Motions

Members, Accommodation Allowances

The Hon. R.I. LUCAS (Treasurer) (14:58): I move:

That this council—

1. Notes that on 5 August 2020 the former Independent Commissioner Against Corruption, the Hon. Bruce Lander QC, issued notices to three members of the parliament in respect of an investigation of the conduct of those members raising a potential issue of corruption in respect of claims made by those members for the payment of the country members' accommodation allowance (CMAA), and the subject more particularly of the former commissioner's public statement dated 21 August 2020, which may be the subject of parliamentary privilege;

2. Notes that on 4 September 2020 the new commissioner, the Hon. Ann Vanstone QC, withdrew those notices;

3. Further, acknowledges that parliamentary privilege will not preclude a criminal prosecution against a member of parliament in relation to the CMAA;

4. Acknowledges that CMAA forms of claim submitted by members during the period March 2010 to 30 June 2020 have been tabled in both houses and referred to the Auditor-General for the purpose of commissioning an audit considering matters including means by which to make claiming and reporting more transparent; and

5. Further, notes that all current members have publicly indicated that they will cooperate with the ICAC investigation, and in respect of the three members the subject of the commissioner's public statement published on 7 September 2020, those members have not and will not be claiming parliamentary privilege in respect of the requests now made of them by the commissioner.

In speaking to the motion, I note that the issue of the country members' accommodation allowance has attracted much publicity over recent weeks and months. The issues in more recent times in relation to issues of potential parliamentary privilege have been raised in terms of public debate.

For the benefit of members, and I know that an alternative motion had been flagged by the Leader of the Opposition and had been circulated to all members of parliament as I understand it, this alternative motion being moved by the government indicates the view of government members in relation to this important series of issues. Given that it has only been circulated at relatively late notice, I will take some time to go through some of the details insofar as it relates to the specific clauses of the motion.

I should say at the outset that in the last 24 hours the Remuneration Tribunal has issued a new determination, which will operate from 7 September onwards, so prospectively insofar as it relates to the country members' accommodation allowance. It, in and of itself, does not alter the law as it stood for the period between 2010 and November 2018, when there was one form of the determination by the tribunal as it relates to this allowance, and then the second period, from November 2018 through to 7 September, when a second form of a determination by the tribunal also applied.

Nevertheless, this new determination will apply from 7 September, prospectively, until at some stage the Remuneration Tribunal chooses to amend it in the future. I do not propose to go through the new determination—that is the subject of some public debate—but nevertheless that is the legal position: as we debate this motion today, there is a new determination.

Under paragraph 1 of the motion it is suggested that we note that on 5 August the former commissioner did issue notices to three members of parliament in respect of an investigation of the conduct of those members. I have observed the operations of the ICAC for some time and in what I might comment was an unusual movement away from his usual practice the commissioner then engaged subsequently in a series of expansive media interviews on this particular issue.

Of course, those of us who followed this body from its inception have noted that in the very early years it was noted for its secrecy and the unwillingness of the commissioner to make public comment at all, or very rarely if that was the case. But as I said, in what I observe as a change of approach in his remaining days and weeks of being commissioner, the commissioner was very expansive in relation to these particular issues.

Having issued these notifications to three members of parliament, and as I said that was on 5 August, in a series of subsequent media statements he issued a public statement on 21 August which ventilated the issue significantly and publicly for the first time. He then gave a series of media interviews after that, including some on 1 September. I want to refer to one in particular where radio commentator from FIVEaa, David Penberthy, put the following question to the commissioner:

Just to be clear again, is it your view now that these are potentially matters, not of misconduct but of corruption?

The commissioner's answer was, and I quote him directly:

Yes. The investigation is in relation to corruption in relation to three members of parliament. I have separately asked a number of members of parliament for information relating to their claims but they are not being investigated at this stage.

The commissioner, through media commentary such as that particular one, then elevated the focus in relation to the investigations into this particular allowance. That is, through those notifications he had issued and public statements he had made in relation to those notifications and then subsequently those media interviews, he elevated the public discourse in relation to this issue.

The media commentary, I am sure you will know, from that day onwards was that the commissioner had confirmed that he was investigating corruption allegations in relation to three members of parliament. Subsequently, and I will not trace the history, those three members of parliament were identified publicly.

Dot point 2 notes that on 4 September, in the first few days after her appointment, the new commissioner, the Hon. Ann Vanstone, withdrew those particular notices—a significant event. It has not been interpreted, in my view, accurately by many in the media in terms of its significance. But as to those notices upon which the former commissioner made those statements in interviews to David Penberthy and others, the new commissioner withdrew those notifications in the first few days after her appointment.

Dot point 3, from the government's viewpoint and on the basis of the legal advice that we have had and also from legal precedent, not only in Australia but particularly in the United Kingdom and elsewhere, acknowledges that parliamentary privilege will not preclude a criminal prosecution against a member of parliament in relation to these allowances. The legal advice is it can be interpreted more broadly than that.

The legal precedents indicate that criminal prosecution can proceed against members of parliament and that parliamentary privilege in a whole variety of potential criminal offences against a member of parliament cannot be prevented through the mere fact of claiming parliamentary privilege. A member might claim it but the precedents indicate that they have been singularly unsuccessful if they have endeavoured to do that.

So dot point 3 is an acknowledgement, from the viewpoint of government members—and this is a position that the Premier has stated for a couple of weeks now. In his view, but in the government's view as well, parliamentary privilege should not be used as a shield—I think that was the phrase he might have used—to prevent criminal prosecutions against members of parliament.

If members of parliament have committed criminal offences, then the view of most people in the court of public opinion—and certainly the government's view would be the same—is that a criminal prosecution against a member should not be able to be prevented by the claim of parliamentary privilege. We are seeking the support of opposition members and crossbenchers to what we think is a simple statement of principle. That is, do we as a chamber believe that to be a fact? That is, a criminal prosecution should be able to continue or be proceeded with against a member of parliament and the claim of parliamentary privilege should not be able to stymie that particular investigation or prevent due process in relation to potential criminal prosecution.

Dot point 4 is simply a statement of fact. It is slightly different to the potential motion being moved or proposed to be moved in the House of Assembly in that we did note that the starting date in both chambers in March 2010 was about three weeks different. One house asked for all claim forms from 1 March 2010 to be tabled and the other house proposed that all claim forms from 20 March 2010 be tabled.

So the motion that we propose here refers to the period March 2010, but the motions in both houses a few weeks ago were slightly different for the purposes of the tabling of those statements and the request to the Auditor-General to cast his eye over those particular documents. It is of no great import, in our view.

We believe the substantive point of the commissioner withdrawing the notices and parliamentary privilege not precluding criminal prosecutions are equally substantive points in the motion. However, the final clause in the proposed motion, noting that all current members—and by 'current members' I am referring to, as I understand it, members of the Labor Party, because the Leader of the Opposition speaking on their behalf has made statements that he has either had statements from them or he has ordered them to assist the commissioner. Nevertheless, the public statements have been that they have cooperated with the ICAC investigation.

My understanding is that some crossbench members, or at least one crossbench member in the House of Assembly, have indicated a willingness to cooperate, or that they had cooperated with the ICAC. So the terms of this resolution are not just relating to Liberal MPs, it is talking about all current members. We understand all current members, Labor, Liberal and Independent, have publicly indicated they will cooperate with the current ICAC investigation. In particular, it now notes that, in respect of the three members the subject of the commissioner's public statement on 7 September, those three members have not and will not be claiming parliamentary privilege in respect of the request now made of them by the commissioner.

The commissioner's statement on 7 September did make some slightly differing comments in relation to the member for Narungga and did raise the question as to whether or not privilege might be claimed in relation to the current requests for information. The member for Narungga, together with the other two members referred to by the commissioner—all three—have made it clear that they, as I quote again, 'have not and will not be claiming parliamentary privilege in respect of the request now made of them by the commissioner'.

We believe, given the considerable debate there has been that in some way there is one rule for members of parliament and a different rule for others, it is correct that we are different in respect to the potential claim of parliamentary privilege, but no-one in the community, in our view, would support the view that a potential criminal prosecution against a member of parliament should be prevented by the claim or the attempt to claim parliamentary privilege.

This motion acknowledges that that should not occur and we, the government members, propose that we as a chamber indicate that as a shared position, but also, importantly, we acknowledge that in particular the three members who have been singled out by various statements have publicly acknowledged, after taking their own legal advice, that they have not and will not be claiming parliamentary privilege. I think it is important for us to note that.

It is my view and the view of government members that this should be an entirely acceptable motion. We respectfully request that members of the Legislative Council support the government in this principled position and this principled motion to acknowledge that the ICAC commissioner and her officers should be allowed to proceed with the work they have been asked to consider and they should be able to proceed and come to whatever determination, ultimately, they choose. With that, I urge the chamber to support the motion.

The Hon. K.J. MAHER (Leader of the Opposition) (15:14): I rise in part to support the government's motion. I want to reflect on a couple of points before getting to the substance of the motion. I note that this has been a very poor start to the current sitting of parliament after the winter break, in that we come to the chamber and are given a couple of hours' notice of a motion and we are expected to vote on it this very day.

It had been the opposition's intention to move a motion that would trigger the establishment of a privileges committee, if parliamentary privilege was being claimed on certain information or documents to do with the country members' accommodation allowance investigation that ICAC is undertaking. The statement on Monday, I think, has meant that that is not necessarily something that is needed. However, the motion that we were intending to move was distributed to members of this chamber over the weekend and, indeed, to—

The Hon. T.A. Franks interjecting:

The Hon. K.J. MAHER: To members of this chamber and, indeed, to the Treasurer and to the Premier in another place some days before it was to be considered, as opposed to the motion that we are considering now which was provided some hours before we were to consider it. It is a contemptuous way to treat members of this chamber, to be expected to vote on something with such short notice.

I also note the government's 180 degree turn and change of views on some of the things that are claimed in here. For weeks the Premier was not wanting to make a comment, claiming that he did not know what was being claimed; claiming he did not know what privilege was being claimed on, and he did not have any view on it. Very suddenly, in both chambers, the government has a very strong view which marks an exceptionally different point of view than they have been carrying for the last couple of weeks. I further note that the motion at paragraph 3 states:

Further, acknowledges that parliamentary privilege will not preclude a criminal prosecution against a member of parliament in relation to the CMAA;

I indicate that at the end of my contribution, very shortly, I will be moving an amendment to strike that paragraph out.

The Treasurer has claimed that no-one will be claiming parliamentary privilege, so it is not needed in any event, that if no-one is claiming privilege that item has no work to do. Further, I think the Treasurer mischaracterised what he understands by item C when he said that he understood item C to mean that it should not be used as a shield against prosecution. Well, that is not what part 3 says. Part 3 wants this chamber to agree that parliamentary privilege will not preclude a criminal prosecution against a member of parliament in relation to the country members' accommodation allowance.

Notwithstanding the Treasurer tells us that no member will be claiming such a thing, it is not the case that if the only evidence being relied upon in a prosecution properly has parliamentary privilege attached to it it may well prevent a criminal prosecution. If the parliamentary privilege which attaches is absolute—which parliamentary privilege is—it could prevent a criminal prosecution, so we do not think this statement is in fact correct and we will be seeking to amend it to remove item 3.

I foreshadow that later this week the opposition will be moving a motion that would establish a privileges committee, if any member claims parliamentary privilege on anything that could be before this ICAC investigation. It will be in very similar terms to what we are intending to move today, but the parliamentary privileges committee that it seeks to establish would only be triggered in the event of a claim of privilege. If no privilege is claimed—as the Treasurer has undertaken and assured the chamber is the case—then that privileges committee will not be established and the motion that the opposition intends to introduce later this week will have no work to do. With that brief contribution, I move:

That paragraph 3 be left out of the motion.

The Hon. M.C. PARNELL (15:18): Whilst we have only had this motion for a short period of time, I am not surprised the government has felt the need to put something on the agenda to be on the front foot, as it were, because this has been a difficult and embarrassing time, not just for the Liberal Party but for all of us as members of parliament.

In considering the issue of privilege, The Greens were inclined to support a privileges committee while claims of privilege appeared to be afoot. That seemed to be the best way to get to the bottom of that. What we now have is the Treasurer saying that there are no claims of privilege that are live. I think the general consensus would be that, if that is the case, a privileges committee here and now does not necessarily make sense. Of course, that does not mean that a privileges committee might not have work to do in the future, it just would not really have anything to do right now. That is my understanding of it.

Whilst we have not had a chance as a Greens party room to go through this latest motion, my personal view is that if it consists entirely of statements of fact, noting this and noting that, and if everything being noted or acknowledged is factual, then it is pretty hard to see why there would be a problem with it.

As the honourable leader of the Labor Party has pointed out, I believe there is a problem with the wording of what was given to us as paragraph 3, which reads that this house 'acknowledges that parliamentary privilege will not preclude a criminal prosecution'. I think perhaps what the Treasurer meant was 'ought not', but I do not think the Treasurer can say it will not as a matter of fact.

Honestly, if the only evidence available to support a prosecution was something that was a claim of privilege, I can tell you that privilege could win and all the charges could be thrown out because there would be nothing left to go on. I do not think that paragraph 3 as a statement of fact is correct and I think that it would be useful to delete that paragraph.

The other thing I note is in the final paragraph of the motion, which notes that:

…all current members have publicly indicated that they will cooperate with the ICAC investigation, and in respect of the three members the subject of the Commissioner's public statement published on 7 September 2020, those members have not and will not be claiming parliamentary privilege…

Without being pedantic, if the motion said, 'those members say that they will not be claiming parliamentary privilege'—it is not up to me to acknowledge that they will not, because they may change their minds. I am not convinced that even paragraph 5 is entirely accurate, but it is a matter of interpretation. If the proper interpretation of that sentence is that it is the public indications of those members that they have not and will not be claiming privilege, then that is probably fair enough. If that is what they said, then that is what they said.

Personally—this is the lawyer training coming out—lesson one of legal practice is do not make undertakings unless you are solely able to deliver. You do not make undertakings that rely on other people doing things. If that paragraph is interpreted as us stating as a statement of fact that they have not and will not be claiming privilege, then I cannot say that. I am happy to acknowledge that they have said it, but I am not going to say it. That might be a pedantic or a semantic matter. Otherwise, the remainder of the motion is factual. It is noting this and acknowledging that and I personally find that unexceptional.

I am looking forward to seeing what the opposition comes back with and whether they believe that a privileges committee still has work to do in the absence of any particular member of this council claiming privilege. That is a discussion that is worth having. Of course, if any member does claim privilege, then I think the committee approach is a very sensible one.

So, whilst we as the Greens party room have not formulated a formal position on this motion, I am fairly relaxed. I think that the removal of the third paragraph as indicated by the Leader of the Opposition makes it more comfortable for me to at least be voting in favour of this motion.

The Hon. C. BONAROS (15:23): Can I indicate for the record that our position is very similar to that which has just been outlined by the Hon. Mark Parnell. There is certainly some concern around paragraph 3 in terms of acknowledging that parliamentary privilege will not preclude a criminal prosecution against a member of parliament because that may very well not be the case in all instances.

I would also seek some clarity. I probably have not looked at it as closely as the Hon. Mark Parnell has in relation to paragraph 5, because I do not think it is just a matter of semantics. I think all of us would be very concerned about signing off on something that we cannot rule in or out either way.

I think it is impossible for us to rule out a member claiming privilege in line with paragraph 5. For the record, as it stands, as a matter of fact we do support the motion in principle. Our position would be that paragraph 3 ought to be removed in line with what has been outlined by the Hon. Mark Parnell and the Leader of the Opposition, and I would ask the Treasurer if he would be inclined to perhaps tidy up paragraph 5 to address the issues that have just been outlined by the Hon. Mark Parnell.

The PRESIDENT: I call the Minister for Health and Wellbeing.

The Hon. S.G. WADE (Minister for Health and Wellbeing) (15:25): Thank you, Mr President, and may I take this opportunity to congratulate you on your election to your esteemed post. I move:

In paragraph 5, after the words 'those Members have', insert the following words: 'indicated that they have'.

The Hon. R.I. LUCAS (Treasurer) (15:26): I thank honourable members for their contribution to the debate. I thank my colleague the Hon. Mr Wade who, at very short notice, moved an amendment. The procedures of the chamber, for those who are watching with great interest this particular debate, indicate that as I speak this is the end of the debate and I am not allowed to move a further amendment to my own motion. I take the kind invitation of the Hon. Mr Parnell and the Hon. Ms Bonaros but it was not one that I could take up, so the Hon. Mr Wade has moved the amendment on behalf of myself and the government.

I think the point in relation to paragraph 5 made by the Hon. Mr Parnell and the Hon. Ms Bonaros is reasonable. Therefore, the amendment I and the government members will be happy to support indicates that those members have indicated they have not and will not be claiming parliamentary privilege. It covers the point the Hon. Mr Parnell has made, that is that this is their stated intention and we all, in the absence of any evidence to the contrary, accept their stated intention, but it is what it is in relation to that. I have no issues with that.

I do not propose to prolong the debate other than to say that the government will be opposing the deletion of paragraph 3. We believe this is an important statement of principle the parliament should acknowledge, that is that if a body such as the ICAC wants to pursue a criminal prosecution against a member of parliament in relation to these allowances, we the government members would place on the public record that we do not believe that parliamentary privilege can be used to prevent it. I note the views of others in this chamber who are going to delete that. We will strongly oppose it and we will divide upon that particular issue.

We want the people of South Australia to know that the government members are absolutely intent on making it clear that parliamentary privilege should not and will not be precluding a criminal prosecution against a member of parliament in relation to these particular allowance issues. It is a position the Premier has put strongly on the government members' behalf. We think it is a position that the majority of thinking members of the community and the public would support, and I think they would be concerned that the Labor Party is proposing to delete what is a most important principle in this particular motion.

The council divided on the Hon. K.J. Maher's amendment:

Ayes 13

Noes 8

Majority 5

Amendment thus carried.

The Hon. S.G. Wade's amendment carried; motion as amended carried.