Matter of Privilege

Local Health Networks

The SPEAKER (17:46): I rise on the matter of privilege that was raised this morning regarding advertisements for local health networks' governing board chairs. I make the following statement with regard to the matter of privilege raised by the member for Kaurna in this house earlier today. However, before addressing the matter, I again wish to outline the significance of privilege as it relates to this house and its members.

Privilege, as we have heard, is not a device by which members or any other person can seek to pursue matters that can be addressed by debate or settled by the vote of the house on a substantive motion. As we have heard before, McGee in Parliamentary Practice in New Zealand, in my view, makes the test for whether or not a matter is a matter of privilege by defining it as a matter that can 'genuinely be regarded as tending to impede or obstruct the House in the discharge of its duties'.

Generally speaking, any act or omission which obstructs or impedes the house in the performance of its functions, or which obstructs or impedes any member or officer of such house in the discharge of his or her duty, or which has a tendency, directly or indirectly, to produce such a result, may be treated as a contempt and therefore be considered a matter of privilege even though there is no precedent for the offence.

I refer to the matter raised by the member for Kaurna where he makes reference to advertisements appearing in newspapers seeking governing board chairs on local health networks. The member for Kaurna notes that the roles, requirements, payments, network structure and responsibilities of these positions are all predicated on the passage of a bill that has yet to be introduced into the parliament.

The member for Kaurna's proposition is that there is no acknowledgement in the advertisements of the parliament's role and, as the legislation upon which the appointment of governing board chairs is yet to be introduced into parliament, the government by undertaking this action is directly or indirectly impeding the house in the performance of its functions.

The member for Kaurna refers to an earlier ruling of Speaker Lewis on 26 February 2004, where, in what he alleges are similar circumstances involving the advertising for positions on as then unestablished natural resources management boards, he ruled that there 'is a prima facie case warranting investigation'. This is from Hansard, 26 February 2004, page 1495.

In that instance, the matter was raised as a point of order by the then member for Stuart to the effect that 'this advertisement assumes that the parliament will rubber stamp this and is holding the parliament in contempt'. This was taken from Hansard,18 February 2004, page 1235. Speaker Lewis, in explaining his ruling, stated, and I quote page 1,508 of Hansard on 26 February 2004:

The words chosen by the member for Stuart and my clear recollection were not that there was a contempt of parliament but, rather, that parliament had been held in contempt. The two are distinctly different. The factors which caused me to believe that, prima facie, there was the need to investigate it are somewhat wider than whether that advertisement provided to me by the member for Stuart took the parliament for granted and, therefore, held it in some measure in contempt; but rather to discover by what process the bureaucracy came to such conclusions as would enable it to undertake the course of action of which it did.

Speaker Lewis then went on to explain:

If…the honourable member for Finniss is restricting the inquiry to what he may have thought the member for Stuart said was a contempt of the parliament, then, of course, that does not have legs.

That was taken from Hansard , page 1508 on 26 February 2004. The member for Kaurna, in reading his matter of privilege, referred to the instance upon which speaker Lewis ruled and noted:

…the house accepted the explanation of the minister largely on the basis that the advertisement said—

And the member for Kaurna, quoting the minister, states:

Once enacted, the Natural Resource Management Act will establish regional boards…Roles, terms and conditions are subject to the passage of the Bill through the South Australian Parliament.

The member for Kaurna then states, and I quote:

Therefore in that instance the primacy of parliament to consider and pass, amend or reject the bill was maintained.

I refer members to the link www.sahealth.sa.gv.au/governingboards in the advertisement referred to by the member for Kaurna, where more information and application forms can be obtained. More specifically, page 10 of the Board Chair Expression of Interest Information Pack, which is accessible from the mentioned link, states:

Appointment subject to the passage of legislation

The Health Care Act 2008 will be amended to include the powers for the Minister for Health and Wellbeing to appoint governing board Chairs. Governing board Chairs will be appointed subject to the passage of legislation. Some of the arrangements outlined in this document may be revised as a result of parliamentary consideration.

It is clearly set out in the information pack that the provisions included in the advertisements are subject to the passage of the legislation and subject to revision. Like the minister's explanation concerning natural resources management boards, in the matter before me the circumstances are analogous where the primacy of the parliament is maintained to consider and pass, amend or reject any legislation that may impact on board appointments.

In the Chair's opinion, this is therefore not a matter of privilege for the reasons I stated above. In the Chair's view, the matter could not, to take the test, 'genuinely be regarded as tending to impede or obstruct the House in the discharge of its duties'. Therefore, I also decline to give the matter the precedence that would allow the member for Kaurna to immediately pursue the matter. However, my opinion does not prevent any member, including the member for Kaurna, from pursuing the matter by way of a substantive motion.

At 17:52 the house adjourned until 21 June 2018 at 11:00.