Matter of Privilege

Matter of Privilege, Speaker's Statement

The SPEAKER (16:06): Honourable members, I make the following statement with regard to the matter of privilege that was raised by the member for West Torrens in this house yesterday, 25 August. Before addressing that matter, I will outline once again the significance of privilege as it relates to this house and its members. Privilege 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 a vote of the house on a substantive motion.

As I have previously referred, McGee in Parliamentary Practice in New Zealand sets out what I regard to be the best encapsulation of 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'.

An essential aspect of privilege is to ensure that each member can speak without fear or favour but at the same time be able to rely on the accuracy of the statement made in the house by any member. It is not a protection from the consequences of misconduct, poor judgement or inaccurate information.

I refer to the matter raised by the member for West Torrens identifying two matters in relation to the Attorney-General and alleging that the Attorney-General deliberately and intentionally misled the house, as the Attorney-General's answers to questions in the house on 25 August were said to be contrary to answers given by the Attorney-General in an estimates committee hearing on 2 August.

The member for West Torrens refers to two lines of inquiry undertaken by the member for Enfield. The Acting Speaker invited the member for Enfield to provide any supporting or further information, and I received from the member for Enfield a letter that raised two further matters that were not the subject of the member for West Torrens' matter of privilege, and I will address those two further matters as well. I have taken the opportunity to give the Attorney-General an opportunity to respond also and I have been assisted in that regard.

In respect of the first line of inquiry of the member for West Torrens, in an estimates hearing on 2 August the member for Enfield questioned the Attorney-General on the planning commission's assessment report into the proposed wharf at Smith Bay on Kangaroo Island. The member for Enfield asked the Attorney-General the following question:

Can you advise what the current status of that application is? Is it with you for decision, or is it with the State Planning Commission at the moment?

The Attorney-General replied by saying:

As the member may be aware, the commission then, after public consultation earlier this year, have responsibility to prepare their assessment report. A few weeks ago, I understand, the commission travelled to Kangaroo Island to inspect the site, and at the end of last week they provided me with an assessment report to note. I am not sure whether they are recommendations yet—it is a little unclear—but I propose to meet with the commission tomorrow to ascertain what they actually mean by this material; it seems to [introduce] a new process. I have dealt with a number of these applications, and this one seems to introduce a new process, so I have asked to speak to the commission to find out what exactly they are suggesting I do here.

Further, the Attorney-General then goes on to say:

In any event, I have just received an assessment report from them. I think it came in on Thursday afternoon. I have had a good read of that, and hopefully I will be able to get some clarification of what I am supposed to do next. It does not ask me to approve anything. It just asks me to note the assessment report and to consider some other matters, so I need to clarify what that is. I thought it was coming to me as a final process, but anyway that is a matter I will deal with tomorrow.

I observe at this point that references by the Attorney to 'it' in respect of, 'It does not ask me to approve anything,' and, 'It just asks me to note the assessment report,' I interpret to be references to the commission as opposed to the report itself, something which is evident in the context of that response. On 25 August, the member for Enfield asked the following question to the Attorney-General:

Did the minister mislead the parliament in her evidence to the estimates committee on 2 August in relation to the planning commission's assessment report into the proposed wharf at Smith Bay on Kangaroo Island?

In explaining the question, the member for Enfield stated the following:

The Minister claimed in estimates there were no recommendations made in that report to approve the port, that it was simply for noting and was introducing a new process. The Minister stated she had a good read of the planning assessment report and I quote, 'It does not ask me to approve anything. It just asks me to note the assessment report,' The minister went on to say, 'I am not sure whether there are any recommendations yet.' I further quote: 'This one seems to introduce a new process.'

The report made 56 recommendations, including at the outset one to approve the application. I quote page 8 of the report:

'Having carefully considered these matters, along with the advice obtained, it is considered that the impacts and potential risks associated with the Smith Bay proposal can be managed through a strict suite of management plans, and licensing when required. On this basis, whilst finely balanced, it is concluded that the proposal should be granted provisional development authorisation, subject to conditions.'

The Attorney-General responded by saying:

Unlike any other major project that had been put to me, which is either recommended development or not, this had a recommendation of provisional development with reserve matters, whatever that means, and as I indicated to the committee, I did get further advice on that matter and made my decision.

Having had the opportunity myself to peruse the 237 page State Planning Commission Assessment Report, I make the following observations: the quote from page 8 of the report referred to by the member for Enfield is not a recommendation as such, nor is it itself part of the 56 recommendations (referred to by the member for Enfield) that are listed in the report, more particularly at page 183. I just observe that, at that point of the report, the recommendations are couched in terms of an opening preamble:

Should the minister decide to grant provisional development authorisation for the development, it is recommended that it is subject to the following conditions…

Those conditions ensue, and page 8 is therefore connected to page 183 in that way. The report thus puts those 56 recommendations in the form of conditional recommendations subject to a response of that nature. To that end, I see nothing in the Attorney-General's responses in both the estimates committee hearing and the house that are inconsistent with the content of the report and its absence of a recommendation requiring the Attorney-General to approve the report.

With regard specifically to references to being asked to note and so forth, there are two points at which the member for Enfield more particularly addresses references to noting. I am advised that the report was provided to the Attorney-General under the cover of a request to note, and I just indicate that I have not otherwise found any such express words in the report itself. However, in my view, nothing turns on that for the reasons I have described in my observations.

In respect of the second line of inquiry, in estimates on 2 August the member for Enfield asked the Attorney-General the following question:

Has the government ever commissioned its own assessment of a best location for that port to export timber from Kangaroo Island?

The Attorney-General responded by saying:

The government is not involved in the process. The major process is where a certain process has to occur and the assessment report is prepared by the commission.

Further, the member for Enfield asked a follow-up question:

But separately from that, has there ever been a process undertaken by government to look at where an ideal port would be to get timber off Kangaroo Island?

To which the Attorney-General responded by saying, ‘Not by government.’ On 25 August, the member for Enfield asked the following question to the Attorney-General:

The minister, in estimates on 2 August, claimed that no process had been undertaken by the government to determine the best location for a new port on Kangaroo Island, but on page 30 of the assessment report the commission itself confirms that the government, in regard to the Smith Bay proposal, contracted Wavelength Consulting Pty Ltd to and I quote, ‘determine whether Smith Bay was an appropriate site for the wharf and port facility and to test the viability of alternative sites’.

The Attorney-General responded by saying:

In direct answer to the question, no. In relation to the report that was referred to at estimates, I did make further inquiry about whether anyone else had done that. My understanding was that the Department of Transport, which at the time was assisting under a previous iteration of this particular project, had commissioned a report. I'm not sure whether that was for the proponent or who paid for it or anything else, but I made that inquiry and, yes, there was a report prepared by a company called Wavelength.

The nature of the allegation made by the member for West Torrens is that the Attorney-General has deliberately and knowingly misled the house. In essence, the member for West Torrens is alleging that, as the Attorney-General's response on 2 August was inconsistent with the response provided on 25 August, the Attorney-General made the response on 2 August knowing the response was misleading and that it was her intention deliberately to mislead the house.

There is nothing to suggest in the actions taken by the Attorney-General, in undertaking further inquiries and advising the house of her findings, that it was the Attorney-General's intention deliberately and intentionally to mislead the house. I note the importance in these matters of taking the earliest opportunity to advise the house in respect of the matter.

I indicated at the outset that, in addition to the two matters that were adverted to by the member for West Torrens, two additional matters are set out in letter that I received subsequently yesterday evening from the member for Enfield. To describe them in terms that the member for Enfield has described them in her letter to me, they are, firstly, in relation to land interests held on Kangaroo Island in the vicinity of timber forests.

The member for Enfield notes that, in relation to the member for Enfield's question on 25 August in question time about whether the minister or any relative or related entity owned land on Kangaroo Island in an area near or impacted by the KIPT forests, the minister stated:

I have given a rather comprehensive, extended response to this to the parliament in a ministerial statement, but in short, no.

The work that the member for Enfield has done and then provided to me then constitutes advice in relation to a number of certificates of title of certain real property on Kangaroo Island. Having identified which, the member for Enfield indicates that the minister's claim that she and her relatives do not own land near the forest ought to be considered by a Privileges Committee in order to determine whether this is evidence that the minister misled the house today.

In that respect, leaving aside the question of whether there was any such intention deliberately to do so, the question in all respects must be one which is a matter of degree with a certain level of reasonable subjectivity. I have asked the Attorney-General to consider the matter in light of the specific certificates of title indicated. The Attorney-General maintains that neither she nor close family have any relevant interest in property near the forests.

The second additional matter raised by the member for Enfield is titled 'Michael Pengilly' and relates to the question of the extent to which freight transport may be increased in the near vicinity of any property at which Mr Pengilly resides. That matter is addressed in rather broad terms, if I may say, by the member for Enfield and again is a matter about which different individuals might have different observations to make.

Having made inquiry, I just indicate to the house that it has been brought to my attention that Michael Pengilly, who is presently the Mayor of Kangaroo Island, in that capacity provided a relevant observation in remarks to media in August of this year, as I am advised, in which he was directly asked would logging trucks have gone past his house at Smith Bay, to which he indicated no. I just share that with the house for what that is worth. It is otherwise, in my view, a matter of both degree and subjectivity about which reasonable minds might differ and which debate might ensue, but it does not otherwise constitute a matter of privilege.

It is my opinion that the matters raised, for the reasons that I have addressed, are not a matter of privilege. In my view, the matter could not genuinely be regarded as tending to impede or obstruct the house in the discharge of its duties. Accordingly, I do not propose to give the precedence which would enable any member to pursue this matter immediately as a matter of privilege. As members would be aware, this decision does not prevent the member for West Torrens or the member for Enfield, or any other member, from proceeding with a motion on the specific matter by giving notice in the normal way.