Secret tape in WA defamation trial publicly released

Recording captures property developer discussing ministers and sand mining deal

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A secret recording at the centre of a long-running defamation trial involving Western Australian politicians, businessmen and former journalists has been publicly released after a judge accepted it into evidence. The tape captures property developer Greg Poland advising businessman Aaron Grainger on how to obtain a Myalup sand mining operation in exchange for helping the state government dispose of contaminated soil from a Metronet project.

The recording, made covertly at a meeting in Perth's Subiaco Hotel in 2019, has been played in court multiple times but was released to the public on Wednesday by Justice Matthew Howard. Poland is suing former journalists from this masthead over two stories based on the tape.

On the audio, Poland can be heard suggesting then-Transport Minister Rita Saffioti and former Regional Development Minister Alannah MacTiernan had asked him to find a solution for dumping between two and eight million tonnes of "toxic" soil from the Forrestfield Airport Link redevelopment. He also says that doing a favour for either minister would mean they would "just steamroll anything through".

In a separate discussion, Poland claimed credit for the state government's lobster plan but said then-Fisheries Minister Dave Kelly had "f---ed it up". "I don't like the way they took the idea and changed it, so the government owned the licences," he told the court earlier in the year. All three former ministers have testified that Poland did not have the full influence he claimed.

Much of the trial has focused on whether the recording, taken without Poland's knowledge, should be admissible under the Surveillance Devices Act. Poland's lawyer, Martin Bennett, argued the meeting was held in private and that Poland had invoked Chatham House rule, which he claimed was "legally binding and means what you say here cannot be used". The defence argued the meeting was in a public place with others present, and that the rule does not carry that meaning.

The trial has heard from a string of witnesses, including federal Liberal MP Andrew Hastie, who admitted he passed the recording to journalist Nathan Hondros. The final two witnesses were called on Wednesday: Hastie's former media adviser David Birch and former WA Liberal leader Zak Kirkup. Kirkup said he had been sent the audio but had not listened to it, and denied that frequent calls with Hastie and Hondros involved discussing the recording for political benefit.

Both parties will present closing submissions in the coming days before Justice Howard delivers his decision.

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Analysis

Why This Matters

  • The recording's release exposes, in the words of a property developer, claims of influence over senior WA government ministers, and will be scrutinised by the public.
  • The judge's decision on whether the covert recording breached the Surveillance Devices Act could set a precedent for how secretly obtained audio is treated in defamation cases.
  • The trial tests the balance between protecting private conversations and allowing the press to defend reporting based on leaked material.

Background

The case stems from a 2019 meeting at the Subiaco Hotel, recorded without Greg Poland's knowledge, which formed the basis of two news articles. Poland has denied the influence he appears to claim on the tape, and all three ministers named have testified that he overstated his role. The trial has drawn in federal and state political figures, including MP Andrew Hastie, who acknowledged passing the recording to a journalist.

Key Perspectives

Greg Poland and his lawyer: The meeting was private, the recording was unlawful, and Chatham House rule should prevent its use in court.

The former journalists (defence): The meeting took place in a public venue, the rule is not legally binding, and the recording was rightly admitted as evidence.

The ministers involved: Rita Saffioti, Alannah MacTiernan and Dave Kelly have each testified that Poland did not have the influence he claimed on the tape.

Zak Kirkup: The former WA Liberal leader says he received the audio but never listened to it, and denies the calls around publication were about its political value.

What to Watch

  • Closing submissions are due in the coming days, after which Justice Howard will consider his decision.
  • The judge's ruling on whether the recording breached the Surveillance Devices Act could affect whether it remains publicly available.
  • Any finding on the accuracy of the articles will determine the outcome of the defamation case and potentially its costs.

Sources

Checked

9 claims in this story checked against 1 source: 8 supported.

Show each claim
  1. SupportedThe secret recording at the centre of the defamation trial was publicly released after a judge accepted it into evidence.Sydney Morning Herald - Latest News: “he ultimately accepted the recording into evidence, and publicly released it on Wednesday.”
  2. SupportedThe recording captures developer Greg Poland advising Aaron Grainger on a way to obtain a Myalup sand mining operation in exchange for giving the state government somewhere to dump soil.Sydney Morning Herald - Latest News: “Poland can be heard offering advice to a businessman named Aaron Grainger on a way to obtain a Myalup sand mining operation, in exchange for giving the state government a place to dump between two and eight million tonnes of “toxic” soil”
  3. SupportedThe recording was made covertly at a meeting at the Subiaco Hotel in 2019.Sydney Morning Herald - Latest News: “a covert recording of a meeting held at the Subiaco Hotel back in 2019.”
  4. SupportedPoland can be heard suggesting Rita Saffioti and Alannah MacTiernan had asked him to find a solution for soil from the Forrestfield Airport Link redevelopment.Sydney Morning Herald - Latest News: “Poland can be heard suggesting then-Transport Minister Rita Saffioti, and former Regional Development Minister Alannah MacTiernan, had asked him to find a solution to the problem regarding the disposal of that soil from the Forrestfield Airport Link redevelopment.”
  5. SupportedThe soil discussed in the recording amounted to between two and eight million tonnes.Sydney Morning Herald - Latest News: “a place to dump between two and eight million tonnes of “toxic” soil”
  6. SupportedPoland said doing a favour for either minister would mean they would “just steamroll anything through”.Sydney Morning Herald - Latest News: “He also suggests that if you do a favour for either minister, they would “just steamroll anything through”.”
  7. SupportedPoland claimed credit for the state government's lobster plan and said Dave Kelly had “f---ed it up”.Sydney Morning Herald - Latest News: “Poland also claimed credit for the state government’s lobster plan, but said then-Fisheries Minister Dave Kelly had “f---ed it up”.”
  8. SupportedPoland told the court earlier in the year: “I don’t like the way they took the idea and changed it, so the government owned the licences,”Sydney Morning Herald - Latest News: ““I don’t like the way they took the idea and changed it, so the government owned the licences,” Poland told the court during the trial earlier in the year.”
  9. Partly supportedKirkup denied that frequent calls with Hastie and Hondros involved discussing the recording for political benefit.Sydney Morning Herald - Latest News: “Bennett suggested Kirkup was “discussing the recording with Andrew Hastie because it was of political benefit if there was a secret deal with Labor Party ministers” – a suggestion that was denied.”

Zotpaper

Written by Rex Doyle on the Australia & local desk. Claims checked by Ines Fairley, verification. Read for legal risk by Marcus Hale, legal. Edited by Angus Burke, chief sub.

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