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House of Assembly - Fifty-Fourth Parliament, Second Session (54-2)
2021-09-07 Daily Xml
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Members

Member for Waite, Speaker's Statement

The SPEAKER (11:02): I address the matter of investigations by the Speaker undertaken early in 2020 immediately prior to the commencement of a police investigation and subsequent prosecution against the member for Waite about which there has been renewed interest in recent days.

I have, in considering all of the circumstances, taken up the matter and I have made inquiries, including to the court, in relation to matters of process and with a view fully to informing myself particularly of the evidence before the court and of its findings of fact. I am sufficiently able to deal with the matter now so I want to do that without delay.

On 17 January 2020, the Speaker announced that he had commenced a fact-finding exercise, the object of which was to find out particulars of what took place concerning alleged conduct of the member for Waite at a Christmas party held in the corridors of Parliament House during the afternoon of 13 December 2019.

On 5 February 2020, the Speaker advised the house that the reason for embarking upon the fact-finding exercise was the unsatisfactory circumstance that an allegation of harassment by one member against another was at that time beyond the jurisdiction of the Equal Opportunity Commissioner. Any investigation by the commissioner was otherwise consequent upon a complaint of which none had been received.

The Speaker at that time also adverted to the possibility of other investigatory and/or enforcement agencies, including SA Police, acting on a complaint or indeed that the house might adopt a course of action it considered appropriate to deal with the matter. It transpired shortly thereafter that a police investigation was commenced. That resulted in the member for Waite being charged with and subsequently tried for assault against the Hon. Connie Bonaros MLC. Following a two-day trial on 1 and 2 June 2021, on 24 August 2021 the magistrate handed down judgement. The member for Waite was acquitted.

On Thursday afternoon, 26 August 2021, I received a copy of the magistrate's reasons for judgement. Importantly, and particularly for present purposes, as well as dealing with the charge the reasons set out findings of fact in relation to the subject matter of the Speaker's investigation. Those findings of fact, which the court found proved beyond a reasonable doubt, are set out at paragraphs 25 to 29 of the reasons. They are numerous—more than 20 separate findings of fact—and they address what took place, where and when.

The court having made those findings of fact, it is not for the Speaker to gainsay those matters. There are, of course, processes available to the house and in the court to investigate any error. In the circumstances, the matter the subject of the Speaker's investigation is therefore overtaken by the police investigation and completed by the subsequent judicial process.

Honourable members, I make some observation in relation to the regulation of members' conduct. Members' conduct is regulated in many ways, including with regard to investigation and adjudication of complaints. I refer to the report of the Joint Committee on a Code of Conduct for Members of Parliament laid on the table on 26 October 2004, which sets out at paragraph 4.4 the provisions then regulating conduct of members. They did not then include such investigation or adjudication in respect of complaints by a member against another member, nor the later establishment of the ICAC.

The 2020 amendments to the Equal Opportunity Act have the effect of remedying that unsatisfactory circumstance. I emphasise that both the Speaker's investigation to determine particulars of what happened and the police investigation in this case took place prior to those amendments. By that later amending act, parliament also inserted section 93(4), expressly stipulating that the commissioner, relevantly, may not proceed to investigate a complaint until any criminal proceedings in respect of the same subject matter are completed.

Tellingly, it remains clear that the only role for the Presiding Member in relation to complaints to the commissioner arises in circumstances where a matter of privilege is raised; in this case, I am not aware of any such issue having been raised. Nor is it an ideal situation for the Speaker to undertake the work of an investigator—far from it. It places the Speaker in an invidious position. The Presiding Member is not a judge and, more particularly, does not sit in judgement of members.

The review of harassment in the South Australian parliament workplace undertaken soon after these events now further reinforces that view, finding at page 136.5, in respect of investigation by the house and, by extension, the Speaker, I quote:

…in the event that there was some kind of investigation process put in place, it is unlikely that victims would seek to have their allegations dealt with in this way; the process would not be viewed as sufficiently independent or confidential.

The review also finds that confidentiality in respect of witnesses and any subsequent investigation must be maintained in order to ensure confidence in the process for all concerned.

In all of the circumstances, I do not therefore intend further to undertake investigations into the matter. As the Speaker said in February 2020, and I reiterate now, there is nothing preventing any aggrieved person from making a complaint to any relevant body, at any time, or for the house to adopt a course of action it thinks is appropriate further to deal with the matter.

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