Matter of Privilege

Deputy Premier

The SPEAKER (22:58): I respond to the matter of privilege raised by the deputy leader immediately the house began sitting this morning. The deputy leader alleges that the Deputy Premier misled the house on 13 October when he told the house this, in response to a question about the Gillman option deed:

Now, what ACP ultimately choose to do with that land, at the time of the settlement, is a matter between them and the people who they are negotiating commercially with.

Later, the Deputy Premier tells the house:

Whilst there was an expectation by ACP that there would be an opportunity for the creation of an oil and gas hub, it has been said many times here by me and the former minister that, obviously that is a commercial matter over which the government does not have any control.

The deputy leader then contrasts this statement with one attributed in a story by Sarah Martin of The Australian on 25 February 2014 to the Treasurer when he was the Minister for Housing and Urban Development:

The agreement with ACP includes a series of performance targets focused on employment and economic development, with a target specifically requiring part of the land to be developed into a resources hub to support the State's fast expanding oil and gas industry.

The deputy leader says the two statements are inconsistent and calls for accelerated debate on a motion to appoint a privileges committee to investigate the truth of the Deputy Premier's statement. I think we owe the current popularity with members of raising a matter of privilege to the point raised against the then deputy premier, Graham Ingerson, which led to the Speaker's giving precedence to a motion for a privileges committee and to a finding that brought about the deputy premier's resignation from the ministry. Before that, the principal modern case of it was John Profumo's 1963 statement to the House of Commons.

The Hon. J.R. Rau: They would say that.

The SPEAKER: 'They would say that,' as the Deputy Premier says. In my last ruling on a matter of privilege, raised by the member for Morphett, I relied on David McGee's Parliamentary Practice in New Zealand, which deals with these points more plainly and at greater length than Australia's handbook, House of Representatives Practice. On that occasion I quoted McGee but I shall now do so more extensively so that the house gets the gist of what might lead a Speaker to give precedence to a motion for breach of privilege. On page 653 McGee writes:

Whether this type of contempt embodies a convention or not, regarding lying to the House as a serious transgression of parliamentary etiquette (quite apart from any moral considerations) has been said to be the only way Parliament can keep a check on the Executive.

I now mention, for the benefit of the member for Mackillop, McGee's next sentence:

The contempt can be committed by anyone taking part in parliamentary proceedings. It consists of the conveying of information to the House or a committee that is inaccurate in a material particular and which the person conveying the information knew at the time was inaccurate or at least ought to have known was inaccurate.

So, the contempt can be committed by an opposition member, or a backbencher, or a non-member before a committee. The scenes at some of our own upper house's select committees, resembling Hogarth's paintings of eighteenth century London, spring to mind. I do not agree with the member for Mackillop that raising matters of privilege on the grounds that a member has misled the house should be confined to alleged transgressions by ministers, although I accept his point that it will mostly be about ministers. I continue quoting McGee, starting on page 653 and continuing onto page 654:

There are three elements to be established when it is alleged that a member is in contempt by reason of a statement that the member has made: the statement must, in fact, have been misleading; it must be established that the member making the statement knew at the time that the statement was made that it was incorrect; and, in making it, the member must have intended to mislead the House. The standard of proof demanded is the civil standard of proof on the 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.

Later on the same page, McGee writes, and this was applied in the Profumo and Ingerson cases:

But where the member can be assumed to have personal knowledge of the stated facts and made the statement in a situation of some formality (for example, by way of personal explanation), a presumption of intention to mislead the House will more readily arise.

On page 664 of the third edition, McGee writes:

A factor that the Speaker is enjoined to consider in ruling on matters of privilege is the degree of seriousness of the matter that has been raised. The Standing orders require that the Speaker should take account of the importance of the matter and not find that a question of privilege is involved if it is technical or trivial and does not warrant further attention. Only if the conduct complained of can genuinely be regarded as tending to impede or obstruct the House in the discharge of its duties or is otherwise of some moment should the House bother to deal with it as a question of privilege.

Inconsistency between what one minister said outside the house 18 months ago and what a second minister said inside the house this month does not raise the prima facie inference that the second minister is in contempt of the house for misleading it. Much more must be established by the person raising the matter of privilege than that. Scenarios consistent with innocence include that the first minister is wrong, not the second, or that the two statements can be reconciled. In the same media report the deputy leader supplied me, a spokesman for ACP is quoted as saying:

It is absolutely the intention to focus on the resource industry as a major user of the site, but there is no legally binding requirement.

So, it seems to me, if there were an inconsistency, it was apparent in a publication outside parliament 18 months ago and so I doubt very much that the house has been misled by what the Deputy Premier told it on 13 October 2015, much less that this alleged inconsistency has obstructed the house in its deliberations such as to be a contempt.

Accordingly, I do not give the matter precedence. Any inconsistency, if inconsistency there be, should be pursued by the deputy leader by conventional means. If the deputy leader wishes to pursue the matter as a matter of privilege, she can now give notice of motion for a privileges committee and set it down for private member's time on Thursday.