Matter of Privilege

MATTER OF PRIVILEGE

The SPEAKER (14:13): On Thursday 22 July 2010, the member for Davenport rose on a matter of privilege in relation to statements made by the Minister for Families and Communities in response to a question from the member about the investigation of and subsequent trial of Mr Thomas Easling. The member for Davenport's allegation is that the minister failed to substantiate her statement in response to questions from the member for Davenport on 30 October 2008 in relation to the conduct of an investigation of Mr Thomas Easling by the Special Investigations Unit of the Department for Families and Communities that 'We had people going into that house and finding semi-naked boys in his bed.' (Hansard 30 October 2008, page 768.)

A range of issues in relation to the investigation and trial of Mr Easling have been pursued by the member for Davenport and others over a considerable period of time. The member for Davenport has been tireless in his pursuit of this matter on behalf of his constituent and, whatever one feels about the issue, he is to be commended for his commitment.

Honourable members: Hear, hear!

The SPEAKER: I appreciate that there have been complaints in relation to the conduct of the Special Investigations Unit's investigations and the trial. These matters have been both personally distressing to many people involved and the subject of some political controversy. However, they are not relevant to the matter before the chair. So, I will spare Mr Easling and others any further embarrassment by not revisiting them, except to remind the house that Mr Easling was acquitted in December 2007 of all charges.

There are three elements in establishing the contempt and misleading of parliament. They are that the statement complained of must have been misleading; it must also be established that the member knew at the time that it was misleading; and that it was the member's deliberate intention to mislead the house.

In response to another question from the member for Davenport on the same matter, the minister claimed in the house on 27 November 2008 that she had used her own words to summarise the information she had. Again, in a newspaper article referred to by the member for Davenport, the minister is quoted as saying that she had relied on documentation provided by the department.

The member for Davenport claims, and I think has clearly established, that the words 'semi-naked boys in his bed' do not appear in any evidence tendered to the court or in any documents released in response to FOI applications made by the member for Davenport or ordered to be released by the Ombudsman.

As a number of occupants of the chair have stated in previous opinions, an inconsistency between the words used by a member in the house with those previously used in the house or elsewhere, or words spoken that are inconsistent with the text of any document, is not of itself misleading and therefore not a matter of privilege.

The minister has claimed, as I have said earlier, that the words used were her own and based on conclusions she had reached from the information available to her. In the heat of lively exchange during question time, I believe the minister's words were not wisely chosen and could be fairly described as innuendo. A minister should be more careful.

McGee in Parliamentary Practice in New Zealand, the reference that has been used regularly to guide this house in such matters, states:

The standard of proof demanded is the civil standard of proof on a balance of probabilities but, given the serious nature of the allegations, proof of a very high order. Recklessness in the use of words in debate, though reprehensible in itself, falls short of the standard required to hold a member responsible for deliberately misleading the house. [McGee, 3^rd Ed., p. 654]

Nothing has been presented to me by the member for Davenport in his statement to the house on 22 July 2010 or in the substantial documentation that he has provided to me that would lead me to conclude that the minister knew at the time that the words were misleading or that it was the minister's deliberate intention to mislead.

This is confirmed by the fact that the minister, who should be well aware of the possible consequences of deliberately misleading the house, has not, in the 22 months since, seen fit to withdraw, clarify or correct the record. This may be because she still believes, as the former attorney-general did when he answered a question from the member for Davenport on the same matter on 27 November 2008, that her answer and those of other ministers addressing this matter were based on, and I quote, 'a more than adequate substratum of fact'. (Hansard 27 November 2008, page 206.) However, it is the chair's view that this house has a right to expect that information provided to it be based on something more substantial than that.

In the chair's opinion this is not a matter of privilege, for the reasons I stated earlier. In the chair's view, the matter could not 'genuinely be regarded as tending to impede or obstruct the house in the discharge of its duties'. This is the standard in matters of privilege that the house has consistently applied. Therefore, I decline to give the matter the precedence that would allow the member for Davenport to immediately pursue the matter. However, my opinion does not prevent any member from pursuing the matter by way of substantive motion.