence was an interview Stewart himself had given to the OPI.

The Australian was horrified, and two things happened at once. First, the paper sued ACLEI and the OPI, claiming their investigation was legally invalid, and seeking to permanently suppress the report and all the evidence. This is the case that was settled on Monday. See here for the details.

Simultaneously, the Hedley Thomas stories about the OPI began, all of them with the underlying theme that the OPI was too close to Commissioner Simon Overland and being used as part of Vic Pol factional wars – the very line that Mullett and Ashby have been hawking around the state’s journalists for months.

Some of the first stories, about racism in the force and failures to deal with it, had legitimacy. The OPI certainly has its problems and nobody who knows the history denies it.

But then Thomas began to dig in to the troubled saga of Operation Briars, the investigation in to allegations that police sergeant and union delegate Peter Lalor was implicated in a murder.

That investigation included phone taps, but had to be aborted when Victorian Police Manager Stephen Linnell told his mate, Assistant Commissioner Noel Ashby, about the operation and its targets. The resulting chain of leaks resulted in Lalor being tipped off that his phone was tapped, and the murder investigation collapsed as a result.

The OPI investigated this sequence of events, and charges resulted against Linnell, Ashby and Mullett, all of whom lost their jobs in disgrace. But the case against Mullett collapsed, and because of the OPI’s devastating technical stuff up, its investigation into Ashby was ruled invalid.

So we now have several sets of serious allegations against police and those associated with them that have never been properly tried through the courts. This, surely, is at the heart of the concern we should have for the health of policing and the legal system in Victoria.

The Australian and Hedley Thomas, however, have taken a different track. For them, Overland and the OPI are the problem.

A few weeks ago The Australian’s case against the OPI in the Federal Court was adjourned, and I heard there were negotiations in progress. Surprise surprise, the stream of negative stories about the OPI stopped during this period.

But yesterday, with the ink barely dry on the settlement agreement, the campaign began again with the allegation that Overland himself had started the devastating series of leaks that led to Operation Briars being aborted, by talking to Linnell in an attempt to avert negative publicity over his planned trip to France on a management training course.

Did Overland do something wrong? And is the OPI protecting his back? Here we have the kernel of a legitimate (though old) story.

As I understand it, the basis for the OPI and Overland’s claim that no offence was committed is the “permitted use” provisions of the Telecommunications (Interception and Access) Act. The key sections would seem to be 67 and 68, which lay down how information obtained by telephone taps may be used. Permitted uses include when information “relates or appears to relate to… misbehaviour or improper conduct of an officer of a State.”

That might give Overland an out under the law. But the law is not the only issue. The clear reason he made the disclosures was concern about the public relations impact of his trip, and the Mullett and Ashby campaign against him. And one of the revelations from the present imbroglio is just how media sensitive police command can be, and how crafty ill-motivated police can be in their use of the media. We may have seen elsewhere recently, in other contexts.

The rumour file at 3AW is apparently nastily used, and closely watched.

Overland’s real mistake may well have been to brief Linnell on Operation Briars in the first place. Was it really necessary for the media manager, for heaven’s sake, to be given all the details on a covert investigation? Was this “need to know”?

If Linnell had not had the briefing, he would have had nothing to show to Ashby, no context in which to place Overland’s remark about the French trip, and the murder investigation would not have been jeopardised. Concern for media management was indeed at the heart of the problem, although of course Overland had at the time no reason to suspect Linnell’s integrity.

So is the OPI too close to police command, and using its powers to prosecute internal police factional wars? This is the underlying allegation coming from Mullett and Ashby, and now being given pride of place in the national newspaper.

Perhaps. There is certainly politics involved. On the other hand, an anti corruption body entirely without allies in the bodies it oversees is an anti corruption body doomed to fail. While trying to win the political game, anti-corruption bodies must not be creatures of that game. It’s a difficult balancing act.

All Australia’s anti police corruption bodies must build alliances with police who want to get rid of corruption. For better or worse, it is usually seconded police who do the hard yakka of investigations into corruption.

And this is where one of the people Hedley Thomas quoted in his story yesterday has a point. Queensland Civil libertarian Terry O’Gorman was, like me, moulded by the Fitzgerald years and the Fitzgerald inquiry, which led to the setting up of one of the first standing anti corruption bodies, the Queensland Criminal Justice Commission.

O’Gorman was quoted in Thomas’s story as calling for an independent inquiry into Overland.

I spoke to O’Gorman yesterday. He says he was accurately quoted, but nevertheless it is clear he is arguing a more nuanced line than Thomas’s story suggests. O’Gorman emphasises he is not saying Overland is guilty. Only that if an allegation like this is made against the “elite” of the police or anti corruption forces, it is vital that it is seen to be independently investigated by authorities from outside the state. Relationships within a state are too close, he says.

O’Gorman is talking not only about Victoria, but about Queensland, and more generally. He sees a possible expanded role for ACLEI in investigating senior police and anti corruption agencies.

And O’Gorman also said to me he was following events in Victoria with interest because they so closely echoed the climate in Queensland that led up to Fitzgerald, including the way in which the Police Association effectively supported corruption, and undermined attempts to tackle it

I was in Queensland during the Fitzgerald inquiry. I played a part in those events.

One of the memories that stays with me from that time is the mixed role the media played – exposing corruption, to be sure, helping to create the pressure that resulted in the setting up of the inquiry.

Yet also, all too often, being too close to the corrupt and those who helped them. The Courier Mail likes to remember Phil Dickie, its Gold Walkley Award winning reporter whose stories played a positive role in setting up Fitzgerald.

But the paper and its Sunday stablemate have buried the memories of other stories that ran, based in dubious police sources, attacking the way Fitzgerald dealt with witnesses, the amount Fitzgerald was paid, or suggesting that the inquiry was compromised.

We have to hope that one day something like the full story of what is going on in Victoria will come out. It won’t stop with the police force. It will, doubtless, extend upward and downwards from there, into the industries that can be used to launder money, and up to those who should have acted, but can’t, perhaps because their own house is in such tatty order.

If that story is ever told, the media will be part of the narrative. The Australian thinks it will emerge as hero. Certainly that paper has in the past added to the pressure for proper investigation and better scrutiny, and it deserves credit for that.

But will it be a hero of the current narrative?

I think not.

Hedley Thomas responds:

Margaret

Your reporting today is significantly and factually and demonstrably wrong and I seek your urgent advice on how you are going to correct it and apologise. In the meantime, I request that you immediately remove your piece from the website, and that Crikey sends out an email that it is being reviewed because of concerns over its facts.

I am not saying this lightly – you have made easily established factual errors.

I cannot change your opinions – and I accept that you are perfectly entitled to them – but the facts speak for themselves and they require urgent rectification because they suggest that I am being slippery with the truth as part of an ugly and dishonest agenda.

That is grossly unfair and a slur on me and my professionalism. Any examination of what you have reported would show that you have overlooked obvious facts to write something that I feel is malicious. This is disappointing on both a personal and professional level.

I’ll set out your obvious significant errors here. Because of your errors, you cannot support your claims including that “the final result is something warped and dangerous in journalism”. I am very upset about this Margaret and I believe that after you have reviewed the very basic mistakes you have made you should apologise publicly and withdraw your claims.

It is not fair, whether in comment or reporting, if it is based on an entirely false set of premises.

1. You say:

The first thing is that there is nothing new here. As Thomas himself points in the story (if you burrow into it) all this has been written before at the time of the OPI investigation into Operation Briars. Melissa Fyfe of The Age was writing about it last year. There is nothing in Thomas’s story that Fyfe did not write. The Australian’s case rests on the assertion that the story was underplayed.

Factual position: You don’t have to ‘burrow into it’. Unusually, the feature article on Wednesday – How Overland dodged a bullet – leads off with an account of The Age’s story by Melissa Fyfe.

What the feature reports, critically, is that The Age ‘missed’ the key angle in the affidavit – the motivation of Mr Overland.

Margaret, you have reported ‘there is nothing new here…there is nothing in Thomas’s story that Fyfe did not write’. That is completely wrong in fact. Melissa’s article is readily available. Mine is readily available.

Please show me where Melissa reports that Simon Overland took the action that he did – to media-manage a threatened story about himself from going on 3AW. You will not find it in her stories, because she did not report it. The Age will not try to claim that she reported this, because she didn’t.

Please show me where any media has written the angle about Mr Overland wanting to media-manage the 3AW Fontainebleau leak, which is the new angle in The Australian.

Your false reporting requires correction and retraction.

As I reported in that feature, ‘For reasons that are inexplicable, The Age’s article omitted the most extraordinary facts that were in Overland’s affidavit’.

2. You say: But the way Thomas writes the story, key pieces of information have gone missing. For example, the fact that Linnell already knew the details of Operation Briars before Overland approached him with the concerns over the French management course issue.

Factual position: This is false Margaret. This is the paragraph from the feature on Wednesday that you have overlooked, or chosen to disregard to support the proposition that you are making.

Linnell was already aware of the objectives of Operation Briars because he was a member of an advisory group, and he was preparing advice on a media strategy for when the operation went public.

Margaret, you can see from the preceding paragraphs in the feature – headlined ‘How Overland dodged a bullet’ – that the paragraph I have inserted above is in its proper context, and it is at the time of the disclosure from Simon Overland to Linnell. How can you support your claim that this key piece of information – that Linnell already knew the details of Operation Briars – has “gone missing”?

Your statement of fact is wrong and it is damaging because you are suggesting that it is a deliberate omission, which would be highly unprofessional and unethical. It requires apology and clarification please, urgently.

3. You say of Ashby and Mullett: “They are giving him (Hedley), and he is accepting, a heavily skewed account.”

Margaret, it is extremely damaging to me that you report that I am accepting only what they say. The evidence – and we are talking this week about Simon Overland’s own evidence in his affidavit – speaks for itself. Has he skewed his evidence that he disclosed this?

I cannot understand, particularly given your background in Queensland, why you would be so willingly accepting of the official line here, given that you do not appear to be across the actual evidence.

4. Your point about Ashby and Linnell sitting down and looking at the screen, etc. To be honest, I’m not sure what point you’re trying to make. This occurs after the Fontainebleau rumour has come back to Linnell via Overland’s request. What are you suggesting?

5. You say it is wrong to suggest that Overland’s disclosure led to the murder investigation collapsing. Margaret, you need to read the OPI’s report / findings and evidence because the chain of events is clear. The OPI found that Lalor was warned to be careful by Rix, who was told to issue the warning by Mullett, who was warned of this by Ashby, who had received a warning from Linnell, who was concerned about Mullett’s phone being off as a result of the disclosure by Overland.

The chain was started by Overland – he conceded it himself on radio yesterday: Overland to Linnell to Ashby to Mullett to Rix to Lalor. Your assertion is wrong and you are contradicted by the OPI report.

6. The selective quoting, in your grossly inaccurate article that tries to take me to task on the basis that I am selectively using information, reflects poorly on your professionalism.

Here is another example – in your article, you say that my colleague Cameron Stewart’s previous depiction of Mullett as anti-reformist and so on is accurate, and you go on to say that it is a depiction that I have conveniently left out. I agree it is accurate. You are mistaken when you say: ‘But now that balanced view of Mullett is missing from The Australian’s reporting’.

Here is what I reported about Mullett in the feature, ‘Tough Mullett Takes Aim’.

Direct Extract from my piece on May 8 2010:

Mullett had become an increasingly difficult key stakeholder for the three critical points in a triangular relationship. As a relentless union boss he kept demanding more from the Brumby government. Mullett railed publicly against the reform agenda of Nixon. And Mullett ridiculed the police watchdog, the OPI, newly created as a safeguard against police corruption.

Many police respected and supported him. They had achieved remarkable windfalls attributed to strong advocacy by the former noted detective, who had two valour awards and a reputation as a fierce catcher of criminals. But to the government, Nixon and the OPI, Mullett was a destabilising and uncontrollable menace. This trinity would be better off without the antagonistic bomb-thrower.

Margaret, when you have not understood or even read the contemporary articles that are freely available on The Australian’s web site, which you are determined to critique, how can we have confidence that you understand the underpinning evidence that runs to hundreds of pages from 2007?

Cheers

Hedley

Hedley Thomas
National Chief Correspondent
The Australian & The Weekend Australian

Peter Fray

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