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Speech: Select Committee on Damage, Harm or Adverse Outcomes Resulting From ICAC Investigations

The Hon. T.A. FRANKS (20:20): I rise to speak to the report of the Select Committee on Damage, Harm or Adverse Outcomes Resulting From ICAC Investigations and, in doing so, I draw the attention of members of the council and members of the public to recommendation 8.6:

The Committee recommends that a report be made to the Legislative Council to consider, including but not limited to, Parliamentary Privilege and ICAC, and its view that the actions, or inaction, of any witnesses were unsatisfactory in terms of the Committee discharging the functions assigned by the Legislative Council. The Committee also recommends that the Legislative Council consider appropriate resourcing to assist Committees when inquiring into complex matters.

I will not go through all the inquiries undertaken by ICAC that led to harm and adverse outcomes, as I think the Hon. Frank Pangallo certainly has covered the field, and the report, which is far more extensive, will make interesting reading for all members of this parliament. But I do wish to start by noting my concern about the evidence we heard about the Recruit 313 investigation.

In early 2017, a complaint was made to the OPI alleging corrupt processes undertaken by a number of senior police officers as part of a SAPOL recruitment project that aimed to recruit upwards of 313 sworn police officers in 2016; indeed, it was under the Weatherill government. One of the officers investigated, Chief Superintendent Doug Barr, was not officially made aware of the corruption investigation but had become aware of 'rumours'. A brief was referred to the DPP in regard to the allegations of corruption, and the DPP did not recommend prosecuting charges of corruption. Further investigation was undertaken in 2018 regarding whether the same facts satisfied the criteria of misconduct and maladministration.

Chief Superintendent Barr was one of the 27 witnesses examined by the ICAC, giving evidence in June and July 2019 in regard to the allegations of maladministration or misconduct in regard to that Recruit 313 program. After giving evidence, Chief Superintendent Barr was told by Commissioner Lander, then commissioner of ICAC, that he would receive draft findings in two to three weeks. More than three months later, without having received the completed draft findings, Chief Superintendent Barr took his own life.

The committee found that ultimately no formal findings of maladministration against Chief Superintendent Barr were made. The committee heard from some witnesses involved in that investigation or privy to information about that investigation, including Mrs Debbie Barr; Mr Christopher Barr; the former ICAC commissioner, the Hon. Bruce Lander QC; the current police commissioner, Grant Stevens; and the President of the Police Association of South Australia, Mark Carroll.

The committee's concern was quite piqued by this investigation that went beyond disregard for principled investigations to the point of callous. The committee heard from Mrs Barr, the widow of Chief Superintendent Doug Barr, who had taken his life, that she attended the hospital after her husband undertook the acts that ultimately ended his life and, when she returned from the hospital, she discovered that their house was a mess, all the drawers had been opened, and she told our committee that she thought she had been robbed. She would have continued to think this but for two SAPOL field receipts that were left on the bench, itemising what had been seized.

After the family had left with the ambulance, she discovered that their home had been searched by SAPOL for almost three hours. As the Hon. Frank Pangallo noted, that was revealed through the internal CCTV cameras that they had for security in their home. She told the committee that SAPOL had executed a general search warrant and seized the transcript of his ICAC examination, the drafts of his defence material, his work laptop and mobile phone, his personal laptop and mobile phone, several personal USB memory sticks, and several notebooks.

They had also taken all of the badges from his police hats and the decorative gorget patches from his SAPOL shirts, and much of his work equipment and uniform. Understandably, she told our committee that she felt quite violated and that this was happening to them made it even worse on what was the worst day of their lives.

Commissioner Stevens told our committee that when he was advised of the removal of Chief Inspector Barr's uniform and accoutrements being seized, he took steps to ensure that they were returned, and told the committee that he was unsure why they had been seized. He was attending the hospital and was known as a family friend, and that is what he told Mrs Barr at that time. According to Mrs Barr, some items seized have never been returned.

In terms of the committee's understanding of what happened that night, we heard from Mrs Barr that after her husband attended the examination by ICAC he returned in shock and was despondent. He told her that multiple allegations were put to him that were unexpected and he was unable to prepare for. It was the first time he had told her—in her evidence to us—that he was aware of the full extent of the investigation. She told our committee that at the end of the examination he was told by Commissioner Lander that the draft findings would be given to him in that quoted two to three weeks. It took 13 weeks for the draft findings to be finalised, and then they did not arrive before Chief Superintendent Barr took his own life.

He died, we believe, terrified that his reputation would be forever tarnished by the publication of a report about findings that for several years he could not disclose to anyone. Former Commissioner Lander told the committee that Chief Superintendent Barr was never notified of the start of the corruption investigation and therefore was not able to be notified of it being closed. Former Commissioner Lander put to the committee that Chief Superintendent Barr was only ever formally notified of the maladministration and misconduct investigation into Recruit 313. Mr Lander further told the committee that he was unaware that Chief Superintendent Barr knew about the earlier closed investigation until after his death.

Commissioner Lander told the committee that he should not have known about the earlier investigation and that other officers in the investigation must have advised him of the earlier investigation. The committee was incredibly concerned about the impact that the secrecy provisions have had on witnesses before our committee, but particularly the Barr family who lost their husband and father as a result of those very provisions.

The family told the committee that they had formally written to Commissioner Vanstone, the new ICAC commissioner, to seek permission to speak to a member of parliament about the harm that had been caused to them during that ICAC investigation. The committee was quite concerned, and I think most members of the public would be horrified to learn that the family received a response in writing from the current ICAC commissioner saying that permission was not granted, even though it was acknowledged that the investigation had actually concluded.

The committee welcomed the view of the current police commissioner, who told the committee that it would have been advantageous from a health, safety and wellbeing perspective if SAPOL members the subject of ICAC investigations were able to disclose to their supervisor or manager and the employee assistance service to assist in welfare management.

The committee notes, of course, that the recent changes to the ICAC Act now address some of those very concerns. They do enable people to take a matter to their member of parliament. They do provide some protections for people adversely impacted, and they do indeed now allow people to seek and get the supports they need to stay alive.

When it came to current Commissioner Grant Stevens' evidence on this matter, I raise with the council tonight, as the report does, some concerns with regard to a question that I posed on 24 September in one of two appearances by the current police commissioner: what point, if ever, were you informed that Mr Barr had been the subject of an ICAC investigation of some length and indeed that that may well have caused his death, in terms of death by suicide and the mental health stresses that that no doubt had? Also, we have heard in the media reports that there were rumours, and one imagines that those rumours were in the workplace. How do you manage that as the police commissioner, if we are in a situation where these issues [these secret ICAC investigations] can't be discussed?

The Hon. Frank Pangallo also asked the current police commissioner, with regard to Recruit 313 and Doug Barr, 'Were you aware of the ongoing investigation at the time?' To both of those questions, which were taken on notice by Grant Stevens, the current police commissioner, he replied:

SAPOL received a written report from the ICAC in December 2020 in relation to the Recruit 313 program, including information relative to Chief Superintendent Barr.

However, on the very same day, our committee received evidence from former Commissioner Lander and a tabled letter that was dated 15 August 2018 addressed to Commissioner Stevens. That letter from Commissioner Lander advised Commissioner Stevens that the corruption investigation in regard to Chief Superintendent Barr was concluded and that he was opening a wider maladministration and misconduct investigation in regard to the Recruit 313 program.

It is inexplicable to the committee why the current police commissioner would evade answering this question candidly, creating further concerns. Indeed, it was the committee's mandate to conduct this inquiry, but it was frustrated not just by Commissioner Stevens but by many SAPOL witnesses, as the Hon. Frank Pangallo touched upon earlier this evening.

The Legislative Council, of course, has given our committee the power to send for persons, papers and records. Standing order 429 of this place, of this parliament, of this council, provides for witnesses to be summonsed to attend under the hand of the Clerk. However, pursuant to standing order 436, witnesses cannot be examined under oath. If a witness having been summonsed refuses to give evidence or gives false or misleading evidence—or gives false or misleading evidence—the committee can report such a matter to the council.

This stands in contrast to the questioning powers of other bodies, including ICAC, whose act makes failure to attend to give evidence and the giving of false or misleading information a criminal offence. Importantly, parliamentary privilege, reflected in our standing order 437, protects witnesses who give evidence to select committees. That evidence can be given in camera.

I note that when Commissioner Stevens appeared before our committee and was asked questions on the first of the two occasions, on 24 September this year, he noted that he had not been privy to any information about the Barr case. I note that he goes on further in response to questions to say on the record in that particular hearing:

The barriers within the ICAC legislation prevented people involved in that investigation from communicating to other people, so it is a reality that there could be police officers under the current framework who are the subject of these types of processes who aren't able to disclose to me as their employer or other members of SAPOL.

He went on to say that he needed to take questions on notice, with regard to how much he knew and what supports were given to Chief Superintendent Doug Barr. The commissioner at that point was asked whether or not SAPOL—and at this point this is two years after the death of former Chief Superintendent Barr. Two years after the death, the committee asked the current Commissioner of Police whether or not the Coroner's office had been provided with the SAPOL brief on this matter.

On 24 September, Commissioner Stevens said he believed that that was the case. However, he was happy to take it on notice because the Chair challenged this because we had heard from the family that this was not the case. Indeed, he did duly bring back some answers for us. I note that when current Commissioner Stevens was asked by the Hon. Frank Pangallo on 24 September the question: 'The day that Chief Superintendent Barr took his life—or attempted to take his life because he died five days later—why did the police raid his home?' Commissioner Stevens responded:

I will have to take that question on notice. There is a current open matter in relation to the Coroner's investigation, and I am not clear of the status of the ICAC proceedings either.

When the committee finally received that response, signed on 10 November, the answer was this:

On the day Chief Superintendent Barr attempted to take his life police were notified and attended to provide assistance to the family and to South Australia Ambulance Service. There was no 'raid' by police but it is a standard response that police are tasked to an incident where a person has attempted to take their own life. When the attending police officers were advised that Chief Superintendent Barr was gravely ill and that he was unlikely to survive, the officers commenced an investigation into the circumstances.

As Chief Superintendent Barr's death was anticipated—

I note this is five days before he actually died—

the officers in attendance commenced an investigation under Section 28 of the Coroners Act—

last time I looked, the Coroners Act comes in when you are actually dead—

which requires police officers upon being notified of a reportable death, to notify the Coroner of any information the police have or are given in relation to that death.

Not to that attempt to take one's life, not to that gravely ill person lying in a hospital bed for five days and his family, but indeed it is a reportable incident upon somebody actually dying by suicide. This answer continues:

Such investigations typically include the seizing of material from the scene relevant to the cause and circumstances of the death. Items were seized in that process…

Tell me how his police uniform caused his death? Tell me how those USBs, or indeed his notebooks, caused his death? Indeed, tell me how that part of the act was employed with that raid on the Barr family's home when the man was not even dead yet? Indeed, this was five days before his death. The police commissioner's answer of 10 November goes on to say 'which were later identified as not relevant and subsequently returned'.

What a cheery resolution that is. So when Commissioner Stevens told us, as he had been by the bedside in the hospital, that he had arranged for the items to be returned and that he would look into the circumstances of this matter, he then gave us an answer that is unlawful. This was not a reportable death at this point; it was five days before Chief Superintendent Barr actually died. I do not see how that raid and seizure was lawful, but I do look forward to further answers in the future from the current police commissioner.

Further questions were asked by the Chairperson on 24 September of Commissioner Stevens, returning to Chief Superintendent Barr. The Hon. Frank Pangallo states to the current police commissioner, Grant Stevens:

I imagine he was a close colleague of yours and you would have been shocked at what happened.

Commissioner Stevens says:

I had known Doug for a long time and he was a professional friend. We didn't have a relationship outside of work, and I was shocked and disappointed to hear about what happened to him.

The Chairperson of course said, as I have noted before:

Were you aware of the ongoing investigation at the time?

Commissioner Stevens replied to our committee at that point:

I have to take that question on notice. I'm not sure I am able to answer that.

Again, I will note that SAPOL—the statement on 8 November from the Commissioner of Police to our committee—then says:

SAPOL received a written report from the ICAC in December 2020 in relation to the Recruit 313 program, including information relative to Chief Superintendent Barr.

2020, and yet the committee received, on that very same day that we asked the question of Grant Stevens, Commissioner of Police, 24 September, a letter provided to our committee by the former commissioner for ICAC, the Hon. Bruce Lander QC, dated 15 August 2018.

That was sent directly to Commissioner Stevens with regard to ICAC investigation 2017/000076 and it explicitly—and it is in the committee's documents—advises with regard to the alleged conduct of Chief Superintendent Barr that the corruption investigation has now concluded and no person would be the subject of a prosecution arising from the matters identified in that investigation.

But it goes on further, where the Hon. Bruce Lander QC as Independent Commissioner Against Corruption goes on to say:

I have decided to exercise the powers of an inquiry agency to investigate potential issues of maladministration and misconduct in public administration which arise from or relate to the matters which were the subject of the corruption investigation. I am now conducting this investigation and will advise you of its outcome in due course.

It goes on to mention another investigation that is ongoing. So the police commissioner had known about these issues since 2018—one imagines some time prior to August 2018—and yet no supports were offered to Chief Superintendent Barr in his workplace. No-one was looking out for him, rumours were circulating and he went through years of that particular pain and mental stress.

On 24 September this year, the Commissioner of Police was asked by myself whether or not he was aware of these rumours circulating in the SAPOL workplace and he replied on 10 November that he was not aware of any such rumours referred to by the committee. Goodness, he would not need the rumours really, because he actually had firsthand letters from the former ICAC commissioner. So he did not have to rely on the rumours, although one would imagine it would not have taken too much scratching of the surface to realise the rumours were there.

Further evidence from 24 September where the Chairperson asks the current Commissioner Grant Stevens where the process of the SAPOL brief to the Coroner is up to. Now, this is on 24 September. The Chairperson had heard from the family that they had been ringing the Coroner, they were waiting for the SAPOL brief to be provided. Two years on from their beloved husband and father's death, they are still waiting for SAPOL to provide a brief—a brief that they seemed very keen five days before his death to start preparing, in anticipation of his death. Commissioner Stevens informed our committee on 24 September:

My advice is that the report is complete. As recently as two days ago, I was advised that the report was complete. I don't know the specific time—

Then we pressed, the Chairperson pressed:

Has it been submitted to the Coroner?

Commissioner Stevens said:

I can't answer that, but my understanding is—

and then the Chair offered for him to take it on notice to get a clearer answer and, indeed, the clearer answer was that it had not been provided to the Coroner at that point. Yet, that was not the impression given to the committee on that day and had we not put that question on notice for a formal answer, we would not have been provided with that report.

Indeed, the report was finally provided to the State Coroner on 29 September 2021, some five days after our committee hearing when we asked what was taking so long and why that brief to the Coroner's office had already taken two years. Imagine how much longer it may have taken had we not asked those questions.

Then we come to the second appearance of the current police commissioner of this state before this committee. It was a very different presentation. The commissioner turned up with senior counsel sat at the table and, indeed, legal advice that he had sought through SAPOL from Frances Nelson QC that said he really did not have to answer many of the questions that we were asking because they were beyond the committee's terms of reference, therefore he as the police commissioner did not have to comply with the questions raised by the committee.

Indeed, we had asked the police commissioner on that day, 12 November, to appear before us and answer many of the questions that had been concerning us about many of these matters, but I am only dealing with one right here, for two hours. The commissioner gave us one hour, little less than one hour in the end, and turned up with senior counsel and legal advice that said he did not have to answer most of our questions. Indeed, it was a very difficult and testing time.

I note that the Hon. Frank Pangallo has already touched on the previous presentation by Commissioner Grant Stevens where he provided evidence with regard to Operation Bandicoot which caused significant stresses, indeed medical treatment being required by current serving SAPOL officers as Grant Stevens, the current police commissioner, savaged them in our committee with a pre-prepared statement that assumed they were guilty, no matter what the courts had found, putting some of them in hospital, giving our committee a lecture about work health and safety—which, believe me, I will take with a large grain of salt and perhaps a report to SafeWorkSA—giving us a lecture but also giving the Police Association of South Australia a lecture.

I note Commissioner Stevens, who sent not one but actually two emails out to the full SAPOL force about his appearance and with his transcript and links to it at this committee, not satisfied with that, not satisfied with seeing an officer needing medical treatment, not satisfied with the stresses that he had already seen these Operation Bandicoot people put through, has also attacked the Police Association of South Australia. I note in the transcript at page 514, in the committee, Commissioner Stevens stated:

The committee has recently heard evidence downplaying the behaviour that was investigated by Operation Bandicoot simply as 'expressions of black humour'. Mr Mark Carroll's most recent evidence to the committee implied that comments of this nature are acceptable and widespread within the South Australia Police and should not raise any eyebrows.

I would not want this committee to think that his evidence represents the views of the entire membership of the Police Association of South Australia. I have been approached by many police officers, since my last appearance at the committee—

which is unsurprising, given he sent out two emails highlighting his last appearance at the committee—

who have expressed their opinion regarding the statements made and the behaviour of the Operation Mantle members and voiced their disappointment and view that it was totally unacceptable.

However, this was not the opinion of Mark Carroll, President of PASA. It was a portrayal of the evidence of Hayden, Abbott and Detective Paul Hunt—expert evidence. Indeed, I refer members of the council and members of the public reading this to transcript 492. The commissioner's statement, despite his claims to the contrary, also assumed the guilt of these members. After repeating some of the evidence that related to off-colour comments, the commissioner said:

The end does not justify the means. It would be very unfortunate if the committee were to make a finding which in some way condoned the practice of retaining seized property in this way.

If that is not an assumption of guilt, then I do not know what is. He has failed to grapple with the fact that these members were acquitted or the charges were withdrawn. He has also made the same mistake as the investigators and assumed that the off-colour comments, which evidence at one of the trials was shown to be samples of black humour, amounted to proof that the items were taken for personal use. This was not the case at all and it was the whole point of the trials.

Significantly, I note that this accusation about PASA's submission does take a very selective approach. I think it goes to the character of the current police commissioner's attitude to these cases and, indeed, to many in his workforce, and these poor people have definitely been put through the wringer.

The commissioner, when he came back on 12 November, as I say, lawyered up with senior counsel by his side, taking the legal advice of Frances Nelson QC that he did not have to answer most of our questions. Attacking the committee certainly did provide a bit of colour and spice for the nightly news. He did not like being corrected that he had actually sent two emails and not one, as he attempted to portray in his very well crafted and no doubt highly edited opening statement.

I note that he had no compassion and had not communicated with his officers, who had had such a terrible reaction to his emails condemning them in their workplace—opening that up after well over five years of being cast as criminals, not being found guilty by the courts but considered not worthy of support by their own commissioner.

I note that the commissioner did say that he would take some questions on notice and, as the Hon. Frank Pangallo noted, we are still waiting for some of those. But of those that he did, he continued to reply that he needed to get legal advice. He certainly seemed to be more anxious to support some of his workers than others, and he certainly did not disclose his own personal interest in the Recruit 313 matter. For those of you who want a bit more information about Recruit 313, you will remember that the Weatherill government had this program, and it is a worthy program that gets cadets and new officers into the force.

I draw your attention to The Advertiser article that used some of the quotes from widow Mrs Debbie Barr, and I alert members of this council and the public to that article regarding an SA Police employee who altered cadet applications to help the relative of a 'very senior officer'. The employee altered the spelling in the literacy and numeracy test of a family member of a 'very senior' member of SAPOL.

At no time in his evidence to our committee did Commissioner Grant Stevens ever say that he had a conflict of interest in the Recruit 313 process. He certainly lawyered up and he certainly took legal advice, and he certainly did not avail himself of the ability to move in camera to let the committee know that maybe he had a conflict of interest here.

It was quite clear to me, as a member of this committee, that the commissioner had a distinct conflict of interest, that the Recruit 313 investigation involved his family member, that his family member had misspelt some of the words and had had another police officer look out for his family member by attempting to correct the spelling. That process of Recruit 313 required an ATAR of 70, and that is why the literacy and numeracy test was so vital.

That process also was done through TAFE. TAFE SA provided the provisions for this testing. There was a fee attached to the testing that was waived for members' children and for boyfriends of children of senior brass of SAPOL. Those conflicts of interest were never disclosed to our committee—when you go to the point of having the fees waived for the kids of top brass when, goodness knows, they can afford to pay the $140 or so that it costs for the literacy and numeracy test, while countless South Australian young adults will struggle to scrape together that amount to do this test to get into the force.

Not only were these children of the top brass given special treatment but they were given a special day on which to do the test. Current commissioner Grant Stevens had a family member who had their spelling corrected—albeit, I think unsuccessfully because I think the officer who attempted to correct the spelling still did not get the words right, but that is simply hearsay—yet never once did he disclose that conflict of interest to our committee. Never once, to our committee, did he say why he needed not just senior counsel of SAPOL but Frances Nelson QC to give him legal advice to present to our committee.

Not once did he indicate that he had known of this for years, and it would be unsurprising, given it involved one of his family members. Of course he knew about this, yet on that second appearance he had the ability and clarity of parliamentary privilege. He did not avail himself of the changes in the new ICAC Act to provide that information to our committee. He did not honestly present to our committee. Indeed, I draw members' attention back to that recommendation about those witnesses who did not comply with the work of this committee and the standards we expect of our statutory officers in this state.

I could actually go on and on. I know the Hon. Frank Pangallo did an hour. Members might think that was a long time, but you only just scraped the surface of it, the Hon. Frank Pangallo. I want to simply concentrate on that particular case because to me it sums up every reason why the work of this committee was so important, why this parliament should be calling to account the police commissioner of this state and asking him why he did not provide honest and truthful evidence and declare his conflict of interest to our committee as we undertook this inquiry.

There is a recommendation that we follow some parliamentary processes as a result of this report. I urge members of this council to take this seriously. If we turn away, turn a blind eye to something that should be taken very seriously that is clearly a conflict of interest, that was clearly not declared, and if we in this parliament do not take this matter seriously the standards that we set are not high enough, to paraphrase the current commissioner, Grant Stevens, in his evidence to our committee.

I also note a few things. In some other jurisdictions, memorandums of understanding exist around parliamentary privilege and what can and cannot be done both with the execution of search warrants and outlining the rules of engagement. There has been a lot made of parliamentary privilege and the accusation that it is perhaps a shield for parliamentarians to hide behind. I know that all members of this council saw the clarification of the role of parliamentary privilege as a protection to our constituents and a furtherance of free debate and the rule of law.

I seek leave to table the Memorandum of Understanding on the Execution of Search Warrants in the Premises of Members of the New South Wales Parliament between the Commissioner of Police, the President of the Legislative Council and the Speaker of the Legislative Assembly. As a tabled document, I think this will be a reference for that work that I hope will continue beyond this report.

Leave granted.

The Hon. T.A. FRANKS: As I say, I could go on and on. The other thing that I want members of this council and the public to understand—which I was absolutely gobsmacked by—is that when we spoke to the previous reviewer, John Sulan, we discovered that he had no power to compel in his reviews of the work of ICAC. He had little power to ensure anything other than perhaps a request for an apology. The only time he actually requested an apology, that we are aware of, it was refused.

The man works one day a week with a secretary and does not want the job of inspector, which we have now agreed to as a parliament. In the recommendations of this report, an inspector will take on the burden, in an independent way, of some of the recommendations in this report to ensure that the ICAC that we have is not the ICAC that South Australia really needs, that it is an ICAC that does not harm people, that does not perpetuate the purported guilt of innocent people and is able to be scrutinised to the standard that we would expect of all of our institutions.

Certainly, he is a reviewer one day a week, with a secretary, who has retired. He was a lovely man and he wished us well with our work, but he said that he would not be interested in the job because he is now retired. I look forward to an inspector taking on many of the recommendations in this report, but some of the work is for this parliament and this council. To hold to account our statutory officers, no matter who they are, to deliver and perform at the highest standards and within the lawful requirements of the roles should be a priority of this council going forward.

It is inconceivable that the current police commissioner did not know that Doug Barr was before the ICAC. He had been written to about it. It is inexplicable that he did not provide supports to Chief Superintendent Doug Barr for his mental health, as he went through this, which may well have prevented his death by suicide. It is extraordinary that it took two years to finally prepare a file for the Coroners Court for this grieving family to know that that process may well give them some closure and answers. They will never get their father and husband back. They probably will not even get an apology under the current situation.

Certainly, for them to be told that they need permission to talk to their member of parliament, to ask them to represent them, which was one of the imperatives for this committee's work, is just beyond belief when their husband has died at the hands of ICAC and they are wondering where the report to the Coroner is.

The issues go far broader than this one case, but for me I think that case sums up the importance of this committee's work and also that we have far more work to do and the role that that inspector, that will be appointed by parliament, will need to take. There is some heavy lifting to do in this state if we are to have things like a memorandum of understanding around parliamentary privilege and things like an ICAC that does not unduly harm people and cause their death. I commend the report.

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