Page 1935 - Week 06 - Thursday, 9 June 2022
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Neither the Assembly’s contempt power nor the freedom of speech immunity can be abrogated by the Integrity Commission Act. Section 8 of the Integrity Commission Act provides, among other things, that, with the exception of the express statutory waiver of privilege provided for at section 178, the act does not affect the law relating to the privileges of the Legislative Assembly or any other Australian parliament. Section 177 of the Integrity Commission Act provides that a claim of parliamentary privilege that is made in the course of the exercise of the commission’s functions must be dealt with by the Assembly. Continuing resolution 4A sets out such claims and how they will be handled.
However, certain features of the act relating to the provision of information to the commission—through, for example, examination summonses, preliminary inquiry notices, search warrants and information requests—potentially obscure the obligations that are imposed on the commission, witnesses before the commission, heads of public sector entities and others to ensure that the Assembly’s procedures for making and determining parliamentary privilege claims are complied with and to avoid possible contempts being committed against the Assembly.
The lack of specific statutory provisions for handling potentially privileged material may place those who are the subject of an exercise of one or more of the commission’s information-gathering powers—for instance, the Head of Service or the head of a public sector entity—in a difficult position.
On the one hand, refusal to provide information sought by the commission may, in certain circumstances, be treated as a possible contempt against the commission. On the other hand, the provision of information to the commissioner in a manner that came to be regarded as interfering in the internal proceedings of the Assembly or in contravention of its standing orders and resolutions may give rise to a possible contempt having been committed against the Assembly.
A statutory remedy is required to resolve this dilemma so that it is clear how certain materials must be handled in the course of the exercise of the commission’s powers and functions. Members may be aware that these matters have presented very real difficulties for parliamentary chambers in other jurisdictions. Throughout the Ninth and Tenth Assemblies, the Standing Committee on Administration and Procedure has kept a watching brief on matters arising in connection with a protracted dispute between the Legislative Council of Western Australia, the WA Corruption and Crime Commission and the WA Department of the Premier and Cabinet.
That dispute arose in the course of the CCC seeking to access email documents of former members of the Legislative Council held on an ICT system administered by the government department. The material at issue had not been the subject of any determination by the Legislative Council as to whether the documents, or any part of the documents, were protected by parliamentary privilege. Instead, in responding to the CCC’s notices of production, the department had purported to itself determine whether or not parliamentary privilege applied to the documents, an approach that was rejected by the Legislative Council and ultimately led to litigation in the Supreme Court of Western Australia.
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