Resumed from 28 November 2017.
[Speeches and comments from various members]
HON ALISON XAMON (North Metropolitan) [8.52 pm]: I rise as the lead speaker on behalf of the Greens. I have quite a bit to say about the Corruption, Crime and Misconduct Amendment Bill 2017. As has already been alluded to by previous speakers, I do of course have an amendment on the notice paper as well. This bill is a pretty simple bill on the face of it. It inserts one word—“exclusively”. It is intended that the act, when amended, will state —
Nothing in this Act affects, or is intended to affect, the operation of the Parliamentary Privileges Act 1891 or the Parliamentary Papers Act 1891 and a power, right or function conferred under this Act is not to be exercised if, or to the extent, that the exercise would relate to a matter determinable exclusively by a House of Parliament.
Members would think that would make it a fairly innocuous change but I would maintain that it is quite significant. This bill is highlighting the tension between the expectation—I think a fair expectation—that crime and corruption can be investigated and, where appropriate, prosecuted, but also parliamentary privilege.
I listened intently to the comments of the previous speaker who I think well enunciated how important the principle of parliamentary privilege is. It aims to ensure that the representatives of the people—us—are not impeded in carrying out their duties. Much reference has been made to this excellent report, the forty-eight report of the Standing Committee on Procedure and Privileges, into the Corruption, Crime and Misconduct Amendment Bill 2017. I agree with the previous speaker that this report is well worth keeping on the shelf as a reference point to come back to over and over. The work that has been put into it is excellent. It does actually make for a very interesting read. One of the quotes that came out of the report that I was particularly enamoured with was the description by the Speaker in 1642 when talking about parliamentary privilege. I refer to what the Speaker told King Charles I in 1642, when the King and his soldiers came to Parliament to arrest five members for treason. He said, “I have neither eyes to see, nor tongue to speak but as this House is pleased to direct me.” I do not know why but I really loved that! I thought that was most eloquent. I think we should be speaking like that more often in this place. But I digress.
Hon Michael Mischin: I will do my best!
Hon ALISON XAMON: In any event, going back to the inherent tension in this bill, we need to ensure we are uncovering corruption where it occurs at the same time as ensuring we are not inadvertently doing anything to lessen the importance of democracy. As it says in the report, there is no answer and no answer is perfect.
Quite a lot has been said about how we got to this point. Referring to the 2014 version of the bill, I was not in the Parliament in 2014 so I was not part of that debate but I have looked at what was said at the time. I note that the Corruption and Crime Commission Amendment (Misconduct) Act 2014 removed the word “exclusively” from section 3(2), thus ousting the CCC’s jurisdiction where parliamentary privilege applied. There has been some suggestion that this ousting was inadvertent, but going by Hansard this is clearly incorrect. That was made clear in the speeches by then Attorney General Hon Michael Mischin as well as the speeches of Hon Adele Farina and my former colleague Hon Lynn MacLaren, who had carriage of the bill on behalf of the Greens. I note that the 2014 amendments also transferred minor misconduct away from the CCC, so consequently sections 27A and 27B were repealed because they were now redundant.
I want to make some comments about what has happened in at least one other state. It is pertinent in terms of learning the lessons of how things can get quite complicated in this space. I specifically note section 122(1) of New South Wales’ Independent Commission Against Corruption Act, which states —
Nothing in this Act shall be taken to affect the rights and privileges of Parliament in relation to the freedom of speech, and debates and proceedings, in Parliament.
Yet in 2003 there was a dispute between Parliament and ICAC, after ICAC seized documents under a search warrant from an MP’s office at Parliament House. The privileges committee confirmed that ICAC could investigate MPs but noted that was subject to section 122, which is also derived from article 9 of the Bill of Rights 1689, which is exactly what we are using. The committee resolved that article 9 is based on the need for Parliament to function effectively, otherwise MPs would be severely hampered in their ability to carry out their parliamentary duties, and the houses would be unable to properly scrutinise the actions of the executive. The committee at that point also resolved that representative democracy can flourish only when citizens can feel confident that they can communicate freely with a member of Parliament and in the knowledge that the actions of members in the conduct of their proceedings in Parliament will go unchallenged by outside interference or intimidation. The committee further went on to resolve that proceedings in Parliament will inevitably be hindered, impaired or impeded if documents forming part of the proceedings in Parliament are going to be vulnerable to compulsory seizure. Such documents were considered to be immune. The next step was to identify which of the seized documents related to the proceedings in Parliament because they needed to identify which documents were immune and which were not. In this instance, the procedure that was adopted was that the seized material had to be returned to the President and put into the Clerk’s custody. The member of Parliament, the Clerk and an ICAC representative then went through those documents together. The documents that the member of Parliament and the Clerk identified as not privileged were returned to ICAC, and the documents that the member of Parliament and the Clerk identified as privileged were retained. ICAC was given the opportunity to dispute that privilege claim, but it had to do that in writing. ICAC disputed the status of some of the documents, and the house considered the views of both ICAC and the member of Parliament before determining whether the disputed documents were within the scope of proceedings in Parliament and therefore immune. This is a fraught space to try to legislate around and find a balance between these inherent tensions.
I now want to make some comments about this bill. I note in particular the Solicitor-General’s briefing note dated 25 August 2017. The Attorney General in the other place took the unusual step of tabling the Solicitor-General’s briefing note. That note advised that prior to removal of the word “exclusively”, both the Corruption and Crime Commission and the house has jurisdiction over a member of Parliament’s misconduct that was both a breach of privilege and a criminal offence. It advised also that removal of the word “exclusively” potentially ousted the CCC’s jurisdiction, and that reinsertion of the word “exclusively” would restore the CCC’s jurisdiction without ousting Parliament’s jurisdiction, because the two jurisdictions would be operating concurrently. The briefing note advised also that the privileges committee can still investigate and determine any matter within its jurisdiction. It advised that parliamentary privilege will still play a role in the investigation and prosecution of criminal offences— for example, in relation to obtaining and adducing evidence. It advised that any parliamentary immunity will continue to apply, such as freedom of speech, and that debates and proceedings in Parliament will continue to not be able to be impeached or questioned in any court or place outside of Parliament. It advised also that how the CCC should investigate in these circumstances has not been resolved—for example, whether that needs to be done via a memorandum of understanding between the CCC and the privileges committee. I note that this question is still separate from the bill.
I now come back to the excellent report on the bill by the Standing Committee on Procedure and Privileges. The report mentions my proposed amendment but not the submission that I made to the initial inquiry. That submission is publicly available and I encourage members to look at ; it is an excellent submission and I am sure it will inform members greatly. Two legal opinions form the appendices to the report. The first is the opinion of the Solicitor-General that I referred to. The second is an opinion from Senior Counsel Mr Bret Walker that is dated 6 December 2017 and constitutes the summary of advice that he had given by telephone seven months prior. I mention that because the issues that were raised in my submission, and the issues that were raised in the other place, therefore were not considered by either of those senior counsel because they predate the raising of those matters. It would have been useful to have had a response to that, but we have not had that advantage. Nonetheless, the report confirms the validity of my concern that there is no procedure about how parliamentary privilege, the powers and functions of the CCC and any ensuing court proceedings will interact.
The committee found that the bill will not result in a diminution in the scope or operation of parliamentary privilege. However, the report also states, in what I think is a magnificent understatement, that the bill does not address the lack of clarity about the extent to which evidence arising from parliamentary proceedings may be used in prosecutions. The report also confirms that the bill does not address the timing of CCC notifications to Parliament when it starts to examine evidence that may be privileged. The committee noted that an MOU between the CCC and Parliament may go some way towards addressing evidence sharing and notifying Parliament, but it will not address broader issues such as the execution of CCC search warrants on parliamentary or electorate officers, or the use of proceedings in Parliament as evidence.
Unfortunately, the CCC habitually refuses to notify Parliament of its investigations, unless it needs something. Paragraph 6.19 of the report states that in 2007 and 2008, the CCC informed Parliament only when it needed Parliament’s help to identify and obtain relevant evidence. It states in chapter 8 that in 2016, the CCC investigated, formed an opinion and gave information to the then Premier without informing Parliament at all. It was only via the Premier, not via the CCC, that Parliament learnt of a possible contempt against it. That is outlined in the report if members have not had the opportunity to read it.
My proposed amendment would at least require the CCC to act in accordance with an MOU or other agreement with Parliament, and also to inform the Parliamentary Inspector of the Corruption and Crime Commission, which is a statutory position, of any investigation involving a member of Parliament. It is useful to talk about the most recent case that has occurred within the life of the fortieth Parliament. That is, of course, the evidence given to the committee inquiring into the matters pertaining to Barry Urban. The other place recently considered a request by the Commissioner of Police for evidence to be provided to its Procedure and Privileges Committee in the Barry Urban inquiry so that the police could determine whether a criminal act had taken place. The evidence in the committee’s possession included evidence that had been provided by Mr Urban, evidence from witnesses, and documents, including the one that the committee had described as necessarily a forgery. Mr Urban had also requested that the committee return his purported academic qualifications, and his medals, photographs and other documents. Therefore, the house had to deal with competing claims regarding that evidence. That was followed by duelling opinions between the Clerk and George Tannin, SC, the state counsel who was advising the police commissioner. The Clerk’s opinion was that the house should ascertain which offences were being investigated. If it was an offence under sections 57 to 61 of the Criminal Code, parliamentary privilege was abrogated and the house could, if it saw fit, direct the committee to provide to the commissioner all of Mr Urban’s evidence that was relevant to that particular offence. If the offence was a different offence, such as forgery or fraud, the house could, if it saw fit, direct the committee to provide Mr Urban’s non-privileged evidence, such as his purported academic qualifications, medals and photographs that had come into existence independent of parliamentary proceedings. The opinion was also that whatever the offence, parliamentary privilege was not abrogated with regard to the evidence of other witnesses. In addition, standing order 308 obliged the house to protect its witnesses. The Clerk’s opinion also noted—I will make a few comments about this in future remarks—that providing the oral evidence of witnesses could have the effect of “chilling” cooperation from future potential witnesses with Parliament, who would not trust Parliament to keep their evidence secure. The opinion said also, most importantly, that Parliament cannot waive privilege.
Mr Tannin’s opinion was that police should not disclose in advance what offences were being investigated because of concern that that could jeopardise the independence and integrity of the investigation, and that by generating publicity and speculation against Mr Urban, it could prejudice any future prosecution such that it might be permanently stayed. Two types of parliamentary privilege were involved. They were the privilege of the nondisclosure of documentary evidence that is compellable and discretionary, and the privilege of freedom of speech, which is an immunity from civil or criminal liability. The evidence and the materials were subject to the nondisclosure privilege; therefore, Mr Tannin’s opinion was that disclosing them was within the house’s discretion. As to whether it should disclose them, if the committee provided police with the actual transcripts and the exhibits of witness evidence—not reproductions, summaries or extractions—the privilege of free speech would apply to those documents and committee witnesses would continue to have immunity from civil or criminal liability and standing order 308 would not be contravened. He believed that chilling was unlikely and that witnesses who testify under oath are obliged to tell the whole truth anyway. The Legislative Assembly ended up resolving— I note that this was supported by all three parties as opposed to the glorious seven that are in this house—to direct the Procedure and Privileges Committee to confer with the Commissioner of Police and provide him with the evidence and documentation from the inquiry that the committee considered was relevant to the commissioner’s investigations, did not breach parliamentary privilege and was consistent with the house’s obligation to protect witnesses.
This differs from the procedure used in New South Wales that I described earlier. The decision was made on factors apart from parliamentary privilege, the member of Parliament was not involved, the decision was made by the committee and not by the Clerk, and there was no process for the police commissioner to dispute the decision and have the house make a determination.
The following views were expressed during the debate on that motion. One view was that the outcome of the inquiry and the request by the Commissioner of Police were unprecedented. I note that members of the other place were of the view that the motion was a sensible compromise and balanced the need to maintain parliamentary privilege, give the Commissioner of Police access to information to do his task, and protect committee witnesses. The comment was made that committee witnesses do not have the benefit of legal counsel to advise them not to answer questions that may incriminate them. In the other place the Attorney General warned against conflating privilege with confidentiality. It was also noted that committees can and do waive confidentiality and publish evidence from time to time and that the house can also direct a committee to waive confidentiality. It was also stated that privilege is about immunity from being held to account in any other forum unless abrogated by legislation. These are some of the most recent and pertinent examples of the ways in which the tensions inherent in this bill have played out in other jurisdictions and this Parliament itself.
I turn to the crux of the effect of the change before us. The CCC is currently able to exercise its powers, rights and functions against MPs, officers of Parliament and others involved in Parliament, but currently under section 3(2), not in relation to a matter that is determinable by Parliament. The bill will change that so that the CCC will be able to exercise its powers, rights and functions in those matters too, if the matter is determinable by another forum as well as by Parliament—in other words, when Parliament has concurrent jurisdiction and not exclusive jurisdiction. The committee report identifies those matters as criminal offences determinable in a court that corresponds to the contempt powers of Parliament contained in the Parliamentary Privileges Act. Matters within the contempt powers of Parliament under that act include the matters listed in section 8—such as assaulting a member coming to or going from the house or offering a bribe to a member—and the matters covered by section 1, which are those of the United Kingdom House of Commons as at 1 January 1989 which are not inconsistent with the act, such as an MP receiving a bribe or giving false evidence to Parliament. The committee report identifies some examples of criminal offences that correspond to those contempt powers.
At paragraph 2.57 the committee report states that double jeopardy does not apply and a person can be tried and punished both by Parliament for contempt and a court for an offence in respect of the same matter. This bill will not change that. I will say more about that in a moment.
There is a lack of clarity around the circumstances in which the bill will permit the CCC to exercise its powers, rights and functions in matters that are not criminal offences but are misconduct as defined in the Corruption, Crime and Misconduct Act that correspond to the contempt powers of Parliament. Example 3 in chapter 5 of the committee report seems to suggest that it may be possible. That is the example of providing false and misleading information in an answer to a parliamentary question. However, as I read the bill, if the matter is determinable exclusively by a house of Parliament, the CCC will be ousted from exercising its rights, powers and functions. For the CCC to have a role, it seems that the matter needs to be determinable by another forum as well as by Parliament. I note that the CCC forms opinions and not determinations. If the matter does not correspond to a criminal offence, it will not be determinable by a criminal court. Depending on the forum and the nature of the matter, this may be further complicated by the parliamentary privilege of exclusive cognisance, which will continue to apply.
I ask the minister to clarify for the record in what circumstances the bill will permit the CCC to exercise its powers, rights and functions in matters that are not criminal offences but are misconduct as defined in the Corruption, Crime and Misconduct Act 2003 that correspond to the contempt powers of Parliament.
The committee report found that the bill does not diminish the scope or operation of parliamentary privilege; therefore, parliamentary privilege will continue to apply. That means that the freedom of speech and debates or proceedings in Parliament cannot be impeached or questioned in court or any place outside of Parliament. My understanding, and I seek confirmation of this, is that this cannot be waived except via legislation. I understand that to be the case, but I want to have that confirmed. Unless abrogated by legislation, this imposes restrictions on the evidence that can be adduced in courts or forums other than Parliament. I noted intently the comments of Hon Simon O’Brien—that it is the responsibility of this Parliament to remain vigilant about any legislative changes that come to this place that may attempt to limit the scope of parliamentary privilege. I could not agree more!
There are some Criminal Code offences in relation to which it is arguable that parliamentary privilege has already been abrogated, but the committee report indicates that to date this has not been judicially determined. Aside from legislative abrogation, the committee report identifies one way to get the evidence into court, which is by Parliament directing the Attorney General under section 14 or section 15 of the Parliamentary Privileges Act to prosecute in court a contempt of Parliament that is also a criminal offence. However, the Attorney General has indicated in the other place that he believes that to do so would put him in disobedience with the Director of Public Prosecutions Act 1991. It would be good to hear whether there is an opinion that will clarify the matter.
At pages 20 and 21, the committee report also refers to another kind of parliamentary privilege, exclusive cognisance, which is the right of Parliament to regulate its own affairs. The report indicates that this privilege is not asserted in relation to criminal conduct and it is unlikely to be accepted by courts in contract or tort, and it also notes that it has already been eroded by statutes such as the Parliamentary and Electorate Staff (Employment) Act. As the committee noted again, in yet another magnificent understatement, the impact of the bill is not straightforward. This is one problem with the bill. Another issue with the bill is that no clear process has been prescribed to manage the relationship between the Corruption and Crime Commission and Parliament. As the committee report has made clear, there needs to be an effective relationship between the CCC and Parliament, and I would also add the Director of Public Prosecutions and Parliament, if a matter is referred by the CCC to the DPP for prosecution. This is because we need to ensure that parliamentary privilege is not breached. We need to ensure that evidence is shared with Parliament so that Parliament can respond to any contempt against it, or breach of privilege as appropriate, and it is Parliament’s place to do that, to ensure that the business of Parliament is never impeded—for example, by requiring a member of Parliament to attend a court hearing when Parliament is sitting or seizing material that is needed for parliamentary proceedings—or, I would also add, to manage double jeopardy or double jeopardy–like issues. Again, I ask the minister to clarify, because I am not certain whether it is double jeopardy when one of the forums trying the person is executive and the other is Parliament. Even if it is not technically double jeopardy, it is a matter that needs to be managed, because the penalties that Parliament can impose are very different from those that can be imposed by other workplaces. If a person does the wrong thing in another workplace, the penalty is that they will just lose their job. In this place, not only can a person lose their job, but also a penalty imposed by Parliament can be the sorts of penalties that are normally imposed only by the criminal courts—for example, imprisonment and fines. Conversely, for justice to be seen to be done, it is important that penalties are commensurate with the behaviour, and issues arising from the possibility of punishment by two forums need to be properly managed. The issue then is not that double jeopardy will ensure that nothing happens, but I think perversely it may result in people being doubly penalised, sometimes with quite serious penalties.
As is noted in chapters 6 and 8 of the committee report, the CCC has a history of leaving Parliament out of the loop to the extent that the CCC itself breaches parliamentary privilege. This should be setting off some alarm bells, because the bill in its current form does not address these issues. Previously, the now repealed sections 27A and 27B aimed to resolve the issue by enabling Parliament to use the CCC as its instrument to carry out investigations on Parliament’s behalf. The committee report indicates this process was used twice in the other place, although I note it was never used in this place—probably because we have a higher standard of politician in the Legislative Council! The bill does not resurrect this process. Indeed, it reverses it, starting with the CCC and leaving it for the CCC to decide when to notify Parliament. That is notwithstanding the CCC’s pretty poor history in this regard. One of the amendments that I will move aims to ameliorate this. I asked a question today about the status of the purported memorandum of understanding between the CCC and Parliament. It is clear that no draft MOU exists and I am not feeling particularly confident that one will occur any time soon, at least not in the form in which it was originally envisaged. I have an amendment on the supplementary notice paper that would seek to ameliorate this by requiring the CCC to act in accordance with any MOU or agreement that is developed between the CCC and the Standing Committee on Procedure and Privileges, but I also note from discussions behind the Chair that there are some suggestions of an amendment to my amendment that might alter the scope of what I have proposed somewhat, but does not undermine the intent of what I had hoped to achieve, which is to ensure that how it is intended to operate between Parliament and the CCC is crystal clear. In the absence of an explicit alternative amendment on the supplementary notice paper at this point, my amendment is still there. I note that even if we were to get an MOU finalised, and in my view I do not think the legislation should even commence operation until it has, this will not resolve the entire issue. The committee report states that the anticipated MOU will cover earlier notification of investigations and evidence sharing, but it will not cover wider issues relating to the execution of a CCC search warrant on parliamentary electorate offices, or the CCC’s ability to use proceedings in Parliament as evidence.
I want to make some comments about the oversight of the CCC in relation to the proposed new function. There will be a special need for oversight of how the CCC conducts itself in matters involving Parliament, given that Parliament’s proper functions include functions specifically related to the CCC. I understand that the comment that has been made, a little cavalierly, is: what is so different about members of Parliament? Funny they should ask. We are in a very different situation with our responsibilities in this place in oversighting the exceptional powers that exist within the CCC. We have a joint standing committee that oversights the CCC and its reports are sometimes very critical of the actions of the CCC. I remind members in this place of the ongoing discussion that will probably continue tomorrow about the CCC’s appalling handling of the Cunningham and Atoms matter and its failure to appropriately investigate what happened to that couple and ensure that justice had been done. This is our role; this is our responsibility. Like other committees, the joint standing committee can also take evidence. I am particularly concerned that the CCC might be able to prematurely access the investigations, deliberations, documents, communications and witness evidence taken by that committee—the very committee that is charged with the oversight of the CCC. Maintaining the line between the CCC’s powers, rights, functions and parliamentary privileges, immunities and powers, particularly by the clerks and the privileges committees in both houses, is absolutely essential. We pass laws that grant or remove the CCC’s functions and we direct how it must exercise those functions through those legislative reforms. We inquire into the CCC’s budget via estimates. The government determines the budget of the CCC. We inquire into the CCC’s annual report via estimates. We have a very clear role and obligation to oversight the very agency that would then have the capacity to effectively investigate us. The act currently recognises the need to protect those who oversight the CCC. For example, the CCC cannot receive allegations against its own commissioner. The CCC cannot receive or initiate allegations against the parliamentary inspector in their capacity as the parliamentary inspector or their officers, nor exercise its powers against the parliamentary inspector. The CCC cannot receive or initiate allegations against a judicial office holder except in certain circumstances, and, if it does proceed, it must have proper regard for preserving the independence of judicial officers and also act in accordance with conditions and procedures formulated in continuing consultation with the Chief Justice.
The act itself has foreseen the need to afford some degree of accountability to those entities charged with the responsibility of being able to oversight the activities of this body with extraordinary power. Therefore, I will move an amendment that facilitates the proposed new function of the CCC—it enables that to occur—but will at least be capable of shining a light should there be any overstepping on behalf of the CCC. We have already seen, and it is in the report, that this has occurred. We do not need to worry about this being mere speculation—it happens. Parliament has always striven for a system of checks and balances in the exercise of the CCC’s extraordinary powers, and my proposed amendment will propose nothing different. It is an important safeguard for an important public interest. Importantly, that oversight could include monitoring of whether the CCC has complied with any process that has been set out in any memorandum of understanding or any other instrument that may be appropriately established—any other agreement between it and the privileges committee. I note that the amendment will not alert the Parliament or any MP under investigation that they are currently being investigated. It simply ensures that one entity is able to keep checks and balances on the way the CCC is undertaking that investigation to ensure that, firstly, it is not being exercised inappropriately or contrary to any agreements that may be made; and, secondly, it is not being used for political purposes, because, frankly, that is exactly what has happened in some of the deep, dark history of the CCC.
I also want to comment on my concerns about the redirection of resources. I am concerned that the bill redirects the CCC’s finite time and resources from what I believe are its core business and other activities, bearing in mind that the police already have the capacity to investigate members of Parliament. The police can investigate criminal offences. Using the CCC, with its extraordinary powers, for exactly the same matters potentially circumvents the constraints that apply to those police investigations—those constraints being the rule of law. Those constraints have been developed over a long time and are there for good reason. Frankly, we need to stop trying to make the CCC the replacement for the police. Parliament, also, already has power to investigate matters. In fact, Parliament has very wide investigative powers. In addition, and unlike the CCC, it can make findings—noting that the CCC can only form opinions and not make findings—and it can impose penalties, and, although we need to get confirmation of this, perhaps it can direct the Attorney General to prosecute contempts that are punishable by law in court.
Under the standing orders, at paragraph (b) of schedule 4, before deciding to refer a possible contempt to its privileges committee, this house must consider the availability of other remedies. If the house refers a matter to the privileges committee, that committee in the course of its inquiry must consider alternatives to the house’s contempt power. I note that Parliament has been criticised by former Chief Justice Wayne Martin for being procedurally unfair. I also note that the CCC has received similar criticism—in fact, it has been called a Star Chamber. The bill does not address this issue for either the Parliament or the CCC, but in light of the criticism of Parliament, it would be appropriate for this house, probably in the fullness of time, to review the fairness of its own procedures. I suggest that this issue is not unable to be resolved. In the meantime, if Parliament is able to direct the Attorney General to prosecute in a court contempts that are punishable by law, that might be one way that that could be addressed.
The other problem with redirecting the CCC’s resources is that it takes away from the CCC’s core function, which I believe is to oversight the police and to focus on fighting organised crime. I remind members again of the CCC’s refusal to investigate the outrageous treatment of Dr Cunningham and Ms Atoms, which was reported to this house. The Parliamentary Inspector of the Corruption and Crime Commission’s 2016–17 annual report said that during his term, noting that he was appointed in January 2013, he had become concerned about the commission’s response to complaints of the use of excessive force by police officers. During the reporting period, a particular complaint had been made to him about an issue and that had increased his concern. His concern was that the CCC was simply not doing it properly. The CCC’s annual report of that same year said that of the 2 636 allegations received about the police, 1 444 had resulted in no further action by the CCC; 1 126 were referred to the police, with the CCC to be advised of the outcome; 54 were referred to the police, with the CCC to monitor and review police handling of it; and nine were investigated by the CCC cooperatively. Only three were investigated independently by the CCC. I suggest that the CCC is already struggling to meet what should be its primary mandate, which is to make sure that it is oversighting the police.
I also remind members of a matter that the CCC subsequently investigated, and that is the very recent report I read on Friday regarding excessive police force, again used in Fremantle, in September 2017. I am going to suggest that the need for the CCC to be oversighting the police continues to be a very high priority. I am concerned that the bill will redirect the CCC’s resources from oversighting police to investigating MPs, when both police and Parliament already have the power to do exactly that.
I am also concerned about this bill’s inadvertent impact on whistleblowers. MPs are very often the recipients of public interest disclosures by whistleblowers. I think whistleblowers perform a very valuable public service, directly by revealing wrongdoing or wastage that is occurring or that information has been given to Parliament that is misleading, or indirectly if people refrain from wrongdoing for fear that there might be a whistleblower around. I seek confirmation that disclosure by a whistleblower to an MP, apart from the President if the disclosure is about an MLC or the Speaker of the other place if the disclosure is about an MLA, falls outside the Public Interest Disclosure Act 2003. I understand that it does. If that is correct, the whistleblower will not have that act’s protections and they will make disclosures at their peril. Disclosures by whistleblowers to MPs need to be encouraged. They lead to useful outcomes that serve the public interest. They lead to parliamentary inquiries, to better legislation and to tabled documents. The concern that the CCC, even if it is just having a bit of a forage around, may be listening in as part of an investigation may discourage whistleblowers from making disclosures to MPs or to their electorate office staff. This will become a more significant issue the more the CCC is able to clandestinely investigate MPs, particularly if no-one is oversighting them to ensure that it is not being done perhaps vexatiously or without proper foundation. That would be counterproductive, given that whistleblowers are one of our protections against crime and corruption. I say in conclusion to that point that I think the Public Interest Disclosure Act 2003 needs to be amended more broadly to ensure that whistleblowers are protected, not silenced.
In conclusion, I think that this bill raises a number of issues. I again commend the Standing Committee on Procedure and Privileges for a really interesting and excellent report. It is essential that if this bill proceeds— I have every reason to believe that it will—any MOUs or even decisions by this Parliament about how its proceedings will be impacted need to be absolutely prioritised.
I urge members to give due consideration to the substance of the effect of the two amendments that I have on the notice paper to ensure that we have appropriate oversight of the Corruption and Crime Commission to ensure that if it is exercising its powers, it does so appropriately, and also to ensure that it must be mindful of and have regard to any agreements made with the Parliament because parliamentary privilege is absolutely critical. We are in a different position from other people because we are given the onerous and I think incredibly important responsibility to make sure that we are keeping the extraordinary powers of the CCC under check. I do not for one second think that any member of Parliament should ever be above the law, but we have to ensure that should we decide to use these exceptional powers, instead of the police or the Parliament itself ensuring that members of Parliament are doing the right thing, that we do not effectively lose all control over an entity that has such extraordinary power over its citizens.
[Speeches and comments from various members]
Debate adjourned, pursuant to standing orders.