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House of Assembly - Fifty-Fourth Parliament, Second Session (54-2)
2021-11-18 Daily Xml
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Parliamentary Committees

Select Committee on the Conduct of the Hon. Vickie Chapman MP regarding Kangaroo Island Port Application

Ms MICHAELS (Enfield) (11:01): I bring up the final report, together with the minutes of proceedings and evidence, of the select committee.

Report received.

Ms MICHAELS: I bring up the report on the Select Committee on the Conduct of the Hon. Vickie Chapman MP Regarding the Kangaroo Island Port Application. On the 12—

The SPEAKER: I am advised, member for Enfield, that momentarily you must move first that it be noted.

Ms MICHAELS: I move:

That the report be noted.

Mr BROWN: Point of order: I believe the minister needs to move that it be published first, does he not?

The SPEAKER: I am advised that it is automatically published under the standing orders.

Ms MICHAELS: On 12 October 2021, this house resolved to establish a select committee to inquire into and report on the conduct of the Hon. Vickie Chapman MP in relation to her decisions and statements made to this house regarding the rejection of the Kangaroo Island port application made by Kangaroo Island Plantation Timbers (KIPT) in her capacity as Minister for Planning.

The resolution required the committee to author a report by today, 18 November 2021. By any measure, the committee's task was onerous when contemplating the time within which it was to be achieved. The committee was charged with the duty to establish the framework for the hearing of evidence, request and/or require witness attendance by way of summons, and from that evidence form both findings of fact and deliver consequential recommendations to this place.

This report of the committee is the culmination of difficult deliberations by the committee, after having heard all of the available evidence and in consideration of the closing submission of counsel assisting the committee, dated 15 November, and the submission by Ms Frances Nelson QC for the Attorney-General, dated 16 November.

I acknowledge the seriousness of the allegations against the Attorney-General. The committee has deliberated on the weight of the evidence that has been adduced from the witnesses before the committee, the submissions received and in delivering this report. The format for this inquiry was unprecedented in South Australia and rare in Westminster democracies.

Senior counsel's appearance and guidance was greatly appreciated by the committee. It enabled the committee to obtain impartial advice and expert assistance in the collection and collation of evidence, including the difficult task of examining witnesses and, further, it assisted the committee in ensuring the inquiry was conducted in accordance with the requirements of procedural fairness. The process was effective, successful and one which I believe ought to be adopted by parliamentary inquiries of a similar nature in the future to promote the interests of the public.

I acknowledge the invaluable assistance given by Dr Rachael Gray QC, counsel assisting the committee, and her instructing solicitors Mr Skip Lipman, Mr Rowan Tape and Ms Courtney Chow. The committee held eight public hearings and has spent many more hours in private deliberation considering the evidence advanced before the committee, compiling this report and formulating its recommendations.

A significant amount of information was gathered through the hearing of witnesses, the disclosure of government department documents, and other records, all of which contributed to the committee's understanding of the circumstances in relation to the Attorney-General's decision on the Kangaroo Island port application. That evidence identified concerning shortcomings in governance practices in the lead-up to and the actual decision by the Hon. Vickie Chapman MP.

I would like to acknowledge and thank those witnesses and submitters whose contributions assisted us in gaining a clearer understanding of the events surrounding the Attorney-General's decision to refuse the KI port application. The committee has, regrettably, also had to endure and manage witnesses who were entirely uncooperative and obstructive, and Mr Pengilly is a clear example.

I want to acknowledge the tireless work of Dr Joshua Forkert and Mr Adam Marafioti, Parliamentary Officers to the committee, and Ms Stefania Giannopoulos, Research Officer to the committee, for the collation of a significant volume of documents and extensive research provided to the committee. On behalf of the committee, I thank them all for their assistance.

Finally, in commending this report to the house, I would like to make the following brief observations. Ministers of the Crown hold a great deal of discretionary power and bear a great deal of responsibility in exercising that power. The Attorney-General, as the first law officer of the Crown, carries with her significant common law functions and duties. Ministers, in particular the Attorney-General and the Premier, must accept and uphold standards of conduct to the highest order. She did not do that.

It is with grave disappointment that this report demonstrates that those standards were seriously breached in this instance. South Australians deserve better. The quite remarkable criticism directed at Dr Gray QC by the Attorney-General and her representative is unwarranted. Dr Gray was appointed as an independent senior counsel to assist and advise the committee and upheld her role at all times. That role is significantly different to that of Ms Frances Nelson QC. Ms Nelson's role is to act for and advance the interests of the Attorney-General as a client.

That representation is clear from the submission by Ms Nelson QC for the Attorney-General dated 16 November. The language contained within those submissions simply seeks to promote the Attorney-General's private agenda, at best. Those submissions are entirely inconsistent with the evidence heard before the committee.

It therefore came as no surprise to me that Ms Nelson's submission simply sought to advance the personal and political interests of the Attorney-General from a subjective point of view, rather than the objective and impartial assessment of the evidence and analysis of legal principles in the approach adopted by independent counsel assisting and the committee itself. It is in these circumstances that I reject the submissions of Ms Nelson QC.

Finally, it must be stated that blatant denialism of objective evidence and plain truth does the Attorney-General no favour. Trumpesque at best, simply repeating that no-one has done wrong does not make it so. In terms of the factual findings and recommendations of the committee, I would like to briefly set those out now.

The overwhelming evidence before the committee—and I encourage members to consider the evidence themselves as set out in Dr Gray's closing submission—provides the basis of the factual findings of the committee that the Attorney-General, firstly, misled parliament while giving a ministerial statement on 26 May 2021 and answering a question from me on 25 August 2021 when she made comments to the effect that she had no pecuniary interest in the affected property or business of KIPT, nor any property or industry associated with or potentially impacted by the proposed wharf, and that neither the minister nor any family member or related entity owned property near or impacted by KIPT forests or the proposed port. This is referred to as statement 1 in the report.

Secondly, the Attorney-General misled parliament on 25 August 2021 during question time, when the Attorney stated:

There is no proposed route past [Mayor Pengilly's] house for loads of trucks.

This is referred to as statement 2 in the report.

Further, the Attorney-General misled parliament on 2 August 2021 while in estimates in response to questioning whether the government had commissioned its own assessment report for the best location for a timber port at Kangaroo Island when the Attorney said, and I quote:

The government had not commissioned its own assessment of a best location for that port to export timber from Kangaroo Island or to undertake a process…

and I quote:

…to look at where an ideal port would be to get timber off Kangaroo Island.

This is referred to as statement 4 in the report. In respect of these matters, the committee recommends that the house finds the Attorney-General guilty of contempt for deliberately misleading parliament following the committee's factual findings that statements 1, 2 and 4 were each false, were known to be false by the Attorney-General when she made them and were intended to mislead parliament.

The committee sets out in recommendation 1(d) a number of options available to the house to consider as penalties for each finding of contempt if it makes those findings. The committee's recommendation to the house in respect of this matter is to suspend the Attorney-General from the service of the house for nine days based on a punishment of three days' suspension for each finding of misleading the house.

The committee also made factual findings that the Attorney-General, firstly, acted in a position of conflict of interest, both actual and perceived, in relation to the development application for the Smith Bay port on Kangaroo Island arising by way of:

(a) the Attorney-General's property interests on Kangaroo Island, in particular the property owned on Western River Road directly across the road from the KIPT contracted forest; and

(b) the Attorney's friendship with Mayor Michael Pengilly who was an outspoken critic of the proposed port.

In respect of this matter, the committee recommends that the house finds the Attorney-General guilty of contempt for acting in a position of conflict of interest, both actual and perceived, based on the committee's factual findings. The committee's recommendation to the house in respect of this matter is to reprimand the Attorney-General and insist on a public and unreserved apology for her conduct.

The committee also made factual findings that the Attorney-General breached the Ministerial Code of Conduct due to her failure to disclose the conflict of interest. The committee recommends to the house that it makes such a finding and that the house considers the breach of the code of conduct involved conduct of sufficient severity to amount to contempt of this parliament. The committee's recommendation to the house in respect of this matter is to reprimand the Attorney-General and insist on a public and unreserved apology for her conduct.

The committee also recommends to the house that it considers referring the matter of potential legislative amendment in respect of major developments under the Planning, Development and Infrastructure Act 2016 to the Environment, Resources and Development Committee for inquiry and reporting. There was significant evidence before the committee concerning the undesirability of having a single decision-maker in respect to major developments, and we recommend that that be inquired into.

I note that the committee has resolved to defer matters set out in finding 11 of the report to the Ombudsman pursuant to section 14(1) of the Ombudsman Act 1975.

Again, I would like to thank my fellow committee members, counsel assisting and parliamentary staff who assisted in this report. This has been a monumental effort, but one which we did not shy away from given the seriousness of the allegations against the Attorney-General. I know that the members in this place understand the seriousness of this matter, and I know that they know the importance of upholding the privileges enjoyed by this parliament and protecting it from any contempt.

It is bitterly disappointing that the Attorney herself is so defiant in the face of all evidence presented to the committee that she is putting this house in this position. The job of this place now, Mr Speaker, is to consider the factual findings of this report and make decisions based on those findings of fact based on the evidence, and that is what I ask members of this place to bear in mind. I commend this report to the house.

Mr TEAGUE (Heysen) (11:13): Well, someone better quickly tell the member for Lee that he needs a copy of this pronto because yesterday he told us that tomorrow he would seek a suspension. More tea?

For those who are following along outside this building, I think we appear to have skipped along to chapter 11 of Lewis Carroll's illuminating text. Chapter 7 is complete. Now, that was somewhat delayed by the application of the standing orders, a modicum of due process reminding us that that is out there somewhere.

Members interjecting:

The SPEAKER: Order!

Mr TEAGUE: The application of standing orders yesterday served to provide further evidence of the embarrassment of those who were prosecuting this case, led by the member for Lee, yesterday. But we have moved right along from the mad tea party to the question that now appears to be before the house of who stole the tarts. Presumably, we are going to hear Alice's evidence at some point.

I do not have the benefit of the report in front of me, so I will address the submissions of counsel Gray that were made orally on Monday of this week and subsequently provided in writing. I might just indicate that in amongst all of the haste of the committee's work one thing it did do was provide the means for this material to be published so that it could be read and followed along at least to that extent.

In relation to conflict of interest, the Gray submissions address, and relevantly, those principles. They are at F.3, paragraph 154, page 48 onwards. This might be, I hope, of some service to the member for Lee as he leafs through the report that is now available. The rubber hits the road at paragraph 171. Dr Gray is right to advert to Charisteas and the High Court's test, as articulated earlier this year. It is indeed a three-step test: first, to identify what the issue might be; secondly, to connect the issue to the purported departure from an assessment on the merits; and then, thirdly, to take a look at the reasonableness of that asserted apprehension. So the test is uncontroversial.

It is important to point out, as Dr Gray does at paragraph 161, that there can be no conflict where a member is only affected as a member of a broad class, and we see that expressed, relevantly for those in this chamber, in our own statement—

Members interjecting:

The SPEAKER: Order!

Mr TEAGUE: —of principles for members of parliament that now finds voice in the code of conduct that was moved and incorporated into standing orders just this week, but there is nothing new about that. Further, when it comes to the assessment of the reasonable person, that reasonable person should be in possession of all the material facts and not only hearsay and assertion. I address further, at F.4, Dr Gray's expression at paragraph 188—

Members interjecting:

The SPEAKER: Order, the member for Mawson!

Mr TEAGUE: —of the importance of prejudgement and—

Mr TRELOAR: Point of order, Mr Speaker.

The SPEAKER: Yes, member for Flinders.

Mr TRELOAR: The house listened carefully and quietly to the member for Enfield and I think the member for Heysen deserves the same.

The SPEAKER: He certainly does, and it is for that reason that I asked the house to come to order and particularly identified the member for Mawson. The member for Heysen has the call.

Mr TEAGUE: I am at paragraph 188, where Dr Gray sets out and distinguishes relevant conflicts of interest from principles relating to prejudgement. For reasons that I will describe briefly in the very short time that is available to me, prejudgement is very much at the heart of what is relevant to this house's consideration of this report let alone the consequences that might flow, the very serious consequences that are said to flow that we heard about from the member for Enfield just now.

The committee, in my view and on my reading of the submissions, appears not to have inquired in any meaningful sense into the facts of the matter. Facts that were adduced were almost entirely from evidently disappointed proponents of the project—KIPT and those associated with it. While it might be expected that unsuccessful proponents who had prosecuted a case for several years might be disappointed, the consequence does not lead ipso facto to these outcomes. The connection appears to have been assumed.

In truth, this is a matter that is finely balanced. It has exercised those charged with the responsibility for making the decision since at least October 2016, going back to the previous government and over a number of ministers. Those matters are set out in the chronology provided by Ms Nelson QC at paragraph 3.

With respect to the impugned statements, in my view, seen in the light of the committee's process, it is obvious that the committee did not undertake the sort of genuine inquiry that would be necessary with regard to the impugned statements. I will address only statements 1 and 2 because, in my view, statements 3 and 4 speak for themselves.

It is important to put on the record that the unchallenged evidence of the Attorney-General is that she did not know that the forest adjacent her land on Kangaroo Island, at the very far western end of the island, was under contract to KIPT, as it remains privately owned. It is well known and uncontroversial that the forest had been there for 30 or 40 years and that at some stage it would be harvested.

Moreover, the fact that trucks could attend to move logs from that forest is not something that is consequential upon anything that the Attorney needed to determine. With respect to statement 2, it is also uncontroversial that haulage routes were not a matter determined or settled by reference to the assessment process at the stage that it had reached.

Moreover, and specifically because it was the focus of the committee's work, with regard to conflict it is important to note that far from 'blindly barrelling on' as counsel Gray put it on Monday—rather pejoratively, in my view—the Attorney turned her mind to this matter and, in line with ICAC's June 2021 guide (and see in particular page 9 of that guide), evidently, because it is on the public record, kept returning to the matter, including as recently as in May 2021, contrary to the case that was put to the committee.

The primary defects here are, first, the evident prejudgement, particularly the member for West Torrens, but also permeating throughout the process there is an evident fait accompli that is associated, even prior to the receipt of the submissions on behalf of the Deputy Premier. The member for Lee's notice of motion of no confidence yesterday was startling evidence of precisely this and invites risible analogies to the circumstances of General Sir Anthony Cecil Hogmanay Melchett in the trial of Blackadder.

Members interjecting:

The SPEAKER: Order!

Mr TEAGUE: Secondly, an extension of that taint of prejudgement is the extraordinary lopsided and one-eyed process adopted by the committee. Counsel really is more accurately described as a prosecutor engaged for the purpose. I note that it is odd here that the champion of parliament's supremacy and its capacity to determine these things appears not to have had the confidence himself to take on this task. And the haste—I might say the breathless haste—of the committee to complete its work—

Members interjecting:

The SPEAKER: Order!

Mr TEAGUE: —speaks very loudly to prejudgement at the core of all this. It is particularly galling for counsel to have drawn comparison with select committees of the past. She does so at paragraph 122, page 39. This was anything but one of those august select committees. To compare it to that associated with Federation is extraordinary. I ask: where is the attendant public outcry? Where are the people marching in the streets in relation to this issue? It lacked almost all of the features of a thoroughgoing inquiry, beginning with good faith and objectivity.

The grave conclusion here is that there may be serious consequences indeed for the subject of the committee's inquiry. There are even more serious consequences for the reputation and good standing of this house. It should be rejected, as it brings the house into disrepute.

The SPEAKER: Members, before I call a further speaker, I return to a question asked earlier in relation to whether a report of a select committee would be published under the standing orders without further action needing to be taken. I draw members' attention to standing order 346:

Report brought up

When a report of a select committee has been brought up,

1. the report is published;

2. the report may be read;

3. to permit debate on the report, a motion is moved (no amendment being allowed) 'That the report be noted'.

That process has been followed. Further speakers?

Ms MICHAELS (Enfield) (11:24): I want to thank the member for Heysen for his contribution and raise a couple of matters in response. This inquiry was very document driven. Much of the evidence was in the documentation itself and confirmed by the witnesses, including witnesses from the Public Service themselves and from the minister's office and other impartial witnesses not related to KIPT. All of those witnesses were on the face of it fair and honest in their responses to this inquiry.

In relation to the statements that the member for Heysen referred to, again the documents themselves cannot be ignored when the Attorney-General received two assessment reports with truck routes in them—one from the Chief Executive of the Department for Infrastructure and Transport, who gave evidence that they were agreed truck routes. In the 2021 assessment report, where it talked about the salvage operation to get the logs that were burnt from the fires, the assessment report itself, which the Attorney stated she had a good read of, has a map with her property on it along one of those routes. These are objective facts from the documents.

The house itself set the deadline of today. We worked towards that in as fair and impartial and prudent a manner as the committee could, and I want to put that on the record and thank the committee for that.

Motion carried.

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