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.
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.