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Report Details


Committee Name:

Procedure and Privileges Committee (Council)

House:

Legislative Council
Report Type:Report

Title:

A Matter of Privilege raised by Hon Sue Ellery MLC
Report No:44
No of Pages:167
Physical Location:Legislative Council Committee Office

Presentation Date:

11/08/2016
Related Report(s):Report No 38 - Referral of a Matter of Privilege raised by Hon Sue Ellery MLC - Terms of Reference (24 Mar 2016)
Inquiry Name(s):Referral of a Matter of Privilege raised by Hon Sue Ellery MLC


Click here to view the report


Executive summary

1 The Committee has found that both Mr Stephen Home and Ms Rachael Turnseck have committed contempts of the Legislative Council. The contempts in question were the conduct by each of them in deliberately constructing an incomplete, misleading and ultimately false answer to a parliamentary question. This conduct is a substantial interference with the parliament’s information gathering and accountability functions. The facts supporting these findings are set out in this report. The available evidence does not support a finding of contempt or breach of privilege against any other natural person.

2 In relation to the Corruption and Crime Commission (“the CCC”), the Committee acknowledges that in the absence of the CCC investigation, it would have been unlikely that the evidence supporting the Committee’s findings of contempt against Mr Home and Ms Turnseck would have come to light. This evidence included draft answers to a parliamentary question prepared by Mr Home with the assistance of Ms Turnseck for the consideration and approval of the Premier and the Leader of the Government in the Legislative Council. The sole purpose of these activities was so that an answer to the question could be provided in the Legislative Council. The Committee has found that the draft answers to the parliamentary questions and associated emails were proceedings in parliament.

3 The CCC used the draft answers to the parliamentary question and associated emails to form an opinion of misconduct against Ms Turnseck by reason of her failure to adhere to the required standards of behaviour of a public officer. This outcome provides a stark reminder to all public officers involved in the drafting of answers to parliamentary questions of their obligations of honesty, fairness and impartiality in the discharge of their duties as well as the dire consequences of departing from those principles of conduct.

4 Article 9 of the Bill of Rights 1688 (UK) states that: “The freedom of speech and debates or proceedings in Parliament ought not be impeached or questioned in any court or place out of Parliament.” The immunity afforded by Article 9 is provided to the Houses of Parliament, its Members and others involved in parliamentary proceedings. Article 9 is part of the law of this State. The Committee has found that the CCC has breached this essential immunity by its use of parliamentary proceedings and in doing so intruded into an area of the Parliament’s exclusive jurisdiction. The Committee cannot overstate the importance of the immunity provided under Article 9 as a bulwark against oppression of the Legislature by the Executive and Judicial arms of government. This remains the raison d’etre of the continuing relevance of a 330 year old UK statute to our parliamentary democracy.

5 On occasion, the demarcation of the jurisdictions of the Parliament and of investigative bodies such as the CCC may be difficult to discern. It is not always a bright line of separation. However, in this instance, there was such a clear bright line. The evidence relied on by the CCC to form its adverse opinion about Ms Turnseck’s conduct was so closely and directly connected to actions occurring in the Legislative Council as to make it obvious that this evidence constituted a proceeding in Parliament. The Committee would have expected the CCC to have known that using such materials to form an opinion on the conduct of a public officer in these circumstances would breach the immunity provided by Article 9.

6 By adopting the findings and recommendations of this Committee and enforcing any related orders, the Legislative Council will remind all those involved in parliamentary proceedings to conduct themselves with honesty, fairness and impartiality when carrying out their official duties. This task falls squarely within the exclusive jurisdiction of the Houses of Parliament. The CCC has no concurrent or ‘shared’ jurisdiction with the Parliament to investigate and pursue matters of this nature.

7 The Legislative Council, as in the past, will welcome any assistance that the CCC may provide to enable the House to determine whether a contempt or breach of its privileges has occurred. However, the CCC is not empowered by its statute to intrude upon the privileges of the Legislative Council. The Houses of Parliament, when first enacting the Corruption and Crime Commission Act 2003 and recent amendments made to it by the Corruption and Crime Commission Amendment (Misconduct) Act 2014 were careful to ensure that Parliamentary Privilege was expressly preserved. Section 3(2) of the Corruption, Crime and Misconduct Act 2003 is a clear expression of both the Parliament’s will and the law of this State in this regard.

8 Due deference is essential to avoid unnecessary conflict between the three arms of government. It is precisely for this reason that Article 9 of the Bill of Rights 1688 (UK) has been consistently asserted by Westminster based Parliaments, and observed by the Courts, quasi-judicial bodies, Royal Commissions, tribunals and other corruption bodies all of which fall within the meaning of a “court or place out of Parliament”. The potential for conflict to occur in this instance would have been eliminated if the CCC had complied with the exclusionary rule that applies to evidence of proceedings in Parliament under Article 9. Doing so would have required the CCC to decline to form an opinion regarding the conduct of Ms Turnseck in relation to Legislative Council Question without notice C 192 (No. 176), and to refer the matter of her conduct together with any evidence it had obtained to the Legislative Council. This would have been consistent with previous action by the CCC where the activities of individuals involved possible contempts or breaches of the privileges of the Legislative Council.

9 The Committee is concerned by the decision of the Commissioner of the CCC to provide this part of the CCC report to the Premier rather than to the Parliament. If it were not for the actions of the Premier in making the CCC report public by tabling it in the Legislative Assembly on 16 March 2016, the Legislative Council would have remained unaware of the possible contempts committed against it. This aspect of the CCC report was not a matter solely for the Premier as the Minister responsible for the Department of Premier and Cabinet and the employer of Mr Home and Ms Turnseck. It was a matter that concerned the integrity of Question Time, one of the important mechanisms of the Legislature for obtaining information from the Executive and bringing it to account as an incidence of democratic governance in Western Australia. It was therefore also a matter that the Commissioner should have brought to the attention of the Legislative Council.

10 The Committee therefore strongly disagrees with the view expressed by the CCC in its report that there is no particular public interest in a report to Parliament on the conduct of Ms Turnseck when this conduct resulted in an incomplete, misleading and ultimately false answer to a parliamentary question being provided to the Legislative Council. Where such conduct directly affects the integrity of a parliamentary proceeding, the CCC should advise the relevant House of the Legislature and, where practicable, provide it with all relevant evidence that it has obtained. This will enable the relevant House to deal with the matter under its inquiry and contempt powers as it has done in this particular case.

11 Notwithstanding the breach by the CCC of one of the Legislative Council’s important and necessary immunities, the Committee has found that, on this particular occasion, the actions of the CCC did not substantially obstruct the Council, its committees, Members or others involved in parliamentary proceedings in the performance of their functions or have a tendency to do so. The actions by the CCC in assisting the Committee with its inquiry have had a contrary effect to obstruction and its findings of fact relating to Ms Turnseck accord with those of this Committee. However, the Committee notes that the immunity provided by Article 9 of the Bill of Rights 1688 (UK) is absolute and it is irrelevant whether or not the opinion formed or findings of fact made by the CCC accord with that of this Committee or the Legislative Council. The Committee is of the view that the CCC investigation of this matter should not be treated as a precedent. The transgression by the CCC of parliamentary privilege must be avoided in all future investigations by that body.